On the conceptual link between sovereignty and legitimacy

Sovereignty plays a role in many contexts, from religion to political philosophy to law. In law, it is used in the context of constitutional law and international law first and foremost. Particularly in constitutional law, it is often linked to legitimacy, with some scholars arguing that to sever the link between the two is conceptually wrong; that there is a necessary conceptual link between sovereignty and legitimacy. In this contribution, it is argued that the concept of sovereignty is too vague to support such a strong claim. Instead, it depends on which conception of sovereignty one presupposes. To demonstrate this, the author analyses three conceptions of sovereignty in constitutional law and their link to legitimacy: first, the Austinian conception of sovereignty as a social fact (in the sense of habitual obedience by a population of someone not in the habit of habitually obeying another entity); secondly, sovereignty as a legal status attached to an entity by law; and thirdly, sovereignty – in particular popular sovereignty – as an ideal or principle in law. In how far do these different conceptions of sovereignty have a legitimizing function? These analyses do not suggest that there can be no link between sovereignty and legitimacy, but that this link is not a necessary, conceptual one. The contribution closes with a plea for more specificity and transparency in the use of the term sovereignty.