alain wijffels was notionally transferred to the people or the nation.9 Finally, during the last decades of the twentieth century, it has become apparent that the paradigm of exclusive sovereignty is making way for a return to a paradigm of competing sovereignties – not of course, a return to the medieval political actors, but a fresh and continuously evolving combination of public and private actors who, both in domestic and international affairs, are more or less legitimately exercising in various ways some of the attributions which had before been identified with powers and attributes of the sovereign national state.10 One would expect that such a very general scheme expressing the development of sovereign power in European history would be reflected in the history of courts. However, it appears that that assumption is only partly true. Judicial powers, in the western tradition, tend to be somewhat out of step with the developments of political powers. The divergence is certainly not complete, but it is nonetheless sufficiently significant so as to warrant a distinct historical narrative, which shows to what degree courts expressed the prevailing concept of political sovereignty in their time, and also to what extent they have challenged the distribution 9 Some earlier examples can be found. Perhaps the most famous in constitutional history is the English Bill of Rights of 1689, in which – with some of the inevitable ambivalence characteristic of a transitional stage – repeated reference is made to “the people” or “the Nation” represented by Parliament. These references did not amount to establishing the realm as a democracy (in the sense of that phrase in the at the time prevailing political theory). Rather, it may be said that the Bill established the realm more firmly as an oligarchy (viz. of the interest groups represented in Parliament) than (as the Stuarts would have had it) as a monarchy. The ensuing doctrine of parliamentary supremacy or even parliamentary sovereignty shows that the early-modern theoretical model of an exclusive sovereignty (albeit with significant adjustments) was largely upheld, though transferred (with some qualifications) from the monarch to Parliament. Thus, even an early-modern Parliament could express exclusive (and absolutist) sovereignty. 10 One may distinguish between those powers and attributions traditionally linked with public authority, and those which are not necessarily associated with the regalia. The devolution of legislative and executive powers to regions, which has occurred over the past decades even in some countries with a strong tradition (over the last two centuries) of centralised government, is an example of the erosion of the national state’s public authority. On the other hand, the privatisation of many services which had often come into the hands of the state or state-related companies (e.g. utilities of energy, water-supply, communications, post…) and were in some countries regarded as “public services”, has, especially since the 1980s, also contributed to erode, or at least modify, the image and understanding of the state in the eyes of public opinion. 37
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