Constituent Powers and Real Powers in the 'True Federative System' of Europe

This paper begins from the analysis of Friedrich Gentz, onetime student of Immanuel Kant and later Secretary-General of the Congress of Vienna, of what he described in 1806 as the collapse of the 'true federative system' [wahres Föderativ-System] that had governed Europe (and so indirectly a global order) from the 1648 Peace of Westphalia down to the end of the 18th century. From this point of departure, I propose a general theoretical account of the relations among constituted, constituent, and what I call 'real' powers in the establishment and maintenance of such federative systems. I argue that so-called 'constituent' powers, such as sovereign states or peoples, are artifacts of a legal order that at once presupposes and makes possible an underlying agreement securing a general peace among real powers, and so attention to the conditions of such a peace must always constrain appeals to 'sovereign' rights of entry, exit, and reform.