Scotland (it has been suggested/decided/refuted) may need to jump through several hoops in order to negotiate entry into the EU and other International bodies. (Then surely so would England, Wales and Northern Ireland as they too will become constitutionally a ‘new state’). International Law will flounder over this matter as it is primarily a political issue while International Law is (most of the time on matters of nation and state)  less than authoritive or even helpful. Much of what passes for international constitutional arrangements are through convention or political agreement.

What is required is a reading of historical constitutional conventions and practice and then from that understanding, look at the possible way forward for Scotland.

Scottish sovereignty in the historical context of a reading of important texts on the 'British constitution' (sic) creates innumerable legal conundrums and indeed legal fictions. We are minded to quote De Tocqueville who suggested that “ the English constitution has no real existence.”

The lead authority tends to be AV Dicey in his   INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION (1885) who provides cultural insights into the wider academic thinking of the time when he writes in his prologue that his book deals with “two or three guiding principles which pervade the modern constitution of England'.  His text repeatedly refers to the ‘make up of the constitutional law of England’.

 He was not alone in his reading of the UK constitution as an English instrument; part law, part custom, part the work of ‘cunning lawyers’ and “political conventions rather than rules of law”. He offers other notable constitutionalists as in Bagehot’s ‘English Constitution’, Hearn’s ‘Government of England’, Gardiner’s ‘History of England’, Freeman’s  ‘The Growth of the English Constitution’ and of course Blackstone’s ‘Commentaries’ with his remarkable, “The King of England is therefore not only the chief but properly the sole magistrate of the nation, all others acting by commission from and in due subordination to him.” Dicey naturally refutes this with,” the executive of England (sic) is in fact placed in the hands of a committee called the Cabinet.”

Such is the foundation of British constitutional studies (amplified in Dicey's eighth edition of 1914 with references to Dominion law and the Imperial Parliament) with its narrow interpretation of constitutional law and what constitutes sovereignty.

Politically, Dicey quite vehemently opposed the entire Irish Home Rule initiative and urged delay in the granting of increased sovereignty to the Dominions of Canada , Australia and South Africa.

Dicey’s analysis and opinions were of course part and parcel of a discourse emanating  from a historical context in which it appeared that the vast horizons of the British Empire at its zenith (1880s-1914) was ruled by English law. Imperial Law was situated in its capital London and the centre of its power shared within a troika of Buckingham Palace, Westminster and Whitehall. For Dicey and his many colleagues the nation of England was the de facto state of the Empire given legitimacy by his erudition and history.

Scotland and its sources of power and influence meanwhile tacitly (some enthusiastically) agreed with this Unionist formulation as the benefits of the near 300 years of Imperial  expansion  and exploitation had provided Scotland’s elites  with capital, opportunities and a seat in the box-room of power.

It was the glorious idea of the Empire that attracted our betters in Scotland to initially accept the 1707 deal and then to send their sons and nephews to manage it (book- keeper it). They sought  out adventures of advancement in odd locations around the globe like Hong Kong, Afghanistan  and far away Australia.

 The 1707 treaty took off the shackles of ‘alien’ on Scots traders and merchants, permitting them to engage wholeheartedly in both the slave/sugar/tobacco- trades  and ( nastier) Asian adventures. The ever opportunist ‘jock-thampson and his bairns’ (jtbs) ignored the poet’s songs  of sovereignty , ignored Adam Smith’s  anti-imperial liberalism and ignored the indignity of having a de facto English constitution under which  they were ruled and did their ruling.

Weber’s nation as a ‘community of sentiment which would find its adequate expression only in a state of its own and which thus normally strives to create one’ could not, would not find expression while the Union Jack was being raised around the globe (often by Jtbs). The Barbadian novelist Austin Clark in his ‘Growing up Stupid Under the Union Jack’ argues that English imperialism hurt both the  colonised and the colonizer.

But now the Empire is over. Next year Scotland will celebrate (amongst other things) the hosting of at least 54 independent states (formerly parts of the Empire) in Glasgow for the Commonwealth Games. As well as the 54 who have gained sovereign statehood  (managed their own pensions and post-offices) there will be about 20 others (Scotland included) who have been accepted into the games without being full-state members of the Commonwealth . (International Law and political arrangements are ever  incongruous.)

It is within this new world of post-colonial/post-Soviet  realities of  new political cultures, redefining  sovereignties  reformulating  what  and who determines self-determination  that Scotland now finds itself . Scotland may have found release from the hegemony of the empire’s dreamscape but there is the new ‘imagined community’ of European authority.  But (the Glasgow word that speaks for all of us) Scotland can (post 2011) claim the political-legal legitimate authority to seek a new liberal shared sovereignty within Europe.

But (again) let us not fall into the historical romantic legalist fiction that sovereignty is wholly self-determined through a successful referendum. We live in a real world brought to us daily in vivid images (more often on Al Jazeerah rather than BBC) of a post-sovereign world in which drones navigated from Tampa Florida can strike across borders from Afghanistan to Timbuktu while many of our laws are now  printed in Brussels.

For let us not forget,  that sovereignty initially meaning the laws proclaimed by the sovereign (the crown) and then redefined by Dicey as the laws of Westminster  requires a fresh definition  in this  post-Diceyean post-sovereign globalized age.

 It is in this new post-sovereign political paradigm (articulated with great erudition by the late Sir Neil Mac Cormick) that Scotland must take the role of the lead actor in its own negotiated,  portioned political destiny. Scotland has enjoyed (the potential of) internal sovereignty with its self-defining constitutional and legal characteristics but too often (jtbs) have been willing to see that sovereignty denigrated. Now the challenge is to successfully realize both internal and external sovereignty and for this our constitutional education has to move beyond Dicey.

Might I suggest that we should begin with a popular examination of the work of the late patriot and political academic Sir Neil MacCormick.  In a passage from an essay he wrote for Scottish Affairs in 1995 ‘Sovereignty : Myth or Reality’ he gives us a sample of his  scholarly thinking (and wit) on the issue of  sovereignty:

‘The key question becomes whether there can be a loss of sovereignty at one

level without its inevitable and resultant re-creation at another. Is sovereignty

like property, that can be given up only when another gains it? Or should we

think of it more like virginity, that can be lost by one without another's

gaining it - and whose loss in apt circumstances is even a matter for

celebration? I take the latter view. I welcome the prospect of Europe beyond

sovereign statehood. The idea of subsidiarity points us to better visions of

democracy than all-purpose sovereignty ever did. There is a possible future

reality preferable to the past of nostalgic mythology.’

His birthday (soon upon us) should once again be publically celebrated.  Meanwhile his insightful understanding of Scotland and its rightful role in the new Europe  is  sorely missed.