Program

Thursday, October 1

11:00–11:05 – Welcome

11:05–11:45 – Opening Remarks

Potestas, Potentia, and Public Law
Martin Loughlin, London School of Economics and Political Science

11:45–12:00 – Introduction to the Workshop

Bas Schotel, University of Amsterdam

12:00–13:00 – Panel 1: Potentia and Theories of the State

On the Constitutional Necessity of Potentia
Marco Goldoni, University of Glasgow

The Power and Potency of Nature: Fragmented World War and the Crisis of Sovereignty
Mårten Björk, Lund University and the Newman Institute

Organizing Public Power: Institutional acts and institutional capacity
Tarjei Ellingsen Røsvoll, University of Inland Norway

13:00–14:00 – Lunch

14:00–15:00 – Panel 2: Conceptual Frontiers

How Understanding the Relationship between Potentia and Potestas can Reveal the Power Dynamics Operating within a Particular Political Environment
Michael Dowdle, National University of Singapore

Protest as a Locus of the Rule of Law
Michal Stambulski, Erasmus University Rotterdam

Citizenist Biopolitics of a Post-Heroic World
Dimitry Kochenov, Central European University

15:00–15:10 – Tea Break

15:10–15:50 – Panel 3: History I

The Potentia of the Roman Emperor Augustus
Jacob Giltaij, University of Amsterdam

Legal Norms and Governmental Power in 19th century East Asia: Tradition and Modernity in Property and Land Taxation
Kentaro Matsubara, University of Tokyo

15:50–16:00 – Tea Break

16:00–16:40 – Panel 4: History II

The disappearance of Potentia from Constitutional Thought: The Case of Nineteenth Century Dutch Constitutional Scholarship
Niels Graaf & Jerfi Uzman, University of Amsterdam

Disciplinary Revolution under the Meiji Government
Yasuo Hasebe, Waseda University

16:40–16:45 – Leg Stretch

16:45–17:25 – Panel 5: Too much or too little potentia?

Potentia Beyond Jurisdiction: Operational Capacity and the Governance of the Ocean Commons
Niels Krabbe, University of Gothenburg

The Power of Potentia and the Reception of Asylum Seekers
Lieneke Slingenberg & Martijn Stronks, Vrije Universiteit Amsterdam

17:25–18:30 – Drinks Reception

19:30–21:30 – Dinner

Program

Friday, October 2

9:00–9:10 – Recap

9:10–10:10 – Panel 6: Potentia and EU Constitutional & Administrative Law

Law, Knowledge and Policy: Constitutive Powers in the EU Administration
Joana Mendes, University of Luxembourg

Containing EU Factual Power through Law
Florind Coman-Kund (tentative), Erasmus University Rotterdam

[The Cooperation between Frontex, Leonardo and the University Politecnico di Torino]
Agostina Pirello, Utrecht University

10:10–10:30 – Coffee Break

10:30–11:10 – Panel 7: Military I

The Chekhov’s Gun Dilemma in Constitutional Design
Bryan Dennis Tiojanco, University of Tokyo

The Buildup of Swedish Military Potentia and International Law
Petter Danckwardt, Örebro University

11:10–11:15 – Leg Stretch

11:15–11:55 – Panel 8: Military II

Potentia in AI-driven Military Targeting Practices
Gregor Noll, University of Gothenburg

State of Siege in History: Potentia and Constitutional Form in Europe’s Centre and Periphery
Cosmin Cercel, Ghent University

11:55–12:15 – Next steps

12:15–14:00 – Lunch

Potentia

Legal and political thinkers have long fixated on potestas: the authority of states and officials to issue binding decisions, whether to build a dam or declare war. Yet they have largely neglected its cognate, potentia: the capacity to factually act and mobilize resources, from engineers to armies. This neglect distorts our analysis of today’s global age of rearmament. Rising military tensions, culminating in Russia’s war on Ukraine, have led Europe, Japan, and other countries to accelerate defense spending. Potentiaoffers a conceptual bridge linking constitutional analysis, democratic theory, and administrative law, illuminating the institutional risks of this military ramp-up. 

The legal powers of states, their authority to decide different matters, have waxed and waned historically. In contrast, potentia, the resources and concrete capacity to act, has expanded relentlessly. Modern states command vast reservoirs of potentia or operational powers. As Michael Oakeshott observed, they have become “exceedingly powerful” and possess “actual power … of a magnitude unknown in earlier times to any government”.

For Oakeshott, the concept of potentia captures “the actual physical power a modern government disposes [of].” This includes civil, police, and military personnel; records and card systems; passports and border controls; information channels; standardized language, maps, and time measures; telecommunication networks; effective tax collection, and so forth. In short, all the human resources, infrastructure, equipment, and information that allow states “to control men and things.”

Today the growth of potentia is not one-directional. In many countries traditional pockets of potentia are unwound due to budget cuts, e.g. welfare facilities, health care, education, law enforcement, while remaining significant in absolute terms. In other areas potentia is expanding, such as border control and the military. On top of this, potentia available to private corporations is both integrated to state power and in competition with it. IT firms, telecommunications providers, and defense contractors supply the core infrastructure of our information societies, making them crucial nodes in mass surveillance. They have also taken over state functions—such as welfare administration and border control—that have been outsourced to them. 

With a few notable exceptions, such as Martin Loughlin, legal scholars have not directly picked up the concept of potentia. Still, legal scholars are aware that the growth and increase of potentia – without calling it so – comes with the risk of misuse. In effect, legal scholars seek to understand how the law may constrain the exercise of public power, including factual power or potentia, to ensure it does not amount to the arbitrary exercise of public power (e.g. legality, rules of conduct, principles of good administration, fundamental rights, human rights monitoring, civil and criminal liability, etc.).

We explore a different perspective on potentia. Rather than looking at the exercise of potentia, we look at its buildup. We are interested in whether the law may also constrain the buildup of potentia in terms of its quantity, quality, duration, and layout. Also, we want to investigate the possibility of legal arrangements that put in place physical counterforce to existing potentia. Moreover, we want to look into the role of the law in situations where the quantity, quality, and layout of potentia turn out to be insufficient or inadequate. Finally, this alternative perspective on potentia raises a fundamental preliminary question of public law: whether the buildup of potentia or operational powers is a matter of the law and legal scholarship. We are particularly interested in legal arrangements relating to the buildup of potentia in the areas of national security, migration policy, energy, and information technology.