Presentation Format

Panel speakers have 10-15 minutes to present their paper, followed by 5-10 minutes of discussion time per paper.

Programme

Thursday 1 October

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
• Protest as a Locus of the Rule of Law
  Michal Stambulski, Erasmus University Rotterdam
• Organizing Public Power: Institutional acts and institutional capacity
  Tarjei Ellingsen Røsvoll, University of Inland Norway

13:00–14:00 – Lunch

14:10–14:50 – Panel 2: History of Potentia 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

14:50–15:00 – Tea Break

15:00–15:40 – Panel 3: History of Potentia II

• The Disappearance of Potentia from Constitutional Thought: the Case of Nineteenth Century Dutch Constitutional Scholarshi
  Niels Graaf & Jerfi Uzman, University of Amsterdam
• Disciplinary Revolution under the Meiji Government
  Yasuo Hasebe, Waseda University

15:40–15:45 – Leg Stretch

15:45–16:45 – Panel 4: Potentia at and Beyond the Border

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

16:45–18:00 – Drinks Reception

18:30–20:30 – Dinner

Programme

Friday 2 October

9:00–9:10 – Recap

9:10–10:10 – Panel 5: Military Potentia

• The Chekhov’s Gun Dilemma in Constitutional Design
  Bryan Dennis Tiojanco, University of Tokyo
• A Swedish Principle of Distinct Civil and Military Potentia?
  Tormod Johansen, University of Gothenburg
• Potentia in AI-driven Military Targeting Practices
  Gregor Noll, University of Gothenburg

10:10–10:30 – Coffee Break

10:30–11:10 – Panel 6: Potentia and EU Law

• Law, Knowledge and Policy: Constitutive Powers in the EU Administration
  Joana Mendes, University of Luxembourg
• Borrowing Potentia through Conditionality: EU Crisis Funds
  Bela Strauss, Netherlands Council of State

11:10–11:15 – Leg Stretch

11:15–11:55 – Next steps

Future Workshops, Publications, Collaboration

11:45-12:45 – Lunch

End of workshop

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.