Venue: Faculty of Law, University of Amsterdam

Dates: 1 October, Thursday 11:00–17:00 & 2 October, Friday 9:00–14:00

The concept of 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. Potentia offers 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”.¹

For Oakeshott, the concept of potentia captures “the actual physical power a modern government disposes [of].”² 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.”³

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.

1 Oakeshott, “The Character of a Modern European State,” 363.

2 Various authors refer to potentia using alternative terms—including operational powers and factual capacity, infrastructural power and gouvernmentalité, and state capacity.

3 Oakeshott, “The Character of a Modern European State,” 365–66.

Workshop and submission guidelines

The aim of the workshop is to work towards a special issue on potentia and public law in an international or European constitutional law journal. We ask experts of public law to present papers on the connection between law and the buildup of potentia.

Participants may address theoretical questions about the concept of potentia. What is the potential of the concept of potentia for their own research? What does the concept lack? What tensions arise in relation to other concepts they engage with? How does potentia relate to the theoretical principles or foundations underpinning the law of their field of expertise?

Participants are also invited to look at the positive law (domestic, regional, or international law) of their field of expertise to see whether concrete legal arrangements address or ignore the issue of potentia and its buildup. Are there legal arrangements in place that constrain the buildup of potentia in terms of its quantity, quality, duration, and layout? Are there legal arrangements organizing physical counterforce to existing potentia? What is the role of the law when the quantity, quality and/or layout of potentia are insufficient?

We are particularly interested in contributions that discuss the connection between law and the buildup of potentia in the area of the military, migration policy and information technology. Still, we also welcome contributions on other policy areas.

We explicitly ask participants to look at the relationship between law and the buildup of potentia, not its exercise. Also, we do not expect participants to conduct any new research for this workshop, but to look afresh at their existing research.

Paper proposals

Paper proposals should consist of working title and abstracts of up to 500 words. Preferably, the abstract contains some bibliographical references. The proposal should also include the author’s affiliation(s), a short bio, and contact details.

Please submit your proposal to potentia.and.public.law@gmail.com by 15 May 2026.

Important Deadlines

• Abstract submission: 15 May 2026

• Notification of acceptance: 29 May 2026

• Draft paper: 1 September 2026 (about 7,000 words footnotes included)

• Workshop: 1–2 October 2026

Funding

The organization will provide for lunch (Thursday and Friday) and dinner (Thursday).

Limited funding for travel and stay in Amsterdam may be available for early career scholars.

Reference literature

Griffin, Stephen. 2013. Long Wars and the Constitution. Harvard University Press.

Hood, Christopher, and Helen Margetts. 2007. The Tools of Government in the Digital Age. 2nd ed. Basingstoke: Palgrave Macmillan.

Loughlin, Martin. 2010. Foundations of Public Law. Oxford: Oxford University Press.

Oakeshott, Michael. 2006. ‘The Character of a Modern European State.’ In Lectures in the History of Political Thought, edited by Terry Nardin and Luke O’Sullivan, 363–78. Exeter: Imprint Academic.

Oakeshott, Michael. 2006. ‘Medieval Law.’ In Lectures in the History of Political Thought, edited by Terry Nardin and Luke O’Sullivan, 291–303. Exeter: Imprint Academic.

Schotel, Bas. 2021. ‘EU Operational Powers and Legal Protection: A Legal Theory Perspective on the Operational Powers of the European Border and Coast Guard.’ German Law Journal 22: 625–49.

Schotel, Bas. 2018. ‘Immediacy, potentia and constraining emergency powers.’ In Temporal Boundaries of Law and Politics: Time Out of Joint, edited by Luigi Corrias and Lyana Francot, 192–203. Abingdon and New York: Routledge.