Burying Sovereignty All Over Again: A Brief Review of Don Herzog’s Sovereignty RIP

Don Herzog’s Sovereignty RIP is a great read and I highly recommend it. It is extremely well written and it has a compelling argument. It focuses on what it refers to as the classic theory of sovereignty under which “every political community must have a locus of authority that is unlimited, undivided and unaccountable to any higher authority” (page xi). In this brief review, I argue that while the discussion in the book is compelling it left me wanting to see a broader exploration of issues of race and identity that have been central in the rewriting of international legal history in the last two or so decades. This rewriting of international legal history has inaugurated a rethinking of sovereignty particularly by showing its close association with orientalism, racism and slavery, a literature that the book does not engage with. As a separate point, I want to note that the book’s emphasis on problems and solutions rather than obscure theories brings to mind similar recent emphasis in the work of Monica Hakimi and Ian Hurd. (Indeed, Herzog, citing Hakimi notes, that:

“the command theory [of law] occludes our vision of important features of law, and not just in the international context. It matters enormously that international law is full of critical justificatory resources, and that states regularly use it to argue,” id. at 248)

Quite early in the book, Herzog tells us that sovereignty in early modern Europe “was a weapon of state-building and a world soaked in blood, awash in cruelty” page 24. He argues that the classic concept of sovereignty “appears over and over again in actual historical settings, in political and legal struggles, not just in learned tomes” id. Indeed, he is more interested in what he calls the “the puttering and nattering” of ‘lesser figures’ than of ‘distinguished works of theory,’ page 33. Herzog is emphatic that he does not want to be “distracted by obscure conceptual pyrototechnics.” Instead, he is concerned with problems and solutions rather than causes and effects (page 13). In the preface, he says he is not interested in “discourse, but in the efforts of actual people to solve actual problems,” page xiii. He is skeptical of both idealist and materialist (the notion that economic interests drive social and political change) explanations of change. For Herzog, theory alone does not cause conflict (page 95).

After defining the classic theory of sovereignty as unlimited, undivided and unaccountable to any higher authority in chapter 1, the book then proceeds to show how it is limited, (chapter 2), divided, (chapter 3), and held accountable, (chapter 4). The last chapter titled ‘Remants’ makes an argument about ‘where we are’. In chapter 2, he wants us to know how the fight between King Charles I and Parliament, among other ‘commotions’ in English politics and law (page 63), show how the concept of sovereignty is limited. He traces how sovereignty was understood in the work of theorists from Robert Filmer, to Bodin to Hobbes to Blackstone and much later to Bentham and John Austin. American innovations in the 18^th century are traced to the likes of John Adams, Tom Paine and John Wilson who Herzog argues “clearly grasped the case against unlimited sovereignty” (page 78). In concluding Chapter 2, Herzog acknowledges that ‘constitutional limits [e.g. through separation of powers and federalism] don’t gut the concept of sovereignty’ (page 92). In chapter 2, he also illustrates how the classic concept of sovereignty is divided and in so doing discusses ‘disputes between colonies and mother countries,’ (page 96) and the ‘putative jurisdictional division of labor this entailed’ (page 100) with colonists seeking ‘jurisdictional autonomy’ (page 105).

Seen through my eyes, the book’s effort to dissect the classic concept of sovereignty comes with some costs. First, this ferocious focus glides over the deeply Eurocentric, American-centric, orientalizing assumptions embedded in these discussions and discourses of sovereignty. For example, in the discussion of Henry Cape in English parliamentary debates, Herzog notes in part, “We are slaves if be so, and no freer than in Turkey. We know the king has prerogatives, but to say ‘he has a Dispensing Power,’ is to say, ‘there is no law” (page 65).

In my view, this reference to ‘no freer than in Turkey’ and there being no law in Turkey sounds to me as a form of orientalism – -England was free, Turkey was not, and slavery reigned in Turkey. By contrast, England had law and Turkey had no law. These are clearly not Herzog’s views. In fact, he might perhaps admonish me for advancing a kind of anachronism by zeroing in on the orientalism underlying the discussion Turkey in the book I have alluded to above. He might refer me to a similar argument that he makes on page 14 (directed at sovereignty scholars) where he rejects:

“the habit of some theorists to translate all kinds of terms for political authority or leadership as sovereignty, to conscript authors scattered across centuries and continents as theorists of sovereignty.”

To be fair, Herzog does not ignore race and racialization. In his discussion about how sovereignty is divided in Chapter 3, Herzog discusses how the Confederacy fought the Union over slavery in part on the basis of the Confederacy’s ‘power to withdraw from a Union into which they had, as sovereign communities, voluntarily entered into.” He notes that he has no “doubt for an instant that confederate President Benjamin Davis and others ‘enlisted state sovereignty to defend slavery’ page 143. Herzog also discusses the backlash against Brown v Board of Education and the ‘massive resistance’ to ending racial segregation of public schools and more. He does so to support his argument that you did not have to ‘insist on full-blown state sovereignty’ (page 145) to make any of the claims each of the contending sides was advancing (page 145). This chapter also briefly discusses contemporary sovereignty debates including BREXIT and America First.

Chapter 3, which sets out to show that sovereignty is accountable, begins with Charles I’s seventeenth century skirmishes with Parliament and his conviction and sentence to death, in an episode Herzog selects to dramatically illustrate how sovereign authority is accountable to civil authorities and not merely to God. The discussion in the chapter includes what he calls ‘mud-wrestling between Georgia and the [US] federal government, with regard to the events leading up the US Supreme Court 1831 case Cherokee Nation v Georgia, page 227. I was very interested here as Herzog moved on quickly to decolonization. In his discussion, Herzog notes that “international law has worked up other categories for lesser entities: dominion, protectorates, trusteeships, mandates, condominia and states under suzerainty,” pp. 227-228. The upshot of his claim is that while he is “happy to endorse the quest for equality here…Native Americans are and ought to be treated as dignified individuals” page 229. However, he does not endorse ‘slapping the label of sovereignty” for purposes of their equality (page 229). He concludes that “no one should favor Native American sovereignty if that means establishing some government authority that’s unlimited, undivided, and unaccountable,” page 230. From my eyes it is odd to hear Herzog conclude that Marshall’s tone “about the Indians is more generous, but the substance seems the same” page 224 with reference Marshall’s conclusion about their ‘dependent’ situation. To be sure, Herzog recognizes that merely slapping the label of sovereignty without remedying “the history of callous and exploitative regulation from the Bureau of Indian Affairs” page 229 would likely make little difference.

It is good to be asked to review a book by a scholar whose research agenda is very different from my own and the literatures that I am familiar with. To paraphrase Joseph Slaughter in a different context a review like this is how to make sure that critical approaches circulate in academic circles that share different commitments and vice-versa. Indeed, without opportunities like this book review, scholarly endeavors that proceed from different starting points are often like ships that pass in the night. From my own vantage point, sovereignty is indelibly marked by imperial, colonial and racialized underpinnings. Thus, while I appreciate a book like Herzog’s that is very razor focused in disassembling sovereignty and showing ‘the work it does’, I wish the book did more to trace the imperial, colonial and racialized underpinnings associated with sovereignty in international law, or to engage with the literatures that do so.

As I have already alluded to above, the book does not ignore issues of racialization, colonialism and identity. However, when issues of racism including anti-Semitism arise, he sets them aside. For example, he notes that:

“There’s doubtless much to say about the unsavory links between anti-Semitism and hatred of world government, not least in the long-standing image of Jews as rootless cosmopolitans and the echoing of that trope in antiliberal attacks on individualism: but I wistfully shove that topic aside” (page 155).

Perhaps I would argue he lays out the evidence and leaves it to us to come to come to our own conclusions. I say this because I would anticipate Herzog might say in response to the claim that I have just made, that he is committed to sticking to his central inquiry of exploring the limits of particular conception of sovereignty, and that my observation might have expected too much of the book. Perhaps he might argue that he did not set out to systematically engage orientalism, racism and slavery as integral to sovereignty. I do not know.

The blood soaked, struggle-ridden attitude that characterizes the book could very well extend to the immense suffering and loss of life that accompanied the European incursion into North America. Patrick Macklem reminds us that international law excluded indigenous people from the distribution of sovereign power and it denied them the right of self-determination. Antony Anghie reminds us that the ‘discovery’ of the ‘New World’ in the sixteenth century set in motion international legal techniques including the sovereignty doctrine to account for the relationship between European and non-European peoples and in effect to justify colonial rule. Seen from this perspective, Herzog’s meticulous and wide-ranging critique of sovereignty could have done more to track the blood soaked struggles by white settlers against non-white indigenous North American communities. Take the example of Herzog’s discussion of the US Supreme Court’s decision in Cherokee Nation v Georgia (1831). Herzog’s reading of Cherokee Nation v Georgia comes to the conclusion that we need to get rid of sovereignty because ‘the concepts of state, jurisdiction and authority,” page 290 can do the work that sovereignty does. After all for Herzog, this case was simply a sovereignty squabble between Georgia and the Federal government (page 218). What Herzog does not tell us about Cherokee Nation v Georgia is the importance of Justice Marshall’s justification for the seizure of Native American lands without which this dispute would not have been possible in the first place. Said Justice Marshall in that case:

“the right of discovery is claimed to extend among European nations is to give to the first discoverer the prior and exclusive right to purchase these lands from the Indian proprietors, against all other European sovereigns, to which principle the Indians have never assented, and which they deny to be a principle of the natural law of nations or obligatory on them.”

Scholars like Robert Williams and Natsu Taylor Saito have shown how doctrines such as discovery and conquest were invoked to justify the expropriation of the lands of indigenous people. According to Robert Williams, cases like Cherokee Nation v Georgia show how ‘racist language has been employed by the courts to legalize a uniquely American form of racial dictatorship over Indian tribes by the U.S. government.’ While Herzog seeks to critique a particular conception of sovereignty, the literature that I am more familiar with that examines the cases of the same period trace how concepts such as discovery,” “conquest,” and “cessation by treaty” underpinned the racially and blood soaked dispossession and colonization of Native Americans that survive to date.

I want to end my reflections by going down memory lane. As a graduate student in a little town in Massachusetts at the end of the cold war, a debate raged. I vividly remember reading the following words from an essay David Kennedy assigned to my graduate school international law class that sparked an animated discussion:

“And what then about ‘sovereignty’ in the ‘new international order?’ Perhaps it has simply continued— a conceptual frame for new problems, new players, new institutions. A thousand calls for its elimination over the last hundred years, its death announced a thousand times in speeches and articles about the ‘new’ interdependence, still it continues to structure our legal positions, our political alliances, our discipline’s imagination. And perhaps not by accident, for sovereignty remains the rallying call of the new, the avant-garde, the outsider. At once anachronism and aspiration, dead form and living project.” (emphasis added)

I simply could not for the life of me come to terms with the critique of sovereignty that David Kennedy offered here. Then perhaps as now, I remained enamored by the very idea of sovereignty even while realizing the many abuses with which it is associated. When I first saw Herzog’s Sovereignty RIP, I vividly remembered the debate stirred in my Public International Law class at the end of the cold war by that David Kennedy article. To be sure, Herzog fully engages in these debates. In chapter 3, for example, Herzog dives into many of these debates including whether sovereignty allows a “government’s right to slaughter and rape its own people and not be held accountable,” page 251. Herzog also acknowledges the many ways in which there has been “frequent chipping away at the classic theory,” page 264. While David Kennedy in 1992 emphasized how sovereignty had the potential to reinvent itself endlessly, Don Herzog in 2020 is ready to discard sovereignty as a “vacuous or nonsensical concept’ page 290. This rendition of sovereignty however understates the work sovereignty has done historically in repressing, subordinating and legitimizing colonial, imperial and racist rule. Ultimately, I really enjoyed reading the book even while I hoped that it could have engaged the work of scholars who have studied sovereignty from different perspectives since it seems to me that this scholarship has contributed to how to understand sovereignty in a way that was only becoming familiar in my field when I was a graduate student. I know this is not the route that Herzog set to follow in this important book and this does not make the better any less important or compelling. I therefore offer the foregoing observations as a way of acknowledging the thoughts it provoked in me as I read it.