Does Anyone Buy the Classic Theory of Sovereignty?

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Don Herzog obliterates the “classic theory of sovereignty” — the view that “every political community must have a locus of authority that is unlimited, undivided, and unaccountable to any higher authority.” And he does so in a thoroughly enjoyable way, with deep learning worn lightly and conveyed with enormous wit. Never has a serious book of political theory been so much fun to read.

Herzog argues, with conventional wisdom, that the classic theory emerged in the 16th century as “an intelligible, intelligent response to the savage strife of the wars of religion.” The “idea of sovereignty” was:

“a weapon of state-building, and a world soaked in blood, awash in cruelty, could well long for an all-powerful central authority to staunch the wounds of rebellion and stand up to international intrigue and war.”

But whatever its original uses or motivation, the idea never matched reality. Herzog’s book shows how, contrary to the classic theory, sovereign authority after the sixteenth century, and increasingly over time, became limited, divided, and accountable, all in defiance of the classic theory. He adds in passing, surely correctly, that no political organization ever satisfied the ideal of the classic theory. It wasn’t an accurate account of feudal Europe, and indeed “no European state ever attained full sovereignty as described by the classic theories.”

Why write a book to inter an idea that never matched reality, that was always contested as a normative ideal, and that has been thoroughly repudiated by the practice of polities and governments for centuries? One good reason is to make all this clear, which Herzog does. But another reason is that some people continue to believe the classic concept of sovereignty, or at least — not the same thing — they continue to invoke it (or an imitation) in judicial and political discourse, as if they believed it. This bothers Herzog at one level because the idea is confused. But what really bothers him is that sovereignty is “pernicious,” a term he uses at least ten times in the book to describe the concept’s impact.

Herzog documents some horrible things done or argued for in the name of sovereignty throughout modern history. He acknowledges that the concept might have served a useful role in state-building efforts following the “cruel bloodbaths” of the wars of religion, even while ignoring or downplaying the other happy ends to which it has been deployed. (Sovereignty was, for example, “the watchcry for the principle of self-determination, and for the end of empires,” as Henkin once acknowledged in an essay with many similarities to Herzog’s project.) For Herzog, the concept of sovereignty is a bad idea that leads to bad consequences and should be removed from political discourse. He suggests that we can replace “sovereignty” with three related concepts:

“We can get by just fine with the concepts of state, jurisdiction, and authority. None of them will trip us up with the strangely maximalist commitments of sovereignty.”

It is not clear to whom the argument for eliminating the classic theory of sovereignty from our discourse is addressed. Politicians? Academics? Citizens? Also unclear is why Herzog thinks the classic concept was doing the work in the atrocities he recounts, and especially why he thinks that elimination of the concept, however achieved, would improve things. This is all especially puzzling since he explains atrocities by reference to the classic concept of sovereignty even when the States committing the atrocities have rejected the concept and embraced various forms of constitutionalism and international law.

Consider the crescendo of Herzog’s concerns, from the last chapter (with my emphasis added):

[W]hy would anyone want to embrace the idea of unlimited or undivided or unaccountable state authority? How many times must we learn that states don’t always secure social order, that they sometimes undercut and destroy it? How many political prisoners left to rot in jail with no recourse do we need, how many rape victims, how many living bodies bound and pushed out of helicopters into the ocean, how many grinning skulls, how many corpses stacked up, blown up, shoveled into mass graves, left to molder in fields and be picked over by vultures and rats, how many delicate recitals of the filthy business we call ethnic cleansing, to recall that behind such suffocatingly bland phrases as “undercut social order” lies grotesque, unfathomable human suffering? …

Don’t anesthetize yourself with such disgusting Orwellian locutions as “enhanced interrogation techniques.” Don’t even congratulate yourself on being honest enough to talk about torture, or “acts that can only be described as blatantly sadistic, cruel, and inhuman,” as that notorious softy, Secretary of Defense Donald Rumsfeld, put it in testifying before a congressional committee. Instead contemplate precisely what went on at the CIA’s “black site” prisons. Instead think as concretely, unflinchingly, pornographically as you can of just what that torture consists in. Isn’t this sort of thing precisely what those demanding unlimited or unaccountable authority are in fact demanding? No, of course they don’t intend that. But won’t it inexorably come in the wake of what they do intend? Hoping to extricate subjects from bloody combat, Hobbes, recall, demanded a “power able to over-awe them all.” Surely by now we know decidedly too much about what such a power can and will do.

Herzog is complaining here about the State, not the classical concept of sovereignty. “States … sometimes undercut and destroy” social order, he says. True. But the State that committed atrocities in the “war on terrorism,” the United States, is, as Herzog makes clear, a paragon in its embrace of “constitutionalism, federalism, and the rule of law.” I recall no one, certainly not Rumsfeld, invoking a sovereign right to commit these atrocities. To the extent that legal opinions justified the atrocities, they did so by invoking authority from the Constitution and Congress. This was error, but still, it is hard to see what the classic concept of sovereignty had to do with the abuses. Herzog seems to think that underlying these atrocities is some lurking commitment to the classic conception of sovereignty, but I don’t see it. The agent here was a State that famously rejected the classical concept and was ostensibly bound by law, domestic and international. The constraints failed, but not because anyone was entranced by the classic conception of sovereignty.    

I see very few consequential defenders these days of sovereignty in the sense of “unlimited or undivided or unaccountable state authority.” But let’s imagine that there were many, and that we somehow eradicated the idea and replaced it in our political and legal discourse with concepts like state, jurisdiction, and authority. There are deep and difficult issues here about the relationship between ideas, rhetoric, and political action. Herzog shies away from these issues, and I cannot do any better, at least not in this space. But suffice it to say that I doubt anything would change if the world somehow adopted Herzog’s proposal.

I don’t know how replacing sovereignty with the other concepts would help in the torture case. Nor, to take another of many examples, do I see why it would help in the case of sovereign immunity. Herzog bemoans Justice Kennedy’s reliance on the “sovereignty dignity” of the several States of the United States in Alden v Maine, a U.S. Supreme Court case that recognized State sovereign immunity from suit in a state court. State sovereign immunity is a bad example for Herzog to worry about since it is full of holes: the Supreme Court’s sovereign immunity jurisprudence allows for injunctions by private parties against state officers, lawsuits against States by the federal government, and abrogation of state immunity by Congress in some circumstances. It’s an especially odd example since Herzog assures us in other parts of the book that “American federalism works.”

But the bigger problem is that Kennedy, who once explained that “the Framers [of the U.S. Constitution] split the atom of sovereignty,” is clearly not in the grip of the classic theory of sovereignty. While I cannot prove it (nor can Herzog prove its opposite), it is highly unlikely that Kennedy’s opinion (or the Court for which he wrote) was driven by any coherent theory of sovereignty. But whatever drove the opinion was, it wasn’t the classic conception of sovereignty that Herzog destroys, since Kennedy uses sovereignty in just the sort of flabby, confused way that Herzog bemoans. Moreover, it would have been easy for Kennedy to reach the same outcome in the case using concepts of state, jurisdiction, and authority that Herzog finds more congenial. Indeed, Kennedy invoked those concepts dozens of times in Alden v. Maine.

The big puzzle here is why sovereignty persists in our discourse despite its formal rejection in practice and its many conceptual problems. Herzog does not pause much over this puzzle, though he is aware of it. “Somehow plenty of people fall for the seductive power of dictionary definitions — or remain convinced of the merits of what is more or less the classic theory,” he says. My guess is that very few are convinced by the classic theory. The concept of sovereignty invoked in our discourse is ill-defined, subject to different uses and senses, and almost always a rhetorical mask for other interests. I doubt does any real work in political debates. The persistence of the idea is probably explained by the fact that it can give voice to material or ideational interests underlying a claim or right or opposition by one political community against another community — be it a nation resisting or denying a supranational norm, or a national sub-unit resisting national control, or one state resisting interference by another, or a People resisting dominion by other Peoples or States. Note that all of these invocations can be made for admirable or non-admirable reasons.

I’m not terribly confident of that account of sovereignty’s persistence. And my failure to understand Herzog’s worries about sovereignty are not meant to detract from his central accomplishment, which was his central goal: destroying the classical concept of sovereignty. Near the end of the book Herzog says he is “happy to concede” that in some respects his thesis about sovereignty’s rise and decline “is in fact relentlessly, outrageously, unoriginal.” There is a bit truth in this. But there is also truth in his claim that his:

“rendition of the classic theory — social order requires a locus of political authority that’s unlimited, undivided, and unaccountable, with exalted dignity and law as command trooping dutifully along — is crisper, [and] more faithful to the historical trajectories, than much of what’s been written.”

I would say that both his rendition and destruction of the concept it is better than anything that has been written, at least that I have read.

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Dr Jorge E. Nunez says

July 7, 2020

Dear Ejil Team,
I have just come across this post which I read with interest.
I am writing to bring to your attention my recent "Territorial Disputes and State Sovereignty" soon to be published
I note most (all?) The debate about sovereignty and state sovereignty comes from US, UK and EU authors. Being originally from Latin America, I offer my account through a comprehensive and multi-disciplinary research that includes more than the classical (biased?) Views of those who come from states in position of privilege.
This is not a self-promotional response. Please feel free to publish or not. My only intention is to bring light to an often overlooked fact in the debate about sovereignty: the debate is always done by those who created the concept and, therefore, still manipulate its outcomes.
Many thanks and best regards,