Rousing from Dogmatic Slumbers

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Editor’s Note:  Over the next week, EJIL:Talk! is running a Book Discussion, reflecting on Don Herzog’s Sovereignty RIP. Reviewers include Jack Goldsmith, Neil Walker, Heike Krieger and James Gathii. We begin today with Don Herzog’s introduction. Thank you to all of the contributors. 

I’m a political theorist, not an international lawyer. (I’m not even a lawyer.) So I’m especially grateful to EJIL: Talk! for letting me introduce my book on sovereignty to this community, and keen to hear what my interlocutors have to say about it.

Other political theorists have written on the ontology of sovereignty, the metaphysics of sovereignty, even – trust Jacques Derrida to put things in overdrive – the “onto-theological metaphysics” of sovereignty. I’ll just say that’s not my approach. Still others have proceeded as intellectual historians, concerned with texts and discourses. I’m happy to consider texts, and with relentless unoriginality I conscript the likes of Bodin, Hobbes, and Grotius as articulating what I call the classic theory of sovereignty. To secure social order, goes the theory, you need a locus of political authority that’s unlimited, undivided, and unaccountable to any “higher” power. Call those the constitutive criteria of sovereignty. In their wake come two commitments, first to the immense dignity of sovereignty, second to the command theory of law.

But I think it exceedingly odd to write about texts or discourses or concepts on their own. I’ve long thought that in the oh-so-long-running war between idealism and materialism, between intellectual history and social/political history, the only plausible argument for either side is the manifest inadequacy of the other. So instead I proceed as a pragmatist. I take the classic theory of sovereignty as an attempt to solve contingent problems thrown up by social change, most notably the wars of religion that ravaged early modern Europe in the wake of the Reformation. The quest for, in Hobbes’s words, a “power able to over-awe them all” was an attempt to put an end to the unspeakably brutal cruelty that killed millions. The theory animated actual programs of state-building, strategies for securing peace after the unity of Christendom was shattered. Just for instance, in 1637 and 1638 Venetian representatives to England credited King Charles I with the ambition to attain “absolute royalty,” to make himself “sovereign, dependent on no authority but his own. If he succeeds it will be the boldest enterprise that any of his predecessors ever achieved.”

We could bicker about whether the classic theory of sovereignty was a good idea, but surely we have better things to do than grade people who’ve been dead for centuries on how good their purported solutions were. I’m interested instead in exploiting the possibility that over the next few centuries, sovereignty became a problem, not a solution at all. A host of political and legal actors – presidents and generals, soldiers and journalists, subjects and citizens – didn’t merely criticize the theory, though they sure did. They mounted struggles to redesign the state. Those struggles have been more or less successful. They have (distressingly) abstract names. Constitutionalism stands for the view that we can limit sovereign authority. Federalism stands for the view that we can divide it. And the rule of law stands for the view that we can hold it accountable. That last is the one that’s less successful: sovereign immunity is alive and (cancerously) well in tort law, and its close cousin diplomatic immunity flourishes, too, even if the US’s Foreign Sovereign Immunities Act whittled it back and applies retroactively.

In the body of the book, I try to bring these abstractions to life. I reconstruct one episode after another in which people struggled over sovereignty. So I conjure up the trial and execution of Charles I, the trial and execution in turn of the regicides. I visit the unfolding American revolution, where Britain’s insistence on its right to tax the colonies was explicitly underwritten by sovereignty (Lord North was intransigent in defending one financially slight tax: “the duty on tea must be maintained, as a mark of the supremacy of Parliament, and an efficient declaration of their right to govern the colonies”) and the specter of sovereignty motivated the Boston Tea Party. I dwell affectionately on the haughty refusal of a South Carolina governor to accept arrest on a disorderly conduct charge after he pummeled his political opponent – and the wonderfully caustic jeers with which newspapers around the country greeted his arrogance. “Makes Himself Ridiculous,” snorted one. “A Monarchical Jumping Jack,” guffawed another. “Since when has a Governor become above the law? Are we living under a monarchical or a republican form of government? Which?” I also take up some examples from international law: struggles over diplomatic immunity, anxieties that joining the League of Nations would mean surrendering the sovereignty of the United States, the febrile campaign for Britain to regain its sovereignty by quitting the European Union.

In one such struggle after another, some harped away at the theory of sovereignty. Every political community, they intoned, has to have an undivided, unlimited, unaccountable locus of authority. They were horrified at the failure of critics to grasp this elementary truth. But the champions of sovereignty made a stupid mistake. They thought they were talking about actual possibilities in the world, but they were only appealing to the structure of a concept. The question was precisely whether the concept of sovereignty helpfully oriented people to their problems and possibilities, whether it guided them to attractive outcomes. And the answer, argued their critics over and over, was no.

Maybe the critics were wrong, though I don’t think so. (I see no reason to pretend to be loftily impartial about these struggles, to think it’s sophisticated to play historical relativist, to imagine that my job as a political theorist is merely to describe what happened.) But maybe. Maybe it’s a bad idea to hold states, or heads of states, legally responsible for what they do. Maybe it’s a bad idea to have international organizations that even pretend to exercise authority. Maybe it’s a bad idea to divide authority between a federal government and state (provincial, canton…) governments. Maybe it’s a bad idea to enshrine and enforce constitutional limits. In all such cases, I argue, we should proceed retail, not wholesale. That is, instead of pretending to settle the question by appealing to sovereignty, we should explore the reasons pro and con. If it makes sense for diplomats to literally be able to get away with murder, for instance – and of course the relevant Vienna Conventions of 1961 and 1963 extend diplomatic immunity to a small army, well past ambassadors – it can’t be because of the very nature of sovereign authority. It has to be because of something like the dangers of entrusting your own emissaries to foreign law in often hostile territories, in making them hostages to ill fortune; and then the tit-for-tat reciprocal exchange you have to offer their emissaries in turn. So too, I’m inclined to think that Brexit was a jaw-droppingly bad idea, and all that talk about sovereignty (“above all,” insisted the leader of the House of Commons, “it is a campaign to restore the sovereignty of our nation”) offers a lamentable instance of just how dramatic the consequences of clinging to a bad theory can be. Could I be wrong? Sure. (Always.) But not because Britain had derogated its sovereignty and needed to reclaim it.

I can (and do) sharpen the argument by posing a dilemma. Appeals to sovereignty are now either pernicious or vacuous. The appeals are pernicious when people still cling, explicitly or implicitly, to the theory that political authority should be unlimited and undivided and unaccountable – or even any one of those. However good such ideas were centuries ago, they’re now terrible. We’ve learned way too much about just what havoc a “power able to over-awe them all” can wreak. The appeals are vacuous when people disavow all three criteria of the classic concept but continue to talk about sovereignty. (Imagine saying “this is a bachelor, but not an unmarried male.”) At the very least, it’s incumbent on them to tell us just what they mean. Various writers, at least one represented in this symposium, have proposed ways of restructuring the concept of sovereignty. Much better, I think, to junk it. Ready to hand are the concepts of state, authority, and jurisdiction. They’re not without their difficulties. But they don’t feature the weirdly maximalist commitments of sovereignty, and no further work needs doing that we can’t do without them.

I’ll close this teaser with one last illustration. Sovereign nations, we say, ought to enjoy authority over their internal affairs. Let’s put pressure on internal. If it’s a spatial concept, it summons up what we think of as the Westphalian settlement: the globe is comprised of separate colored patches, and every sovereign government has sole authority over its own colored patch. But you’ll forgive me for balking, because I bet you balk, too. Whatever you make of the responsibility to protect or armed interventions in the name of human rights, I bet you don’t think countries ought to be able to slaughter their own citizens, or inter them in concentration camps, and airily shrug off even verbal criticism by insisting on sovereignty. (Retail, not wholesale: if armed interventions are presumptively bad even in such hideous cases, it’s because of a contingent calculus about keeping peace, or jaundiced suspicions about hypocritical and unjustifiable interventions. Not because of the nature of sovereignty.) So that rendition of the claim is pernicious.

But how else might we construe internal in the claim that sovereign nations ought to enjoy control over their internal affairs? Internal here is normative: it means the sorts of thing that national governments ought to exercise jurisdiction over. But then the claim that sovereign nations ought to enjoy authority over their internal affairs is a laughable tautology, as vacuous as any claim that sounds so profound has ever been. It leaves completely up for grabs just what ought to be solely in their jurisdiction, and just when other countries, the UN, the ICJ, or any other actor, ought to have some say.

I know that many people think we need sovereignty to understand the formal equality of states in the UN, or (jus cogens shoved emphatically aside – but why should it be?) why states can be bound only by their own consent and why they must always be free to revoke it, and so on. I’m convinced they’re wrong. I think they’re mistaking time-honored verbal flourishes for actual explanations and justifications. It’s time, past time, to realize that we’ve gutted the theory of sovereignty, and a damned good thing too, and to bury it.

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Dapo Akande says

July 3, 2020


I am looking forward to this book discussion and to reading the book too. Your introduction here reminds me of Louis Henkin's statement in International Law: Politics and Values (1995) that "Sovereignty is a bad word, not only because it has served terrible national mythologies; in international relations, and even in international law, it is often a catchword, a substitute for thinking and precision. It means many things, some essential, some insignificant; some agreed, some controversial; some that are not warranted and should not be accepted"

Don Herzog says

July 4, 2020

Hi Dapo,

Alas I didn’t know this work by Henkin. But — I’m nothing if not fiendishly consistent about this — I would strike “some essential” and change the end to “all that are not warranted and should not be accepted.”