Keeping a Republic: An Argument for Sovereignty

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And there would be new signs of disorder after that would remind Americans what an incomplete and unstable national structure they had created: But as fragile as America's federal edifice was at the time of the founding, there was much in the culture and environment that contributed to a national consensus and cohesion: The American statesmen who succeeded those of the founding generation served their country with a self-conscious sense that the challenges of maintaining a democratic union were every bit as great after as they were before. Some aspects of their nation-building program--their continuing toleration of slavery and genocidal policies toward American Indians--are fit objects of national shame, not honor.

But statesmen of succeeding generations--Lincoln foremost among them--would continue the quest for a "more perfect union. Such has been our success in building a powerful and cohesive democratic nation-state in post-Civil War America that most Americans today assume that principles of democracy and national harmony somehow naturally go hand-in-hand. But as we look around the rest of the world in the post-Soviet era, we find ample evidence that democratic revolutions do not inevitably lead to national harmony or universal justice.

We see that the expression of the "popular will" can create a cacophony of discordant voices, leaving many baffled about the true meaning of majority rule. In far too many places around the world today, the expression of the "popular will" is nothing more than the unleashing of primordial forces of tribal and religious identity which further confound the goal of building stable and consensual governments. As we look at the state of our federal union years after the Founders completed their work, there is cause for satisfaction that we have avoided many of the plagues afflicting so many other societies, but this is hardly cause for complacency.

To be sure, the US Constitution itself has not only survived the crises confronting it in the past, but in so doing, it has in itself become our nation's most powerful symbol of unity--a far preferable alternative to a monarch or a national religion, the institutions on which most nations around the world have relied. To be sure, Bodin thought that the body that exercised sovereignty was bound by natural and divine law, though no human law could judge or appeal to it.

More curiously, he also thought that sovereignty rightly exercised would respect customary and property rights. It is not clear how such a restraint was to be reconciled with the supreme status of sovereign authority. Possibly, Bodin thought that such rights were to be features of a legal regime which was itself sovereign with respect to other authorities. Indeed, he also thought the form of government that exercised sovereign powers could legitimately vary among monarchy, aristocracy and democracy, though he preferred monarchy. Whatever the sovereign body looked like, though, it was not subject to any external human law or authority within its territory.

At a time when it had become imperative that the conflict between rulers and ruled should be terminated, [Bodin] realized — and it was an impressive intellectual feat — that the conflict would be solved only if it was possible both to establish the existence of a necessarily unrestricted ruling power and to distinguish this power from an absolutism that was free to disregard all laws and regulations.

He did this by founding both the legality of this power and the wisdom of observing the limitations which hedged its proper use upon the nature of the body politic as a political society comprising both ruler and ruled — and his statement of sovereignty was the necessary, only possible, result — The English philosopher Thomas Hobbes also wrote during a time of civil war and also arrived at the notion of sovereignty as a solution. For Hobbes, the people established sovereign authority through a contract in which they transferred all of their rights to the Leviathan, which represented the abstract notion of the state.

The will of the Leviathan reigned supreme and represented the will of all those who had alienated their rights to it. Like Bodin, Hobbes also thought the sovereign to be accountable to God and most likely to the natural law in some form.

Sovereignty and international law

Otherwise, though, law was the command of the sovereign ruler, emanating from his will, and the obligation to obey it absolute. Both Bodin and Hobbes argued for sovereignty as supreme authority. The concept continues to prevail as the presumption of political rule in states throughout the globe today, including ones where the sovereign body of law institutes limited government and civil rights for individuals.

Sovereignty

Over the centuries, new notions of the holders of sovereignty have evolved. Rousseau, far different from Bodin or Hobbes, saw the collective people within a state as the sovereign, ruling through their general will. In constitutional government, it is the people ruling through a body of law that is sovereign.

That is the version that commands legitimacy most commonly in the world today. Yet versions of sovereignty evocative of Hobbes' and Bodin's have carried forth into the twentieth century.

Explicitly invoking both of these philosophers was the early twentieth century German philosopher and jurist Carl Schmitt, for instance. He had little respect for liberal constitutionalism, which he thought wholly inadequate to contain the power struggle that politics involves.

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By and large, there is little indicating that, at least in this work, Schmitt thought the sovereign to be bound by divine law or natural law. The liberal constitutionalism of Weimar Germany was his chief piece of evidence for this conviction; during the s he fervently supported the National Socialist regime, one whose emergency powers were just those that he thought necessary. The rise and global expansion of sovereignty, described and even lauded by political philosophers, amounts to one of the most formidable and successful political trends in modern times.

But from its earliest days, sovereignty has also met with both doubters and qualified supporters, many of whom have regarded any body of law's claim to sovereign status as a form of idolatry, sometimes as a carapace behind which rulers carry out cruelties and injustices free from legitimate outside scrutiny. It was indeed after the Holocaust that meaningful legal and institutional circumscriptions of sovereignty in fact arose, many of which have come to abridge the rights of sovereign states quite significantly.

The two most prominent curtailments are conventions on human rights and European integration. It was in that the vast majority of states signed the Universal Declaration of Human Rights, committing themselves to respect over 30 separate rights for individuals. Over decades, these human rights would come to enjoy ever stronger legal status. One of the most robust human rights conventions, one that indeed curtails sovereignty, even if mildly, through its arbitration mechanisms, is the European Convention for the Protection of Human Rights and Fundamental Freedoms, formed in Roughly contemporaneous, signed on December 9, , was the Genocide Convention, committing signing states to refrain from and punish genocide.

Then, in the mid's, two covenants — the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights — legally bound most of the world's states to respecting the human rights of their people. Subsequent human rights covenants, also signed by the vast majority of the world's states, contained similar reservations. Only a practice of human rights backed up by military enforcement or robust judicial procedures would circumscribe sovereignty in a serious way.

Progress in this direction began to occur after the Cold War through a historic revision of the Peace of Westphalia, one that curtails a norm strongly advanced by its treaties — non-intervention. In a series of several episodes beginning in , the United Nations or another international organization has endorsed a political action, usually involving military force, that the broad consensus of states would have previously regarded as illegitimate interference in internal affairs. The episodes have involved the approval of military operations to remedy an injustice within the boundaries of a state or the outside administration of domestic matters like police operations.

Unlike peacekeeping operations during the Cold War, the operations have usually lacked the consent of the government of the target state. Although the legitimacy and wisdom of individual interventions is often contested among states — the U. Security Council endorsement, as did the U.

Security Council and other international organizations. An explicit call to revise the concept of sovereignty so as to allow for internationally sanctioned intervention arose with The Responsibility to Protect, a document written and produced in by the International Commission on Intervention and State Sovereignty, a commission that the Government of Canada convened at the behest of U.

Secretary General Kofi Annan. Responsibility to Protect has garnered wide international attention and serves as a manifesto for a concept of sovereignty that is non-absolute and conditional upon outside obligations. The other way in which sovereignty is being circumscribed is through European integration. This idea also arose in reaction to the Holocaust, a calamity that many European leaders attributed at least in part to the sovereign state's lack of accountability. Historically, the most enthusiastic supporters of European integration have indeed come from Catholic Christian Democratic parties, whose ideals are rooted in medieval Christendom, where at least in theory, no leader was sovereign and all leaders were accountable to a universal set of values.

In the modern language of human rights and democracy, they echo Pope Innocent X's excoriation of the Peace of Westphalia. European integration began in , when six states formed the European Coal and Steel Community in the Treaty of Paris. The community established joint international authority over the coal and steel industries of these six countries, entailing executive control through a permanent bureaucracy and a decision-making Council of Ministers composed of foreign ministers of each state.

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This same model was expanded to a general economic zone in the Treaty of Rome in It was enhanced by a judicial body, the European Court of Justice, and a legislature, the European Parliament, a directly elected Europe-wide body. Over time, European integration has widened, as the institution now consists of twenty-eight members, and deepened, as it did in the Maastricht Treaty, which expanded the institution's powers and reconfigured it as the European Union.

They are no longer absolutely sovereign. Today, European integration proceeds apace. This circumscription of the sovereign state, through international norms and supranational institutions, finds a parallel in contemporary philosophers who attack the notion of absolute sovereignty. Their thought is not entirely new, for even in early modern times, philosophers like Hugo Grotius, Alberico Gentili, and Francisco Suarez, though they accepted the state as a legitimate institution, thought that its authority ought to be limited, not absolute.

The cruel prince, for instance, could be subject to a disciplining action from neighboring princes that is much like contemporary notions of humanitarian intervention. Two of the most prominent attacks on sovereignty by political philosophers since World War II came in the s from Bertrand de Jouvenel and Jacques Maritain. In his prominent work of , Sovereignty: An Inquiry Into the Political Good , Jouvenel acknowledges that sovereignty is an important attribute of modern political authority, needed to quell disputes within the state and to muster cooperation in defense against outsiders.

But he roundly decries the modern concept of sovereignty, which creates a power who is above the rules, a power whose decrees are to be considered legitimate simply because they emanate from his will. As his description of Hobbes intimates, Jouvenel views early modern absolute sovereignty with great alarm.

But rather than calling for the concept to be abrogated, he holds that sovereignty must be channeled so that sovereign authority wills nothing but what is legitimate. Far from being defined by the sovereign, morality has an independent validity. This was the understanding of authority held by the ancien regime, where effective advisers to the monarch could channel his efforts towards the common good.

What can channel the sovereign will today? Jouvenel seems to doubt that judicial or constitutional design is alone enough. Rather, he places his hope in the shared moral concepts of the citizenry, which act as a constraint upon the choices of the sovereign. In Chapter Two of his enduring work of , Man and the State , Jacques Maritain shows little sympathy for sovereignty at all, not even the qualified sympathy of Jouvenel:.

It is my contention that political philosophy must get rid of the word, as well as the concept, of Sovereignty: Rather than representing the people and being accountable to it, the sovereign became a transcendent entity, holding the supreme and inalienable right to rule over the people, independently of them, rather than representing the people, accountable to them.

Like Jouvenel, Maritain rues the exaltation of the sovereign's will such that what is just is what serves his interest. Any transfer of the authority of the body politic either to some part of itself or to some outside entity — the apparatus of the state, a monarch, or even the people — is illegitimate, for the validity of a government is rooted in its relationship to natural law. Sovereignty gives rise to three dysfunctionalities.

First, its external dimension renders inconceivable international law and a world state, to both of which Maritain is highly sympathetic. Second, the internal dimension of sovereignty, the absolute power of the state over the body politic, results in centralism, not pluralism. Third, the supreme power of the sovereign state is contrary to the democratic notion of accountability.

As a Catholic philosopher, Maritain's arguments run similar to Christian philosophers of early modern Europe who criticized absolute sovereignty. Witnessing the rise of the formidable entity of the state, they sought to place limits on its power and authority. They are the ancestors of those who now demand limits on the state's authority in the name of human rights, of the right to quell genocide and disaster and deliver relief from the outside, of an international criminal court, and of a supranational entity that assumes power of governance over economic, and now, maybe, military affairs.

The case for circumscribing sovereignty remains strong in the Catholic and other Christian traditions. In recent years, political philosophers in the liberal tradition have argued for the circumscription of sovereignty as well. Two examples are Thomas Pogge , and , and Allen Buchanan Laski who developed the theory of pluralistic sovereignty pluralism exercised by various political, economic, social, and religious groups that dominate the government of each state.

According to this doctrine, sovereignty in each society does not reside in any particular place but shifts constantly from one group or alliance of groups to another. The pluralistic theory further contended that the state is but one of many examples of social solidarity and possesses no special authority in comparison to other components of society.

Although the doctrine of sovereignty has had an important impact on developments within states, its greatest influence has been in the relations between states. This statement has often been interpreted as meaning that a sovereign is not responsible to anybody and is not bound by any laws.

He emphasized that even with respect to his own citizens a sovereign is bound to observe certain basic rules derived from the divine law, the law of nature or reason, and the law that is common to all nations jus gentium , as well as the fundamental laws of the state that determine who is the sovereign, who succeeds to sovereignty, and what limits the sovereign power. In fact, Bodin discussed as binding upon states many of those rules that were later woven into the fabric of international law.

Nevertheless, his theories have been used as justifying absolutism in the internal political order and anarchy in the international sphere. This interpretation was developed to its logical conclusion by Hobbes in Leviathan , in which the sovereign was identified with might rather than law. Law is what the sovereign commands, and it cannot limit his power; sovereign power is absolute. In the international sphere this condition led to a perpetual state of war, one sovereign trying to impose his will by force on all other sovereigns. This situation has changed little over time, with sovereign states continuing to claim the right to be judges in their own controversies, to enforce by war their own conception of their rights, to treat their own citizens in any way that suits them, and to regulate their economic life with complete disregard for possible repercussions in other states.

During the 20th century important restrictions on the freedom of action of states began to appear. The Hague conventions of and established detailed rules governing the conduct of wars on land and at sea.

The Covenant of the League of Nations , the forerunner of the United Nations UN , restricted the right to wage war, and the Kellogg-Briand Pact of condemned recourse to war for the solution of international controversies and its use as an instrument of national policy.

In consequence of such developments, sovereignty ceased to be considered as synonymous with unrestricted power. States have accepted a considerable body of law limiting their sovereign right to act as they please. Those restrictions on sovereignty are usually explained as deriving from consent or autolimitation, but it can easily be demonstrated that in some cases states have been considered as bound by certain rules of international law despite the lack of satisfactory proof that these rules were expressly or implicitly accepted by them.

Conversely, new rules cannot ordinarily be imposed upon a state, without its consent, by the will of other states. In this way a balance has been achieved between the needs of the international society and the desire of states to protect their sovereignty to the maximum possible extent. The 19th-century distinction between fully sovereign states and several categories of less sovereign units lost its importance under the law of the UN. Emphasis was placed not on legal differences among colonies, protected states, protectorates, and states under the suzerainty of another state but on the practical distinction between self-governing and non-self-governing territories.

Some of these territories were placed under the UN Trusteeship Council , which resulted in a closer supervision of their administration by the UN and in their speedier progress toward self-government or independence. Once a territory achieved self-government, as defined in resolutions of the General Assembly , supervision by the UN ceased, even though independent status was not reached. The concept of absolute, unlimited sovereignty did not last long after its adoption, either domestically or internationally.

The growth of democracy imposed important limitations upon the power of the sovereign and of the ruling classes. The increase in the interdependence of states restricted the principle that might is right in international affairs.

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