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The Return of Sovereignty

Sovereign Equality and Moral Disagreement
By Brad R. Roth
(Oxford University Press, 320 pp., $70)

Sovereignty is back. Our debates about the global economic crisis keep returning to the problem of sovereign debt and the need for sovereign guarantees to reassure the markets. We keep hoping that somewhere, sometime, in the downward spiral of de-leveraging and disillusion there will be an authority—a sovereign—to take charge and put an end to our anxiety. This longing for an authority, after years of market follies, runs very deep. We want to know that someone is in control. Which brings us back to the sovereign—the source of authority, control, and power. Market societies, it seems, cannot do without sovereigns.

It is enough to get us thinking again about what we really mean by sovereignty. No term in our political vocabulary is more mysterious. Max Weber’s definition—the monopoly of legitimate force in a given territory—is where we all begin, but it is plagued by circularity. If the sovereign is the source of legitimate coercion, where does legitimacy come from? In democratic countries, the sovereign is “we the people,” the mighty collective in whose name the police officer puts his cuffs on you, the revenue service taxes your income, and the recruiting officer drags your son or daughter off to battle. Weber implies that the fact that these acts are ordered by a sovereign settles the question of whether they are legitimate, but in democracies the legitimacy of coercive acts is never settled. We argue out their legitimacy in the media, courts, and legislature. We define our very freedom in terms of our capacity to have these arguments.  

While we accept that sovereignty should be a monopoly—we cannot have each of us taking the law into our own hands—we argue continuously about the legitimacy of particular acts of sovereign authority. The arguments are more than a prologue to decision. If they are open and free, the process itself is part of what makes democratic decisions legitimate, the other part being that the decisions are reasonable. The legitimacy of coercive acts in a democracy arises from the process by which they are justified and by the degree to which we regard decisions as rational. If the justifications proceed properly, through recognized public institutions, and if they make sense to us, they are legitimate. In this way, citizens generate the legitimacy of their own sovereignty. We agree to coerce ourselves through law.

This brings us to the vexed relation between law and sovereignty. On a common-sense account, sovereignty is the origin and source of law. The exercise of sovereignty by governments, by courts, and by the police ought to be in conformity with law. Except, of course, when there are exceptions: states of emergency, following insurrection, attack, or invasion, where the sovereign must—or believes that it must—exercise extra-legal powers in order to save the state itself. Who has the right to declare such states of emergency? Carl Schmitt, the Weimar legal theorist and Nazi sympathizer, gave a notorious answer—“sovereign is he who defines the exception”—that overthrew the common-sense view of sovereignty as emanating from law. Paul Kahn, in his magisterial book Political Theology: Four New Chapters on the Concept of Sovereignty, argues convincinglythat Schmitt’s Nazi pedigree should not invalidate his argument. Sovereignty is will, not law. On this account, sovereignty has to be above the law, since the law itself may stand in need of extra-legal authority for its defense.

Sovereignty is also prior to law because there has to be a founding moment that creates the law. In America, that moment was the Revolution: a violent rupture, a forced founding, led by the sovereign people under arms. And if the sovereign is created in a moment of violence, at least in democracies founded on revolution, we can begin to see that when we pledge allegiance to a sovereign, we are doing something more than giving consent to be ruled by law. We are giving obedience to a force that originated in violence and may use violence to protect us.

For these reasons, our allegiance has both a rational and an irrational aspect. The rational dimension is compact and consent: we make a logical surrender of a quotient of our freedom for the sake of the order without which freedom would be impossible. At the same time, democratic sovereignty draws on much deeper identifications. The sovereign protects us with its monopoly of the means of violence. It can also ask citizens to sacrifice their life for their country. This is nobody’s idea of a rational contract, but it is everybody’s idea of the patriotic ideal. Sovereignty draws on this deep layer of emotional identification of the people with the sovereign as the juridical embodiment of the nation. If this deeper layer did not exist, contract alone would not keep political order intact. Sovereign obedience, on such a view, reposes on a primal emotional bond between citizen and nation, a nexus of individual and collective identity, mediated through a government elected by the people.

These emotional underpinnings of sovereignty make liberals uneasy. The liberal attempt to secularize obedience has always been an attempt to make politics rational, to replace awe with consent. By vesting sovereignty in the people, and by locating legitimacy in consent, liberals from Locke onward sought to expunge from sovereignty’s claim upon us those irrational, overbearing demands that could lead both to slaughter and to tyranny. Yet the sacramental, sacrificial, all-consuming emotions that popular sovereignty can conjure up in a people refuse to be thought away. Contractual sovereignty has never made peace with patriotic passion and never can, any more than philosophies of limited government can make their peace with the passion of the people to feel and act as one. Sovereigns are legitimate to us to the extent that they convince our reason and rouse our patriotic passions.

These patriotic passions are self-justifying, but we use democratic debate to keep them from justifying everything. We argue about sovereignty—its relation to law, its connection to consent, the limits of its power to coerce—because we are arguing about how much lawful coercion we are prepared to accept in our lives in order to prevent chaos. We argue about how far to surrender to collective emotions precisely because we do not want to be carried away by them into tyranny or violence. Sovereign order, as Weber understood, allows us to solve our violence problem, the habitual human tendency to be judge of our own cause and to take the law into our own hands. Taking the law into our own hands tempts so many of us that few sovereigns ever enjoy an unquestioned monopoly over the means of force. They struggle unequally with internal violence, whether from common criminals, drug syndicates, or armed insurgencies. As we watch these struggles, we appreciate that sovereigns in free societies protect the political space in which we argue rather than fight, and in which we accept rough and ready closure to our disputes. Sovereigns bring arguments to an end, whether through court judgment, police action, or democratic legislation. We need arguments in order to be free, but our arguments about what we must do, as opposed to what we must believe, cannot go on forever. We must decide somehow. The sovereign is the authority that imposes closure.

Indeed, the crucial test of our allegiance to a sovereign is that we accept the finality of its rulings—laws, court findings, police decisions—precisely when we disagree. And our willingness to submit even when we feel the sovereign is wrong indicates that sovereignty’s power over us runs deeper than consent. This deeper power comes into focus when we distinguish between government and sovereignty. Governments come and go, while the sovereign is the guarantor of order and our continuity as one people. Governments may have the power, but sovereignty is the mysterious source of their authority. We respect sovereign authority, while we comply with government power. The vital space for dissent in any free society lies in our ability to distinguish between government and sovereignty. We allow ourselves to disagree, sometimes radically, about government because we respect the sovereign authority that keeps us together. People who revile the president of the United States still rise when he enters the room. Honoring the office while opposing the man is the necessary, if fraying, restraint that keeps political disagreement from threatening order itself. The respect we pay sovereignty is an unseen foundation of liberty, for it allows us the freedom to be contemptuous of government.

BUT THIS contempt of government has gone so far that it has made us dismissive of sovereignty as well. The rising moral prestige of the market and the falling moral prestige of government have combined in a theoretical and practical neglect of sovereignty as the irreplaceable source of order in domestic and international relations. The conventional wisdom wants us to dismiss sovereignty as a vestigial legalism, a Westphalian hangover in a globalized world where power has shifted decisively to the world market.

From within the academic firmament, as the historian Daniel T. Rodgers has shown in The Age of Fracture, the idea that sovereign order is a necessary condition for market order has been under assault for forty years from law and economics theorists eager to prove that order is better equilibrated by price signals than by government regulation. Once public good is re-conceived as the unintended if happy outcome of the invisible hand, actual sovereigns, with their security details and seals of office and cumbersome bureaucracies, come to look as ridiculous as the Wizard of Oz looked to Dorothy.

Out in the deep waters of global commerce, the breakwaters of sovereignty have been battered by the tides of global economic integration. In order to help the tide of trade reach sovereign shores, governments swept aside tariffs, labor, safety and environmental codes, capital restrictions, and exchange rate controls. The task of “reform,” or so economists told governments, was not to defend economic sovereignty but to sweep it aside. As banks, insurance companies, and manufacturing multinationals snapped up the profits from global trade, sovereigns were left with the pickings, providing those vestigial public services—police, sanitation, roads, and schools—that markets found too unprofitable to provide by themselves. Cheap credit enabled sovereigns to fund these services, but debt further enfeebled their sovereignty. Huge flows of capital sloshed into states, driving up the values of assets and tempting governments everywhere to abandon fiscal discipline. While markets debauched themselves on easy profit, sovereigns debauched themselves on cheap credit.

When the Lehman day of reckoning came in 2008, an astonishing reversal occurred. The masters of the universe discovered, as they looked into the abyss of insolvency, that they needed a good old-fashioned sovereign after all. Suddenly every market maker was looking for a sovereign guarantee to put a floor under collapsing asset prices. Treasury secretaries and ministers of finance who had accepted their roles as friendly night watchmen at the casino of global capitalism found themselves taking calls from terrified gamblers begging for a bailout. Once again the sovereign became the lender, creditor, and guarantor of last resort. The sovereign was back—but found itself on the hook for every debt incurred by those whom negligent government had allowed to become too big to fail.

What turned a market meltdown into a global economic crisis was the weakened position of sovereigns themselves. The globalization of credit led sovereigns to discard the cardinal principle of sovereign finance: never borrow more than the economic carrying capacity of your own territory. The first to fail were the Latin American governments of the 1990s, which dealt with liquidity crises and soaring spreads by defaulting on their loans. Default, though by another name, has now come to Greece. Investors in Greek sovereign debt have been asked to take a haircut. Holders of Italian, Portuguese, and Spanish sovereign debt fear that they are the next to be shorn. These are not, as Chamberlain said, distant countries of which we know little. Everyone in an integrated global economy ends up paying a price when sovereigns default. Where there is no confidence in sovereign repayment, there is no confidence in markets themselves.

The sovereign debt crisis teaches us that there are certain responsibilities—call them sovereign responsibilities—that all governments must discharge: maintaining a monopoly of order, protecting the full faith and credit of money, never borrowing more than the carrying capacity of the economy, and protecting citizens from systemic harm following market collapse. Unless our arguments about government are bounded by a limited consensus about these sovereign responsibilities, our politics will jump the tracks. American political argument did jump the tracks last summer, when certain Republicans of the Tea Party persuasion could be heard to declare that they did not care whether their country defaulted. The markets responded with a tremor of fear. A consensus about sovereign responsibility is an unseen discipline in democratic politics. We can argue about everything except this, and once we start it is a sign that our politics has lost its grip on reality.

SOVEREIGNTY HAS RETURNED, in other words, because citizens need a principle of authority more stable than government alone. Markets in turn cannot function without the confidence that sovereigns provide, and political systems cannot reach agreement on the appropriate functions of government without a minimal consensus on what sovereigns must do. The international order cannot be understood without emphasizing the role that sovereigns play in providing ultimate authority.

Again, it has become conventional to argue the opposite: to maintain that authority as well as power is slipping away from sovereigns toward inter-governmental organizations (the WTO, the IMF, the World Bank, the United Nations, the EU, NATO, and so on), toward non-governmental organizations (Amnesty International, Human Rights Watch, Greenpeace,, and finally toward global corporations (Ford, GM, GE, Mercedes, Apple, and the global hedge and investment funds). As Anne-Marie Slaughter has pointed out, this vast interlaced system of institutions has emerged because so many problems no longer have a single sovereign address. Sovereigns themselves cannot function without intermediating institutions to put experts, citizens, and governments together in rooms to coordinate solutions to problems that cannot be solved in national capitals or boardrooms alone.

The institutions of global governance are allowed to coordinate, but they are not allowed to rule. They work by consensus, not by command. Ultimate authority in a global system remains with sovereigns. Governments will not have it any other way: politicians face instant rejection from their electorate if they allow transnational authorities to dictate terms. When we say, even in a global village, that all politics is local, we mean that national sovereignties are the only reliable source of political authority.

The tenacious survival of sovereignty is not vestigial; it turns out to have economic survival value. As the economist Dani Rodrik argues, states that maintain their own “policy space” do better than states that give it away. Canada, for example, sends 75 percent of its exports south to the United States. Few economies are more globally integrated or trade-dependent-but Canada thanks its lucky stars that it maintains its own currency, interest rates, fiscal policy, and system of bank regulation. If it had folded these into those of its neighbor next door, its unemployment rate would be 2 percentage points higher and its mortgage market would be underwater. Similarly, the control of their own economy has certainly left the British free to succumb to their own follies—the Conservative fiscal tightening is compounding their recession—but keeping their own currency gives them a margin of maneuver unavailable to their integrated European neighbors.

The Greeks, by contrast, are pining for their drachma, and the Italians for their lira, because recovering the sovereign right to issue their own currency would give them the capacity to devalue themselves back into a competitive position. Since this option is foreclosed by their stronger neighbors, the only alternative for the southern sovereigns of Europe is to transfer their sovereignty to a federation where they surrender budgetary control in return for the kind of federal transfers that the United States uses to redistribute from rich to poor states. A full transfer union, however, is precisely what Germany refuses. Europe may get the worst of both worlds: sovereignty without power and integration without legitimacy.

CALLING THE EUROPEANS small-minded is to miss the point. Sovereignty is a system of power that correlates authority with territory, legitimacy with national identity. It is the only system of power that, as a result, can create the consensus for common action and sacrifice. Since sovereignty expresses national identity, it is bound to be morally partial: Germans will help Germans, Greeks will help Greeks. Attacking sovereignty because it defends moral partiality misunderstands its very nature: sovereignty’s legitimacy reposes on the premise that a sovereign accords special protection to its own citizens.

Sovereignty defends the moral partiality of citizens, but in a world of nations it also protects moral pluralism, the right of different peoples to decide their own way in the world. The strongest and most convincing defense of this view is to be found in the work of the legal scholar Brad R. Roth, particularly in his splendid new book. The institutional legal condition for moral pluralism in the world, Roth argues, is the sovereign equality of states. This legal condition is written into the Charter of the United Nations. While sovereignty provides alibis for tyrants and dictators, it also protects weak states against the strong. In so doing, it defends moral pluralism, or as Roth puts it, the right of peoples to be wrong about justice.

The right to be wrong about justice is a provocative formulation to anyone attached to international human rights, and Roth intends to provoke. In defense of his position, it is a fact that human beings disagree about what justice entails, in general and in detail. This is a fact, moreover, to which we ascribe value, our disagreements about justice being an instance of what human beings do with their freedom of judgment. If we value this freedom in individuals, Roth argues, we should value it in its collective national forms, and we should respect the international norms of sovereignty that protect it.

We all want the peoples of the world to find their own way to justice, and we all want to respect their different accounts of what justice is. But we should not be naïve about where a defense of moral pluralism may lead us. The burqa in Afghanistan, the expropriation of white farmers in Zimbabwe, the death penalty in Texas all secure moral cover—and every other violation of human rights likewise—under the sovereign right of states to be wrong about justice. States do have a right to be wrong about justice: that is clearly what the U.N. Charter means when it places sovereignty above all other rights. Yet there must be some limits to this right, as there are to all rights, or else sovereignty loses any moral standing or justification.

Roth himself is less than clear where these limits lie, but surely there is more moral latitude for democratic sovereigns than non-democratic ones to be wrong about justice. In democratic states, sovereignty is sliced up into mutually invigilating institutions: checks and balances place limits on the power of the majority and protect minorities. A federal system makes it possible for Massachusetts to disagree with Texas about the death penalty. All that a democratic system guarantees is a process of continuous adversarial review. This is the process by which democratic sovereignty legitimizes itself, day after day, year after year. It is also the process by which democratic sovereignty crawls its way toward justice.

These processes are absent in many of the states of the world. And where sovereignty is unconstrained, we could argue that human rights invigilation by third-party outsiders becomes justified, to exercise the scrutiny and control of sovereignty that insiders would exercise if their sovereigns allowed them to. On this account, the moral authority of human-rights NGOs together with U.N. bodies is a residual right to protect the subjects of a sovereign when they lack the institutional means to protect themselves.

But why, Roth might reply, do they have the right to assume functions of invigilation that belong to the sovereign people alone? The answer, I think, is that the legitimacy of collective selfdetermination—the right of states to be sovereign—derives in turn from individual self-determination, the right of individuals to be free. If this individual right is crushed, an individual retains the right to appeal for help outside, and those outside have a duty to assist.

The duty to assist is not indeterminate. It is correlated to the individual rights that have been abused and stays there, in peaceful advocacy of change from within, unless the sovereign goes further and pushes abuse to the level of wholesale murder or massacre, ethnic cleansing or genocide. At this point, an individualized duty to assist and support rights claimants would evolve into a responsibility to protect whole populations whose existence is threatened. This is the doctrine of sovereign responsibility articulated in the report of the International Commission on Intervention and State Sovereignty. It appeared in 2001, was ratified by the U.N. General Assembly in 2005, and saw its first application in the Libyan intervention of 2011.

Roth is skeptical that sovereign inviolability will remain able to protect weak states from the humanitarian whims of the strong, once international law gives houseroom to the responsibility to protect. Yet he concedes that sovereignty does entail responsibility. The sovereign right of collective self-determination pre-supposes the self-determination rights of individuals. It follows that sovereignty entails a minimum responsibility that may not extend as far as full democratic rights, but must extend as far as rights to life and basic security. Sovereigns have the right to be wrong, but not about this.

THE REAL CHALLENGE for a doctrine of sovereign responsibility is not to prove that there are some limits to a sovereign’s right to be wrong about justice. The greater challenge is to ground the responsibilities of intervening states in some set of principles that makes their actions consistent. Libya but not Syria, Sudan but not Zimbabwe: intervention so discretionary can seem unprincipled. The principles of the Commission on Sovereignty and Intervention sought to balance basic respect for sovereignty with a clear threshold—ethnic cleansing; massacre, actual or apprehended—that should trigger intervention in every case. And some further restraining principles flow from sovereignty itself. If protecting a people from their own sovereign is a principled rationale for intervention, respecting that sovereignty in turn precludes taking it away from the people you have intervened to protect. Imperial conquest or occupation must be excluded.

But legitimacy, as the Commission argued, is a matter not only of principle, but also of prudence. Interventions that cannot succeed should not be tried, no matter how pressing the principle. (The question of how to measure the probabilities of success is of course a difficult one.) It matters, too, to be clear about what the principle at stake actually is. Libya and Syria may look like civil wars, but they are in fact revolutions. As Arthur Applbaum has argued, overthrowing sovereigns and replacing them with others—the revolutionary move—is an act that other democratic peoples have good reason to support. Peoples, even just some of them, can decide to rise against their sovereigns. When they decide to risk their lives, as the Libyans of Benghazi did last winter, and as the Syrians in town after town did this summer and fall, they must earn their freedom with their own hands—but they are also entitled to assistance when the only other choice is a return to tyranny.

As long as we define these struggles as civil wars, we are inclined to stay out. Once we define them as revolutions, the principle at stake looks different. (The difference is an empirical one, of course: each struggle must be carefully studied, because too often they are described according to the prior ideological inclinations of the observer.) In revolutionary situations, such large numbers of people have withdrawn consent from their sovereign that the principle is not whether to protect them, but whether to help them make a revolution. Indeed, we can only protect them by regime change, by transferring sovereignty into their hands. Prudence and principle must be intertwined at this point. If we intervene in every civil war that purports to be a revolution, we sacrifice an important value: the stability of an imperfect but necessary order of states. But if we turn a blind eye to revolution, we miss a chance to align sovereignty more closely with justice.

Even when an intervention seems just, a particular sovereign’s belief in the justice of its cause does not make it so. If we believe the exercise of sovereignty legitimizes itself domestically through adversarial justification, international intervention must also pass through a similar trial. The rationale for the U.N. Security Council as the ultimate authority for the use of coercive force lies not in the claim that the United Nations is a higher authority. It has no higher authority than the sovereignty of the members who compose it. What makes the United Nations an appropriate source of legitimacy for intervention is that it is the only place where the claims of the strong are put through the test of justification in front of the weak.

The paradoxical conclusion of all of this is that if we want individuals to face less oppression, violence, and fear in this world, we should wish for stronger sovereigns, not weaker ones. By stronger I mean more capable, more responsible, and more legitimate. If we want human rights to be anchored in the world, we cannot want their enforcement to depend on international institutions and NGOs. We want them anchored in the actual practice of sovereign states. If we want markets that deliver jobs, income, and security to the people of the world, we want sovereigns with the coercive capacity to force market actors to take responsibility for their risks. If we want a politics that offers us real opportunities to control our lives, we want stronger sovereigns, and if we want our political deliberations to remain connected to realities, we would want them disciplined by a shared common sense about the irreplaceable responsibilities of sovereign authority.

Michael Ignatieff is a former leader of the Liberal Party of Canada and a fellow of Massey College at the University of Toronto. This article appeared in the February 16, 2012 issue of the magazine.