Understanding sovereignty through Kelsen/Schmitt

Review of International Studies

Volumn 33, Issue 3, 2007, Pages 511-530

  Suganami, Hidemi ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34547148407     PISSN: 02602105     EISSN: 14699044     Source Type: Journal    
DOI: 10.1017/S0260210507007632     Document Type: Article

References (109)

1. My focus here is on 'state sovereignty' but, I will argue, this is sustained by a broader practice of sovereignty, which also underlies other authorities. Informative works on Kelsen and Schmitt include: David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar (Oxford: Oxford University Press, 1997),
2. and Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (Cambridge: Cambridge University Press, 2001).
3. Georg Jellinek, Allgemeine Staatslehre, 3rd edn. (Bad Homburg von der Höhe: Gentner, 1960), p.458.
4. C. A. W. Manning, 'The Legal Framework in a World of Change', in B. Porter (ed.), The Aberystwyth Papers: International Politics 1919-1969 (London: Oxford University Press, 1972), p. 308.
5. I am aware that this is not how philosophers distinguish 'nominalism' and 'essentialism', but I prefer these terms to, say, 'pluralism' and 'monism'.
6. The following summary is based on my reading of Stephen D. Krasner, Sovereignty: Organized Hypocrisy (Princeton, NJ: Princeton University Press, 1999).
7. Krasner, Sovereignty, p. 82.
8. Ibid., p. 152.
9. Alan James, Sovereign Statehood: The Basis of International Society (London: Allen & Unwin, 1986), p. 229.
10. Jean Bodin, Six Books on the Commonwealth, abridged and translated by M. J. Tooley (Oxford: Blackwell, 1967), pp. 25, 28.
11. Emmeric de Vattel, The Law of Nations, trans. by C. G. Fenwick (Washington, DC: Carnegie Institution, 1916), II, iii, 56.
12. Krasner, Sovereignty, pp. 33, 82.
13. See, for example, Michael Williams, The Realist Tradition and the Limits of International Relations (Cambridge: Cambridge University Press, 2005).
14. Compare Janice E. Thomson, Mercenaries, Pirates & Sovereigns (Princeton, NJ: Princeton University Press, 1994);
15. Jens Bartelson, A Genealogy of Sovereignty (Cambridge: Cambridge University Press, 1995);
16. Christian Reus-Smit, The Moral Purpose of the State: Culture, Social Identity, and Institutional Rationality in International Relations (Princeton, NJ: Princeton University Press, 1999);
17. Hideaki Shinoda, Re-Examining Sovereignty: From Classical Theory to the Global Age (Houndmills, Basingstoke: Macmillan Press, 2000);
18. Daniel Philpott, Revolutions in Sovereignty: How Ideas Shaped Modern International Relations (Princeton, NJ: Princeton University Press, 2001);
19. Constantin Fasolt, The Limits of History (Chicago, IL: The University of Chicago Press, 2004).
20. Philpott identifies 'supreme authority within a territory' as the core meaning of 'sovereignty' which, according to him, is 'broad enough to encompass much of the diversity, but discrete enough to be useful'. Philpott, Revolutions, p. 16. This serves his purpose well. By contrast, this article seeks a much finer analysis of two key conceptions of sovereignty and their implications, and it will not do to stop at a rough idea.
21. One example of this is John Hoffman, Sovereignty (Buckingham: Open University Press, 1998), which, however, I did not find very helpful.
22. In Philip Cunliffe's view, 'Popular sovereignty ... cannot belong to the body of the people separate from the state'. Whether 'the state' in this context has to be a 'sovereign' state, and in what sense, is an interesting question.
23. See Cunliffe, 'Sovereignty and the Politics of Responsibility', in Christopher J. Bickerton, Philip Cunliffe and Alexander Gourevitch (eds.), Politics without Sovereignty: A Critique of Contemporary International Relations (London: London University College, London Press, 2007), pp. 39-57 at p. 50.
24. See a succinct summary in Philpott, Revolutions, pp. 24-5;
25. and, in more detail, an excellent collection of essays, Rodney Bruce Hall and Thomas J. Biersteker (eds.), The Emergence of Private Authority in Global Governance (Cambridge: Cambridge University Press, 2002).
26. The following is based on my reading of Carl Schmitt, The Concept of the Political, trans. by George Schwab (Chicago, IL: The University of Chicago Press, 1996), pp. 25-7.
27. Schmitt uses 'he' to refer to 'the enemy' but, he says, '[t]he enemy is not the private adversary whom one hates'; '[a]n enemy exists only when ... one fighting collectivity of people confronts a similar collectivity'. Importantly, 'the enemy' is not a 'foe' that has to be annihilated: 'the enemy' is a public enemy 'who fights against us', who needs only to be 'compelled to retreat into his borders'. Schmitt is critical of such crusading ideas as 'war to end all wars' or 'war fought in the name of humanity'. Schmitt, The Concept, pp. 28, 29n, 36, 54.
28. Ibid., p. 26.
29. Ibid., p. 36, emphasis added.
30. See Martti Koskenniemi, The Gentle Civilizer, p. 436, on Morgenthau's influence on Schmitt on this point. I do not think, however, that Schmitt can be said to have abandoned the idea of the political as a distinct category.
31. Schmitt, The Concept, p. 37.
32. Ibid., p. 37, emphasis added.
33. Ibid., p. 33.
34. Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. by George Schwab (Cambridge, MA: MIT Press, 1985), p. 5.
35. Schmitt, The Concept, pp. 43-4.
36. Hans J. Morgenthau, 'The Problem of Sovereignty Reconsidered', Columbia Law Review, 48 (1948), p. 361.
37. Schmitt, The Concept, p. 38.
38. Ibid., p. 45.
39. A good example is found in Karl von Stengel, Weltstaat und Friedenspropblem (Berlin: Reichl, 1909).
40. See Office of Legal Counsel, US Department of Justice, 'Memorandum for Alberto R. Gonzales, Counsel to the President - Re: Standards of Conduct for Interrogation under 18 U.S.C.§§2340-2340A', 1 August 2002.
41. Hans Kelsen, Pure Theory of Law, trans. by Max Knight (Berkeley, CA: University of California Press, 1970), pp. 221-78, 286-319.
42. Kelsen, Pure Theory, p. 199.
43. This is a theoretical question about how to make sense of international/national law. It should not be confused with a substantive legal question regarding the consequences of a possible conflict between international law binding a particular state and the national law of that state. See further Kelsen, Pure Theory, pp. 328ff.
44. He contrasted subjectivism (atomism, egoism) and objectivism (a society-centred view) as underlying the two opposing interpretations. He warned that subjectivism would lead to the view that only one state is sovereign, but did not think that this was a scientifically untenable interpretation. Kelsen, Pure Theory, pp. 339ff.
45. Ibid., p. 217; emphasis original.
46. Their (in my view correct) argument was that the primacy-of-national-law view could not explain the binding nature of customary international law without recourse to a fiction that it was based on states' tacit consent; and that it failed to explain why international law was binding on states after revolutionary changes of their constitutions. Josef Kunz, 'The "Vienna School" and International Law', in Kunz (ed.), The Changing Law of Nations: Essays on International Law (Ohio State University Press, 1968), p. 85.
47. Kunz, 'The "Vienna School" ', p. 85.
48. In addition to sovereign states, insurgents in a civil war have long been recognised in international law as subjects with certain rights and duties. There are other entities in world politics which international law may be said in some exceptional cases to confer a very limited degree of international legal personality/competence, for example, the UN, individuals and companies. See Peter Malanczuk, Akehurst's Modern Introduction to International Law, 7th edn (London: Routledge, 1977), pp. 91-108. But a 'fullness of competences' in international law belongs exclusively to sovereign states.
49. Kelsen, General Theory of Law and State, trans. Anders Wedberg, reissue (New York: Russell & Russell, 1961), pp. 248-54.
50. Kunz, 'The "Vienna School" ', p. 86. In the absence of a relevant legal constraint, Kunz is saying, states are free to go to war. By contrast, Schmitt's contention was that sovereign states had a fundamental right of war. What Kelsen denies, and Schmitt seems to insist on, is the very possibility of such a right prior to international law.
51. Ibid., p. 86.
52. Ibid., p. 86.
53. Kelsen, General Theory, pp. 252-4.
54. Ibid., pp. 308-28; Kunz, 'The "Vienna School" ', pp. 98ff.
55. See, in particular, James, Sovereign Statehood, pp. 26-30.
56. Schmitt, Political Theology, p. 17.
57. Manning, 'The Legal Framework', p. 307.
58. Ibid., p. 308.
59. James, Sovereign Statehood. According to him, the word 'sovereignty' is used to mean a number of things, but when it is used to refer to the condition of the membership of international society it means the state's constitutional independence. It is worth noting here that, even though international law does not form part of James' articulation of the concept of sovereign statehood, what he interprets as a key institutional feature of the world does, namely the idea that the world is organised as a society of sovereign states which has a clear membership rule.
60. Kelsen, Pure Theory, p. 193.
61. Kunz, 'The "Vienna School" ', pp. 87-8.
62. Kelsen, Pure Theory, p. 216.
63. Kelsen, General Theory, p. 369. The legal validity of customary international law derives from this basic norm. One of the customary legal principles is pacta sunt servanda, from which flows treaty-based international law. Another is what Kelsen calls the principle of effectiveness, which acknowledges a constitution that is, by and large, effectively a legally valid one. From a valid national constitution then follow all the national legal norms and decisions:
64. Kelsen, General Theory, pp. 366ff. The idea that positive international law contains within it the principle of effectiveness is tantamount to the idea that international law acknowledges certain facts (such as a successful revolution or coup d'état) as creating legal obligations. Kelsen needs to claim that positive international law contains the principle of effectiveness to sustain his subscription to the Humean position.
65. Kelsen came to acknowledge that his basic norm was a fiction - as 'the ought' of the basic norm was not backed by a will. See Alf Ross, Directives and Norms (London: Routledge & Kegan Paul, 1968), p. 158.
66. Jellinek, Allgemeine Staatslehre, pp. 337ff.
67. It does not follow that the content of the law can be entirely arbitrary. According to Hart, certain facts of life shape a range of general principles which it is rational/functional for national legal systems to incorporate. H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961). It does not follow either that it is impossible or inappropriate to try to assess the ethical validity of positive law.
68. Schmitt, Political Theology, p. 3;
69. Jellinek, Allgemeine Staatslehre, pp. 337ff.
70. Schmitt, Political Theology, p. xviii.
71. Georgio Agamben, State of Exception, trans. Kevin Attell (Chicago, IL: University of Chicago Press, 2005), p. 36.
72. Kelsen, Pure Theory, pp. 348ff. According to him, the idea that legal norms have only one true meaning is a fiction; for the law to be operative, it must be interpreted by a law-applying organ; and the law-applying organ's interpretation - which he says is 'necessarily authentic'- is not an act of cognition, but of will, involving discretion.
73. Schmitt, Political Theology, p. 12.
74. Such a practice is widespread in society and is not confined to the operation of the state. 'State sovereignty' and the 'practice of sovereignty' are not the same.
75. Manning, 'The Legal Framework', p. 307, emphasis original.
76. James, Sovereign Statehood, p. 155, emphasis added.
77. I am using a blanket term 'to follow from', which covers at least three distinct items: (supposedly) logical entailments of a particular conception of sovereignty; empirical effects of the prevalence of a certain conception of sovereignty; and empirical effects of the practice of sovereignty. I say 'supposedly' because, as will be explained, there is a problem with the idea of a logical entailment of a concept. See W. V. O. Quine, 'Two Dogmas of Empiricism', in his From a Logical Point of View: Logico-Philosophical Essays, 2nd edn. (New York: Harper & Row, 1961), pp. 20-46.
78. For example, we find in one North American textbook that I picked at random: 'Sovereignty ... means that states are not supposed to interfere in the internal affairs of other states'. Joshua Goldstein, International Relations (New York: Longman, 2004), p. 90. Quoting Mohammed Ayoob, Cunliffe writes that sovereignty 'acts as a "no trespassing" sign protecting the exclusive territorial domain of states'.
79. Cunliffe, 'Sovereignty and the Politics of Responsibility' (see n. 16 above), p. 38.
80. The same point can be made on the basis of James's observation that 'sovereignty' understood as 'constitutional independence' is a factual condition, Sovereign Statehood, p. 48. From the mere fact of a given state's constitutional independence, no international legal principle can logically follow regarding whether and under what conditions its independence ought to be respected by other sovereign states. For this, we need to know the law itself.
81. The more powerful the convention, the less we realise that it is the force of the convention that is doing much of the logical work. The most powerful of all may be logical principles themselves.
82. R. J. Vincent, Nonintervention and International Order (Princeton, NJ: Princeton University Press, 1974), passim.
83. F. H. Hinsley, Sovereignty (London: Watts, 1966), p. 26, emphasis original.
84. Vincent, Nonintervention, p. 14, emphasis original.
85. Reus-Smit, 'Human Rights and the Social Construction of Sovereignty', Review of International Studies, 27 (2001), p. 538;
86. Thomson, Mercenaries, p. 153.
87. See also Cynthia Weber, Simulating Sovereignty: Intervention, the Stale and Symbolic. Exchange (Cambridge: Cambridge University Press, 1995);
88. and Thomas J. Biersteker and Cynthia Weber (eds.), State Sovereignty as Social Construct. (Cambridge: Cambridge University Press, 1996).
89. Schmitt, The Concept, p. 27.
90. On Schmitt's idea of non-intervention between a number of Great Power blocs, see his Völkerrechtliche Grossraumordnung mit Interventionsverbot für raumfremde Mächte (Berlin: Deutscher Rechtsverlag, 1939).
91. See Williams, The Realist Tradition, p. 89, note 23.
92. N. J. Wheeler, Saving Strangers: Humanitarian Intervention in International Society (Oxford: Oxford University Press, 2000).
93. In one popular textbook of IR, we find: 'Sovereignty and the legal principles derived from it shape and reinforce international anarchy'. Charles W. Kegley, Jr. and Eugene R. Wittkopf, World Politics: Trend and Transformation, 7th edn. (Houndmills, Basingstoke: Macmillan, 1999), p. 507.
94. See also M. R. Fowler and J. M. Bunck, Law, Power, and the Sovereign State: The Evolution and Application of the Concept of Sovereignty (University Park, PA: Pennsylvania State University Press, 1996), pp. 157ff.
95. Andrew Linklater, 'Citizenship and Sovereignty in the Post-Westphalian State', European Journal of International Relations, 2 (1996), pp. 77-103;
96. The Transformation of Political Community (Cambridge: Polity Press, 1998).
97. Linklater, 'Citizenship', pp. 94-5, p. 100, note 11, referring to James's work.
98. E. H. Carr, The Twenty Years' Crisis 1919-1939 (London: Macmillan 1939).
99. On neo-medievalism, see Hedley Bull, The Anarchical Society: A Study of Order in World Politics, 3rd edn. (London: Palgrave, 2002), pp. 245-6.
100. De Gaulle's decision to equip France with an independent nuclear force and withdraw French forces from NATO is one illustration of the Schmittian conception of sovereignty.
101. Schmitt, The Concept, p. 33.
102. See Alexander Wendt, Social Theory of International Politics (Cambridge: Cambridge University Press, 1999) on limited transformative potentials of an international system from the more warlike towards the more peaceable.
103. Kenneth N. Waltz, Theory of International Politics (Reading, MA: Addison-Wesley, 1979), p. 96.
104. Ned Lebow, The Tragic Vision of Politics: Ethics, Interests and Orders (Cambridge: Cambridge University Press, 2003), p. 311.
105. Karena Shaw, 'Creating/Negotiating Interstices: Indigenous Sovereignties', in Jenny Edkins et al., Sovereign Lives: Power in Global Politics (London: Routledge, 2004), pp. 165-87.
106. See Judith Butler, Precarious Live: The Powers of Mourning and Violence (London: Verso, 2004), p. 68.
107. Goergio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. by Daniel Heller-Roazen (Stanford: Stanford University Press, 1998).
108. See also Edkins, Sovereign Lives.
109. This point is obscured when it is stated, for instance, that '[s]overeign power produces and is itself produced by trauma: it provokes wars, genocides and famines'. Jenny Edkins, Trauma and the Memory of Politics (Cambridge: Cambridge University Press, 2003), p. xv.