Rethinking sovereignty, rethinking revolution

Philosophy and Public Affairs

Volumn 36, Issue 4, 2008, Pages 405-440

  Smith, Matthew Noah ^a  

^a YALE UNIVERSITY   (United States)

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EID: 56049103777     PISSN: 00483915     EISSN: 10884963     Source Type: Journal    
DOI: 10.1111/j.1088-4963.2008.00147.x     Document Type: Article

References (79)

1. The primary exceptions are the philosophical anarchists, who cannot duck the question of revolution but who usually quickly dismiss revolution as not a live moral option. For an overview, see A. John Simmons, "Philosophical Anarchism," in A. John Simmons, Justification and Legitimacy (New York: Cambridge University Press, 2001), pp. 102-21.
2. For the remainder of this article, when I speak of sovereigns or sovereignty, I am referring to political sovereigns and political sovereignty.
3. For example, consider Thomas Nagel's view of political sovereignty as expressed in
4. Thomas Nagel, "The Problem of Global Justice," Philosophy & Public Affairs 33 (2005): 113-47,
5. For more on what it is to treat a rule as an authority, see Joseph Raz, Practical Reasons and Norms, 2nd ed. (New York: Oxford University Press, 1999). For another view, see
6. Stephen Perry, "Second-Order Reasons, Uncertainty and Legal Theory," Southern California Law Review 62 (1988-89): 913-94.
7. Scott Shapiro, "On Hart's Way Out," Legal Theory 4 (1998): 469-507.
8. For more on violent acts as transgressive spectacles, see
9. Matthew Noah Smith, "Terrorism, Shared Rules and Trust," The Journal of Political Philosophy 16 (2008): 201-19,
10. Interestingly, Kant spoke approvingly of the spectacle of the French Revolution:... this [French]revolution, I say, nonetheless finds in the hearts of all spectators (who are not engaged in the game themselves) a wishful participation which borders on enthusiasm, the very expression of which is fraught with danger; this sympathy, therefore, can have no other cause than a moral disposition in the human race (Immanuel Kant, "An Old Question Raised Again: Is the Human Race Constantly Progressing?" in Immanuel Kant, Kant on History, ed. Lewis White Beck [New York: Macmillan, 1963], p. 85).
11. This point about the spectacle of revolution will be especially significant in the arguments in Section II. d.3.
12. Both the overall structure of Hobbes's justification of the state and his argument against revolution are consequentialist. For a recapitulation of Hobbes's views with some caveats, see Gregory Kavka, Hobbesian Moral and Political Theory (Princeton, N.J.: Princeton University Press, 1986), pp. 279-84. For an alternative view, see Sharon Lloyd, Ideals as Interests in Hobbes' "Leviathan": The Power of Mind over Matter (New York: Cambridge University Press, 1992). For Hume's views, see David Hume, A Treatise of Human Nature, ed. L. A. Selby-Bigge, and rev. P. H. Nidditch (New York: Oxford University Press, 1978), book 3, part 2, section 8, pp. 539-49.
13. Hume, A Treatise of Human Nature, p. 545.
14. Hugo Grotius, De Jure Belli ac Pacis 1.4.7.2. It was the privilege of other sovereigns to rescue the subjects of an illegitimate sovereign from the despotism under which the subjects suffered. Grotius was an absolutist, but he never went as far as Jean Bodin in defending an extreme form of absolutism.
15. Simmons, "Philosophical Anarchism," p. 114.
16. Ibid. Simmons prefaced this by saying that "[e]ven...if the law has no moral standing, the conduct required by law is often morally obligatory."He later does acknowledge that anarchists "do allow for justifiable disobedience in many cases..." (p. 115). For example, Simmons does not utterly reject resistance to the state: disobedience that does not cause "widespread suffering, unhappiness, and frustrated reasonable actions"is acceptable. Thus, "many distinctively political legal requirements-such as payment of certain taxes or military service-along with many paternalistic and moralistic laws and laws creating victimless crimes may be disobeyed without moral impropriety" (ibid., p. 115).
17. Simmons, "Philosophical Anarchism," p. 115 (italics added).
18. See Samuel Scheffler, ed., Consequentialism and Its Critics (New York: Oxford University Press, 1988). See also Amartya Sen and Bernard Williams, "Introduction: Utilitarianism and Beyond," in Utilitarianism and Beyond, ed. Sen and Williams (New York: Cambridge University Press, 1982), pp. 1-22.
19. Or consider the failed 1993 U.S. intervention in Somalia in which a single infamous battle caused the deaths of approximately 4,000 noncombatants.
20. Locke, Second Treatise of Government, §211.
21. Ibid.
22. Kant's objections to revolution are complex, especially given his very public admiration of the French Revolution. For an overview, see Christine Korsgaard, "Kant on the Right of Revolution,"in Reclaiming the History of Ethics: Essays for John Rawls, ed. Andrews Reath, Barbara Herman, and Christine Korsgaard (New York: Cambridge University Press, 1997), pp. 297-328. See also
23. Thomas E. Hill Jr., "Questions About Kant's Opposition to Revolution," Journal of Value Inquiry 36 (2002): 283-98,
24. Ryan W. Davis, "Is Revolution Morally Revolting?" Journal of Value Inquiry 38 (2004): 561-68.
25. For an extremely sophisticated and clear discussion of Kant's account of political authority and associated political obligations, see
26. Arthur Ripstein, "Authority and Coercion," Philosophy & Public Affairs 23 (2004): 2-35.
27. Immanuel Kant, "On the Proverb: 'That May Be True in Theory but Is of No Practical Use'," in Perpetual Peace and Other Essays on Politics, History and Morals, trans. Ted Humphrey (Indianapolis, Ind.: Hackett, 1983), p. 79.
28. All citations in this section, unless otherwise noted, are from Immanuel Kant, The Metaphysics of Morals, trans. and ed. Mary Gregor (New York: Cambridge University Press, 1996). I will give just the section numbers unless otherwise necessary.
29. Kant writes: Right is the limitation of each person's freedom so that it is compatible with the freedom of everyone, insofar as this is possible in accord with a universal law; and public right is the totality of external laws that makes such a thoroughgoing compatibility possible. (Kant, "On the Proverb: 'That May Be True in Theory but Is of No Practical Use," p. 72) On the basis of this, Kant concludes that "each may impel the other by force to leave this state and enter into a rightful condition" (Metaphysics of Morals, §44).
30. One need not endorse Kant's blanket rejection of revolution to recognize the significance of his point about the role of political authorities in establishing a valuable form of order. For example, Nagel, in "The Problem of Global Justice," writes, in both an endorsement and recapitulation of Kant's views on the importance of the state, that... all humans have to create and support a state of some kind-to leave and stay out of the state of nature. It is not an obligation to all other persons, in fact it has no clear boundaries; it is merely an obligation to create the conditions of peace and a legal order, with whatever community offers itself. This requirement is based... on the importance of securing basic rights. (p. 133)
31. This argument therefore does not depend upon acceptance of the Kantian injunctions to establish juridical systems, nor does it depend upon accepting that a brutal tyranny could function as such a system.
32. See Hume, Treatise of Human Nature, Book 3, part 2, sections 1-5.
33. We can see it in Thucydides, as well, who, in his discussion of domestic revolution, reminds us how... men too often take upon themselves in the prosecution of their revenge to set the example of doing away with these general laws to which all alike can look for salvation in adversity, instead of allowing them to subsist against the day of danger when their aid may be required (Thucydides, The History of the Peloponnesian War, trans. Rex Warner [New York: Penguin Classics, 1954], III.84.2).
34. Furthermore, it is worth noting that the legitimate exercise of this legal right to revolution would, because revolutions are public spectacles, amount to a spectacular endorsement of the legal authority of certain political institutions by the revolutionaries. That is, if my arguments succeed, then, a legal right to revolution would not only be possible, but its exercise would be a spectacular affirmation of the juridical order.
35. For more on a Kantian approach to an international legal order, see Jürgen Habermas, "Kant's Idea of a Perpetual Peace: At Two Hundred Years Historical Remove," in Jürgen Habermas, The Inclusion of the Other, ed. Ciaran Cronin and Pablo De Greiff (Cambridge, Mass.: MIT Press, 2000), pp. 165-201.
36. Would two parallel national sovereigns resolve this distinctive moral worry? No. For, two parallel national sovereigns would be competitors for authority and therefore would not simultaneously hold authority. This would then precipitate a political crisis that could be resolved only by eliminating one of the purported sovereigns (the great Papal Schism between Avignon and Rome is a case of parallel sovereigns that generated a political crisis of this sort), and this would allow the Kantian objection to regain its purchase. I thank an Editor of Philosophy & Public Affairs for urging me to address this question.
37. Locke argued that establishing a state is a necessary condition for living in accordance with the Law of Nature since partiality is a natural human trait that carries all of us to act contrary to the Law of Nature. The state, by promulgating and enforcing positive law that is presumably in accordance with the Law of Nature, thereby facilitates a morally "safe"existence as well as facilitates the production of valuable cooperatively generated surpluses.
38. For more on the distinction between the justification of political authority in general and the legitimacy of a particular political authority, see Simmons, "Justification and Legitimacy,"pp. 122-57.
39. For more on authority, see Joseph Raz, The Morality of Freedom (New York: Oxford University Press, 1986), and see his recent restatement,
40. Joseph Raz, "The Problem of Authority: Revisiting the Service Conception, " Minnesota Law Review 90 (2005): 1003-44.
41. For the sake of space, I leave aside a conceptual objection, based upon the impossibility of exit from a global sovereign, to the very possibility of a legitimate global sovereign. For what it is worth, I do not think that this is a serious objection-or at least I think that it is an objection faced by all national sovereigns as well.
42. For an overview of these uses, see The Architecture of Government: Rethinking Political Decentralization, ed. Daniel Treisman (New York: Cambridge University Press, 2007).
43. For more, see Alexander Galloway, Protocol: Or How Control Exists After Decentralization (Cambridge, Mass.: MIT Press, 2004).
44. Strictly speaking, the rhizome is a distributed network, but I shall, for the purposes of this article, put aside the distinction between decentralized and distributed networks.
45. These figures are reconstructions of figures found in Galloway, Protocol, p. 25.
46. Actually, the Internet is largely a distributed network, but for the purposes of this article I shall ignore the distinction between distributed and decentralized networks.
47. See, e.g.,
48. F. A. Hayek, "The Use of Knowledge in Society," American Economic Review 35 (1945): 519-30.
49. I owe this turn of phrase to Andrew March.
50. See, e.g., The Architecture of Government: Rethinking Political Decentralization, ed. Daniel Treisman, pp. 21-27; Kathleen O'Neill, Decentralizing the State: Elections, Parties and Local Power in the Andes (New York: Cambridge University Press, 2005);
51. Jonathan Rodden, "Comparative Federalism and Decentralization: On Meaning and Measurement," Comparative Politics 26 (2004): 481-500
52. I shall put aside corporate decentralization, where the local-national binary relationship is not altogether apt, but instead something more like the local-corporate headquarters binary relationship applies.
53. Importantly, it is consistent with the physical conception of decentralized sovereignty for the subnational units to which authority is devolved to have the authority to decide almost every political question for the subjects in that region. For example, just this kind of decentralized sovereignty existed in the United States immediately after its founding (i.e., under both the Articles of Confederation and during the early years of the Constitution).
54. Bruno S. Frey and Reiner Eichenberger have proposed a similar model of sovereignty for the European Union, which they call Functional Overlapping Competing Jurisdictions (FOCJ). See
55. Bruno Frey and Reiner Eichenberger, "FOCJ: Competitive Governments for Europe," International Review of Law and Economics 16 (1996): 315-27.
56. This may be slightly confusing to those familiar with Treisman's use of the term 'political decentralization'to describe a form of physically decentralized sovereignty. See Treisman, ed., The Architecture of Government, pp. 23ff. My terminological choice is meant to represent the deeper distinction between the physical and political that has heretofore gone largely unrecognized.
57. The institutions must be largely autonomous lest they all come under the governance of a single authority, thereby centralizing the institutions under a single authority. The domains of political questions over which the institutions have authority must be mostly nonoverlapping so that the multiple institutions do not collapse into a single institution, which would also thereby yield centralization.
58. See David Lewis, Convention (Cambridge, Mass.: Harvard University Press, 1969).
59. From here on out, when I talk of decentralization, I am talking of the political conception of decentralized sovereignty, except where obviously noted.
60. The theory of a decentralized global sovereign here is radically distinct from Anne-Marie Slaughter's conception of disaggregated sovereignty, which leaves no room for traditional centralized national sovereigns. See Anne-Marie Slaughter, A New World Order (Princeton, N.J.: Princeton University Press, 2004), pp. 266-71.
61. Additional candidate institutions include the Basle Committee, the Codex Alimentarius Commission, the International Standards Association, the Atomic Energy Agency, the Financial Action Task Force, the International Olympic Committee, the World Anti-Doping Agency, and the International Court of Arbitration for Sport.
62. My aim to show how there can be a single decentralized global sovereign separates the conception of decentralized sovereignty articulated here from Frey and Eichenberger's FOCJ conception of decentralized sovereignty, which is a theory of overlapping by distinct sovereigns. See Frey and Eichenberger, "FOCJ: Competitive Governments for Europe."
63. There are defenses of the positive claim that an international legal order exists (and that it governs largely through issuing administrative regulations and not through treaties). Such claims strongly suggest that my account of a decentralized global sovereign is not a mere conceptual possibility but may currently exist. See
64. Benedict Kingsbury, Nico Krisch, and Richard B. Stewart, "The Emergence of Global Administrative Law," Law and Contemporary Problems 68 (2005): 15-61.
65. James Salzman, "Decentralized Administrative Law in the Organization for Economic Cooperation and Development," Law and Contemporary Problems 68 (2005): 189-224.
66. This is an imperfect analogy since the true "constitution"of a computer is written directly into its physical hardware. There is no felicitous analogue to that in a human institution.
67. A defense of treating the rights established by the international human rights regime as protocols (or pledges) governing the operation of states is found in
68. Lea Brilmayer, "From 'Contract'to 'Pledge': The Structure of International Human Rights Agreements," British Year Book of International Law 77 (2007): 163-202.
69. For a discussion of how the WTO incorporates the legal human rights regime into its constitutive operations, see
70. Gabrielle Marceau, "WTO Dispute Settlement and Human Rights," European Journal of International Law 13 (2002): 253-314.
71. The arguments in this section further separate the view expressed in this article from the positions defended by the English "pluralists"like John Figgis and Harold Laski, who were opposed to highly centralized sovereignty. My view is explicitly formulated in order to create conceptual space for both a legitimate centralized sovereign and a legitimate global sovereign.
72. International lawyers recognize two forms of legal rules that can be issued by international institutions: "hard law" and "soft law." There is not space to recapitulate fully the distinction, although it is sufficient to note that soft law involves the issuing of regulations that are either limited in the obligations imposed or limited in the precision of the regulations or delegate interpretation and enforcement to traditional national state actors (this is not an exclusive disjunction). For an overview, see
73. Kenneth W. Abbott and Duncan Snidal, "Hard Law and Soft Law in International Governance," International Governance 54 (2000): 421-56.
74. Here I employ a strategy Michael Walzer famously called the "domestic analogy" in Michael Walzer, Just and Unjust Wars, 3rd ed. (New York: Basic Books, 2000).
75. Pace R. P. Wolff, In Defense of Anarchism (New York: Harper and Row, 1970).
76. But, if the international sovereign becomes centralized, then the traditional centralized national sovereigns will cease to exist, since they will simply become canton subjects to the ultimate authority of the centralized global sovereign (i.e., national states will cease to be 'hubs'and instead will become 'nodes').
77. So far, I have not addressed the question of whether there could be a legal right to revolution against a decentralized global sovereign. It seems that there could be, although I haven't space to discuss this.
78. I thank an Editor of Philosophy & Public Affairs for urging me to address this point.
79. For more on this, see Kavka, Hobbesian Moral and Political Theory.