A Framework for Comprehending Sovereignty
by
Howard Adelman
As in a recipe for baking a layered cake, I begin with the ingredients. In a cake, the two main elements are usually, but not necessarily, flour and water. The two main elements in the case of sovereignty are state and nation. That does not mean that both are always present. When Louis XIV of France said, “L’État c’est moi,” France still consisted of a number of ethnic and linguistic groups, the Basques in the south, the descendants of the Ligures in the south-east, the Normans in the north descended from the Vikings, and the major group of Gauls and Belgae that were dominant in the territory that became France. There was no singular French nation at the time. But there was a state, and Louis XIV was the quintessential absolute monarch of that state.
While the nation was multiple, the state and the sovereign were one. That meant that the ability to raise taxes, to require the citizens of the French state to pay monies to the state, belonged to Louis XIV as the embodiment of the French state. This was the material dimension of sovereignty. At the same time, Louis insisted on a monopoly on coercive power within the territory of the state. As absolute ruler, any lords of the realm had to pledge their control and use of military power to Louis XIV’s purposes. This was the coercive dimension of sovereignty and the move towards the state having a monopoly on the use of coercive power. Finally, Louis XIV had absolute jurisdiction in making the laws of the land. Combining all three, Louis XIV controlled the exercise of three key elements of the state – material wealth, coercive power and legal authority.
Sometimes the state precedes the constitution of a nation. This was true in France. This was true in the United States. This was true in Canada. Some countries, such as Canada, never did forge a singular strong nationality, but a layered one in which all citizens could belong to the Canadian nation, but many could be Québécois, Ojibway, Cree or Inuit as well. Further, that sense of common identity developed and shifted over time. The bond formed was not primarily external and expressed through the formal and legal mechanism of citizenship, as in a state, but could be said to be intuitive characterized by informal bonds that tie together the members of a nation.
A nation has a national consciousness – a shared sense of group identity. That is its heart. A nation has a governing idea. In contemporary Canada, it may be the concept of a mosaic and a collective concern for the well-being of each of its members as manifested in one realm, a single payer system for guaranteeing health care. In the U.S., it may be a very different conception – a melting pot and a realm independent and separate from the power of the state, such as the idea of a frontier that is more about the personality of the nation than an actual territorial boundary. That is its heart.
In a nation, there are rules as well as ruling ideas, but those rooted not so much in formal authority as in a sense of authentic authority. In Canada, it may be the reputed civility, the politeness of Canadians. In America, it may be bluntness and the wide scope given to the expression of free speech so that Alan Dershowitz could insist that the American Civil Liberties Union intervene on behalf of Donald Trump against the charge of inciting violence at his rallies because, unless a direct connection between his words and the actions of the individuals committing the assault against a peaceful protester in the midst of the rally, can be established, the command to, “Get her out,” does not constitute incitement to violence unless the individuals committing the assault were paid agents of the Donald Trump campaign. In America, even though its extent is debated, the right of freedom of speech is much more broadly defined than in other political jurisdictions. Behind the constitution, this inchoate sense of the nation is often cited to justify legislation and interpretations of the formal legal system.
In addition to its heart and head, a nation is a source of empowerment through the exercise of its sense as a nation and its members’ identification with and service to that nation. These are the guts of a nation.
If a state consolidates its material foundation, its legal system and its ability to use coercive power over time, the process is directed towards making the unit more effective, more coherent and more unified. In the case of the nation, its dynamic, its changing qualities and characteristics, are much more on display and in play. The formation of a nation can almost always be said to be an activity in motion. When sufficient numbers share a singular identification to become a source of collective energy working for a common goal, a nation is formed that can be characterized by a unique energy source rooted in creative rather than coercive power.
State Nation
Power Coercive Creative
Authority Formal or Legal Authentic
Influence Material Intellectual
While most states consolidate, their formation is independent of and usually precedes the formation of the nation that dominates within a state. This was not true of the ancient Hebrew nation-state or of the modern Dutch nation-state where the group developed a sense of itself as a nation before it constituted itself as a state. The Torah provides the narrative of the formation of the Israelite nation before there ever was a state. A nation is constituted by a set of reigning ideas that provide a profound intellectual influence on the spirit of a nation. The will of that nation becomes the source of authority for defining a nation, its historical purpose and the use of the spirit of a nation or its collective creative energy.
Opening Friday’s roundtable on sovereignty, Tom Axworthy cited Jean Bodin as his primary historical authority for defining sovereignty. Jean Bodin, a sixteenth century French jurist, philosopher and professor of law at Toulouse, was best known for his theory of sovereignty which defined sovereignty in terms of formal legal rule backed up by a monopoly on coercive power for governing a defined territory. What is less well known is that Bodin also wrote on the economy in a 1568 treatise, Réponse de J. Bodin aux paradoxes de M. de Malestroit in which he clarified that a state not only depended upon a legislated regime backed by coercive force, but a material foundation in which monetary policy (the amount of money in circulation) and the productivity of the regime were to be kept in some form of reasonable balance. Material wealth was not simply about the quantity of money – the increasing importation of silver and gold from South America at that time – but about the ability of the state to organize the production of goods and services consonant with the money supply.
However, in Bodin, the stress on these three dimensions of state sovereignty ignored the role of the sovereignty of the nation. Bodin provided a rationale for the consolidation of power, legislative authority and material wealth in a singular and dominant authority. Though Axworthy, in his presentation of a realist view of sovereignty, ignored the material dimension, his most significant omission was his obliviousness to the sovereignty of the nation and blindness to other ways in which the sovereignty of the state could be grasped.
Elizabeth Riddell-Dixon’s account stood in sharp contrast because she stressed the importance neither of military power nor the direction of material acquisition nor even of state legislated laws. International law set the foundation for recognizing the boundaries of a state in the north of Canada – in this case, the international law of the sea – backed up by scientific research that provided the intellectual substance for applying those norms. All this was part of the expression of the spirit of a nation even in a realm where there were no members requiring protection.
This is also why an international legal regime needs to be developed governing climate change based on extensive scientific research. Not for expanding our wealth, but for making the need to resort to coercive force obsolete and for ensuring human survival. Sara French-Rooke in her discussions of sovereignty when applied to northern peoples stressed the central place of personal security rather than state security, the emphasis again on survival rather than the accumulation of wealth ad infinitum.
This involved a very different conception of sovereignty, one rooted in a universal sovereign in which nations and states are simply trustees for a segment of territory on behalf of an eternal sovereign. The state and the nation may both come into existence in history, but behind and before that emergence there needed to be a magisterium universalis.
When there is an effort to make the universal sovereign the actual ruler, you then move towards an idealistic conception of sovereignty. For the ultimate authority, which would determine whether a state treated its citizens adequately, would be a source of universal governance. This was the intent of R2P. It was neither the intent nor the mechanism of the law of the sea, for the latter always depends on states opting into the process and, in the end, making the consent of the relevant states critical to the implementation of the universal norms.
There are clear implications of pushing one doctrine rather than another. In the realist or Bodin construction, policy would suggest that Canada needs a robust sea presence in terms of updated or new icebreakers reinforced by navy patrols and air surveillance to exercise its sovereignty. But Riddell-Nixon argued that neither coercion, the quest for material accumulation nor formal domestic legislation have been critical in determining the boundaries of sovereignty of Canada in the arctic region.
This framework also allows us to understand both shared and shattered sovereignty. In shared sovereignty, agents share formal authority and usually defend that shared authority by joint action of military forces. Revenues from resources may also be shared as between Sudan and South Sudan. Shared sovereignty may be between a domestic jurisdiction below the state level – such as a province – or there may be shared authority between a state and an external agent. Thus, Canada in matters of defence has largely surrendered its autonomous control of coercive power, at least where it concerns the defence of the North American continent, to the overwhelming might of America. When Canadians were debating over whether to have or get rid of nuclear-tipped Bomarc missiles in Sudbury in the Diefenbaker-Pearson era, this was a decoy. Americans had already deployed nuclear-armed missiles across the north of Canada, something few Canadians knew anything about at the time.
Sovereignty also shatters. It may be among Kurds, Sunnis and Shiites in Iraq or repressed as in the case of Turkey dealing with its Kurdish minority or a source of rivalry as between the Dinka and Neuer in South Sudan. Kenya has yet to forge a fully unified nation from its dominant tribes. In the UK, the Scots are seeking independence and, in Northern Ireland, there is some degree of shared sovereignty between Ireland and Great Britain. Shared sovereignty over control of the old city of Jerusalem has been proposed to resolve a major impasse in the peace negotiations between Israel and the Palestinians. Shared sovereignty is sometimes a positive response to the problem of a shattered state that stresses divisions rather than unity among the nations that make up a state.
Failed states usually result from the shattering of national identity, not simply because of its multiplicity. The tensions in America are deeply embedded in the mistreatment of America’s black population. I finally watched the marvellous documentary, 13th. The film is based on the thesis that the 13th amendment to the constitution passed to end slavery in the U.S., contained a loophole which allowed discrimination against blacks to be reinstated in new forms of legal coercion when the old forms became intolerable. The 13th amendment reads: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” The loophole is in italics.
When slavery ended, the legal system in the south was used to arrest blacks in large numbers for spurious or minor offences. Southern states used this new form of slavery to build public works through the labour of chain gangs. When that practice was disallowed, the South switched to the use of Jim Crow laws legislating separation of the races and raising the hurdle for exercising voting rights. When Jim Crow was ended with the civil rights movement, the coercive system of black subjugation, though far weaker, persisted and switched to using the law and coercive powers of the state to raise the prison population in the U.S. Even though a task force constituted by Nixon recommended addressing the root causes of drug abuse through therapy rather than incarceration, Nixon introduced a war on drugs knowing it was irrelevant to reducing the drug issue, but as a mechanism for winning the south vote by identifying blacks with drugs and winning support for his unpopular Vietnam War by libelling hippies as stoned potheads.
The war on drugs continued and was enhanced by each presidential regime, including Clinton’s, so that by the year 2014 the prison population had exploded from numbers in the range of 300,000 to numbers in excess of 2.4 million. 40% were blacks. Law and coercion were used to disenfranchise blacks by alleging a spurious massive voter fraud and raising barriers to access voting to both demonize blacks as cheaters as well as retain support among white voters indoctrinated to fear blacks as rapists. The point is that the coercive might of the state, its legislative powers and its material interests can combine to repress a part of the nation and define that part as Other. That effort may turn to Mexican illegal and legal migrants as well, including Hispanic children born in the U.S., who, like blacks of old, were demonized by Donald Trump as rapists and criminals even though the rate of convictions of Hispanics was lower than the rate for native-born white Americans.
There is a material motive to undertaking such efforts since, in the partnerships of government and private business, large numbers of private corporations now have a vested interest in the economics of incarceration and the profits that flow from production facilities in prisons. Thus, material interest can be united with a state’s control over coercive power and its legislative authority to repress part of a nation to enhance the identity of another part and unite that part through inculcation of the fear of the Other.
A healthy nation-state tries to ensure that all its citizens can identify with a nation that will be treated equally by the state, whatever the sub-national grouping. However, the coercive powers of the state, its legislative powers and its objective of facilitating the acquisition of material wealth can be combined to throw stones at and eventually crack and even shatter the windshield of the state.
With the help of Alex Zisman
Canada, thankfully, is travelling a path in the opposite direction.
Howard Adelman 