A Framework for Comprehending Sovereignty

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.

Putin versus the Modern Nation-State System

The Development of the Modern Nation-State System

by

Howard Adelman

 

Putin versus the Westphalian Order

To comprehend the enormity of what is at stake in Putin’s Russia seizing and annexing part of Ukraine and now threatening eastern Ukraine, it is important to but the current crisis within the long trajectory of the development of modernity and the modern nation-state system. Putin is challenging the system on two basic norms: (1) prioritizing the unity of a large national group over the sanctity of state borders; (2) allowing powerful states through the use of their military might and economic leverage to reduce adjacent states to satraps and to change borders at will. These challenges have contributed to enormous international political turbulence and the risk of an expanded war is now possible. How to respond and with what degree of intensity and effort depends on understanding what is at stake. This blog, which borrows extensively from my previous publications, is intended to provide a succinct historical narrative to clarify what has been fought for and won in the existing international order.

In many world histories, the following radical shift at the beginning of the modern era likened our present time to that period. “Our current period is reminiscent of the turbulence and chaos that accompanied the transition from the feudal world order to the early Modern Period (pre-Westphalian Europe). This was a period of ‘declining empires, retreating feudal lords and an emerging class of traders and capitalist entrepreneurs.’ At that time, the Holy Roman Catholic Church represented God’s rule on earth (a divine element in that world order) and had established itself as the ‘divinely-delegated’ hegemonic power, an influential power that became an instrument of European governance. City-states were the main political units, although they were mostly controlled by monarchs. However, by the early 1600s there were already signs of tremendous turbulence in this feudal world order. One indication of this was the first pan-European (religious) war, which severely weakened the influence of the Church and resulted in the hegemon being replaced by about 300 sovereign princes. The disorder of the religious wars facilitated the disintegration of the old order which was slowly replaced by a new pan-European secular order in 1648 based on the equal sovereignty of newly created states.”

The message is that modern states succeeded empires replacing a centralized Christian empire with a diversity of different secular states. The new world order was consecrated by the Treaty of Westphalia. Though there is much truth in this historical schema, it errs by fundamental omissions. First, the resurrection of the concept of the nation as the bearer of collective values precedes the emergence of nation-states. Second, that emergence is facilitated by the resurrection of an Old Testament idea of nations at peace with one another; there is a utopian aspiration, as distinct from an apocalyptic vision, as well as an historical precedent on which these moderns relied. The aspiration included the Achilles heal of the nation-state system — whenever states and statesmen see themselves as the bearers and protectors of ALL fellow nationals in total disregard of accepted borders and the rights of states. Third, the states were not secular but Protestant, and the Protestant nation-states were at war with Catholic empires.

The Catholics were often viewed as fifth columnists, threats living within the bosom of the nation, with justification in some cases. But also because of provocation! After all, it was the true Catholic believer, Lord Robert (Robin) Catesby, in 1604 who organized Guy Fawkes, the explosives expert, and his aristocratic friends – Thomas Wintow, John Wright, Thomas Percy and Robert Keyes – to blow up James I, his wife and heir as well as all his officials in 1605 when the House of Lords reconvened in the second year after the Scottish King, James VI, son of the Catholic Mary Queen of Scots, succeeded Elizabeth to the throne of England. James was perceived as failing to fulfill his ostensible promise to permit freedom of worship for the Catholics. Of course, there had been provocations. Sir Robert Cecil had persecuted Catholics mercilessly. Under a 1586 statute, priests had to live and scurry about England in secrecy. When caught, they were most often killed. Protestant church attendance was compulsory.

Robin Catesby was a devout Catholic and a recusant, a refusenik of the time who refused to attend a Protestant church even nominally. His sister hid the Jesuit Priest, Father Henry Garnett, who was believed to be trying to carry out the 1570 Papal Bull of Pius Quintet that Catholics were not bound by any oath of fealty to their Protestant King or Queen. In 1604, freed from the restraining influence of the King, the exposure and capture of the Bye Plot conspirators who planned to kidnap the King brought the wrath of the Sir Robert Cecil onto the backs of the Catholics, a wrath that encouraged the rebels even though Farther Garnet had advised against the plot in prescient fear of an even greater persecution of Catholics.

The 1605 Gunpowder plot was the 9/11 cataclysm of its day. But the centre of the intellectual and ideological war between Protestant nation-states and the Holy Roman Empire was Holland, not England, where thinkers such as Hugo Grotius provided the ideological rational for the new order, an order highly influenced by a belief in resurrecting a new version of the old biblical order embraced by the rule of constitutional law domestically and international law more globally.

The Hebrew bible is clearly based on a politics of peoples. God promises to make the descendents a great nation (Genesis 12:2) with numerous descendents. (Genesis 15:4; 17:2; 22:17). This collection of books is premised on ethno-nationalism and populated with goyim, nations. The central concern is with the politics of the nation, the proper polis for the nation (Daniel Elezar), and securing a nation’s freedom within God’s realm on earth, not God’s realm in heaven. (Leo Strauss) The nation is premised on the principle of descent as central though not exclusive (as the Book of Ruth clearly indicates), and governance over a particular territory both to protect the nation and to pass laws that apply equally both to members of the nation and the gerim or strangers who live amongst any nation.

The children of Israel are not native to the soil for, like the Arameans who came from Kir and the Philistines who came from Caphtor, the Israelites became a nation when they came up from Egypt to settle in the land of Israel. The implication is that many if not most nations are forged from their process of movement and settlement. Further, in the case of the Hebrews, as with many other peoples – the Armenians, the Kurds, the Circassians – their unity continues even when uprooted from what became their ancestral territory. During that exile, the collective experience includes a degree of self-rule even when the nation lived within the bosom of a state in which the members of the minority nation were not equal subjects.

Thus, there are laws and practices governing the nation which lack the coercive force of the state, but which regulate the life of a people and all of its members who voluntarily adhere to that law – Torah and dat. State laws apply to those norms and rules for the protection of the nation or the people. State laws also provide equal protection of the welfare of all citizens of the realm who live on its territory, provided that they are not threats, whatever the source of their national affiliation. Finally, state laws apply to inter-national relations under applicable universal norms. The problem of Putin is not that states do not have a responsibility to protect fellow nationals who live outside the confines of the state, but how and when that obligation to protection is exercised. Are fellow nationals really in dire fear or is the creation of that fear a construct and excuse for intervention? If they are in fear, have all other methods of protection been exhausted or has the state dispensed with established international procedures for pursuing protection?

At the foundations of modernity in the seventeenth century, Holland emerges as the modern New Israel, the Republica Hebraeorum at a time when Hebrew studies and biblical research flourished at Leiden University and Jews arrived in large numbers in the United Provinces, mostly in flight from persecution and discrimination elsewhere – such as Catholic Spain where even the Conversos were being persecuted as racism rather than religion revealed itself to be at the heart of the persecution. Though these new political ideals incorporate in their political theoretical concerns the preoccupation with the ideal form of government as well as concerns with power and justice and the relationship between those who rule and those governed by the laws of the state largely inherited from the Greeks, it is from Jewish thinkers who lived in exile that Holland inherited its tradition for developing theory and rules of law applicable to the Dutch nation. (Cf. E.H. Krossman (2000) Political Thought in the Dutch Republic)

Although the material benefits of providing hospitality to the great Jewish merchants of the time, who were enjoying a Golden Age, played a part, the influence of traditional Jewish political thought on the political foundations of the post-Westphalian order was profound. The Jewish polis was not viewed as a source for universal truths, but as a model with lessons to be learned. This not just an exercise in speculation, but an actual pattern of political concern by a nation that was so critical in providing the foundations of modernity, for it was William of Orange in 1688 coming from the Netherlands who gave Britain its character as a modern nation-state.

However, the Dutch tradition differed from that of the Hebrew nation, for Holland arose out of a tradition in which the separation of Church and State, the separation from the laws that are God’s and those that are Caesar’s, was a central theme. The tradition of the king’s two bodies, and the dominion of the Church over spiritual matters versus the State over earthly matters, was not part of the Hebraic tradition of political thought. That political tradition of two political realms intersecting in the sovereign also influenced issues of membership, for canonical law had been used to de-nationalize the Jews of Spain and drive them out of the polity in the Spanish Inquisition. Thus, the Dutch had to intertwine at least three traditions, the tradition of defining the ideal polity in accordance with Greek philosophy, the tradition of defining the rights of the nation and of the excluded stranger in Jewish political thought, and the need to separate Church and state.

Hugo Grotius adapted the conceptions of equality and justice in his 1600 volume, De Republica Emendanda, and in his 1614 recommendations to the United Provinces on the treatment of foreigners seeking safety in Holland that had such an influence on the 1617 book of his friend, Petrus Cunaeus, who was less interested in emulating the ancient Hebrew Kingdom’s constitutional provisions, than its ethical ones, namely its conceptions of equity and justice.

The three different sections of De Republica Emendanda deal with constitutional, legislative and leadership issues in the first 27 paragraphs comparing the Hebrew and Dutch constitutions, the analysis of disaggregated sovereignty in the Hebrew polity divided among the different levels of structure and individuals assigned authority over those different levels, including the supreme representation of sovereignty, and, thirdly, a historical sketch of the history of the Dutch Republic thus far and its shortcomings. Those shortcomings boiled down to loss of a true substantive sense of justice that was the basis for unity, and the substitution of prejudice and superstition and the desire to impose an inflexible and dogmatic orthodoxy of belief and practice imposed by arrogant and ignorant clergy (then on such issues as predestination and the Lord’s grace) to replace true piety and respect. De Republica Emendanda explicitly refers to the ancient Hebrew Commonwealth as a prototype of those same weaknesses that produced a lack of unity because of superstition rather than a respect for inviolable laws, and that led to futile and meaningless debates over sacred ritual and places of worship rather than freedom, equality, justice and power.

This disunity led to the downfall of the ancient Israelite state. As a consequence, the failures of the ancient Israeli effort at state-building could be repeated bringing on interventions by wayward princes or emperors, the promotion of idolatry, the growth of internal strife from within, and the culminating calamity of all, civil war, and tyranny from without. In the face of such divisions and displacements, fears are projected onto outsiders as distractions from substantive failures and disagreements within. Those exercises in displacement were used to cover up rather than deal with an absence of unity so critical for the administration of a successful polis. The issues were self rule in accordance with inherited privileges and local interests that guaranteed local inalienable rights, and the limitation of powers of external sovereigns, including inhibiting the extension of those powers to exclude providing hospitality and safety to people expelled by that foreign sovereign.

In the debates over whether Jews could be granted freedom of religious belief and practice when not only Roman Catholics and specific other Protestant denominations lacked such rights, and in the face of public scandals in which one Jewish male was caught having intercourse with a Christian girl and another, a pharmacist was caught committing adultery with a Christian maid, Grotius, though not clearly and distinctly, but ambiguously and half-heartedly, commended the intake of Jews. Immigration of Hebrews was to be allowed because of an affinity between Calvinist Holland and the history and experience of Jews, and between their ancient commonwealth and its constitution and their reference to God as the supreme commander, so that humans are committed, not to following the whims of the people, but to follow divine commandments for hospitality which are couched as universal obligations of duty rather than as the universal rights of those claiming the beneficence of the host state. No quota was to be placed on immigration. At the same time, the freedom of Jews to publish had to be restricted lest they try to proselytize and seduce Christian girls. Jews could not serve in public office and young Christian girls could not work as maids in Jewish households. (These were Grotian pragmatic concessions to mob fear.) But no restrictions were to be placed on Jewish rights to trade, subject to Christian imposed closing times, or to where they could live. They were neither prevented from wearing special attire (versus the 2013 proposed Quebec Charter of Values) nor was the wearing of special attire imposed upon them. The Jewish national sense of freedom and equality, justice and beneficence provided the standard for the Dutch nation as it sought self-rule.

Grotius failed to save Holland from its religious zealots and political fanatics, and, in 1618, was forced to flee to Paris and live in exile for the rest of his life when the greatest rupture first appeared in the process of creating a modern Dutch state. However, he left a legacy of intellectual wariness of those who promoted ultimate apocalyptic visions. He also bequeathed a respect for the political values of the ancient Hebrew nation and its respect for the rule of law. Nationality had to be married to a republican order of law and self-government.

This was what Putin does not understand. Nationality does NOT trump a republican order but works in concert with it. Putin seems to be driven more and more by a Milosevic utopian vision of a union of a greater Russia and a willingness to flirt with the apocalypse. The principle of the rule of law both within states and in the international order among states is a fundamental value worth fighting for. But any fight involving a nuclear power in contemporary times poses an existential risk, not simply to the modern world order, but to any order whatsoever.

The threat of nationalism to a state political order can come from without or from xenophobic nationalists from within who may try to seize control of the levers of the state. Further, expansionist nationalism and xenophobic nationalism, while ostensibly opposed, easily become partners in dismantling the legal order of the state system. That is why, while opposing expansionist nationalism, it is also necessary to be wary of internal xenophobic nationalists who may be the keenest opponents of the expansionist variety, for both pay little regard to the nature of the state, the importance of a civil order, the crucial role of state institutions and the rule of law as protectors of minorities domestically and internationally.

The nation-state system as it has developed must be protected and defended whether the threat comes from Western neo-liberal imperialists or Eastern pan-nationalist or pan-religious zealots.