Sovereignty

In this article I develop a theory of political ontology, working to differentiate it from traditional political philosophy and Schmittian political theology. As with political theology, political ontology has its primary grounding not in disinterested contemplation from the standpoint of pure reason, but rather in a confrontation with an existential problem. Yet while for Schmitt this is the problem of how to live and think in obedience to God, the problem for political ontology is the question of being. Thus the (...) political ontologist agrees with the political theologian that the political cannot be thought without an awareness of an irreducible exigency – the fact that one thinks as situated in response to a certain moral or ethical demand – but it takes this demand to consist not in divine revelation, but rather in the fact that the human being is a being for which being is at issue. With this definition in mind I go on to read Giorgio Agamben in resolutely ontological terms, arguing that his concepts of bare life and the exception are largely unintelligible if understood ontically. Instead, these concepts are part of a critique that has as its primary target not the ontic political systems and material institutions of modern states but rather the (negative) metaphysical ground of those systems. Political ontology insists on the intertwining of ontology and politics, claiming that theirs is a relation of mutual determination. (shrink)

Although sovereign jurisdictional authority is not itself a kind of property right for Hobbes, it is the object of the sovereign’s (not the state’s) proprietary rights. Jurisdictional authority for Hobbes is foundationally over persons rather than territory, so that the sovereign’s territorial jurisdiction is parasitic on jurisdiction over persons. Territory nevertheless plays a significant role in determining subjects’ political obligations because the sovereign’s ability to protect subjects is necessary for such obligations, and control over space is necessary to protect subjects. (...) Yet Hobbes shows why the modern ideology of the state does not univocally posit the state as an intrinsically territorial entity. There are two traditions here: The Lockean one that, in grounding jurisdictional authority in private dominion over things, portrays the state as intrinsically territorial, and the Hobbesian one that, in deriving property rights from jurisdictional authority, does not. (shrink)

Cultural-nationalist and democratic theory both seek to legitimize political power via collective self-rule: their principle of legitimacy refers right back to the very persons over whom political power is exercised. But such self-referential theories are incapable of jointly solving the distinct problems of legitimacy and boundaries, which they necessarily combine, once it is assumed that the self-ruling collectivity must be a pre-political, in-principle bounded, ground of legitimacy. Cultural nationalism claims that political power is legitimate insofar as it expresses the nation’s (...) pre-political culture, but it cannot fix cultural-national boundaries pre-politically. Hence the collapse into ethnic nationalism. Traditional democratic theory claims that political power is legitimized pre-politically, but cannot itself legitimize the boundaries of the people. Hence the collapse into cultural nationalism. Only once we recognize that the demos is in principle unbounded, and abandon the quest for a pre-political ground of legitimacy, can democratic theory fully avoid this collapse of demos into nation into ethnos. But such a theory departs radically from traditional theory. (shrink)

Critics of state sovereignty have typically challenged the state’s right to close its borders to foreigners by appeal to the liberal egalitarian discourse of human rights. According to the liberty argument, freedom of movement is a basic human right; according to the equality or justice argument, open borders are necessary to reduce global poverty and inequality, both matters of global justice. I argue that human rights considerations do indeed mandate borders considerably more open than is the norm today but that, (...) no matter how radical in its critique of state sovereignty, human rights discourse fails to address a crucial feature of this ideology. It is not enough to engage in a substantive moral argument about what the state’s moral duties are. One must also address the procedural political question of who has the legitimate authority to decide what rights and duties to act on in cases of disagreement. In addition to human rights discourse, I argue, border activists must also draw on the challenge posed to the doctrine of state sovereignty by the democratic theory of popular sovereignty. According to democratic theory, the people subject to the state’s coercive exercise of political power, and not the state itself, is ultimately the sovereign arbiter of political questions. And because foreigners are subject to the state’s border laws, democratic theory requires granting them a participatory say in setting those laws. (shrink)

The question of whether or not a closed border entry policy under the unilateral control of a democratic state is legitimate cannot be settled until we first know to whom the justification of a regime of control is owed. According to the state sovereignty view, the control of entry policy, including of movement, immigration, and naturalization, ought to be under the unilateral discretion of the state itself: justification for entry policy is owed solely to members. This position, however, is inconsistent (...) with the democratic theory of popular sovereignty. Anyone accepting the democratic theory of political legitimation domestically is thereby committed to rejecting the unilateral domestic right to control state boundaries. Because the demos of democratic theory is in principle unbounded, the regime of boundary control must be democratically justified to foreigners as well as to citizens, in political institutions in which both foreigners and citizens can participate. (shrink)

This paper offers a revised political conception of human rights informed by legal pluralism and epistemic considerations. In the first part, I present the political conception of human rights. I then argue for four desiderata that such a conception should meet to be functionally applicable. In the rest of the first section and in the second section, I explain how abstract human rights norms and the practice of specification prevent the political conception from meeting these four desiderata. In the last (...) part of the paper, I argue that full-fledged tolerance in the international order – that is tolerance-as-non-intervention and tolerance-as-respect – should be attached to (1) compliance with jus cogens norms and to; (2a) a political community recognizably organized as a community of inquiry that is; (2b) committed to the specification and incorporation or expression of the idea of human rights within its local legal system. (shrink)

The doctrine of permanent sovereignty over natural resources is a hugely consequential one in the contemporary world, appearing to grant nation-states both jurisdiction-type rights and rights of ownership over the resources to be found in their territories. But the normative justification for that doctrine is far from clear. This article elucidates the best arguments that might be made for permanent sovereignty, including claims from national improvement of or attachment to resources, as well as functionalist claims linking resource rights to key (...) state functions. But it also shows that these defences are insufficient to justify permanent sovereignty and that in many cases they actually count against it as a practice. They turn out to be compatible, furthermore, with the dispersal of resource rights away from the nation-state which global justice appears to demand. (shrink)

The doctrine of permanent sovereignty over natural resources is a hugely consequential one in the contemporary world, appearing to grant nation-states both jurisdiction-type rights and rights of ownership over the resources to be found in their territories. But the normative justification for that doctrine is far from clear. This article elucidates the best arguments that might be made for permanent sovereignty, including claims from national improvement of or attachment to resources, as well as functionalist claims linking resource rights to key (...) state functions. But it also shows that these defences are insufficient to justify permanent sovereignty and that in many cases they actually count against it as a practice. They turn out to be compatible, furthermore, with the dispersal of resource rights away from the nation-state which global justice appears to demand. (shrink)

The doctrine of permanent sovereignty over natural resources is a hugely consequential one in the contemporary world, appearing to grant nation-states both jurisdiction-type rights and rights of ownership over the resources to be found in their territories. But the normative justification for that doctrine is far from clear. This article elucidates the best arguments that might be made for permanent sovereignty, including claims from national improvement of or attachment to resources, as well as functionalist claims linking resource rights to key (...) state functions. But it also shows that these defences are insufficient to justify permanent sovereignty and that in many cases they actually count against it as a practice. They turn out to be compatible, furthermore, with the dispersal of resource rights away from the nation-state which global justice appears to demand. (shrink)

This article examines the relationship between the concept of sovereignty and the process of European integration. It is argued that the nature of this relationship has been both mutually informative and transformative. As a particular understanding of sovereignty has influenced and determined the perception of European integration, i.e., its conceptualization, so the process of European integration has reflected back on sovereignty and entailed its rethinking. This poses a particular challenge for legal theorists: how to pin down the meaning of sovereignty (...) and European integration so as to put both in the best conceptual and normative light. The article begins by looking at the traditional perspective on sovereignty and how this has been challenged by European integration. The focus then shifts from sovereignty to European integration in order to examine how different perspectives on sovereignty, when used as an epistemic lens for understanding the process of European integration, have produced uneven conceptions of this integration. Finally, the article concludes by making a choice between the various conceptions of sovereignty and European integration. It is argued that the best conception of European integration is offered by the constitutional form of a union founded on pluralist sovereignty. (shrink)

Based on the categorical connection between the field and the state of exception, I propose to discuss on this article Giorgio Agamben’s conception of the state of exception in its paradoxical relationship with the law, a relationship which is proper to the paradoxical structure of sovereignty. The field is to the Italian thinker the experience which is able to clarify the paradoxical dimension of the state of exception because it expresses itself at the same time as inside and outside the (...) legal system. On the contemporary experience the state of exception is no longer characterized as an exceptional experience, but it has become the norm. Based on this, we want to present the dialog between Agamben and Carl Schmitt, in order to reflect on the condition of the state of exception to present itself as anomy, whilst continuing to establish with the law a necessary relationship, even in the form of suspension. (shrink)

In this article the relationship between Parliament and courts is examined. The views of writers on sovereignty are considered and criticized. Two criticisms of the sovereignty theorists are made: first, that they wrongly assume that a legal system must attribute supreme legal power to a single source and, second, that they wrongly assume that statutes in the English system constitute absolute exclusionary reasons for decision. It is contended that legal systems, can, and the English Constitution does, contain multiple unranked sources (...) of law. Hart's rule of recognition and Kelsen's Grundnorm are considered and compared, and found to be insufficiently flexible to meet the realities of the English Constitution. A more complicated model of judicial reactions to statutes is proposed, and decisions of the judges that run contrary to the law as set down in the statute are considered. It is contended that the relationship of the courts to Parliament ought not to be considered a purely legal issue; it also has a political dimension. (shrink)

Addressing the three dominant contemporary attitudes towards sovereignty - Sovereignty Renewed; Sovereignty Rethought; Sovereignty Rejected - After Sovereignty ...

The notion of biopolitical sovereignty and the theory of the state of exception are perspectives derived from Carl Schmitt’s thought and Michel Foucault’s writings that have been popularized by critical political theorists like Giorgio Agamben and Michael Hardt and Antonio Negri of late. This article argues that these perspectives are not sufficient analytical points of departure for a critique of the contemporary politics of terror, violence and war marked by a growing global exploitation of bodies, tightened management of life, and (...) endless and unpredictable abusive force. To better capture the singularity of our present condition of violence, war and terror, a supplementation of Schmitt’s and Foucault’s approaches by way of Hannah Arendt’s language of political action and agonistic engagement is useful. By bringing Arendt’s language of political agony to bear on contemporary biopolitical debates and discourses, we wish to revisit common practices of war and terror as matters of ‘agonal sovereignty’. ‘Agonal sovereignty’ allows us to peer into the ‘abyss of total violence’ that manifests itself after sovereign decisionism and biopolitical modalities of power have taken over the everyday conduct of political affairs. (shrink)

When can or should citizenship be granted to prospective members of states? When can or should states withdraw citizenship from their existing members? In recent decades, political philosophers have paid considerable attention to the first question, but have generally neglected the second. There are of course good practical reasons for prioritizing the question of when citizenship should be granted—many individuals have a strong interest in acquiring citizenship in particular political communities, while many fewer are at risk of denationalization. Still, loss (...) of membership in a political community is a practice with a long history that continues to take place today. -/- Concerns about national security have recently led several liberal democratic states to pass, strengthen or consider legislation that would empower their governments to denationalize certain persons.] At the international level, formal norms governing denationalization are vague and generally toothless, and there are no international legal norms that restrict denationalization to citizens who hold another citizenship or wish to take up citizenship elsewhere (Worster, 2009). So it is important to determine whether there are conditions under which denationalization can be morally justified and, if so, what those conditions are. We shall argue that while denationalization is ordinarily impermissible, there is a class of crime committed by citizens that may render it not only permissible, but a fitting response on the part of the state. (shrink)

Foundations of Modern International Thought, David Armitage , 300 pp., $85 cloth, $27.99 paper.A Search for Sovereignty: Law and Geography in European Empires 1400–1900, Lauren Benton , 340 pp., $94 cloth, $28.99 paper.Globalization and Sovereignty: Rethinking Legality, Legitimacy, and Constitutionalism, Jean L. Cohen , 442 pp., $103 cloth, $37.99 paper.Sovereignty apparently never ceases to attract scholarly attention. Long gone are the days when its meaning was uncontested and its essential attributes could be safely taken for granted by international theorists. During (...) the past decades international relations scholars have increasingly emphasized the historical contingency of sovereignty and the mutability of its corresponding institutions and practices, yet these accounts have been limited to the changing meaning and function of sovereignty within the international system. This focus has served to reinforce some of the most persistent myths about the origin of sovereignty, and has obscured questions about the diffusion of sovereignty outside the European context. (shrink)

Carl Schmitt's Political Theology, recycled into The Concept of the Political, was meant to be to political theory what the Book of Job has been to Judaism, and through Judaism to Christianity. It was intended/designed/ hoped to answer one of the most notoriously haunting of the born-in-Jerusalem questions: a sort of question with which the most famous of the born-in-Jerusalem ideas, the idea of the one and only God, omnipresent and omnipotent creator, judge and saviour of the whole Earth and (...) the whole humanity, could not but be pregnant. The question, however, had to be born once the Hebrew Prophet Jesus declared the omnipotent God to be in addition the God of Love, and when his disciple, St Paul, brought the good tidings to Athens — a place where questions, once asked, were expected to be answered, and answered in tune with the rules of logic. Taking absolute power, the God of monotheistic religion took absolute responsibility for the blessings and blows of fate. The Book of Job recasts the frightening randomness of Nature as the frightening arbitrariness of its ruler: God speaks and gives commands. But just like numb Nature, he is not bound by what humans think or do. He can make exceptions. Indeed, the rule of norm is by definition irreconcilable with a true sovereignty — with the absolute power to decide. To be absolute, power must include the right to neglect/suspend/ abolish the norm. Schmitt's idea of sovereignty would engrave the preformed vision of divine order onto the ground of legislative order. Power to exempt founds simultaneously God's absolute power and the human's continuing, incurable fear born of insecurity. This is exactly what happens, according to Schmitt, in case of the human sovereign no longer handcuffed by norms. Thanks to that power of exemption, humans are, as they were in the pre-Law times, vulnerable and uncertain. (shrink)

The purpose of this paper is to critically assess Michael Walzer's use of John Stuart Mill's text 'A Few Words on Non-Intervention' in his seminal work Just and Unjust Wars. Although point by point, I think Walzer's reading of Mill is largely sound, I will argue that the specific narrative into which Walzer orders these points places a highly tendentious spin on the original text. More precisely, Walzer's way of articulating the negative aspects of Mill's argument--the general presumption against intervention--obscures (...) the many positive reasons that may be seen to follow in favor of intervention from the text. Surprisingly, perhaps, from a closer reading of Mill is likely to emerge a picture of international political morality that is closer to Walzer's present views on the subject than Walzer himself might like to admit. (shrink)

The Sovereignty of Reason is a survey of the rule of faith controversy in seventeenth-century England. It examines the arguments by which reason eventually became the sovereign standard of truth in religion and politics, and how it triumphed over its rivals: Scripture, inspiration, and apostolic tradition. Frederick Beiser argues that the main threat to the authority of reason in seventeenth-century England came not only from dissident groups but chiefly from the Protestant theology of the Church of England. The triumph of (...) reason was the result of a new theology rather than the development of natural philosophy, which upheld the orthodox Protestant dualism between the heavenly and earthly. Rationalism arose from a break with the traditional Protestant answers to problems of salvation, ecclesiastical polity, and the true faith. Although the early English rationalists were not able to defend all their claims on behalf of reason, they developed a moral and pragmatic defense of reason that is still of interest today. Beiser's book is a detailed examination of some neglected figures of early modern philosophy, who were crucial in the development of modern rationalism. There are chapters devoted to Richard Hooker, the Great Tew Circle, the Cambridge Platonists, the early ethical rationalists, and the free-thinkers John Toland and Anthony Collins. (shrink)

The debate on the nature of the European Union has become a test case of the kind of political and institutional arrangements appropriate in an age of globalization. This paper explores three views of the EU. The two main positions that have hitherto confronted each other appeal to either cosmopolitan or communitarian values. Advocates of the former argue for some form of federal structure in Europe and are convinced that the sovereignty of the nation state belongs to the past. Proponents (...) of the latter make a case on both socio-political and normative grounds for a Europe of nations. However a third position, favoured by the authors, is gaining ground. This view combines cosmopolitan and communitarian conceptions. It emphasises the mixed nature of the European polity and conceives the constitutionalization process as open-ended. The paper concludes that from this perspective a bricoleur's Europe of ‘bits and pieces’may not necessarily lack justification and legitimacy. (shrink)

This article defends state sovereignty as necessary for a form of popular sovereignty capable of realising the republican value of non-domination and argues it remains achievable and normatively warranted in an interconnected world. Many scholars, including certain republicans, contend that the external sovereignty of states can no longer be maintained or justified in such circumstances. Consequently, we must abandon the sovereignty of states and reconceive popular sovereignty on a different basis. Some argue sovereignty must be displaced upwards to a more (...) global state, while others advocate it be vertically and horizontally dispersed to units below, across and above the state. Each group offers a related vision of the European Union to illustrate their proposals. Both these arguments are criticised as more likely to produce than reduce domination because neither can sustain a form of popular sovereignty capable of instantiating relations of non-domination. This article proposes the alternative of a republican association of sovereign states that allows sovereign states and their peoples to mutually regulate their external sovereignty in non-dominating ways. This alternative proposal provides a more plausible and defensible means for sustaining the requisite kind of popular sovereignty in contemporary conditions and a more appropriate vision of the European Union. (shrink)

In this article I examine recent debates concerning the emergence of cosmopolitan norms that protect individuals’ rights regardless of their citizenship status, and the spread of what some have called “global law without a state.” I distinguish between the spread of human rights norms and the emergence of deterritorialized legal regimes, by focusing on the relationship between global capitalism and legal developments arguing that “cosmopolitan norms” can enhance popular sovereignty while other forms of global law do not do so. The (...) latter “fragment the public sphere” and create “privatized” norms of justification. I suggest that Israel inhabits three spatio-temporal modalities of sovereignty simultaneously, and this accounts for the enormously complex and existential nature of the dilemmas it faces: First, Israel is in a pre-Westphalian zone; second, for the Jewish population within its borders and for its one and a half million Arab citizens, Israel is a Westphalian state, which in fact exhibits strong features of a liberal, social democracy; and third, Israel is part of the global techno-economic complex. Within the three distinct spatio-temporal zones of sovereignty inhabited by contemporary Israel, one can detect new reconfigurations of sovereignty and citizenship that have not been exhausted. (shrink)

Reflecting on the fall or failure of sovereignty, this essay considers Derrida’s recent work under the heading of auto-immunity, and develops some consequences of that work, first of all in the political sphere (especially around democracy), but also some more general consequences around conceptuality itself.

Let me begin with a wisp of political history. According to the Earl of Clarendon, in 1639 the king’s “three kingdoms [were] flourishing in entire peace and universal plenty.”1 Yet by 1642 civil war had broken out, and in 1649 the king was beheaded. What had caused this breakdown of civil and political order, a breakdown that was not localized in England but, in fact, rife throughout Europe—1648 like 1848 was a year of revolutions? Clarendon himself is less than acute (...) on the matter, opting generally for a conspiracy theory in which the traitorous plots of ill men were the cause of the rebellion. In his book Behemoth —whose title stands for the Long Parliament, which sat in session from 1640 until the surviving .. (shrink)