Rethinking Sovereignty in an Era of Resurgent Nationalism and Populism

Nootens on the History of Popular Sovereignty

While the other three books focus on state sovereignty, Nootens focuses on popular sovereignty. Central to her analysis is the claim that popular sovereignty need not be tied to the state form. The book develops an explicitly historical approach to the study of the concept of sovereignty. Nootens situates the origin of popular sovereignty in the history of democratization. This is refreshing as even many contextually sensitive approaches to the history of political thought tend to downplay the political contexts in which authors were articulating their ideas, while focusing primarily on situating a text within the other political theory writings of a given era. By studying the evolution of popular sovereignty through a history of political struggles, it becomes apparent the popular sovereignty emerged from “the defense of specific rights and interests and more generally the need to protect themselves against oppression by rulers and their intermediaries” ³ rather than abstract debates about the nature of democracy. The book calls upon democratic theorists to focus more on the study of processes of democratization.

The text traces the history of popular sovereignty from the late Middle Ages to contemporary political struggles over globalization. Nootens argues that the idea of popular sovereignty emerges from medieval debates over lex regia—a principle of Roman law that claimed that the people had transferred their authority over to the Emperor. This legal concept was distinct from the Roman legal concept of Imperium—the power to command, which was originally associated with military power. Nootens argues that popular sovereign emerged from the medieval claim that since lex regia implies that the people must have consented to the ruler, if a ruler was being tyrannical, then the people had the right to revoke their consent. The distinction between lex regia and Imperium meant that state sovereignty focused on the question of who had the power to command, whereas early popular sovereignty focused on the issue of whether the governed had granted their consent to be ruled. This split between state and popular sovereignty then shapes the contested relationship between the people and the state throughout the modern era.

Nootens contends that we can best see this split between state sovereignty and popular sovereignty in the early social contract theorists. Jean Bodin and Thomas Hobbes develop their theories of sovereignty primarily as a means of defending the supreme authority of kings in the case of struggles between the pope and emperor (Bodin) and the king and Parliament (Hobbes). In order to justify the supreme authority of kings, both Bodin and Hobbes develop the idea of sovereignty as a distinct institution between society and the state, and they associate the concept with the impersonal rule of the institution of the monarchy rather than the personal possession of the ruler. Nootens argues that once this concept of the state as an impersonal institution with sovereign authority took hold in modern Europe, the people developed as the related concept of the community upon which the state is founded. Popular sovereignty then emerges as the process of representing the interests of the people in the state. It is only as “the people” contest the rule of the power holders in the eighteenth and nineteenth centuries that the concept of democratic self-rule (i.e., popular sovereignty) finally takes hold.

In the concluding sections of the book Nootens argues that most contemporary political theory assumes a “naïve picture of cooperation within the state” as the basis for modern liberal democracy. ⁴ By looking at the history of democratization as a series of political struggles—between, for example, medieval Italian city-state and the emperor, concilliarist and papist clergy in the Catholic church in the late Middle Ages, Levellers and the King during the English civil war, and the trade union movement versus the interests of industrial capitalism during the nineteenth century—Nootens argues that democratic practice (unlike democratic theory) is grounded in processes of contestation between rulers and ruled that are only resolved through embedding new processes of consent and participation. ⁵ Nootens concludes by arguing that current antiglobalization struggles are a new frontier in the struggle for popular sovereignty. The private authority embedded in transnational corporations and international trade regimes often imposes rules on ordinary citizens and workers without their consent. As such, future democratic struggles should be about how to embed processes of consent and participation in global economic regimes.

Vardoulakis on Sovereignty as Justification of Violence

Dmitris Vardoulakis’s Sovereignty and Its Other also looks at the nexus between sovereignty and democracy. Vardoulakis insists that no version of sovereignty is compatible with democracy, because “the operation of sovereign power consists in the justification of violence.” ⁶ For Vardoulakis, how violence is justified in political regimes is the defining feature of sovereignty. He contends that there are three different historical forms of sovereignty. Ancient sovereignty privileges the ends over the means. Modern sovereignty privileges the means over the ends. Biopolitical sovereignty involves the dispersion of sovereign power and blurs the distinction between means and ends. For each temporal form of sovereignty, Vardoulakis selects some exemplary texts (e.g., Thucydides’ History of the Peloponnesian War and Augustine’s City of God for ancient sovereignty; Niccolo Machiavelli’s The Prince, Thomas Hobbes’s Leviathan, and Baruch Spinoza’s Ethics for modern sovereignty; and Karl Marx’s Eighteenth Brumaire, Michel Foucault’s lectures in The Will to Knowledge, and J. M. Coetzee’s Michael K) and analyzes how these different authors justify violence. The other of sovereignty, according to Vardoulakis, is the process of disrupting violence by democratic judgment. Vardoulakis argues that judgment disrupts sovereignty in two ways. The first is by identifying how the three modes of sovereign justification operate in any given case and developing arguments for countering these justifications of violence. This is a process that Vardoulakis calls “dejustification.” The second step is to counter the general tendency of sovereigns to resort to violence by exercising “democratic judgment,” which involves “welcoming the other.” ⁷

This is a very ambitious book that develops a new account of sovereignty; it runs counter to many of the accepted understandings of sovereignty in contemporary political theory. One of the consequences of this is that Vardoulakis often defines terms quite differently from how most political theorists use them. For instance, in tying the logic of sovereignty to practices of justification, he distances sovereignty from the more conventional reading as a practice of exceptionalism and decisionism in which the sovereign, precisely because it has sovereignty, does not need to justify its actions to anyone. While he shares the general aversion to the invocation of sovereignty as a response to violence, the examples that he cites throughout the book to support his claim that sovereignty involves a logic of justification undercut his main claim. Two specific political episodes that Vardoulakis examine in the text illustrate this point. The first is Australian prime minister John Howard’s 2001 statement, “We will decide who comes to this country and the circumstances in which they come,” ⁸ as an example of how the sovereign justifies its use of violence (in this case against asylum seekers in Australia). Yet Howard’s statement, as an example of a sovereign assertion of authority, is notable precisely because it lacks justification. Howard offers no reasons for why Australian sovereignty entitles him to make this decision; he simply asserts “we will decide.” Similarly Vardoulakis considers the moment on September 11, 2001, when George W. Bush was told in front of a classroom that a second plane had crashed into the World Trade Center tower as an example of “sovereign discomfort.” ⁹ But too much is made by Vardoulakis of the initial reaction by the president—probably partially one of shock and also one of not wanting to disturb the children in the classroom or panic the press—as being the basis for the United States justifying its subsequent wars in Iraq and Afghanistan. Perhaps a more telling moment of sovereign assertion from President Bush was his infamous declaration during a 2006 press conference that “I am the decider” (NB that Bush also called his presidential memoirs Decision Points). ¹⁰ In both the case of Howard and Bush, the emphasis on deciding as the basis for sovereignty points to the fact that the sovereign, precisely because he is sovereign, does not need to offer justifications for his decisions. The office of prime minister or president confers sovereignty precisely because the occupant of that office is the ultimate “decider.” This was precisely Carl Schmitt’s point when he defined the sovereign as “he who decides on the exception.” ¹¹

Bartelson on Sovereignty as Symbolic Form

Since the publication of A Genealogy of Sovereignty Jens Bartelson has been one of the leading scholars of sovereignty. ¹² Sovereignty as Symbolic Form is an auto-critique of this earlier work. He argues that contemporary difficulties in understanding the meaning of sovereignty partly grow out of a shift in how social scientists have studied concepts over the last 50 years. The largest shift has been from seeing political concepts as possessing a set of essential features to seeing concepts as being historically contingent and essentially contested. Bartelson identifies his work, as well as the scholarship on sovereignty influenced by poststructuralism and linguistic turn, as part of this broader trend of seeing sovereignty as a contingent social construct. One of the political consequences of sovereignty’s contingency is that it has shifted from being an absolute power to something that is granted by the international community and can be revoked should a state violate some of the core principles of international law. As a consequence, sovereignty no longer represents the absolute, indivisible authority over a given territory; instead, sovereignty today represents “a grant contingent upon its responsible exercise in accordance with the norms of the international community.” ¹³ This shift in definitions is significant because most contemporary international theory sees the principle of nonintervention—that is, the idea that actors outside a state cannot interfere in the decisions made by a sovereign government—as constitutive feature of sovereignty. Bartelson is proposing that a very significant conceptual inversion is taking place in contemporary international politics.

In order to explain this shift, Bartelson draws upon the work of Ernst Cassirer to propose a way of analyzing political concepts that avoid the pitfalls of essentialism and contingency. Instead he argues that “sovereignty should be understood as a symbolic form by means of which Westerners have perceived and organized the political world since the early modern period.” ¹⁴ He defines a symbolic form as “specific structures [of human consciousness] used to organize what otherwise would be a disorderly experience into intelligible wholes.” ¹⁵ From this perspective symbolic forms are objective because they enable us to make sense of our experience through general principles but are not in themselves modified via experience. Bartelson contends that the symbolic form of sovereignty grew out of the premodern geometry that influenced the thought of early theorists of sovereignty such as Bodin, Hobbes, and Hugo Grotius. From geometry these theorists took the axiom that geometric objects were indivisible and linked this axiom to the view that sovereignty implies the exercise of indivisible authority over a given territory. Bartelson contends that while this core symbolic form of sovereignty has remained unchanged, “it has proved compatible with a wide array of authority structures and constitutional arrangements, as long as the ultimate source of authority is held to be indivisible in principle.” ¹⁶ By reconceptualizing sovereignty in this way he is able to offer some objective features to the concept (i.e., indivisibility, supreme authority, and bounded territoriality) while also accounting for how understandings of sovereignty have shifted over time.

By deploying Cassirer’s idea of the symbolic form into contemporary debates over the nature of sovereignty Bartelson is able to make two significant claims. First he argues that although there have been numerous attempts throughout the twentieth century to either remove the concept of sovereignty from political scholarship or critique the sovereign state in order to replace it with a new form of politics, sovereignty has persisted as a key concept. This is primarily because scholars have fetishized sovereignty by ascribing constitutive powers to the sovereign. ¹⁷ These fetishized theories of sovereignty all rest on three assumptions: (1) states are self-contained and self-sufficient, (2) the international system is self-regulating and self-transforming, and (3) the international system represents the limit on possible political orders and has no exterior. ¹⁸ These three interlocking assumptions rest upon an essentialist understating of sovereignty as either a legal norm or a brute political fact. Yet this essentialist reading of sovereignty conceals a gap between normative and factual understanding of the concept. The sovereignty-as-legal-norm school contends that sovereignty is only possible because of the existence of a larger international legal framework. The sovereignty-as-brute-fact school treats the sovereign as self-positing and legal doctrines as simply convenient legal pretexts for the exercise of power. The consequence is that essentialist doctrines of sovereignty offer completely contradictory explanations for the grounding of the concept while largely agreeing on its essential features. More recent scholarship that treats sovereignty as mutable and contingent exploits this contradiction by treating sovereignty as “both a dependent variable and a constitutive principle of the international system.” ¹⁹ A consequence of this ambiguity is that sovereignty stands “in need of constant justification.” ²⁰ The meaning of sovereignty is constantly being stretched to fit its shifting function in global politics.

This critique of the fetishization of sovereignty leads Bartelson to his second major insight: in the contemporary context, sovereignty is undergoing a process of governmentalization. Drawing upon Foucault, Bartelson reads the contemporary shift from international relations to global government as a sign that political authority is shifting away from the territorial state to other types of actors. How is sovereignty able to persist in light of governmentalization? Bartelson contends that sovereignty itself has become the subject of governmental strategies because of the lack of alternative possibilities—a world government is undesirable, whereas the global demos called for by cosmopolitans is either incoherent or impractical. Instead governmental strategies have interjected themselves into the global through practices such as the democratic peace theory, global economic development, Krasner’s theory of the disaggregation of sovereignty, the rise of state-building as a strategy for responding to failed and collapsed states, peace-keeping as a practice of ending and preventing interstate wars, and the incorporation of the Responsibility to Protect doctrine into UN policy. While these different practices are centered in different institutions and have different ends, they all share a broadly neoliberal outlook, and they make the subject of their rule the sovereign state. This leads to the peculiar situation in which sovereignty is no longer supreme authority over a bounded territory but something granted by these different governmental institutions and “made contingent upon its responsible exercise in accordance with the principle of international law under the supervision of a host of global governance institutions and non-governmental actors who claim to be maintaining the order and stability of the international system on the grounds that this is in the best interest of mankind as a whole.” ²¹ This leads to the curious situation in which that which was defined as being the final authority because it can decide the state of exception has under contemporary international legal conditions now had its own authority made subject to similar suspension in states and moments of exception. While in the case of Schmittian sovereignty we can always point to who, or at least which office, decides on the exception, under conditions of governmentalized sovereignty we are no longer able to do so. While Bartelson declares that “the international system is as close as we get to an empire today,” ²² this new system acts as sovereignty without a sovereign and empire without an emperor—a global rule of nobody that is eerily reminiscent of Hannah Arendt’s description of the modern bureaucratic state. ²³

Cocks on the Delusion of Sovereignty

Joan Cocks draws upon Hannah Arendt’s insight that sovereignty and political freedom are mutually exclusive to argue that for modern nationalist movements striving for sovereignty engage in deluded thinking. ²⁴ Drawing upon Freudian psychoanalysis, Cocks defines a delusion as a belief that is in conflict with reality. Advocates of state sovereignty since Hobbes have desired “an absolute but benevolent authoritarianism.” ²⁵ Cocks’s main claim is that the absolutism that advocates of sovereignty strive for is unattainable in practice, as it always encounters resistance from those being dominated. The benevolence advocates of sovereignty imagine their rule-creating is always blind to the suffering inflicted on the subjects of violent rule. When sovereignty shifted from its monarchical to its popular form in the nineteenth and twentieth centuries this striving for the “power to command and control everything inside a physical space” ²⁶ blended with the demands of national groups for freedom understood as self-determination. Popular sovereignty rests on an even greater delusion than monarchical sovereignty. Cocks argues that popular sovereignty rested on a notion of freedom as being able to do what I want. Yet this view of freedom as mastery ignores human plurality.

To critique the deluded elision of sovereignty and freedom in modern politics Cocks develops two case studies. The first is of the American founding and its erasure of the indigenous nations that preceded European settlement, and the second is of the founding of the state of Israel and its ongoing struggles with Palestinians. Key to both of these cases studies is the exploration of how attempts to attain sovereignty rest upon an interplay between freedom and domination. The freedom of the group striving to attain sovereignty requires that the group dominate all others that it encounters within the territory that it seeks to control. In the U.S. case, Cocks argues that political foundations such as the American founding entail two distinct acts of violence. The first is the violence of asserting itself as a legitimate authority over a territory and people when in “its origins it has no right to do so.” ²⁷ The second is the violence of erasing the preexisting rights of the political societies that existed prior to the founding—in this case the indigenous nations of America and their systems of government. Cocks argues that all forms of political sovereignty rest upon these double acts of foundational violence. This form of violence must continue after the moment of founding in order to sustain sovereign authority over the territory. Hence the U.S. treaty system with American Indians at its core is concerned with continuing the politics of erasure by gradually eliminating native title and political authority over their lands. As an alternative Cocks proposes that while the treaty system was a vehicle for native dispossession, the fact that these treaties recognize indigenous sovereignty could provide space for nonsovereign freedom so long as a new political order recognizes indigenous peoples as equal parties with the members of settler societies and recognizes indigenous polities as equal participants with the states of the Earth in the struggle to counteract global climate change and environmental degradation.

While Cocks does note that the obvious affinity between the U.S. and Israel case is that both acts of founding involve settlement, she is quick to point out that there are crucial differences. The two most significant ones were that Israel’s founding took place against the backdrop of the Holocaust and that earliest and most peaceful modes of territorial acquisition by Jewish settlers took the form of “private purchase.” ²⁸ Despite these differences Cocks argues that there is a clear similarity between the American and Israeli cases. In both instances “the foundational violence entailed in the establishment of a sovereign nation-state is not confined to the state’s original ‘birthday’.” ²⁹ In the case of Israel there is the additional puzzle of how did a people fleeing an oppressive violence in Europe seek out a sovereign freedom in Israel that so quickly produced a new form of oppression? How did the question for freedom so quickly morph into a quest for mastery over others? In order to resolve this puzzle Cocks analyzes the writings of three Zionist thinkers—Theodore Herzl, Vladimir Jabotinsky, and Albert Memmi—to see how their oppression of Jews in Europe set the stage in Zionism for the belief in “sovereign power as the route to freedom for the Jews.” ³⁰ Her conclusion is that the Zionist project was doomed precisely because it equated freedom with sovereignty and that this delusion blinded early Zionists to the perils of imposing sovereignty on a space already occupied by Arabs.

Sovereignty in the Present Context

While these four texts study sovereignty from very different angles they raise three broader questions about the nature of sovereignty. The first concerns the normative status of sovereignty. Cocks and Vardoulakis are explicitly critical of sovereignty, linking the concept to violence. Conversely, Nootens defends one version of sovereignty—popular sovereignty—as a tool that marginalized groups can use to extract rights from elites. Bartelson, looking at sovereignty from the perspective of global politics, is particularly critical of how it is morphing into a form of governmentalization that decreases the agency and autonomy of states and individuals. Behind all of these critiques is a concern with how sovereignty relates to democracy. Nootens argues that popular sovereignty is a useful tool for counteracting the dangers of state sovereignty, and Vardoulakis argues that democracy functions as sovereignty’s other and contains strategies for preventing the sovereign’s appeal to violence through practices of democratic judgment. Yet Cocks’s analysis of popular sovereignty in two states that explicitly identify as democracies (and often hold themselves up as examples of democracy to others) gives lie to claim that democracy is what can save sovereignty from its inherent violence.

On a methodological level these four books offer very different ways of doing conceptual analysis. Vardoulakis engages in a largely interpretive approach, inspired by continental philosophy, where he explores how the meaning of sovereignty shifts across a number of canonical texts in political theory. Nootens shifts the focus of her analysis back and forth between historical political theory texts and analysis of the history of democratization to make the crucial point that political theory occurs within political contexts that are just as important to understand as the intellectual contexts upon which many historians of political thought focus. Bartelson resolves an inherent tension between the essentialism of analytical approaches to conceptual analysis, and the antiessentialism of more historically informed approaches to conceptual analysis, by offering the idea of the concept as a symbolic form that is simultaneously objective yet modifiable in differing historical contexts. Finally, Cocks uses a case study approach to explore how a concept such as popular sovereignty informs and is informed by the political realities in two different states and eras.

Finally all of these texts raise the question of what alternatives there are to state sovereignty. All of the authors express at least some discomfort with sovereignty as it is exercised in contemporary politics. Bartelson argues that the current governmentalization of sovereignty represents a new informal imperialism. Nootens argues that popular sovereignty must be developed at the global level to counteract the rise of antidemocratic transnational institutions. Vardoulakis argues that democratic judgment can disrupt moments of sovereign justification of violence. Cocks argues that what must change is the “outdated practice of hinging the political rights of individuals on their birth in a specific state or territory” (Cocks, 134). By unbundling citizenship from the political authority over a particular territory, Cocks believes that political forms grounded upon a more Arendtian conception of freedom as natality and plurality could replace the dangerous relationship between sovereignty and positive freedom that informs the foundational violence of America and Israel. Somewhat ironically, given the events of 2016, Cocks (writing well beforehand) holds up the European Union’s freedom of movement for its citizens and the United States of America’s long tradition of incorporating migrants into its sense of its people as models for this new form of citizen. Both Trumpism and Brexit can be seen as populist backlashes against these attempts to decouple citizenship from the sovereign state, and for the short term at least right-wing populist movements continue to invoke state sovereignty as their preferred solution to neoliberal globalization. While the authors all share similar concerns about the impact of globalization, it is telling that none of them develops a full account of what a nonsovereign, left-wing alternative to globalization would be. It seems as if our current politics is stuck between an out-of-control capitalism that only increases economic inequality, accelerates environmental destruction, and strips away the last vestiges of liberal democracy, and a right-wing populist backlash that only offers xenophobia and authoritarianism as an alternative. Until the left can clearly articulate a vision of what a nonsovereign democracy would look like, our politics will remain stuck at the impasse between hard nationalism and unaccountable neoliberalism.