The book opens with a historical reconstruction of the concept of sovereignty in Bodin, Hobbes, Rousseau, and Kant. Loick applies Adorno and Horkheimer's notion of a 'dialectic of Enlightenment' to the political sphere, demonstrating that whenever humanity deemed itself progressing from chaos and despotism, it at the same time prolonged exactly the violent forms of interaction it wanted to rid itself from. He goes on to assemble critical theories of sovereignty, using Walter Benjamin's distinction between 'law-positing' and 'law-preserving' violence as a terminological source, engaging with Marx, Arendt, Foucault, Agamben and Derrida, and adding several other dimensions of violence in order to draw a more complete picture. Finally, Loick proposes the idea of non-coercive law as a consequence of a critical theory of sovereignty.
The translation of this work was funded by Geisteswissenschaften International - Translation Funding for Humanities and Social Sciences from Germany, a joint initiative of the Fritz Thyssen Foundation, the German Federal Foreign Office, the collecting society VG WORT and the Börsenverein des Deutschen Buchhandels (German Publisher & Booksellers Association)
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Traditional Theories of Sovereignty
At the beginning of the twenty-first century, there are nearly two hundred sovereigns in the world. Each of them is responsible for the governance of the section of the world map under their control. Today, it is no longer possible for anyone on the planet to live outside of sovereigns' territorial domains (see: Jackson 2007, ix–x). The idea, born of wars and civil wars in Europe four hundred years ago and exported throughout the entire world by colonialism, is one of the most successful political inventions in human history. But it is an invention; sovereignty didn't always exist, and it needn't exist forever. Sovereignty is not a transhistorical way of organising political community, but rather a very particular historical and cultural one. The concept of sovereignty is specifically modern, and specifically European. It has perpetuated itself to this day, and has been expanded on all continents, but that doesn't change anything about its historical, non-natural, non-ontological character.
In antiquity and the Middle Ages, there were hierarchies and authorities; sovereignty, however, didn't yet exist. But how exactly did Charles IX of France or Charles II of England on the one hand differ from Alexander the Great or Julius Caesar on the other, and what is it, in contrast, that they're supposed to have in common with the peoples of modern-day democracies? Why label the one kind of rulership (Herrschaft) sovereignty but not the other? We can only employ the term sovereignty if a single power rules over a territory as the final authority — that is, if a monopoly on legitimate physical force is generated, following Max Weber's famous definition of the state. That wasn't the case in Athenian democracy, nor the Roman Republic, nor in Europe of the Middle Ages, because other significant sources of law with their own legal force existed alongside the state: customary law, that of church and religion, of kinship, of estate and civil rights. The differentia specifica of the modern concept of sovereignty becomes especially apparent in comparison with these other eras: for example, after overthrowing the monarchy (509 BCE), the Romans established a complicated system of political-juridical authorities, which were supposed to mutually monitor and balance each other, and whose legislative powers were restricted to the positivisation and interpretative specification of customary law. Nothing changed about the polycratic character of political rulership into the Middle Ages. The eleventh-century Investiture Controversy, which ended with the Holy Roman emperor Henry IV's legendary Walk to Canossa, is a notable example of the rivalry between state and papacy typical of the Middle Ages. But an even starker contrast emerges when a comparison is made between the reality of the modern state — consolidated through bureaucracy, police and the military — and that of Greek antiquity. Thus, Plato's story of the death of Socrates is notoriously vexing today: under the condition of state sovereignty, it seems nearly absurd that a convicted criminal would want to convince his friends, even with good reason, that it's right to carry out a death sentence himself. Hannah Arendt reminds us that political power in antiquity wasn't merely distributed to different positions; it was also constituted qualitatively differently. She attempts to unearth this buried political knowledge, writing: 'However, there exists another tradition and another vocabulary no less old and time-honored. When the Athenian city-state called its constitution an isonomy or the Romans spoke of the civitas as their form of government, they had in mind another concept of power and law whose essence did not rely on the command-obedience relationship and which did not identify power and rule or law and command' (Arendt 1963, 40). Regardless of whether this sweeping assertion is historically accurate, it should still be noted that the concept of sovereignty suppressed historical alternatives and gave one mode of the political up for lost; from our current perspective hardly a memory of it remains.
As a political idea, sovereignty only won out completely in the modern era, but that doesn't mean that it arose from nothing. The beginning of the history of sovereignty can't be dated from a single isolated historical event. It is true that early modern practices of governance — and the political theory of Jean Bodin and Thomas Hobbes along with them — represent a break. However, beginning in antiquity the political treatises and practices of the European history of ideas and institutions paved the way for the individual instruments of law and rulership that are consolidated in the idea of sovereignty. According to Marx, 'primitive accumulation', which represented the historical prerequisite for the emergence of capitalism, occurred over the course of many centuries — the primitive monopolisation and concentration of state power required at least as long. The Roman legal principle of patria potestas, the unlimited power of the male head of a household over his family; the medieval theorem of plenitudo potestatis, the complete extent of the pope's power; the maxim of raison d'état established by Machiavelli, a doctrine of national interest aimed at maintaining and improving the fundamental welfare of the state — all of these are concepts that combined in the late sixteenth century and were radicalised into the idea of sovereignty.
The convoluted field of political institutions has also been extensively shaped by asynchronicity. There were immense economic, religious, military and cultural differences throughout Europe, and numerous distinct national paths to designing political-juridical institutions emerged accordingly. Even if certain European countries already resembled sovereign states by 1300 (especially England and France), the political rulership of the pre-national Holy Roman Empire in particular was extremely fragmented and unintegrated. One event of international consequence proved generally significant for the development of state sovereignty: the 1648 Peace of Westphalia. In the Peace of Westphalia, the powers of Europe agreed upon the tenet of cuius regio, eius religio, which gave the rulers of states the authority to decide over questions of religion. (It had already been instituted in the German-speaking lands with the 1555 Peace of Augsburg but remained unstable.) It established the diplomatic preconditions for actual sovereignty because the church could no longer truly challenge state control. It also put an end to denomination-based interventions, stabilising the state in foreign affairs and allowing this principle of religious non-intervention to generate a sort of basic standard of international law. Pope Innocent X's bull Zelo Domus Dei was only to be expected but in retrospect it seems like an extremely impotent attempt at resisting state sovereignty's enormous gravitational pull, unambiguously condemning the Peace of Westphalia as 'null, void, invalid, iniquitous, unjust, damnable, reprobate, inane, empty of meaning and effect for all time'.
These changes to practices of rulership are documented and reflected in the political philosophy of the time. In reference to sovereignty, the history of ideas from the sixteenth to the nineteenth century — from Bodin up to, but not including Marx — can be described as traditional theory. Max Horkheimer defined traditional theory as that which is limited to the 'renewal of the existing state of affairs' (2002 , 196), rather than calling it into question before the background of the historically possible. But in the context of political philosophy, this doesn't mean that only theories blindly advocating for the current ruler or the prevailing form of state are to be categorised as traditional theories. Theorists of sovereignty often had to defy governmental censorship and church indices, risking life and limb because they resolutely opposed the reality of sovereignty in their era. But most classic theories of sovereignty are traditional in the sense that they only spell out the concepts of legitimate state power that are somewhat different than its real manifestation rather than placing it fundamentally in question. Bodin (chapter I.1), Hobbes (chapter I.2), Rousseau (chapter I.3) and Kant (chapter I.4) are paradigmatic examples of traditional theories of sovereignty in this European political-philosophical discourse of self-understanding. However, they are not 'stages' in the teleological, progressive history of a self-perfecting form of government. Their various processes of reasoning, and of course the sometimes oppositional political consequences of these processes, mark the coordinates of this internally differentiated and highly contested field of tradition.
1. ORDER AND ORIENTATION: PRIMITIVE USURPATION (JEAN BODIN)
Jean Bodin must be viewed as the true 'inventor' of the concept of sovereignty. Not only did he coin the term at the end of the sixteenth century (though it was occasionally used before him), he helped to conclusively establish the entire idea of a single authority with definitive decision-making power. In the Middle Ages, Europe suffered constant conflicts between the church's claims to power and those of the state. It proved impossible to settle this conflict by dividing up the roles because both sides had considerable interest in influencing the other side's original area of authority. On the one hand, the papacy commanded considerable worldly power, in economic as well as political and military spheres. On the other hand, secular rulership had hitherto constantly legitimated itself through religious sources, for example, by referring to the divine right of kings. What's more, there was no judge who could preside over cases of disputed authority — for example, in the case of the eleventh-century Investiture Controversy, which mainly concerned the question of the authority to install bishops and abbots in their positions. The question of who had authority over a matter could not be decided juridically, but rather only through power politics. The Reformation intensified this long-smoldering conflict: there were now suddenly Protestant state leaders and whole Protestant populations, and unity of belief within a state territory could no longer be guaranteed. In sixteenth-century France, this struggle escalated into the bloody Huguenot Wars, a series of religious civil wars between 1562 and 1598. It was in this politically and theologically intricate constellation that Bodin invented sovereignty, opening the possibility to end the civil conflict once and for all. According to Bodin, there should only be one single authority, the political one, assigned the right and the power to conclusively negotiate a conflict.
Bodin was the leader of a group disparagingly known to its opponents as the politiques because they addressed profane political questions rather than religious-metaphysical ones. Although their official denominational affiliation was Catholic, the members of this group took a sort of 'third way' vis-à-vis Catholics and Protestants: to the politiques, only a stronger state would be able to subdue both religious factions, bringing about unity and domestic peace. Thus, Bodin was one of the first proponents of state supremacy in questions of belief. Like all political concepts, the concept of sovereignty arose from a historically specific situation and was shaped by objectives in a concrete social dispute. But Bodin's intervention proved far more politically successful than many other philosophical concepts. He didn't live to see the 1598 Edict of Nantes, having died of the plague two years before, but it brought denominational compromise and, in France at least, a brief period of domestic peace.
The harmonisation of sources of law and the concomitant elimination of competition between church and secular authority could only take place if the sovereign monopolised socially legitimate power, thus claiming ultimate decision-making authority not only over political and religious questions but also virtually all questions of life. If the sovereign was always supposed to have the last word, then neither the church nor any other institution could oppose its decisions with legal relevance. Bodin's fundamental originality lies not only in conjecturing the ascendancy of secular institutions but also in constructing a legal authority whose power theoretically knew no boundaries whatsoever, nor could know them. This ability to intervene in all societal domains expresses itself above all in the relationship of the state to customary law: before Bodin, no theorist had dared to suggest that the king could simply change or abolish rules with hundreds-of-years-long traditions. By emancipating politics from theology's claims to lawmaking, he simultaneously emancipated lawmaking from complementarity with everyday life, which had gradually aggregated in customary law, thereby laying an important cornerstone of modern statehood. The attributes that Bodin assigned to sovereignty still characterise this statehood to this day.
1.1 What Is Sovereignty?
Over the course of history, the concept of sovereignty has had several definitions; by and large, however, these remain variations on the themes that Jean Bodin described at the end of the sixteenth century. His most important work, the 1576 Six Livres de la République, gave the definition: 'Sovereignty is the absolute and perpetual power of a commonwealth' (OS 1). The characteristics of being absolute and perpetual are equally important in this definition.
Sovereignty is perpetual. When individuals (representatives of the people, for example, whom Bodin explicitly mentions) are granted comprehensive authority to exert power only for a limited time period, during that time period they are nevertheless not sovereign. They only hold state power in trust and revocably, while the real sovereign always remains in possession of sovereignty. He keeps the full extent of rulership for himself, no matter how many rights he delegates temporarily. Sovereignty is expressly not limited to a certain period, neither by a third party nor by some human statute. The dignitas of the post of sovereign always outlives its holder. In this context, Bodin provides a fitting adage: 'The king never dies' (SLR 87). It is apparent that sovereign power is metaphorically modelled on the French prince, but it is in no way limited to him as a sovereign subject. Sovereignty marks a symbolic place in the social framework that can be occupied by any of a number of figures in reality.
Sovereignty is absolute. It is located at the top of a pyramid representing the political-juridical system. In order to be sovereign, it is not enough to not be subordinate to anyone (which would also be true of the stateless and outlaws); power to issue directives to others is also required. '[P]ersons who are sovereign must not be subject in any way to the commands of someone else and must be able to give the law to subjects, and to suppress or repeal disadvantageous laws and replace them with others' (OS 11). This power to issue directives is unilateral and vertical, and as a result, the sovereign position cannot be shared. There can be no other authority able to oppose with legal relevance the decisions made by the sovereign. All other authorities with the power to command and apply coercion must therefore either be integrated into the vertical structure of the sovereign system or be eliminated altogether. However, the 'absolute' nature of sovereign power doesn't mean that other entities (the estates or the people, for example) can't be involved in decision making (and in fact, Bodin uses this criterion to differentiate various forms of government). It also does not mean that the sovereign must actually rule over everything in reality (which is why democratic and liberal forms of rulership can also fall under Bodin's definition). Rather, it means that the implementation of decisions occurs without the consent of subjects, structurally and legally. And so Bodin invented the legal construct of an ultimate authority. By assigning legislative authority and the executive and judicial powers derived from it to the sovereign alone, the latter's decisions can no longer be challenged by legal means. The definitive decision trumps those of all other authorities, preventing a potential infinite regress of jurisdiction amongst offices and institutions. This precludes legal conflicts that cannot be decided by judicial means. The structure of early modern bureaucracy first made this institutional harmonisation necessary, although theological models of justification and argumentation were implicitly retained, both in form and content.(Continues…)
Excerpted from "A Critique of Sovereignty"
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Table of ContentsPreface, Axel Honneth
I. Traditional Theories of Sovereignty
II. Critical Theories of Sovereignty
III. Critical Theory Without Sovereignty