Frontier Justice

by Andy Lamey

  Before offering a history of sovereignty, however, there is another question that needs to be addressed, one that I have left in the background until now. The question has to do with the fact that it is possible to understand sovereignty in more than one way. The form of sovereignty I have been most concerned with is a property of states. Sovereignty, however, can also be understood as a property of peoples. When sovereignty is understood in this way, it calls into question the relevance of a response to Arendt that offers a new model of constitutional law, let alone a history of sovereign states. For from this point of view, human rights are undone by a force more powerful than any government.

  State sovereignty is associated with the system of international relations in which governments are recognized as ultimate legal authorities within their borders and only within those borders. Popular sovereignty, by contrast, refers to the right of a population to exercise self-determination, most obviously in areas such as electing leaders or deciding which outsiders will be allowed to join the political community. These two forms of sovereignty, one possessed by an institution, the other by a group of people, do not refer to the same thing. This is evident in the fact that they can potentially come in conflict, as when a population seeks to participate in an election which an undemocratic government forbids (as was the case, for example, in Algeria in 1992).

  Which understanding of sovereignty does Arendt have in mind when she says national sovereignty is the undoing of human rights? Most often she refers to states, as when she speaks of “the very institution of a state, whose supreme task was to protect and guarantee man his rights as man.” There are moments, however, when she appears to have populations in mind, as when she characterizes the Right of Man as the view that rights “should be guaranteed by humanity itself,” humanity being a group of people rather than a state. Arendt scholars have often noted she does not always distinguish between state and popular sovereignty, or clearly indicate which one she has in mind as the final source of the problem she diagnosed.

  By proposing constitutional safeguards that would rule out certain government actions, my primary focus up to now has been on state sovereignty. I have taken such an approach because it seems in keeping with the argument Arendt makes most of the time. But once we have in mind popular sovereignty, we are faced with a different question. Is there a way to prevent human rights violations caused by the exercise of the power of people rather than of states?

  This question reiterates Arendt’s critique of human rights in an even more acute form than she presented it. For while it is difficult to safeguard the rights of asylum-seekers against exercises of state sovereignty, doing the same in regard to popular sovereignty is more difficult still.

  To see the scope of the problem, it is helpful to imagine a hypothetical scenario taking place thousands of years ago, before any state ever existed. Imagine that in a state-free world, a group of people are travelling by boat and come across someone treading water in distress. The person in the water desperately wants to be taken on board. The people in the boat can determine who joins their group, which in this case involves being admitted onto their vessel. They thus enjoy the equivalent of popular sovereignty. Seeking to enforce the rights of asylum-seekers against polities truly determined to exclude them is like asking if there is a rule that can be implemented on the boat that would make its operators pick up the person in the water, even when everyone on board was firmly opposed to doing so.

  In both cases, the answer is no. It is no more possible to implement an internally enforced rights mechanism that will guarantee the rights of outsiders against a population universally opposed to admitting them than it is possible to implement a rule on the boat that will make its unwilling pilots stop for the person in distress. Although there are many differences between ancient seafarers and modern polities, in both cases the underlying problem is the same. In both cases, we have conceived of the group in question as not being subject to any external authority. In both cases, therefore, a rule to admit outsiders can only be enforced by the same group determined to violate the rule in question. But there is no rule that we can expect to be upheld when its enforcement is left up to the people who give rise to the need for the rule in the first place.

  Either sovereignty can be exercised by a group determined to exclude, or such a group can have its sovereignty compromised by having an admission rule enforced from outside. But both outcomes cannot obtain at once. The model of refugee rights I have put forward is no more able to get around this problem than is any other legal mechanism enforced by an autonomous polity. Even though that model involves procedural rights rather than a right of admission, it suffers from the same underlying problem. For in a society where everyone is determined to violate the rights of refugees, any law to the contrary will go unenforced, regardless of what it says.

  This may sound like the worst possible outcome from the point of view of human rights. What is the point of a portable-procedural model of refugee rights, someone may ask, if it does not defuse the tension between human rights and national sovereignty when sovereignty is understood in popular terms? What is the point of constitutional rights for refugees if they do not solve the problem Arendt’s skeptical argument ultimately presents us with?

  Conceding that popular sovereignty is a more powerful force than human rights would indeed be devastating if it highlighted a problem particular to human rights. This, however, is not the case. If constitutional rights instruments cannot force a hostile and truly sovereign populace to respect the moral claims of outsiders, such rights instruments are equally ineffective in upholding the rights of insiders in similar circumstances. Applied to the boat scenario, the same problem would apply if the issue in question concerned whether the people on board were going to throw one of their members overboard. (We might wonder if an especially small group was capable of doing so, but our discussion concerns cases where their ability to exclude someone is not in question: this is part of what it means to be sovereign). Arendt’s argument was meant to highlight a problem unique to human rights. This was why she thought it “much wiser” to rely on the rights of citizenship. The boat scenario, however, highlights a theoretical problem for any moral concept, whether it is organized around the principle of human rights, civic rights or some different ethical notion altogether, not involving rights at all, and whether the potential subjects of injustice are refugees, citizens or anyone else.

  This problem at hand will exist where any group of human beings enjoys popular sovereignty and is determined to violate the moral claims of some minority, whether they be insiders of outsiders. This is the case whether the larger group live in a territorial state, a nomadic band or even an anarchist polity without political structures of any kind. This is because popular sovereignty is ultimately rooted in human plurality rather than any particular political institution. An inability to restrain a popular public determined to exclude is thus not a singular weakness of human rights in a world of sovereign states. It is, rather, a problem no theory of justice can rule out in any political universe in which one or more polities are truly sovereign.

  From the perspective of our political universe, the problem of a sovereign public united in a project of exclusion is one that resides at a high level of abstraction. The boat scenario forces us to admit that no law can prevent human rights violations in situations where entire polities are committed to violating the rights in question. A framework of rights enforcement, however, does not need to meet this standard to have value. The civic rights Arendt considers it wise to rely on, for example, have often failed historically to ensure justice for all citizens, yet she correctly does not take this as grounds to reject the very notion of civic rights. Similarly, although the portable-procedural model I outlined may not serve as an absolute guarantee in the case of universally hostile polities, this is not grounds to reject it.

  In modern liberal states it is rare to encounter entire polities that are monolithically committed to exclusion. More
common is to find a range of views within a given population, with some sections committed to excluding refugees, others favouring inclusion and still others oblivious or indifferent. It is equally common for modern polities to be influenced at least to some degree by outside entities such as international NGOs or the United Nations. Against the backdrop of a plural and divided population in dialogue with outside forces, which is the typical polity we find today, constitutional law remains a powerful enforcement mechanism. That constitutional law may not be sufficient to uphold rights in all possible worlds does not call into question its power as an enforcement mechanism in this world. For this reason, switching our focus to popular sovereignty does not highlight a special problem for human rights and does not call into question the value of the portable-procedural model. Although such a model cannot prevent every form of exclusion the human condition gives rise to, it will solve many of the problems asylum-seekers currently face, which is sufficient testament to its worth.

  What a focus on popular sovereignty should cause us to do is reiterate the value of multiculturalism and other inclusive models of belonging. This is especially true in regard to descent-based societies. Strictly speaking, a descent-based society could scrupulously uphold human rights by resettling asylum-seekers in other societies after ensuring fair procedures are used to hear their cases. But realistically, Germany, Japan, Israel and other societies with tight models of citizenship are unlikely to be scrupulously fair to foreigners without popular attitudes changing first. Other societies devoted to multiculturalism may have a head start in this regard, but their own treatment of refugees seeking asylum suggests they also have considerable room for improvement.

  Popular sovereignty poses a general problem for any moral claim enforced through law. The exercise of state sovereignty poses a particular problem for the enforcement of refugee rights. For this reason, it is reasonable to focus on how human rights might be better reconciled with state sovereignty. Once we do so, what immediately becomes noteworthy about this form of sovereignty is how omnipresent it is. Few ideas command such overwhelming unanimity today as the notion that lines should be drawn in the earth to separate one country from another. As the political scientist Daniel Philpott has observed, “a generation ago, the sovereign state captured nearly the entire land surface of the globe when European colonies received their independence. Sovereignty has come closer to enjoying universal explicit assent than any other principle of political organization in history.” To better understand the future of state sovereignty, it is worth asking how we got to this point. How did we come to inhabit a world in which nearly every major land mass on the planet is claimed by a state?

  To answer that question, consider the plight of John Toul. As a thirteenth-century vassal in what is now northeastern France, his life involved political problems we can only dream of today. In keeping with the custom of his time, Toul received land (his “fief”) from a local noble, in return for which Toul pledged to serve the lord in battle. It was common for vassals such as Toul to offer their allegiance to more than one lord, but Toul must have been especially ambitious, because he offered his services to four masters. Toul’s popularity among so many nobles, however, created a problem. What if two or more of his lords went to war with one another?

  In order to deal with this possibility, Toul swore out an oath saying what he would do if his lords ever faced each other on the battlefield. The resulting arrangement was fantastically complicated:

  If it should happen that the count of Grandpré should be at war with the countess and count of Champagne for his own personal grievances, I will personally go to the assistance of the count of Grandpré and will send to the countess and count of Champagne, if they summon me, the knights I owe for the fief which I hold of them. But if the count of Grandpré shall make war on the countess and count of Champagne on behalf of his friends and not for his own personal grievances, I shall serve in person with the countess and count of Champagne, and I will send one knight to the count of Grandpré to give the service owed from the fief which I hold of him. But I will not myself invade the territory of the count of Grandpré.

  There is no record indicating whether John Toul ever had to charge his own knights in battle. What is significant about his oath today is that it crystallizes how political power operated before the rise of the sovereign state. We take it for granted that political power should be allocated along territorial lines, and that within such territories there should be one final source of authority. Both of these ideas, however, were missing from John Toul’s world.

  Start with the absence of territorial borders. This does not mean that people in the Middle Ages somehow did not occupy particular places. It means, rather, that there were no lines on a map that everyone acknowledged as separating one political jurisdiction from another. The idea of mutually recognized frontiers actually arises fairly late in history. Early nomadic tribes based their authority on clan membership rather than location, and two tribes could occupy the same place during different times of the year. As more formal political entities such as ancient city states and empires arose, they put down geographic roots, but without coming to formal agreements among themselves as to where one jurisdiction’s boundary ended and another’s began. In the case of powerful entities such as the Roman, Byzantine and Chinese empires, their borderlands were wherever their armies came to rest. As international relations scholar Friedrich Kratochwil has put it, “the Roman Empire conceived [its frontier] not as a boundary but as a temporary stopping place where the potentially unlimited expansion of the Pax Romana had come to a halt.” Something similar held true of John Toul’s lords. Although they were named after different parts of France, their authority over their domains was contingent upon their military power rather than vice versa. Local political authority was something that could vanish and be replaced overnight, depending on the outcome of a single battle.

  The medieval world’s lack of mutually recognized borders went hand in hand with the absence of a clear political hierarchy. Local political power was fragmented, shifting and often in dispute. Some lines of authority, like that connecting John Toul to his quartet of lords, were based on personal ties. As Toul’s oath shows, the resulting arrangements could be fiendishly complex. But that was not the only source of confusion. There was the additional presence of the king, who for hundreds of years in France and elsewhere was less powerful than prominent lords. Indeed, the king himself was often something of a vassal, in that he would frequently receive land from bishops, lords and other supporters. The political arrangements kings came to among themselves only added to the complexity. In the twelfth century, Henry II not only was king of England but held the separate office of duke of Normandy. In the latter capacity he was obliged to pay homage to Louis VII of France, which he did even though the French monarch was weaker than Henry in his capacity as English king.

  The result of feudalism’s emphasis on oaths of obligation was that there could be complicated arrangements between lords and vassals, lords and lords, kings and vassals and kings and kings. Trying to keep track of the overlapping network of personal ties would be like staring into a kaleidoscope. Yet as confusing as all this was, it does not do full justice to the complexity of medieval politics. There were also political institutions that made sweeping claims to authority, which only added to the confusion Toul and his contemporaries had to contend with.

  The most prominent such institution was the church. The pope’s claim to religious leadership was based not on where people lived, but on their status as believers. For John Toul and his neighbours, this would sometimes mean that there was a clear division of religious and political authority, at least when the church decided to leave worldly matters to kings and lords in order to focus on spiritual concerns. But it was more common for secular and spiritual jurisdictions to overlap. Not only did political rulers decorate themselves with holy insignia and claim divine authority, the church was heavily involved in education and other aspects o
f daily life, and it needed secular monarchs’ armies to deal with Lombards, Muslims and other threats.

  The church, however, was not the only institution that claimed universal authority. There was also its great medieval rival, the Holy Roman Empire. Being a medieval institution, it strove to be as confusing as possible, and so was located not in Rome, but in what is now Germany. The emperor purported to represent the coming together of many ancient kingdoms, a claim of unlimited jurisdiction symbolized by his imperial orb, which was said to contain soil from the four corners of the earth. Yet emperors such as Otto the Great (912–973) and his descendants did not stop at sweeping political claims. They also styled themselves as God’s political representatives on earth—a claim to spiritual power that did not endear them to the church. An emperor’s claim to universal rule, however, was usually no more secure than that of the pope. The emperors’ rule over German dukes, for example, was often precarious, and this forced them to turn to church officials for help. Bishops and priests, however, resented the empire’s spiritual pretensions, and so were conspicuously unreliable.

  For someone in John Toul’s era, then, political authority could be based on particular ties to a lord or a king, or it could be owed to a universal institution such as the church or empire. Either way, however, power was wielded over people rather than land. Lords, kings, the church and the emperor frequently claimed simultaneous jurisdiction, making the occupants of any given region subject to more than one source of authority. This way of organizing political life meant that, among other differences with our own time, there was no distinction between domestic and international politics, no national embassies, passports or border guards. In addition, what we now think of as public power was often held in private hands, and political life was a source of confusion and constant conflict, much of it violent. These and other distinguishing characteristics were a result of the fact that, as the political historian Hendrik Spruyt puts it, “the logic of feudal organization lacked a sovereign, a final source of authority and jurisdiction.”