This article is a preview from the Summer 2016 edition of New Humanist. You can find out more and subscribe here.
The EU, it is fair to say, does not have a great track record when it comes to referendums – either winning them, or respecting the result. When France and Holland rejected the EU Constitution within three days of each other in 2005, the solution was to integrate the various measures into the 2007 Lisbon Treaty, which, with the exception of Ireland, would not have to be submitted to further plebiscite.
Fast-forward a decade to the summer of 2015, when the Syriza-led coalition in Greece put the bailout package proposed by the “troika” of the European Commission, the European Central Bank and the International Monetary Fund, to the Greek electorate. As has now entered notoriety, the “Oxi” vote against the package won 61.4 per cent of the votes cast but the response of eurozone finance ministers was to impose an even more severe set of austerity measures than those that had just been rejected.
Expressions of national sovereignty, it would appear, are either ignored or punished. Whatever one’s feelings about the anti-EU establishment in Britain, one cannot dismiss the democratic force of this desire for sovereignty – at its most basic, the right to political self-determination. Whether it is the eurozone ministers preventing Syriza from implementing anti-austerity policies, the European Court of Justice “forcing” the British government to allow prisoners to vote, the European Commission imposing fines on Britain when it does not meet air pollution targets, or the European Parliament’s 2004 Free Movement Directive leading to “out-of-control” immigration, the narrative appears to be the same: “Europe” is made up of technocrats for whom the popular will is an inconvenience.
This might be complicated by how the Council of Europe is made up of democratically elected governments, and the parliament of elected MEPs, but there is enough to give the narrative force. If the French and Dutch electorates reject the EU Constitution, the response is to find a means of implementing the same policies while circumventing the ballot box; if the Greeks vote against austerity, it is because they lack the requisite economic sophistication and must be overruled and subsequently made an example of, so no other countries get the same idea. One is reminded of Bertolt Brecht’s quip in his poem “The Solution”, written in the wake of the 1953 East German uprising: “Would it not be easier ... to dissolve the people/And elect another?”
Today, the word “people” points to a fundamental confusion in the very notion of sovereignty. Namely – do the technocrats disregard the sovereignty of nation states, or the sovereignty of a popular will? For it is far from certain that the two are the same. The assumption that all political sovereignty is tied up with the sovereignty of nations is suspect; nevertheless, this assumption has allowed the vocabulary of sovereignty to be co-opted so effectively by the nationalist populisms of Marine Le Pen, of Nigel Farage, or of Geert Wilders, to name but three.
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Why should we associate sovereignty so strongly with nation states? The easiest answer is historical: the modern concept of sovereignty was first institutionalised with the Peace of Westphalia in 1648. These treaties ended the Thirty Years’ War and established the basis for the modern nation state as having autonomy from other nation states, based on the right to self-determination, territorial integrity and choice of national religion. If the question of sovereignty is now again so fraught, it is in no small part because that same model of the nation state is now finally unravelling – whether as a result of globalised capitalism, decolonisation, or the establishment of universal human rights that reach across borders, with its attendant notion of a “just war”.
Most simply, the question of sovereignty is the question of who gets to rule, over whom, and on what conditions. This requires not only identifying the “sovereign”, but also the “people” that are ruled, and an account of why they would give up their power to a sovereign in the first place. In the decade following the Westphalia treaties, Thomas Hobbes argued that people would give up their powers to a single sovereign for reasons of self-preservation – the alternative was a “state of nature” characterised by “war of all against all”, in which life was, as a consequence, invariably “nasty, brutish, and short”. Once given up, these powers would belong to the absolute sovereign; everyone else would consent to be “his subject”.
Within a century, however, Rousseau had turned this concept on its head. According to The Social Contract, sovereignty belongs not to the ruler but to the ruled. The consent is always provisional, because to consent to give up one’s freedom unconditionally is to contravene the notion of freedom, and is hence a logical impossibility. With this comes a fundamental shift in the meaning of a political “subject”: no longer that which is subjected to a sovereign, but that which acts and expresses its will. In place of political subjection, we have political subjectivity.
Popular sovereignty is thus opposed to arbitrary power, and this means that an integral tool of sovereignty is the “rule of law” that elected governments are themselves subject to. For Rousseau, when a people become sovereign, they become a “body politic”: any violence done against the body politic is a violence against all citizens. Political sovereignty entails preventing such violence, and if such violence is enacted by the state, even with the “popular” support of a majority, it is nevertheless a violation of the sovereignty of the body politic as a whole. Preventing a government from changing laws to make political persecution legal is, on this account, not an incursion on our sovereignty but integral to it.
One can only imagine what Rousseau would have thought of those habitual complaints from Eurosceptics that the EU overrides “our” sovereignty. A directive on air pollution seems to be an example of the European Commission intruding on state sovereignty in order to preserve – quite literally – the health of the body politic. Similarly, when “Strasbourg” is blamed for insisting on prisoners’ voting rights, or that a suspected terrorist should not face extradition to a place where there is a likelihood that they would face torture, it is following Rousseau’s dictum that one cannot offend against any part of this body, however unpopular this might be to a majority. Article 17 of the European Convention on Human Rights makes this clear: no state has “any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein”. It is designed to provide safeguards that prevent rulers from subjugating the ruled.
There are other interpretations, however. The conservative legal philosopher Carl Schmitt argued in 1922 that sovereignty was distinguished precisely by its ability to make exceptions to the law. Without such a decision to suspend the law, he suggests, there can be no decision to set up the law, either: “For a legal order to make sense, a normal situation must exist, and he is sovereign who definitely decides whether this normal situation actually exists.” Giving away “national sovereignty” in this regard is to lose a monopoly on the capacity to declare an exception. With prisoners’ voting rights, this means that the government gets to decide when one has relinquished one’s right to choose the laws, despite still being very much subject to those laws.
It might appear that a similar reasoning could apply to the responsibility of states to repay their creditors, which since the imposition of austerity economics on the governments of Greece, Portugal and Spain, has also regularly been identified as an incursion on popular sovereignty – in so far as the terms of repayment are decided by the creditors, in effect denying any fiscal policy to democratically elected governments. If a country does not instil investor confidence that it can pay back its debts, then surely it is logical for creditors to demand measures that will create such confidence, as part of the legal contract between lender and borrower; it is not for the borrower to declare an exception to how they order repayments. Is the left populism of Syriza, Podemos and others relying on the same arguments as the right populism of Ukip and the Front National, whereby the two sides pick and choose which laws (and institutions) they like and dislike?
If we were to keep with Rousseau’s definition, then the qualitative difference would lie between laws (and institutions) that serve to curtail arbitrary power and those that serve the interests of power. The bailouts of Greece, Portugal and Spain can be seen as part of a broader phenomenon of the separation of economic decision-making from the political realm. In this sense, it is an extension of the same trend that has brought about the independence of central banks, the increased importance of unregulated credit ratings agencies in determining the viability of refinancing government debt, and the privatisation of public services. Governments have fewer things to govern but therefore also less of a chance to represent wage-dependants against the interests of capital. The implications for our democracy are clear enough: if the main decisions are being made elsewhere, then democratic participation will plummet and political debate will be reduced to competing personalities and gimmicks. This damages both the sovereignty of nation states and popular sovereignty – the political control individuals can exert over their own lives.
Rousseau’s notion of sovereignty, then, allows us to differentiate between actions of sovereign states that undermine their citizens’ sovereignty from national sovereignty, through his appeal to a body politic. But who gets to be part of this body? Both Hobbes and Rousseau make use of the metaphor of the people as one body and Hobbes argues that the sovereign turns the “multitude”, which “naturally is not one, but many”, into “one person”. For Hobbes, this is possible because “it is the unity of the representer, not the unity of the represented, that maketh the person one”: the sovereign is unified even if the people are not. But if, as for Rousseau, sovereignty belongs to the people, this requires that a “people” constitute themselves as single subject. Most commonly, this single subject is the nation – the community to which all citizens supposedly belong.
The contemporary philosophers Michael Hardt and Antonio Negri warn that this logic presents “nation” and “people” as natural and unambiguous categories, whereas they are in reality contentious. How many conflicts, for instance, have erupted over who gets to belong to a particular nation and who doesn’t?
Instead, Hardt and Negri propose Hobbes’s own term: “multitude”. They do so precisely because it is “a multiplicity, a plane of singularities, an open set of relations”. For Hardt and Negri, the terms of the debate, with sovereignty on the one hand and “anarchy” on the other, are too polarised: if sovereignty is the only thing protecting us from anarchy, then this becomes a rationale for submitting to arbitrary power, for excluding and endangering all those who do not fit in with the “popular will”.
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The question of sovereignty is, in this respect, the intersection of two highly fraught issues. On the one hand, it confronts us with the problem of the political self-determination of a collective; on the other, the problem of how such a collective identity can be established in the first place. Do I count as “British” because of my cultural belonging, because of a family line that can trace itself back so many generations, because of particular values I share with other “British” people? Or is it simply because I qualify for nationality in one way or another (birth, residency, and so on)? To use a distinction from the French philosopher Étienne Balibar: do I envisage a citizenship of belonging, or a citizenship of residency? If the former, then I am imagining myself as part a community of citizens founded in terms of ethnos – some shared quality of all people; if the latter, then I see this community to be founded on demos – the economic and legal participation in a territory. The problem is, these two models are incompatible. Demos is universal, in so far as it will apply to anyone who becomes a resident, no matter where they are from. In this, demos threatens the very construction of ethnos. When those institutions protecting all citizens’ rights, no matter their ethnicity or country of origin, are attacked as eroding “national sovereignty”, one suspects that what is truly at issue is the anxiety about national identity as something irreducible to legal and economic institutions.
This would suggest that the crisis in political sovereignty today is in no small part an articulation of a far broader nostalgia for past certainties. One of the reasons the question of political sovereignty has become so fraught in the past two decades is precisely that those borders separating different states or identities have become so fluid, whether these are geographical borders overrun by globalisation, or conceptual boundaries of gender, ethnicity, human versus artificial intelligence, and so forth.
In the case of Britain, this nostalgia is bound up with an inability to come to terms either with our colonial history or our national decline. In one gesture, appeals to “national sovereignty” invoke a model of the nation state that was the basis for colonial rule and do everything to avoid actually confronting this history. There is, of course, a rather distasteful irony in seeing international treaties such as the European Convention on Human Rights as unacceptable incursions of national sovereignty, after so many centuries of not recognising the sovereignty of other nations.
But beyond this, we can read the fetishisation of national borders as a symptom of a pathology specific to the former colonial power: erecting fences to prevent colonialism’s chickens from coming home to roost. If citizenship is determined by being subject to a country’s laws, then surely those people subjected to British colonial rule have a right to be counted as part of the citizenry. The Dutch political theorist Herman van Gunsteren has suggested that the best we can establish are “communities of fate”, in which people have been “thrown together” by history into the same territory or state. Perhaps this is the best identity we can ever hope to achieve. But it would require a painful coming to terms with our history.
Without such a reckoning, the current EU referendum ends up being a struggle between two different kinds of anti-politics. On the one hand, the technocracy of commissioners, central bankers, and so forth, for whom neither monetary nor fiscal policy are up for political contestation; on the other, a nationalism that invokes ethnicity, language and territory as the basis for political identities, while disregarding the historical messiness that established these ethnic, linguistic and territorial categories. One disregards sovereignty, the other uses its name in vain.
The problem of sovereignty brings up a series of fraught and apparently intractable questions – about shared identity, about collective self-determination and the relationship between the power of the rulers and the power of the ruled. However, these issues are a far cry from a “Remain” campaign that operates through economic scaremongering, or a “Brexit” campaign that simply invokes half-baked myths of Britishness and the fear of foreigners. The questions are so huge, and the current debate so miserably small.
