Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Sunday, June 10, 2018

Some Questions about Sovereignty for Andrew Willard Jones


In Andrew Willard Jones’s fascinating picture of the 13th century France of St Louis IX, Before Church and State, there is a strand of argument that makes some sort of claim about sovereignty. I am unclear, however, about what exactly the claim is, and — to the extent I can discern what it is — fear that it rests on a confusion between “sovereignty” as a concept in political theory and sovereignty as a fact, a confusion between “sovereignty” de dicto and sovereignty de re. Let me explain.

Consider this passage, which states the book’s basic theses about sovereignty:

I contend that it is an assumption of modern politics that sovereignty exists someplace, even if it is obscured by constitutional arrangements, opaque structures of power, or certain rhetorical constructions. I further contend that this notion of sovereignty carries with it certain assumptions about society and certain approaches to social reality that were absent in the Middle Ages. Indeed, the monopoly of violence that sovereignty demands is actually organizationally possible only through the technology of the modern State, and the ideological component of sovereignty—the belief that monopolized violence is “legitimate”—is constructed and sustained only as a response to the conviction of the ubiquity of violence or scarcity, the conviction that all “difference” is ultimately conflict and that reality is fundamentally a sequence of “differences” (a foundational belief of modern social theory).

Observe that Willard Jones (1) switches from sovereignty and its existence in the first sentence to the “notion” or idea or theory of sovereignty in the second, and then (2) goes on to critique a particular theory of sovereignty — Weber’s theory — on the ground that it does not adequately account for the factual circumstances of 13-century France. There are two problems here. One is that sovereignty as a fact may exist long before sovereignty as a notion, idea or theory, just as gravity long predated (at least on sane views of scientific epistemology) the theoretical discovery of gravity. The second is that Weber’s is hardly the only modern theory of sovereignty; in my view it is not even the best one. These two problems will converge if there is another leading modern theory of sovereignty that sidesteps Willard Jones’s critique of Weber, and that potentially applies to 13th-century France regardless of whether any contemporaries thought in terms of the theory’s categories.

I believe there is such a theory: John Austin’s theory. Roughly speaking, for Austin, sovereignty is above all a possible fact, a state of affairs that may or may not obtain, regardless of anyone’s theorizing about it. The correct theory of sovereignty, Austin thinks, is his own, but that theory itself shows that sovereignty (rightly understood) may or may not have obtained in 13th century France or for that matter Imperial Rome or China of the Han Dynasty.

For Austin, sovereignty is a state of affairs in which there is, in a particular territory, a person or determinate group of persons who are habitually obeyed by the bulk of the population, yet do not habitually obey any other human superior (thereby bracketing the question of the sovereign’s obedience to God). This definition is intended, as far as possible, to leach out normative propositions and thereby to isolate sovereignty-as-fact. In particular, and in contrast to Weber’s theory, it says nothing at all about violence or other possible causes of obedience, and avoids stumbling into the notorious conceptual swampland that is “legitimacy.” Of course no definition of a politically loaded concept can be simply descriptive the way “the spoon is on the table” is descriptive, but Austin’s theory has the great virtue that without appealing to concepts like “legitimacy” there are perfectly straightforward cases in which the theory indicates that sovereignty does exist (China 2018) and does not exist (England at the height of its Civil War, or Libya in recent years). Even in the boundary cases, which for all I know include 13th-century France, the question to be asked under Austin’s theory is itself clear, even if the answer is unclear.

On this view, it is an open question, at least to me, whether sovereignty did or did not obtain in 13th-century France. Perhaps there was no person or determinate group of persons meeting Austin’s criterion; perhaps there was. I would love to hear Willard Jones’s thoughts on that question as a historian. But it would not be responsive to point out that contemporary 13th-century notions of sovereignty were not the same as modern notions, or that Weber’s very particular theory of sovereignty does not adequately account for the France of St. Louis. Most of all, one wonders what if anything of Willard Jones’s claim remains intact were he to draw more clearly the distinction between sovereignty as fact and as theory, de re and de dicto.

I hasten to add that none of this undermines the main point of the book, which is to reconstruct and revive an entirely alien thought-world in which the modern separation between Church and State simply does not capture the way anyone looked at matters. That contribution is magnificent; and it does not depend upon the book’s discussion of sovereignty, even if I am correct that the latter is somewhat confused.

Adrian Vermeule


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