The Legitimacy Of Sovereign Nation-States And The Legal Validity Of The Earth Constitution
Glen T. Martin
Abstract. This paper investigates the concepts of sovereignty and legitimacy. When and how is a political authority legitimate and what is the meaning of sovereignty in this context? Beginning with an overview of the ethical foundations of political authority, the paper proceeds to examine the concepts of economic legitimacy and political legitimacy, including the historical evolution of these concepts, in the light of these foundations. It argues that the concept of sovereignty has evolved to the world level and is no longer valid at the national level. It goes on to show that the globalized world order calls for just such an expansion of the concept of sovereignty and concomitantly of legitimacy. The paper concludes with two sample charts exploring the idea that legitimacy can be measured. It argues that, on nearly all counts, the Constitution for the Federation of Earth appears as more legitimate than the rapidly diminishing legitimacy of the system of sovereign territorial nation-states.
The Ethical Foundation for Political and Economic Deliberations
Political theory is about human beings. Economic theory is about human beings. They are both therefore rooted in ethics. What is a human being, and why should we be concerned to discover correct political and economic approaches to human life? How should our political and economic systems be conceiving of persons, and how should they be treating them? Dealing with political and economic theories must begin with the ethical dimension.
I want to underline that dimension by citing the central thoughts on ethics in relation to the legitimacy of governments by three major thinkers: Immanuel Kant, Alan Gewirth, and Jürgen Habermas. Since this is not an essay about ethics per se, I will simply introduce the fundamental thought of each so the reader can discern the essential background necessary for our investigation of political and economic issues. I take it that all three thinkers are pointing to the same fundamental ethical truth about human beings.
Kant’s famous categorical imperative states that we must treat every person as an end in themselves, never merely as a means. This imperative, Kant says, distinguishes persons (who have dignity) from things (which have only price). People are ends in themselves because they have an incalculable worth or dignity that our social and political thought must make a central consideration.
Indeed, Kant says that this categorical imperative demands (“obligates”) that we live under “republican” government that guarantees the freedom and equality of each and every person (1965, 84). It is important to notice that not only is the moral imperative to treat every person has having intrinsic dignity, but we are morally required to live under republican government because this protects our “freedom and equality.” All persons, for Kant, are free and equal in dignity and rights, and the function of government is to protect that freedom, dignity and equality thereby making possible moral relations and growth among citizens (1974, 289 ff).
For Gewirth, each person is a free agent making choices about how to move into his or her future. We are not determined by necessity as are mere things. It is precisely this universal human quality of freedom and purposiveness that generates the concept of human rights. Human rights are rights to freedom and well-being, both of which are necessary conditions of our having any chance of a successful future of realizing our purposes. It is precisely this human freedom that reveals the complementary concept of human dignity: “agency is both the metaphysical and moral basis of human dignity” (1982, 5). Just as, for Kant, government must protect our freedom and equality so for Gewirth, “the primary justification of governments is that they serve to secure these rights” (1982, 3). The support of the right to freedom (and its concomitant right to well-being) “is essential to the moral legitimacy of governments” (ibid., 18).
For Habermas, likewise, the moral community is also the legal community. With the waning of traditional metaphysical and religious world views, he writes, “we readjusted the practices of the lifeworld and of the political community to the premises of a rational morality and of human rights because they provided the common ground for a
humane existence irrespective of any difference arising from the variety of worldviews” (2003, 73-74). Just as Gewirth locates human dignity and rights with the “freedom” of rational actors, irrespective of their personal worldviews or goals, so Habermas finds human dignity in this same universality of human free, purposive action (p. 37). Such human rights involve “the reciprocal and symmetrical relations of mutual recognition proper to a moral and legal community of free and equal persons” (p. 65). Such recognition provides “the moral foundations of the constitutional state” (p. 40)
Discourse Theory and Legitimation Crisis
In 1973, Jürgen Habermas published his book called Legitimation Crisis. The assumption behind the book derives from Habermas’ identification of the equality and freedom of human beings presupposed by the fact that the basis of human communication is dialogue directed toward mutual understanding. Habermas showed that language itself would not be possible if it were not for these presuppositions, namely that every communicative statement presupposes a claim to truth, truthfulness, and normative rightness (1998). Instrumental or strategic uses of language are derivative from and ancillary to the communicative core of language. This resonates, in Habermas’ view, with the traditional metaphysical idea that human beings all share in equal dignity, and from this derivatively that human beings all have fundamental rights.
In the light of this Habermas examines the history of capitalism with respect to its claim to satisfy the needs of human beings, whether by an “invisible hand” produced from a “free market” or by a more visible hand provided by the welfare state that manipulates interest rates and public monies in order to maximize the stability and success of the capitalist order. The capitalist order, of course, is based on the idea of production for private profit and the unlimited accumulation of private wealth from this system.
The idea of unlimited private accumulation of wealth through the economic system may appear, on the surface of things, to violate the principle of equal dignity of all persons. Vast accumulations of wealth for the few contrast starkly with vast numbers of extremely poor and destitute people. Hence, this system requires legitimation in the eyes of the general population. But the question is to what degree can any particular economic system serve the freedom, equality, and dignity of persons “within the limits of the existing mode of production” (1973, 73-74). Are there inherent limits in the ability of capitalism to serve human freedom and dignity? The history of the role of the state in relation to this modern economic system reveals a series of governing systems part of the job of which is to legitimate the system in the view of the people (while at the same time, representing and protecting the economic elite within this system).
In his discourse theory of language, Habermas shows that a perfect communicative situation remains in the background of all our efforts at communication, presupposing equality and the same right of each person to speak, a situation that acts as a “counterfactual” standard by which we can judge the degree of our success. He calls this the “ideal speech situation” (1998, 367-68). Because we are creatures who interact in immensely complex and convoluted ways, this ideal speech situation is rarely, perhaps never, met. But nevertheless, it is always there serving as an ideal moral standard for human communicative interactions.
In Legitimation Crisis, Habermas reveals the historic struggle for a socialism in which the economic system is designed to serve the needs of people rather than the needs of the rich. Why should the economy serve the needs of everyone instead of primarily the rich? Just as the human condition presupposes the ideal speech situation so it presupposes that same equal dignity and rights of all in every domain of human intercourse, including economics.
The counterfactual ideal presupposed by economic relationships is symbolized in the ideal of “democratic socialism,” that is a society that is fully democratic in the sense that it benefits all its citizens with reasonable political and economic equality. The question in the background of Legitimation Crisis is whether capitalist society (qua capitalist) can ever approximate the legitimacy symbolized by the word socialism. Can it ever generate reasonable political and economic equality genuinely serving common human needs rather than the needs of some ruling class? A review of the statistics concerning human economic misery throughout the world today (in the year 2020), some of which is indicated in the chart at the end of this essay, indicates the inherent limitations of the capitalist system and thereby its limited degree of legitimacy.
Political Legitimacy: An Evolving Concept
Political thinkers have formulated the idea that certain political systems or political constitutions around which political systems have been organized are “legitimate.” Political systems are power relationships in which one group of people (the government) manifests exceptional authority to legislate, adjudicate, and enforce laws over another group of people (the citizens). What are the criteria for deciding if the group holding such power is holding it legitimately? For example, a government can take money from you, by force if necessary, in the form of taxes that are then supposed to be used in part for public safety and security. How is this different from a local mafia organization that requires businesses to pay a regular fee to ensure the safety and security of the businesses? Why is one power system considered “legitimate” and the other not?
The recognition of the legitimacy of a certain group of persons under a certain system of governing involves both domestic and international criteria. Internally the dominant criterion today is often called “popular sovereignty.” The people recognize the government, and not the mafia, as legitimate. We will discuss this further below. But it is also the case that “when other states recognize a sovereign state, they lend it legitimacy, and hence the capacity to engage in external relations: making treaties, engaging in trade, making war. In short sovereignty is conditioned by legitimacy, and this has international as well as domestic implications” (Bukovansky 2002, 3).
A theoretical “realist” approach to legitimacy might affirm an internal criterion of recognition (popular sovereignty) and an external criterion (international recognition) as sufficient. But the deep irony in this approach would be that “legitimacy” is determined by criteria that repudiate some of the central meanings of this concept that clearly have ethical implications. A “realist” or “positivist” approach ignores the ethical foundations of government articulated above by Kant, Gewirth, and Habermas. A government that has internal popular support and external international recognition is not thereby made legitimate in any substantive (moral) sense. Many governments in today’s world are dictatorships, undemocratic in the extreme.
Can there be an authentic “democratic legitimacy” that transcends popular sovereignty, a legitimacy in which the government really represents the common good of its people and this is demonstrated in ways that can be empirically demonstrated? Political historian Mlada Bukovansky writes: “democratic legitimacy today contends for hegemony in the international system within a broader shared framework centered on popular sovereignty” (2002, 10). The criteria for ethical legitimacy of governments, described above, suggests that there can and should be a higher standard of legitimacy called “democratic legitimacy.”
Nearly all governments today claim legitimacy on the basis of popular sovereignty of their populations. Are there some governments that represent the common good of their peoples more than others? Yet we will see that, ultimately, no government can any longer represent that common good sufficiently to claim full legitimacy, because that good has shifted to the planetary level. How, then, is the legitimacy of governments to be assessed?
Drawing on Habermas, we can affirm that systems are justified through how well they achieve their counter-factual value system goals. The system goals presupposed by today’s collection of sovereign nation-states, individually and collectively, involve addressing the common good of the citizens effectively, reasonably, and equitably. In a similar way, we have seen Habermas argue that rational discourse is justified through the counter-factual ideal speech situation.
A governmental political system involves a complex set of rules, relationships, and activities (including economic policies and relations) that purport to represent legitimate power over a certain population of citizens. What makes some such political systems more legitimate than others? If the criteria for legitimacy are not to be positivistic (as I will discuss further below), then legitimacy criteria must form a counter-factual ideal that serves as a moral and practical standard for existing governments.
A perfectly realized common good based on respect and concern for the inherent freedom and dignity of each citizen is the counter-factual goal for democracies. Given the complexity, weaknesses of the human condition, and limitations of the physical conditions of existence, this goal likely can never be reached in fact. Nevertheless, it can be approximated to a greater or lesser degree. Measurement of how well the government is doing in approximating that goal is the criterion of its legitimacy.
Similarly, politicians regularly promise to strive for counter-factual goals that the system is currently failing to achieve. This practice is not necessarily merely hypocrisy on their part (although it is often that too), but is an orientation built into the legitimation-value process of groups and individuals. As temporalized future-facing beings, politicians like the rest of us, understand that their legitimacy for office is related to their counterfactual goals and values (in spite of the fact that these may not be achievable within the framework of the current system). They are striving to achieve something that does not yet exist, and qua persons of governmental authority, they are in principle doing this on behalf of the people they represent.
The ideas that the power of government is rooted in the people and responsible to the people goes far back in western history to the ancient Greeks. However, this idea emerged in a more articulated form during the Renaissance and the 17th century in Europe to become formulated in explicit ways that became foundational for the concept of legitimacy in the modern world. Thinkers like 17th century Dutch philosopher Johannes Althusius (1995) argued that the authorities in government arose from the legitimate power (sovereignty) of the people and were responsible to the people in their governing. Legitimate power, he argued, promoted the common good of the citizens, not the special interests of some class or the governors themselves.
Similarly, much of the 18th century was dominated by the thought of John Locke who also rooted the legitimacy of government in the consent of the governed. The Enlightenment of the 18th century represented a great step forward in recognizing all human beings as equal in dignity and rights. The assumption arose that government represents all, and that “the people” should rule themselves, since all men have reason and can be guided by it. For Locke, governors were
responsible to protect the natural rights of the people and to provide an “impartial judge” over all internal conflicts to ensure equal treatment before the laws. If the government does not adequately perform these functions, and instead there are abuses and injustices, then the people have the right of revolution—to recall the government and replace it with one that does protect their “life, liberty, and property” (1965).
The emerging capitalism of the 17th and 18th centuries required that authority no longer reside with the landed aristocracy or with a king claiming divine right of rule but that government now represent these human rights and support the elaboration of the laws of contract, property, and economic freedom. Hence, while the new political class of bourgeoisie claimed to represent universal human rights, in reality they wanted government to organize to protect their rights to the private accumulation of wealth. However, inherent in the concept that government arose from the people and was responsible to the people was the concept of democracy itself, that is, the idea that government comes from the people as a whole (not from wealthy people, inherited lands, or divine right) and is responsible to foster their freedom, equality, and dignity.
These criteria, of course, did not always the define central meanings of legitimacy and sovereignty. These concepts evolved. The three thinkers cited above who see government as morally responsible to protect the freedom and dignity of citizens all argue that the fact that these concepts have evolved does not mean that the concepts are merely relative to some historical situation. Rather, progress can be made and has been made. Human beings have really understood something about themselves and their proper relationship with governments. Nevertheless, it can be useful to look briefly at the evolution of these concepts.
Sovereignty: An Evolving Concept
“Sovereignty” means ultimate authority or rule. Today, the concept of sovereignty adheres to territorial nation-states in a bond something akin to superglue. A contemporary definition of sovereignty by political scientist Robert Jackson states that “Sovereignty is a foundational idea of supreme authority in the state, and an idea of political and legal independence of geographically separate states” (2007, x).