Sovereignty, Property, and the Locus of Power

By Anne Schult

Anne Schult: Your work has long explored the nature of governance through international law—in the past as much as in the present. The book project you have been working on over the past years, which explores the correlation of sovereignty and property in international law, is no different in this regard. As you seek to illustrate, sovereignty arises from an often hidden foundation of private property relations, while these exact relations are bound to be delimited by what we call ‘public power’—meaning we ultimately have been, and continue to be, governed by both. This argument re-emphasizes some of the questions your earlier work has tackled with regard to the critical role of international law in politics—or, to be more accurate, international law as international politics. But it also appears to address a more fundamental problem in the conceptualization of international law by suggesting that seemingly benign relations of private property are intrinsically connected to the realm of international power struggles. In your mind, how does this project depart from, or perhaps even in part revise, your prior work on the origins of modern international law?

Martti Koskenniemi: It is completely continuous with my earlier work. Of course, I realize that I have an interest in saying that, but I am surprised at how coherent it now appears. I tend to concentrate on questions of power—what lawyers do with power, and how we can study what lawyers do with power. From Apology to Utopia (Lakimiesliiton Kustannus, 1989; reissued Cambridge University Press, 2005) is a deconstructive, synchronic operation into the system as it is now. The Gentle Civilizer of Nations (Cambridge University Press, 2001), in turn, is a first history of how this logic has been used, how it was articulated and carried out in practice. Here I was thinking in Foucauldian terms, about synchrony and diachrony, and I was also persuaded by critiques of structuralism asserting that there are structures but these have no life of their own and instead operate within history. In other words, it is insufficient to only expound on the structure—you have to have a pragmatic approach.

But then again, I felt that I was just scratching the surface with these analyses, and my current project departs from both synchrony and diachrony to offer something that is broader in scope. What I am now trying to do when I theorize power—which is always post facto—is to show how lawyers are called upon to exercise legal imagination. Legal imagination, to me, is that which unites utopia with apology, that which enables you to use a certain vocabulary in a particular situation to carry out your work. This legal imagination works in a wholly indeterminate terrain, however, and I am sufficiently Schmittian to appreciate the point that the decision, as Schmitt says, is a controlled miracle. That speaks to me. I have often thought about decision-making in various contexts, including my own decision-making, and I am never able to pinpoint the moment of decision. I am able to give justifications later on, but I have no recollection of ever having made any decision. Therefore I come to this notion of imagination, which is intended to push aside a really heavy philosophical baggage in order to be able to speak to a broader readership that recognizes the spontaneity of legal work.  Legal imagination is the employment by lawyers of the legal vocabularies, institutions, and systems available to them, that enable them to carry out the jobs that they are called upon to carry out. Sometimes you choose to go the way of property, sometimes you choose to go the way of sovereignty. To me, as a former practitioner, this is how you work. You are not deducing your advice from a textbook or a theory—or if you try that, you are not going to be a very good lawyer. What you are going to do, and what people are going to admire you for, is to find another, perhaps surprising argument, doctrine or field of law that will then offer a solution to the problem at hand. For instance, I want to put to question the way people are so invested in using sovereignty within international law. Maybe you can get where you want to go much easier by way of property, or by private law? This would be what David Kennedy calls “disenchantment”: lawyers are enchanted by the law that is familiar to them and the institutions and practices they are involved with; that makes them often unable to find a good solution to the problem they are faced with. International lawyers are enchanted by international law and think that international law is great. But if you only think in terms of sovereignty—the United Nations (UN), the responsibility to protect, etc.—actually, you are going to be fairly marginal. Sovereignty is helpful for some things, especially if you are in the UN and talk to diplomats, but the UN and its diplomats are not very powerful. If you want to know how power works, and you want a language that gives you access to those who are powerful, then you may have to think about company law. Let’s look at how contracts and property operate, let’s look at private law. That move requires imagination. My book is an effort to show how lawyers have used their imagination at crucial moments to find a solution which did not exist previously, in order to gain power, to defend power, or to challenge power. In this sense, it deals with the same questions as the previous books, but it is also an expression of some dissatisfaction with those two prior forms of analysis. It does not detract from them—I think they were right. But I hope that the idea of legal imagination, which operates throughout history in various ways, will open up a further understanding of how power operates within law, and how politics operate within law, at present.

AS: Sovereignty is a fundamental concern of international law; yet, a number of recent works in intellectual history suggest that it is a rather fraught concept that evades concrete definition and lacks a stable referent. In Sovereignty in Fragments (Cambridge University Press, 2010), a collection edited by Hent Kalmo and Quentin Skinner, contributors investigate what sovereignty, typically imagined as a legitimizing feature of the modern state, might look like in an age of growing interdependence and internationalization. Similarly, in the volume The Scaffolding of Sovereignty (Columbia University Press, 2017), edited by Zvi Ben-Dor Benite, Stefanos Geroulanos, and Nicole Jerr, contributors seek to destabilize the illusion of absolute sovereignty by exploring the supportive architecture around it. Considering international law’s insistence on sovereignty as an absolute, immutable term, what can legal history offer in this quest to shed light on the fiction of complete dominion? If the law does not formally recognize partial, divided, and multiplied sovereignties, can it still be usefully employed to highlight the limits of sovereignty in practice?

MK: Yes, sovereignty is terribly central. I think one should think about it in structural terms, as much as it refers to the highest power. Sovereignty is ultimate, and because it is ultimate, it always recedes into the background and we cannot seize it. Behind it is the idea of God who acts in mysterious ways, who can only momentarily be reflected, but never permanently seized. Everything that I have now learned from intellectual history tells me that sovereignty is a secular translation of the omnipotence of God, and that this omnipotence leads into a huge number of paradoxes. 13^th-century theologians crystallized this into the paradox of the little boy asking whether God can be so powerful that he can create a stone that is so big that even he cannot raise it. But the 20^th century offers many legal examples for this paradox as well. The example that I used in Apology is the reasonably famous case of the Austro-German customs union.

In the treaty of Saint-Germain from 1919, Austria promised to the Allied powers from the First World War that it would not alienate its sovereignty. The idea on the Allied side was that Austria would not join with Germany—but then Austria concluded a customs union with Germany. The Allied powers went to the Permanent Court of International Justice, the predecessor of the present International Court of Justice (ICJ), and claimed that Austria had violated the Treaty of Saint-Germain by concluding a customs union, because a customs union meant that Austria had “alienated its sovereignty.” The pleadings of that case in 1933 are one of the most important sources for understanding sovereignty in law, in my mind, because the Austrians argued that the customs union did not mean that they were alienating their sovereignty—on the contrary. If Austria were unable to conclude a customs union, Austria would not be a real sovereign. That is the heart of the paradox, which appears similarly in the more contemporary case of the European Union (EU). When countries such as Finland joined the union, they were faced with a domestic opposition that argued that we should not alienate our sovereignty to this bureaucracy in Brussels. But the political leadership said that not only do we fully preserve our sovereignty but also enhance it by joining the EU, as it provides us with possibilities of action, with access to money and influence that we would otherwise not have. Now if that is true—and I think it is—then that means that the word ‘sovereignty’, as a sociological description, is compatible with both the situation of a state existing in hermetic isolation and that of a state which has given up its freedom of decision to supranational bodies. And if sovereignty is compatible with both a full ability to decide everything and a complete inability to decide anything, then the term must be pretty flexible. I think that the entire debate on political theology has little more to teach us than what I just put to you in legal terms—and for me, these legal terms are the most important ones. Sovereignty is completely open-ended. But this does not mean that it could not take historically specific forms. At particular moments, it has supported some people and been unsupportive of others. As far as law is concerned, for example, the emergence of modern international law took place as an anti-sovereignty move. The men of 1873 thought that sovereignty was dangerous and opposed to free trade, human rights, etc. People like René Cassin and the Ligue des droits de l’Homme developed that language in the 1920s, and they thought that international law must function as the opposite of sovereignty. How fragile this liberal project was, however, we can see most clearly in Hersch Lauterpacht’s career. Lauterpacht, on whom I have written so much, is one of the great opponents of sovereignty. He is known among other things as the author of the first book on international law and human rights in 1950, in which he celebrates the British tradition of rights à la John Locke. Lauterpacht was at the heart of the international legal project that sought global governance against sovereign egoism. But then suddenly he became one of the legal advisors of the Jewish Agency in 1948 in New York, struggling to create a Jewish state and participating in the drafting of the Israeli Declaration of Independence. So here again, there is the paradox: liberals like Lauterpacht could not just want for there not to be a state, because sometimes the state was needed to protect important values or vulnerable groups—in this case persecuted Jews. This is why you cannot be categorically against sovereignty; it can be many different things.

AS: In your concluding remarks to the volume spearheaded by Kalmo and Skinner, you bemoan the fact that most current attempts to approach the concept of sovereignty are historical in nature. Yet, you too often choose to take a decidedly historical approach, as will again be the case in your upcoming book. As a scholar trained in law, what value do you see in using the methodology of a history of ideas to address problems of sovereignty as they appear in contemporary politics and law?

MK: When I wrote that sovereignty is treated mostly as a historical topic, what I wanted to convey was the sense that people are both tired and afraid of sovereignty nowadays. On the one hand, because it is so utterly complicated theoretically, and on the other hand, because it seems to have been associated with such negative political experiences in the 20^th century. You don’t want to go there and take a stand on present controversies over sovereignty—so you deal with it as a historical topic. Now, if I look at my own turn to history in my two previous works, I am really interested in conceptual history and Begriffsgeschichte, and I think that for understanding those concepts in the present, we must see them in a historical light. My goal is to understand a larger phenomenon, and history enables me to do that. But there is also a broader connection between history and law. In the first place, legal concepts are historical concepts. Roman law, for example, is fundamentally important. If you don’t know Roman law, can you really be a lawyer? Second, lawyers constantly do historical work. I have pleaded twice in the ICJ, and for the preparation of both pleadings, I needed to go back to the 19^th century and read acta and old treatises from the archives and figure out how to use them in the present. History, from a purely professional point of view, is necessary for lawyers. But in my scholarship as well, which aims to understand the politics of law, the past provides me with narratives that allow me to communicate with an audience in a way that is powerful and persuasive. This is important because, after all, engagement with students and other audiences is entirely about persuasion. And persuasive stories are complex stories, stories where real men and women act in complex situations in which we can sympathize with the difficult choices they have to make.

AS: Let’s bring property back into the discussion. While the concept of sovereignty itself may be slippery, its long-lasting relationship with property, you argue, is perpetual and clearly definable. As you state your recent article “Sovereignty, Property and Empire: Early Modern English Contexts” (2017), for example, sovereignty and property “form a typical pair of legal opposites that while apparently mutually exclusive and mutually delimiting, also completely depend on each other” (388). Indeed, the sovereignty-property divide appears to be reminiscent of another well-known dichotomy—the public and the private, which make equally little sense to consider separately. In how far does sovereignty’s pairing with property make the former more intelligible, and why have both intellectual historians and legal scholars largely missed this link so far?

MK: If I can start from the end of the question—the reason why this link has been missed, I believe, relates to the technical complexity of the law of property. In order to understand how property operates, one needs to know a huge amount of domestic, technical law, not only going under the name of property law, but also under the name of inheritance law, contract law, real estate law, etc. People have shied away from that, I think, because it is really hard. For me, my early structuralist interests have been simplifying the task in as much as I always start from the dictum of identifying a binary opposition: private/public, property/sovereignty. That binary opposition already gives me a good methodological basis. It has the great advantage that it covers 100% of available alternatives—it is a full description of the world. This means also that when one part changes, the boundary moves and the other part will change as well. The two parts of the binary are wholly interdependent. So whenever I see something happening in the realm of property, I can deduce that something is happening in terms of sovereignty as well, and vice versa. They are the yin and yang of international law. But people concentrate on sovereignty because it is somehow more visible, and there is a more robust political history tradition on sovereignty that is very accessible and attractive in many ways. If we think of property and sovereignty as a binary distinction, there are two basic ways in which we can imagine their relationship in law. The first is that property contributes to the substance of sovereignty, and sovereignty contributes to the substance of property. I am particularly interested in the idea of a “scaffolding of sovereignty”—to me, property is the scaffolding of sovereignty. There is no sovereignty right that would be of interest to anybody if it did not involve the ability to influence relations of property. We see this most easily, of course, in mafioso governments or rogue states, but also in not-so-rogue states when they determine how property is being distributed through domestic legislation, tax laws for example. The very reason for attaining the position of the sovereign is often to become rich, or to have one’s friends become rich, or one’s country become wealthy. But then again, I am Hobbesian enough to think that mere power, irrespective of land and goods, is interesting and attractive as well. The right of property is often motivated not so much by greed as by vanity—the wish to be superior, to have the ultimate control, which is sovereignty. So both lead into one another, yin and yang. There is always one element in a binary structure that is the predominant one, and the other the subsidiary one. But the subsidiary one, as we have learned from Derrida, is the dangerous supplement. The subsidiary one always eats into the apparently hegemonic one. So whenever we think that sovereignty is the ultimate, it cannot be quite right. If we look behind it, we see that everything stands on property. I am now provocatively making the point that everything is about property, because people have not made that point in my field, which is obsessed with sovereignty. But I would hope that in the next generation, there will be someone who says: well actually, sovereignty…

AS: This leads into my next question, which is about the historical development of this conceptual relationship between sovereignty and property. Your book covers the vast time period between 1300 and 1800, but the case of early modern England appears to serve as a particularly useful example of the entanglement of sovereignty and property, public and private, and law and politics. The pluralism of the English legal system, split into civil law and common law, allowed for the emergence of two different kinds of ‘laws of nations’ in the 16^th century. These two idioms, you assert, used ‘sovereignty’ and ‘property’ in contrasting ways—one to support the sovereignty of the king, as visible in the use of the royal prerogative, the other to defend the property rights of common Englishmen. First categorically opposed, these two arguments continually converged over the course of the 17^th and 18^th century, and property emerged as a justification for expanding the Crown’s sovereignty geographically. British imperial power thus became firmly cemented in a new ‘empire of free trade’ that emphasized private entrepreneurship over formal sovereignty. In other words, capitalism functioned as the driving motor of diplomacy and politics. Is the narrative you propose for this particular case study reflective of the larger argument in the book, i.e. is there a general trend towards the prominence of property? And what role does historical specificity play in your conceptual argument?

MK: Let me say that both as a scholar and as a practitioner, I find that there is always an element of separation between the world and our consciousness of the world. I provide these compelling narratives, all the while knowing that they are not ‘true.’ They are what appears on a flat screen against a really dark, messy background, so to speak. On that flat screen, I can see the deconstructive mechanism, the yin and yang, and I can try to describe it in the hope that my audience can grasp something similar to what I see—knowing that my own grasping of the situation is tainted by my own prejudices, but also an aspiration towards telling the ‘truth’ about power. Behind power, there are human relations in a tremendously unjust world. Now, is my story a story about capitalism? Yes and no. Yes in the sense that I want to convey the message in my profession—“public international law”—people have not paid enough attention to determining power of international economic relations. But of course, I do not think that everything ends in capitalism. Even if I were able to provide a full description of the world as an outcome of the development of globalized relations of production into the kind of massive, rogue capitalism that now exists, I would still know that the dangerous supplement must be lurking somewhere there. That the capitalism I described so efficiently and persuasively cannot be the be-all and end-all. What does that capitalism stand on, what is it dependent on? Maybe it is dependent on mechanisms of violence, on the ability to control the means of violence, and the state happens to be a big instrument for the control of violence…

AS: In relation to the historical context of time and place, you further suggest that it matters who uses this vocabulary and with what intent. To return to the example of early modern England, your paper gives voice to the factor of intent and takes a semi-biographical approach. The thinkers you survey, including Hobbes and Locke, alter the configuration between property and sovereignty based on their political and personal motivations. This biographical approach also points to a potential problem, though: while such a history of legal imagination proposes surprising revisions to the established intellectual biographies of grand thinkers, it also runs the risk of overlooking possible conceptual developments caused by interactions, dialogues, and negotiations outside of the narrow field of traditional intellectual history. To what extent should figures like Hobbes take priority over others mentioned in the paper, such as Sir Edward Coke and John Wheeler, or those non-elite (and non-European) actors completely left out?

MK: Let’s dismiss one way of looking at this: is this an agency-structure problem? No. There is no agency-structure problem. There is, of course, agency and there is structure, and we are constantly negotiating between the two. Agency and structure behave like sovereignty and property—a binary distinction the parts of which both reject and depend on each other. That is not a problem to be solved, but an existential situation that we are in. I would really like lesser figures such as Edward Coke or John Wheeler to have abandoned their modesty at some point. Wouldn’t it be great if in some library a treatise were found by John Wheeler on political theory or on international law? And that work would become the subject of intense scholarly studies! But of course, then they would not be the persons they have long appeared to us. It is a real problem that we always deal with the same guys, their writings and neuroses. But that is hard to avoid. In the Gentle Civilizer, I did introduce some minor figures, and in this upcoming book, I am going to introduce others. But they are still people who are known to some specialized fields, and about whom other people have written. That they are white men is a huge problem, of course. And how does one deal with that problem? I was really impressed by Dipesh Chakrabarty and his efforts as an Indian postcolonial scholar to think of writing history in a postcolonial vein. In Provincializing Europe (Princeton University Press, 2007), there is this really appealing account that he gives of his earlier efforts to write the history of India before the British came in, and not in the way that the British have written it. But then he finds out that all the archives have been compiled by the British, and that one is completely in this prison house of European ideas of what history is, what counts. As he puts it, even the canons of professional historiography on India are European. And if you want to participate in them, that is what you have to buy into—there is nothing you can do. As a response, Chakrabarty chooses the strategy of provincializing Europe, of treating Europe not as the universe, but as ‘men with projects’. Or that is how I have translated what he means. Instead of being large – even “universal” – Europe would be just a set of projects by a group of privileged men. That is how I have seen international law as well: a series of political projects by political men.

AS: To dwell on this topic of Eurocentrism a little longer, it seems that paying attention to the combined history of sovereignty and property may offer some remedy in this regard. You readily acknowledge that this is a history about not only ‘men with projects’, but specifically white men with projects, and the focus on property highlights how Europeans exercised power over the world through international law by using both sovereignty claims and commercial interests as instruments of European expansion. But I can’t help but wonder if there may be further ways to question Eurocentrism, e.g. by exploring how legal scholarship itself has been implicated by imperial ambitions and systematically privileged the European nation as a unit of analysis. Do you address such methodological implications in your upcoming book?

MK: No, I don’t. I have written a sufficient amount of methodological texts in the past, in which I tried to make the point that I am just an extreme nominalist. There are no great concepts, there are just men and women with ideas, so I reduce everything thereto. Which is not to say that it would be impossible to write in other ways as well, as a non-nominalist, about doctrines or about concepts operating independently of their operators. Most of legal history is about the history of concepts and institutions, the history of the state, the history of the nation. And I am perfectly happy with other people using ‘my men’ and writing, for example, on the notion of la nation in 17^th-century in France based on how it transpires from Mably’s writings. Such things can be extrapolated from them, but I am not going to move radically away from my nominalism. I suppose I have to add that I also think in Marxist ways. I have been struggling with Marxist writings on the early phases of colonialism, the notion of “primitive accumulation,” in which wealth emerges out of trade and eventually enables the productive processes that lead into Capitalism. That process does provide a really important frame within which I think ‘my men’ work. But I will never put concepts such as “primitive accumulation” in my texts—or not in a serious way, anyway. For those who do that will immediately see their work connected and amenable to critiques that have been or may be made against the other works that have used that concept. Guilt by association. I wish to avoid that (as much as anybody can). But I have written on Marxism and international law, and have done work on other conceptual notions in the past. But I often find strictly methodological debates impoverished.

AS: Your book is organized by national case studies and their respective legal vocabularies. As you insist, these vocabularies changed over the course of time and thus necessitate the study of a longer trajectory. However, one could again argue that traditional longue durée studies of international law have caused certain genealogies and interactions to be overshadowed by others in a framework that is, ironically, categorized by nationality in order to inquire about international legal thought. One example of this would be the contextualization of ius gentium within a distinct German academic, a Dutch mercantilist, an English civil-common, and a French Enlightenment tradition. But does ‘compartmentalizing’ legal history in this manner and assigning distinct characteristics to each national context—contexts that often did not exist as ‘national’ at the time—not set up artificial boundaries of nationally coded and disciplinary distinction? How will your book address cross-influences that exceeded accepted spatial and temporal boundaries?

MK: I don’t think one can write without some contextualization. All of us know that we act within a number of different contexts—and those who want to understand us will have to decide which of those contexts is relevant for which part of our activity. Again, I suppose I am being a contrarian in my own profession, as I find myself intuitively working against the dominant styles. International lawyers have often thought—especially in the late 19^th and early 20^th century—that the world was their scene and the universe their audience, and that their concepts had timeless validity. So I want to think of them as local actors who learned everything in a really limited sphere of conversations and readings. These men were lawyers, and the law that they learned first was domestic law. English lawyers, for instance, learned first common law and a certain relationship that common law had with civil law. That was a very specific relationship, and in order for them to become recognized and powerful actors in their own world, they needed to learn and play around with that understanding. If they became civil lawyers, they could become academics and speak maybe directly to the Queen or King. But maybe they wanted to go the commercial route and become legal councilors to a merchants’ company. Then they needed to know common law. But common law also operated within international contexts, and that meant they needed to know some of the domestic laws of France or Holland – but their understanding of those other laws was inevitably and naturally affected by what they had already learned of English law.  So, the first relevant context is often the domestic legal one, and domestic law is often geared towards consolidating the domestic realm. Consider, for example, the very strong way in which French lawyers and the law were involved in the process of French nation-building—lawyers were at the heart of the creation of nationhood. In the Holy Roman Empire of the German Nation, they were obsessed with the question as to the relationship between the empire and the imperial estates. Every lawyer participated in this debate in some way in their professional capacity, and that was a very specific configuration of problems. Of course, they had conversations beyond their geographies—but when they went to the colonies, for instance, they often just kept on applying their own domestic laws and gave often no recognition whatsoever to indigenous customs. So domestic law is really important as the foundation on which professional lawyers come to every other law, including international law. At the same time, there is interdisciplinarity. Many of them had some relation to theology and spoke to theologians, and theologians spoke to lawyers, as in Spain during the Conquista. Indeed, one of the things I am hoping this book will do—perhaps in contradistinction to what I have been saying so far—is to tell the long story of the European world moving away from a center in theology, first towards natural law and then towards economics, both at the conceptual level and the institutional level. I pay a lot of attention to the way in which lawyers engage in theological debates and theologians in legal debates, and how lawyers engage in economic debates and create what later becomes known as political economy. Adam Smith, who is the typical example, starts out writing a treatise in natural law and ends up with The Wealth of Nations (1776).

That is a really important development. But again, I want to refrain from saying that ‘ergo economics is’, or ‘ergo law is’. I just highlight that Adam Smith seemed to think that an important legal point to make was that freedom of enterprise provides wealth for Britain. So there is some international context, and there is some interdisciplinary context. But I do not want to think of any one of them as ever fully determining — for after all, it is imagination that then does with those contexts what it needs to do in order to carry out the professional business it is engaged with.

Anne Schult is a PhD student in the History Department at New York University. Her current research focuses on the intersection of migration, law, and demography in 20th-century Europe.

Featured Image: The signing of peace in the Hall of Mirrors, Versailles, 28th June 1919. © IWM Art.IWM ART 2856