Western social philosophy has produced many, many writings on the nature of sovereignty. Chiefly, these works are concerned with the individual or group of individuals who are entitled to rule. The medieval conception of divine right held that kings were the apex in a heavenly-ordained social order, ruling legitimately to the extent they upheld the just claims of all social groups. The early modern conception of divine right vested the right of command solely in the king, thereby personifying the new central state and raising him above his society. And modern theories of democratic legitimacy kept the locus of sovereignty in the central state, swapping out His Majesty for the Will of the People. These theories sometimes talk past each other—for example, early modern divine right was not a carte blanche to kings, so much as an endorsement of the legal principle rex legibus solutus (“the king is released from the laws”) and all it implied—but nonetheless the radically different normative premises underlying these theories almost guarantee that this is an issue that may be further illuminated, but never settled.
The normative focus of these theories is not a failing. Man exists in a world where the impression of ought bears on him just as much as the impression of is, and any social theory that jettisons the former because it cannot be built into a quasi-geometric proof is not worth taking seriously. But first and foremost, I am a political economist, meaning I instinctually focus on questions of is, which hopefully then be an input into settling questions of ought. (Ought implies can; David Hume can go soak his head.) I contend we can come to an increased understanding of sovereignty by treating it as something positive. Unsurprisingly given my training, I think sovereignty can best be understood as a property right—albeit an unusual one.
Sovereignty is a kind of political property right. Like more familiar economic property rights, a political property right is a defined sphere of exclusive control. Unlike more familiar economic property rights, a political property right does not confer a right to enjoy a good or service, but to exercise power. Conflicts over economic property rights require some mechanism for adjudication and enforcement; so do political property rights. Arranging political property rights into a hierarchy, there will be some point at which that hierarchy is self-enforcing. This must be the case, because eventually there will be no party or mechanism to which one can appeal for further adjudication or enforcement. Quis custodiet ipsos custodes? (“Who will guard the guards themselves?”) This, then, shows us the nature of sovereignty: it is a political property right which is self-enforced. To phrase it slightly differently, a sovereign is a political organization that enforces its own rights.
The most familiar mechanism for solving disputes over political property rights is open conflict. Parties A and B both lay claim to the same political property rights; their claims are mutually exclusive, so they fight to determine who gets what. The conflict itself reveals to what extent one party can claim new political property rights, and thus the extent of its sovereignty. But not all disagreements over political property rights result in conflict. Even in cases of radical disparities in martial prowess, it may not be in the interests of the stronger to conquer the weaker, because conflict is costly. After the dust settles, the stronger may have secured the political property right in question, but the damage the stronger incurred in doing so made conflict, in retrospect, unwise. This partly explains how multiple sovereigns can coexist without constantly trying to usurp each other’s sovereignty. There may be much ruin in a kingdom, but between them there is frequently a great deal of order, if only for Machiavellian reasons.
Importantly, sovereignty is defined only with respect to a specific set of political rights. An organization that claims a territorial monopoly may, in fact, only control a subset of activities within this territory. For example, Louis XIV greatly expanded the temporal powers of the French monarchy, but never dared to assert control over spiritual matters to the degree of, say, Henry VIII. In curbing the power of the landed warrior nobility, Louis asserted his sovereignty over spheres traditionally within the purview of quasi-autonomous aristocrats. His refusal to extend his grasp to the same degree in religious matters is not to be taken as an indication he approved of Rome’s authority in his lands, but as a recognition that he simply did not have political control over ecclesiastical governance. Thus, viewing sovereignty as a self-enforced political property right leads to a counterintuitive conclusion: there is no such thing as absolute government. All government is divided government, because a hypothetical bundling of all political property rights under the purview of a single organization is unsustainable. The all-powerful organization’s claims would be simply unenforceable.
What is the point of all this theory? Looking at sovereignty this way yields conclusions that will be useful as inputs in a broader conversation about governance institutions. First, there is nothing in the above that suggests sovereignty must be vested in a Westphalian state. Indeed, much internal political unrest in today’s states can be attributed to the state claiming political property rights it wishes to, but does not yet, possess. Second, sovereignty cannot be reduced to human will or intention. Bundles of political property rights, including those which are self-enforced, emerge out of political competition, not unlike how bundles of economic property rights emerge out of economic competition. In both cases, the bundles are ‘the product of human action, but not of human design.’ This, in and of itself, does not rule out all political planning. But it should dampen our enthusiasm for large-scale ‘nation-building’ projects that cannot mesh with the particulars of a political property rights structure, which is frequently a messy accident of history that defies regimentation. Third, accurately determining who is sovereign over what sheds light on how currently-existing governance institutions actually work rather than our notions of how they ought to work. In the United States, for example, there has for years in public discourse been a growing worry that our governance institutions are failing. The current election cycle has not suddenly revealed, so much as it has steadily exhibited, a long-festering rot in the body politic. It may be time to face an unpleasant truth: the nature of political power in the United States renders a constitutional, federal republic an unenforceable structure of sovereignty. If we truly wish to keep—or rather, restore—a structure of political property rights conducive to liberty under law, we must first figure out why.
Books on the topic of this essay may be found in The Imaginative Conservative Bookstore.