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Toward a republican theory of secession

2022; Wiley; Volume: 53; Issue: 3 Linguagem: Inglês

10.1111/josp.12468

1467-9833

Lluís Pérez-Lozano,

Political Theory and Influence

Journal of Social PhilosophyVolume 53, Issue 3 p. 421-440 ORIGINAL ARTICLEOpen Access Toward a republican theory of secession Lluis Perez-Lozano, Corresponding Author Lluis Perez-Lozano [email protected] orcid.org/0000-0001-5299-405X Department of Political and Social Sciences, Political Theory Research Group, Universitat Pompeu Fabra, Barcelona, Spain Correspondence Lluis Perez-Lozano, Department of Political and Social Sciences, Political Theory Research Group, Universitat Pompeu Fabra, Office 20.187, c/Ramon Trias Fargas 25-27, 08005 Barcelona, Spain. Email: [email protected]Search for more papers by this author Lluis Perez-Lozano, Corresponding Author Lluis Perez-Lozano [email protected] orcid.org/0000-0001-5299-405X Department of Political and Social Sciences, Political Theory Research Group, Universitat Pompeu Fabra, Barcelona, Spain Correspondence Lluis Perez-Lozano, Department of Political and Social Sciences, Political Theory Research Group, Universitat Pompeu Fabra, Office 20.187, c/Ramon Trias Fargas 25-27, 08005 Barcelona, Spain. Email: [email protected]Search for more papers by this author First published: 18 May 2022 https://doi.org/10.1111/josp.12468 Funding information: Ministerio de Educación, Cultura y Deporte, Grant/Award Number: AP2009-4876 AboutSectionsPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat Like most theories of democracy, democratic republicanism has usually taken for granted who the demos is. However, precisely one of the most frequent sources of political conflicts in contemporary history is the determination of its boundaries, particularly –though not only– in secession conflicts. This article aims to answer a related question: what kind of right to secede from a modern democratic state,1 if any, can be acknowledged from a democratic republican viewpoint? By answering this question, I hope to make a contribution both to republican literature (in which secession has barely been analyzed) and also to the normative literature on secession (in which republicanism has very rarely been used as a normative framework). The core tenet of the republican theory of secession developed here is the recognition of a non-unilateral2 right of secession for any democratic secessionist community within a democratic state, coupled symmetrically with a non-unilateral right to territorial unity for that democratic host state. The rationale behind this theory is to deny both sides the power to impose their will without having to consider the interests and opinions of the other side; that is, to deny arbitrary power, which in republican terms is synonymous with domination. As we will see, this in turn minimizes the chances of permanent majorities and powerful minorities achieving arbitrary power in center-periphery conflicts. This article does not discuss secession as a general phenomenon, but focuses particularly on secession conflicts where both secessionists and the host state (and the unionists within it) are peaceful3 and democratic. The rationale behind this analytical choice is to minimize what we might call normative noise, i.e., normative issues that distract our attention from the ones that we initially intended to discuss. Modern democracies, however imperfect they may be, are the closest polities to democratic republican ideals that exist in our contemporary world. Thus, when neither the host state nor the potentially seceding territory are attempting to move away from this political model in a non-democratic direction, secession appears normatively "naked" in democratic-republican terms. I am not trying to find out whether democratic secessionists are legitimated in seceding from undemocratic states, nor whether democratic states are legitimated in suppressing an undemocratic secessionist attempt. The article presents this theory over eight sections: (1) a review of current theories of right of secession, pointing out why republicanism can be a useful framework to overcome their weaknesses; (2) an overview of the main tenets of republicanism, explaining why (and how) republicanism must analyze secession conflicts as a type of factional conflicts; (3) the presentation of the normative core of my republican theory of secession, based on non-unilateralism; (4) the outline of a non-unilateralist framework for secession conflicts; (5) an outline of three problematic scenarios for the theory, and of the role that unilateral mechanisms can play in order to tackle one of them; (6) an exploration of the strengths and weaknesses of two possible institutional translations of this theory (constitutionalization and internationalization); (7) a discussion of some foreseeable criticisms of the theory; and (8) a summary of my conclusions. For the purposes of this article, a secessionist movement is a group of people that seek secession for a broader group of people, namely the target group. When secessionists are a clear majority within the target group, this group qualifies as a secessionist community. While every single member of a secessionist movement is secessionist, this is not true of secessionist communities. And when a secessionist community seeks to establish a modern democratic state through democratically acceptable means, it qualifies as a democratic secessionist community. 1 CURRENT THEORIES OF RIGHT OF SECESSION: PRINCIPAL TENETS AND CRITICISMS Unilateral secession is often regarded as "the principal focus of interest for theorists of secession" (Pavkovic & Radan, 2007, 200–201). Theories of right of secession (TRS) are usually classified into three different categories depending on who they deem entitled to (unilateral) secession: territorially concentrated groups, i.e., plebiscitarianism (Beran, 1984; Copp, 1998; Lefkowitz, 2008; Philpott, 1998; Wellman, 2005); culturally encompassing groups, i.e., ascriptivism (Margalit & Raz, 1990; Miller, 1997); or groups that are unjustly and intolerably harmed by the state, particularly (although not necessarily only) in terms of basic human rights, i.e., remedialism (Birch, 1984; Brilmayer, 1991; Buchanan, 1991, 2007; Christiano, 2006; Patten, 2002). The first two categories of TRS conceive secession as a primary right, i.e., a right to which some groups of people are entitled a priori, with no need to justify their decision; the categories only differ regarding the definition of which people(s) are entitled to this primary right. Primary right TRS are usually criticized as being an open door to: (1) secessio ad infinitum, i.e., unending recursive secessions, leading to anarchy, and to (2) the blackmail threat, i.e., the risk of giving privileged minorities (e.g., wealthy ones) the power to threaten the whole polity. In addition, ascriptivism can be further criticized for: (3) its weak operationalization: it is difficult to give an empirically operational definition of the ascriptive features that a group of people must share in order to be considered a "culturally encompassing group"; and (4) the threat of exclusion it poses: those who live in the territory of the ascriptive group that is entitled to secession, but who do not share its ascriptive features, might come to be seen as second-class citizens, and eventually be excluded from the decision on secession, or even from citizenship altogether.4 Due to these weaknesses, many scholars espouse some version of remedialism, which regards secession as a last resort in the face of certain persistent injustices. What these injustices are is a matter of discussion, but remedialists generally agree on some basic injustices, such as massive violations of basic human rights. However, remedial theories have been criticized as unfairly biased toward the status quo,5 since they assume the legitimacy of current boundaries and put the burden of proof on secessionists. This is problematic since most boundaries are the result of historical episodes (e.g., wars) that are far from reflecting the democratic values that remedial theories rest upon. Remedialism suggests an answer to this objection: as long as states are reasonably just, boundaries are irrelevant. However, in a world of states, falling between terribly oppressed minorities and privileged, blackmailing ones, there are many intermediate cases of permanent minorities,6 which are usually the weak sides in persistent controversies on certain issues related to state or nation-building (e.g., language regulations, or the territorial structure of political or economic institutions).7 It seems unfair to assume that they must simply endure this condition because of a war lost in the distant past, for instance. Thus, it seems that all current TRS are in some way criticized for being unfairly or dangerously biased toward either unionists or secessionists. I think that the reason behind this common weakness is that all current TRS choose an a priori winner in secession conflicts, that is entitled to the disputed territory unless X. Remedialists make this choice by means of a justice-based view of legitimacy: as long as a state is reasonably just, secession is unjustified, and therefore illegitimate. Plebiscitarian and ascriptive theories, on the other hand, make the choice by means of theories of legitimacy that are not based (or not based exclusively) on justice. In order to further examine their common weakness, I shall briefly explore this point. It is important to distinguish between justice and legitimacy. Justice is about "the question of what should be done by political institutions or by the law; that is, what the content of political and legal decisions should be," while legitimacy is about "the question of who should make the political and legal decisions that serve to approximate this ideal of justice, and how they should do it" (Martí, 2017, 731). While this definition includes the "who" as a question of legitimacy, I think that when we look at concrete political conflicts, justice and legitimacy point toward two different "whos": the people who we would like to see ruling (because we share their view of justice) may not be the people who we consider legitimated to rule. For instance, we may share a Rawlsian view of justice and, therefore, tend to support social-democratic governments; while at the same time, we can regard a government with a Nozickian libertarian agenda as legitimate, as long as it has won power through means we regard as legitimate (e.g., through free and fair multi-party elections). I understand the question "who is legitimately entitled to secede?" as an aspect of the "who is legitimately entitled to rule?" question. As we have seen, remedialists establish a direct connection between the "whos" of justice and legitimacy: those who rule justly are entitled to rule, and for the same reason, those who are ruled unjustly are entitled to separate themselves from that unjust rule. However, the problem with establishing a direct connection between justice and legitimacy is that it makes political conflicts highly difficult to deal with. We all tend to have very different ideas regarding justice, and even on the practical implications of those ideas (especially when our interests are at stake). This is, precisely, one of the main reasons why we need governments and laws, so that we have someone to arbitrate such differences. But that someone is, in the end, someone like us, and if we establish that the person who is more just (or who has the best views on justice) is the person who should rule, then we will just be going round in circles and not tackling the problem. This is why political communities need procedures and institutions that enable them to choose governments and make laws, in a manner that can be recognized as legitimate even by those who think that those governments and laws are somehow unjust. In other words: political communities need procedures and institutions in order to manage political conflicts (including those involving conflicting ideas of justice) in a legitimate way. Therefore, I think that plebiscitarian and ascriptive theorists are right not to establish a direct connection between legitimacy and justice regarding secessionist claims. The problem, however, is that they emphasize the "who" of legitimacy over the "how." In my opinion, the "how" is the constitutive point of legitimacy, while the "who" of legitimacy is only derivative. When the legitimate "how" (e.g., free and fair elections in country X) settles the question on the legitimacy of "who" (e.g., who is the legitimate person to hold executive power in X), polities enjoy a great deal of internal and external legitimizations, making it easier to tackle political conflicts without resorting to a "might makes right" logic. When, conversely, there is not a legitimate "how" to decide the legitimate "who," then might does indeed make right. This is the nemesis of freedom that was the case of wars of succession in monarchies. And nowadays, it is also the case of most secession conflicts. For these reasons, rather than deciding who is right in secession conflicts, a TRS should first and foremost be a theory that sets out a legitimate institutional framework for secession conflicts. It needs to be a theory that could be placed within a turn that is now underway in the literature: rather than finding an a priori holder of a unilateral right to secession, several authors are delineating processes and mechanisms by which secession conflicts should be managed (e.g., Sanjaume-Calvet, 2019); this even includes authors who establish a very close connection between justice and legitimacy (e.g., Bossacoma Busquets, 2020). I will argue that democratic republicanism can provide valuable tools for developing such a theory. 2 REPUBLICANISM AND SECESSION This article is based on the contemporary reconstruction of the republican tradition developed by Pettit (1997), building on the historiographic work of Skinner (1998); this is arguably the mainstream in current republican literature. According to this reconstruction, republicanism: (1) stands for freedom as non-domination; (2) understands domination as the arbitrary power of the individual or group X over the individual or group Y, i.e., as a power that can be exercised by X over Y without having to consider Y's interests and opinions (Pettit, 1997, 35); (3) argues that, in order to promote republican freedom, private sources of power must be controlled and dispersed by the state; (4) argues that, in order to prevent the state from itself becoming a dominator, it must be organized as a constitutional republic,8 with its own powers being dispersed and kept in check by civic virtue and the rule of law; and (5) argues that civic virtue and freedom are mutually dependent. In addition, democratic republicans, as opposed to oligarchic ones, (6) endeavor for republican freedom to include as many people as possible (Pettit, 1997, 95–96). Thus, domination and exclusion, as defined here, are the main concerns of democratic republicanism. Considered in this way, republicanism encompasses canonical authors such as Aristotle, Cicero, Machiavelli, Spinoza, Madison or Wollstonecraft, to name but a few; it is, therefore, a long tradition of political thought, focused on justice as well as on legitimacy (Pettit, 2012, 18–19), not only in the realm of domestic politics but also in that of international relations (Onuf, 1998). Concerning this last value, a common topic in republican thought is the importance (and the danger) of factional conflicts when it comes to designing non-dominating (therefore, legitimate) political institutions. To republicans, political institutions should manage political conflicts in such a way that no contending faction can gain absolute (therefore, arbitrary) power over the others. The dispersion of public power is not only needed to guard against potential abuses by public officers, but also to guard against the risk of a factional takeover. Republican theorists have also applied this concern regarding balance of power to international relations (Deudney, 2008). Republicanism, however, has not concerned itself with designing institutions that are able to manage secession conflicts, in which the contending factions neither seek to win power within a state, nor to win power for a state, but either to become a state formed out of another one (secessionism), or to prevent another group doing so (unionism). Even authors with an affinity to republicanism, such as Miller (2008) or Weinstock & Nadeau (2004), have not used republican concepts and principles in their works on secession (Miller, 1997; Weinstock, 2000, 2001). And when scholars have occasionally worked on secession from a republican point of view, they often have done so in a somewhat exploratory way (McGarry & Moore, 2011), usually as a secondary issue within broader works on nationalism (Ovejero, 2006, 81), international law (Sellers, 2006, 158–66), or self-determination generally (Klabbers, 2006). Other scholars, such as Caminal (2007) or Young (2005), have examined the relationship between republicanism and self-determination, but these works have focused on multinational federalism, rather than on secession. Only Catala (2017) has outlined some ethical–political duties of potentially secessionist groups, concerning non-domination, in one particular area (distributive justice). Thus, there is much work yet to be done in formulating a democratic republican TRS. In my view, as I have already noted, a secession conflict can be understood as a sort of factional conflict. It is usually the ultimate expression of a conflict between a permanent central majority and a permanent peripheral minority, both of them defined along the lines of permanent disagreements on how the state should be conceived and organized in terms of economy (i.e., its territorial organization), territory (i.e., the territorial distribution of political power) and identity.9 In this regard, a secession conflict may imply four different threats in democratic republican terms. The first one is the threat of exclusion, i.e., the risk that some people who would be under the authority of the seceding polity may be excluded from deciding on the matter of secession, or even from citizenship of the polity altogether. This threat, in my opinion, is one of the darkest points of ascriptive theories: if the group with a right to secede is one defined by certain objective traits, then those who do not share these traits may be excluded from the process of deciding on secession; in fact, they may even be excluded from becoming citizens of the new state, since they are not part of "the people." The second threat is domination by blackmailing minorities: in the case of being capable of achieving unilateral secession at will, an X minority which happened to be particularly powerful (e.g., because of its wealth) would be in a position to blackmail10 the Y citizenship of the rest of the polity,11 with no need to consider Y's interests and opinions (thus, exercising arbitrary power over Y). This is a threat that affects ascriptive TRS, but especially plebiscitarian ones, for they are highly permissive about groups of people unilaterally seceding at will. These two threats of exclusion and blackmail have led republican scholars like Ovejero (2006, 81) or Sellers (2006, 25) to embrace remedialism. I regard remedialism, however, as ill-prepared to handle a third threat, that of arbitrary permanent majorities: by stating that secessionists must bear the burden of proof, remedialism gives the high ground to permanent majorities, who may arbitrarily decide what degree of autonomy, recognition, or economic promotion they will grant to permanent minorities. This third threat requires a little more explanation, since it may be confused with the "tough luck" attitude proffered to, say, the loser of a democratic election. For a polity to protect the republican freedom of its members, its institutions should be designed in a manner to require them to track the interests and opinions of the people. Since unanimity is a rarity (and a unanimity rule would thus be biased toward the status quo), democratic republicanism typically defends majority rule plus counter-majoritarian checks. The goal of these checks (in democratic republican terms) is not only to protect minorities, but to allow them to intervene in public debates and, therefore, to be able to persuade people and eventually become majorities themselves. Thus, in a healthy democracy, we can expect to be sometimes in a majority and sometimes in a minority. If, for instance, I am a progressive, I will sometimes be disappointed by a conservative win in a vote, and I will sometimes be pleased by a progressive victory (or vice versa, if I am a conservative). This easily changeable nature of majorities makes majority rule plus counter-majority checks the least imperfect way to force governments to track the interests and opinions of all citizens. However, in center-periphery conflicts about economy, territory, and identity, the majorities hardly ever change; thus, it is easy to govern the polity without much regard for the interests and opinions of permanent minorities, even if their members are individually equipped with full democratic rights. For instance, a permanent linguistic majority can decide, by the sheer force of demographic numbers but through strictly democratic procedures, to remove the teaching of the indigenous language of a permanent minority from public education. This does not mean that they will do it, but that they are able to do it. And in republican terms, this is a dominating stance, i.e., a stance of arbitrary power. There are two remedialist strategies that have been developed in order to overcome this threat posed by arbitrary permanent majorities: (1) the defense of reasonable degrees of intrastate autonomy (Buchanan, 2007, 401–24); and (2) the inclusion, within the catalog of "just causes" for secession, of insufficient self-government, discriminatory redistribution, and/or failure of recognition (Bauböck, 2000; Christiano, 2006; Patten, 2002; Seymour, 2007). However, neither of these strategies actually overcomes the threat of arbitrary permanent majorities. What both strategies are actually saying is that the host state must accept reasonable settlements of center-periphery conflicts, without understanding that the definition of a "reasonable settlement" for a center-periphery conflict is precisely the very subject of that conflict. Moreover, this is a highly context-dependent matter that can only be discussed on a case-by-case basis. And in each case, the weak side in the conflict will usually be the peripheral permanent minority. So both strategies merely bounce around the threat they are trying to overcome. It seems, therefore, that the (pro-secessionist or pro-unionist) bias of these TRS tends to open the door to exclusion and/or domination (either by permanent majorities or by permanent minorities). To make things worse, due to their bias toward one of the two sides, none of these TRS is likely to be accepted by the other side, thus leading to the fourth threat for democratic republican goals: instability, i.e., inappropriate handling of secession conflicts (including not handling them at all) is likely to promote instability, eventually triggering exclusion and/or domination. I have developed this republican critique of current TRS elsewhere (Perez-Lozano, 2021b). In my view, in order to overcome all four threats, democratic republicanism needs a new TRS, based on a non-unilateralist logic. I will devote the next section to developing this point. 3 THE NORMATIVE CORE OF THE THEORY: NON-UNILATERALISM I think that a democratic republican TRS should lean toward non-unilateral mechanisms, without completely discarding unilateral ones. This non-unilateralist logic is aimed at allowing both secessionists and the host state to pursue their respective goals; while, at the same time, forcing them to take the interests and opinions of the other side into account, which is tantamount to forcing permanent majorities and permanent minorities, in center-periphery conflicts, to take each other's interests and opinions into account. We can see this point in the Quebec Secession Reference (Supreme Court of Canada, 1998), and in how it was received by the Canadian government and the Quebec secessionists. The Reference ruled out two unilateralist positions in the Quebec secession conflict: it denied Quebec the right to unilateral secession, either within the Canadian constitution or international law; but at the same time, it acknowledged that the Canadian government had the constitutional duty to negotiate with a secessionist Quebecer government in good faith, if a clear majority of Quebecers answered "yes" to a clear question about secession. The reference was welcomed by both the Canadian government and by the Quebec secessionists, and the delighted reaction of the latter to it was, in fact, quite telling. We can see why by asking a counterfactual question: what would have happened if the Reference had not included Ottawa's obligation to negotiate in the case of a "Yes" victory? Initially, it would appear that the secession of Quebec would have been impossible, at least in legal terms. However, this is not exactly true: before the Court issued the Reference, Canadian federalists had repeatedly asserted that they did not want to retain Quebec within Canada against the will of Quebecers, but to remove the threat of unilateral secession (Sauvegau et al., 2006, 108). But then, what difference did the Reference make? Why was it so gladly received by the same Quebec secessionists who had initially been so reluctant for the Court to have a role in the matter (Sauvegau et al., 2006, 105–107)? The answer is that, without the Reference imposing an obligation on Ottawa to negotiate, actually opening those negotiations (in the case of a "Yes" victory) would have depended on the good will of Ottawa's federalists in maintaining their promises. And, even if those in the government in Ottawa had opened those negotiations, it would have been left up to them, legally speaking, to end them whenever they wanted. That is: Ottawa would have had arbitrary power to deal with this conflict in the manner that it considered appropriate. And we must recall that domination, in republican terms, is not necessarily synonymous with interference, but is only someone's power to arbitrarily interfere with someone else. The fact that X has arbitrary power over Y does not necessarily mean that X will be cruel, oppressive, or exploitative toward Y. We can understand this by recalling an extreme example pointed out by Pettit: I may be dominated by another—for example, to go to the extreme case, I may be the slave of another without actually being interfered with in any of my choices. It may just happen that my master is of a kindly and non-interfering disposition. Or it may just happen that I am cunning or fawning enough to be able to get away with doing whatever I like. (1997, 22) Arbitrary power poisons relationships, whether or not it is actively exercised. Had the Court plainly denied Quebec any right of secession, there is no reason to think that Ottawa would have started to behave like an oppressive, uniformistic, and centralistic government. But any new constitutional negotiation on the status of Quebec within Canada would have been conducted from the perspective that, in the end, Quebec would have had no option (at least in constitutional terms) but to take what Ottawa was willing to give it, or to leave empty-handed. That is: in the conflict between the permanent minority of Quebec nationalists and the permanent majority of Canadian nationalists on how to organize the economy, territory, and identity in Quebec and Canada, Canadian nationalists would have been, to a large extent, dominating Quebecer nationalists. On the other hand, had the Court plainly asserted that Quebec had the right to secede unilaterally, a relationship of domination through blackmailing could have emerged in the opposite direction. But by forbidding each side in the conflict to pursue its own goals without taking into account the interests and views of the other side, the Quebec Secession Reference minimized the chances of domination in both directions (Perez-Lozano, 2021a). And, provided that this framework, interpreted in this way, appears to be fair and reasonable to both sides, it would be difficult for either of them to unilaterally break with it while presenting itself as a reasonable and fair player in the face of public opinion, both domestic or international; this would be a cost in terms of political legitimacy and is briefly pointed out in the Reference itself (272–273). Republicanism aims to develop these kinds of schemes in order to obtain these kinds of results. It aims to channel deep political conflicts toward an institutional framework in which (1) all interested parties have a genuine say, and are thus protected from domination and (2) as a result, all of them legitimize the framework, therefore imposing high political costs onto anyone tempted to break away from it unilaterally. Thus, republican freedom and political stability go hand in hand. In secession conflicts within modern democracies, this job could be done, in my view, by a framework grounded in a non-unilateralist logic similar to that of the