ABSTRACT.

Can Kant conceive of a legal order established between legal

orders? By introducing the coalition of the willing states as a surrogate for
a full-blown world republic, he surely claims he can. After a brief rehearsal of
Kants argument, the paper turns to a critical examination of its most principled
argument: as republican states are polities that have already left behind the state
of nature, they cannot be required to do so once more. By focusing on a con-
temporary understanding of surrogate sovereignty as shared sovereignty, this
paper argues that shared sovereignty presupposes classical unified sovereignty;
that what Kant suggests as a surrogate is not shared sovereignty; and that, there-
fore, either Kants idea does not help much, or it is in need of serious re-inter-
pretation. The remainder of the paper only suggests the beginnings of this re-
interpretation. In the case of an international legal order, we see representation-
al processes of anticipation and retrospection at work. If one takes these tempo-
ral cross-overs into account, it is really a false start to conceive of such an order
as a legal order of legal orders. Since various domestic legal orders acknowledge
the encompassing legal order as the legal order common between them, they do
not give up sovereignty when they decide to comply with the international legal
order. They exercise it, but in a new mix of constituent and constitutional power.
KEYWORDS. Kant, perpetual peace, sovereignty, international law, legal
pluralism, constituent power
T
owards the end of his essay on the rule of law in the process of
European integration, Berns suggests that Europe should not return
to the old conception of sovereignty and its lures, neither by replicating
the national state on a bigger canvas, nor by dissolving the national states
in their present multifarious forms. Instead, Europe must learn to share
sovereignty in a political order that demands perpetual peace and does not
fear surrogate.
1
The surrogate, as one will appreciate, refers to Kants
proposal for perpetual peace. I will briefly rehearse in what sense it should
The Coalition of the Willing.
Or: Can Sovereignty be Shared?
Bert van Roermund
Tilburg University
ETHICAL PERSPECTIVES: JOURNAL OF THE EUROPEAN ETHICS NETWORK 12, no. 4 (2005): 443-464.
Doi: 10.2143/EP.12.4.2004792 2005 by European Centre for Ethics, K.U.Leuven. All rights reserved.
be called a surrogate. At this stage I will join the camp of Berns and oth-
ers in the hypothesis that the Kantian proposal is not so much a second
best solution to the problem of perpetual peace, as it is the only rational
option. Basically, the idea is that sovereignty in a global polity should be
exercised jointly. The main part of the paper, however, will consist of an
investigation into what exactly the suggestion of sharing sovereignty
amounts to. For although Berns suggests that this is what the surrogate
should aim at, on second thought the idea seems replete with paradoxes.
In the last part of the paper, I argue an alternative account of what can be
shared in exercising sovereignty.
1. REHEARSING KANTS SURROGATE
In the first Definitive Article of the essay On Perpetual Peace, Kant lays
down that the constitution of a state should be republican, i.e. loosely
what we call a democracy under the rule of law.
2
The theory is largely
identical to Rousseaus: the social contract establishes the principle that
allows for the exercise of power in the name of the law. The problem he
embarks on in the second Definitive Article pertains to the relationships
between such states or legal orders. Can these be captured, once more,
under the rule of law, now that the terms of these relations (the states
themselves) are already conceived of as governed by the rule of law? We
may reconstruct the problem by means of the following three statements
or conditions:
(1) If legal orders P, Q, R are parts of an encompassing legal order L,
they are not full-blown, sovereign states.
(2) If P, Q, R are sovereign states, there can be no encompassing L,
exercising sovereignty over them.
(3) Sovereignty, conceived of as supreme legal power, is a necessary
attribute of every legal order.
ETHICAL PERSPECTIVES DECEMBER 2005
444
The problem is a familiar one: How to conceive of a legal order of legal
orders? Some decades earlier than Kant, on the other side of the Rhine
River, Rousseau famously burnt his Institutions politiques, because he
realised that his theory (the social contract as the birth of sovereignty)
would never provide a solution to this problem. The social contract may
be a model for a legal order, but not for a legal order of legal orders. By
definition, it cannot be an iterative concept.
Kant acknowledges that the only coherent conception of a full-blown
international legal order on the basis of the social contract would be a
world republic (a Vlkerstaat), where member states would have trans-
ferred sovereignty, or at least certain rights of sovereignty, to an encom-
passing legal order L. The citizens of the former states would become, to
a certain extent, citizens of L, and the rules of L would have direct effect
on these citizens as legal subjects. On this account, the social contract is
expanded, not re-iterated. To put it in another way: we are well advised to
drop condition (2). But then Kant realises that there are some powerful
reasons for not dropping condition (2). Let me rehearse these reasons,
wrapping up the line of the arguments without following the lines of the
text.
The most principled one is, without doubt, that you cannot expect
states, i.e. sovereign legal orders, to comply with the maxim exuendi a statu
naturale, as one can expect human agents in the state of nature to do.
Giving up the state of nature is precisely what the constitution of a state
amounts to. You cannot, conceptually speaking, expect states to leave the
state of nature they already left by becoming states in the first place.
Building on this most basic objection against the world republic, Kant
adds others, in an effort to steer away from the magnetic pole of the
world republic and find a safe harbour for the idea of a legal order of legal
orders.
3
The first is that it is superfluous for republican states to make a
higher-level contract that would govern their mutual relationships under
unconditional peace. Republics have abolished violence as a means of
internal politics, unless their principles are in clear and present danger, the
445
ROERMUNDTHE COALITION OF THE WILLING
reason being that they are committed to the principle that no agent, not
even a governmental agent, should be the judge in his own cause. This is
what lies at the heart of the idea of the rule of law. So why would they
suddenly forget the principle on which they are based when it comes to
external relations?
The argument seems to be fallacious, at least in its received reading.
Towards the end of this paper, however, I will acknowledge that it may
be powerful after all in a much more complex reading. For now, the
point is that the distinction between internal and external relations in
politics is to be made, by necessity, from the internal vantage point.
There is a preference in the difference here, as Waldenfels would say.
4
This preference entails that the principle nobody should be judge in his
own cause is always seen from the internal point of view; it governs a
polity already constituted by self-inclusion. Or, in a more political vein,
democracy under the rule of law is a system that commits members to
negotiate their common interest, i.e. the common interests of those who
they see as (future) members. These interests may precisely require them
to ignore the rule of law in external relations and go to war, as neo-colo-
nialism and wars for oil prove. It is not enough for two democracies in
conflict to acknowledge that they should not be judges in their own
causes; what they need to acknowledge is the authority of a third per-
son, a judge, to make a decision between them. But acknowledging this
authority would already amount to acknowledging an encompassing
legal order, which contradicts the thesis that it is superfluous for democ-
racies to step up to that higher level. Therefore, that democracies have
no reason to go to war unless out of self-defence, seems to be false on
conceptual grounds, quite apart from the overwhelming empirical
evidence of the contrary.
The remaining arguments ventured by Kant become weaker and
weaker, even to the point where they tend to become contradictory. In my
view, there is a considerable tension, for instance, between what could be
called his two arguments from antagonism. On the one hand, Kant fears
ETHICAL PERSPECTIVES DECEMBER 2005
446
that the world republic will smother all competition and struggle, which is
the driving force in making things better. The world republic would bring
boring uniformity and uncritical mass behaviour to society: too little
antagonism. On the other hand, he also fears too much antagonism
between the various peoples brought together under a formal umbrella
that does not really unite them. Sooner or later, the world government will
recur to despotic rulings in order to contain heterogeneity within limits,
thus evoking resistance, more despotism, more resistance, etc., in a vio-
lent race to the bottom. Thus the world republic would bring the oppo-
site of unity.
But not only is there tension between these arguments. Neither of
them is particularly strong in itself, in view of Kants initial problem of
how to warrant unconditional peace between peoples. As to the former,
competition was not at issue, nor were all the possible forms of struggle;
the issue was a specific form of antagonism: war. If Kant would have con-
sented to the Heracleitean view that war is the father of all things, he
would not have written a proposal for perpetual peace. As to the latter,
then, the argument is a classical one against monarchical government: he
who can protect everything can destroy everything. But note that this
argument, if it would be valid, would apply to every singular legal order
and not specifically to a legal order of legal orders. Here again, if Kant
would have accepted this argument, he would not have embarked on the
First Definitive Article.
The weakest argument, in my view, is the one from Friendly
Commerce. Remember that Kant is aware that the model of a pactum
pacis will not work. What can be ended by the latter is not war but rather
a war: one can decide to end the war one is in the process of waging,
rather than decide to ban war altogether as an option to enforce what
the state sees as its right. Note, however, that this argument also applies
to what Kant otherwise seems to welcome as a major factor in world
peace: le doux commerce. As Hobbes already saw, the war of all against all
is not permanent war as the opposite of perpetual peace; it rather
447
ROERMUNDTHE COALITION OF THE WILLING
pictures the conditionality of war over and against the unconditionality
of peace. So the peace of le doux commerce may well rest on a pactum pacis
as the decision not to wage a particular war rather than on a pact to
abolish war altogether which is not the problem Kant wishes us to
acknowledge.
So Kant does not fare too well in his efforts to keep premise (1) at
bay. On balance, the most principled line of his defence is the best one:
you cannot expect states to leave the state of nature they have already
left. Therefore, the only reasonable basis for a global legal order,
according to Kant, is what he calls a foedus pacificum in contradistinction
to a pactum pacis: a league for peace that can be joined, rather than a pact
for peace that should be complied with. What one acknowledges, he
believes, in joining this coalition is the preservation and corroboration
of the freedom of a state, both its own freedom and the freedom of the
allied states, rather than their subjection to higher laws or to authority
based on such laws. At this point of the argument, Kant adds his
famous note on the realisation of what he calls free federalism that
should lead to world peace: For if by good fortune one powerful and
enlightened nation can form a republic (which is by its nature inclined
to seek perpetual peace), this will provide a focal point for federal asso-
ciation among other states. These will join up with the first one, thus
securing the freedom of each state in accordance with the idea of inter-
national right, and the whole will gradually spread further and further
by a series of alliances of this kind.
5
After this passage, his main worry
is to keep the world state at bay as the necessary conceptual sequel of
such a federative union. He points out that this coalition or Bund of the
willing is the only construction to be relied upon if reason is to make
sense of the law of peoples at all, conceding (a) that this is a surrogate
for what would be the only coherent conception of a full-blown inter-
national legal order, to wit a world republic, and (b) that this coalition
will be permanently jeopardised by the unwilling, i.e. the ones that opt
out.
ETHICAL PERSPECTIVES DECEMBER 2005
448
2. LEAVING THE STATE OF NATURE TWICE?
The problem is to conceptualise founding and warranting unconditional
international peace, which is just another word for law. It is to conceptu-
alise international peace in as far as peace cannot be but founded. Kant had
argued as much at the beginning of the 2
nd
Abschnitt, introducing the two
definitive articles: peace is not a natural state (rather war is), so it must be
established, set, enacted, or posited. In this sense, the predicate positive
is analytically bound up with the concept of law. Whatever we may mean
by founding a legal order, it must entail the exercise of constituent
power, which is what this predicate positive points to in the final analy-
sis. Can the Kantian surrogate be conceived of as a form of founding
constituent power, and, if so, in what sense? On the one hand Kant is
stuck since he himself has conceded that such a coalition for peace will
not come about as a natural state of affairs, and needs to be established
by sovereign power. On the other hand he is stuck because he cannot
conceive of sovereign power established between states as power they
ought to obey. This is why Kant has to count on luck and a coalition of the
willing. But is this enough, conceptually speaking, to warrant founding
constitutive power that will somehow relate the plurality of legal orders to
the rule of one law?
Let us look once more at Kants most principled objection against
conceiving this coalition as a world state based on a contract between
states, by which they would consent to give up what we would call their
sovereignty. The objection was that, as republican states are polities that
have already left behind the state of nature, they cannot be required to do
so once more. At least three problems can be raised here.
1) Leaving the state of nature is an injunction that is incomprehensi-
ble, at least in some readings. Paradoxically, the state of nature has to
endure in order for the citizens to leave it, and this in two ways. Firstly,
that states are orders in which the state of nature is left behind is some-
thing that applies only internally, not externally. But, as already said, the
449
ROERMUNDTHE COALITION OF THE WILLING
very distinction between internal and external is made from one of its
poles: the internal one. This preference can only be posited, set, or estab-
lished, if what is excluded by self-enclosure keeps hanging around as
beyond the border. So, in a sense, states do not leave the state of nature
behind: on the contrary, they originate in protracting the state of nature
that they are supposed to have abandoned, precisely as what is left behind.
Therefore, they cannot leave it behind. Secondly, even internally, the civil
state is not the negative counterpart of the state of nature. On the con-
trary, in as far as the state of nature mobilises the sphere of private inter-
ests, it is constitutive of the civil state in a positive way. Rousseau already
conceded as much in a remarkable footnote
6
on the general interest: the
general interest can only be articulated as a relationship between private
interests, which, by necessity, have to be expressed and heard in the civil
state as conflicting interests. Kants well-known analysis of human acting
as based on subjective drives leads to no other conclusion. Indeed, the
state of nature should not be left behind. The maxim exeundum a statu natu-
rali is a counterfactual norm in the strong sense: we should try, but we
should not realise it, as it would destroy the general interest as a relation
between private interests.
7
2) The second objection is that if Kants reasoning with regard to the
social contract is valid for individuals, it must also be valid for states, and
vice versa: if we allow Kants argument to apply to the relationship between
states, it will backfire on the relationships between individuals within a
state. The whole point of the social contract argument is that autonomous
agents, whether they are sovereign states or free individuals, will remain
autonomous or free in a higher sense if and when they turn to some form
of reciprocal recognition of private interests, and thus to common recog-
nition of reciprocity as a general interest. If individual agents can preserve
their freedom in making a contract, then collective agents can; if the
latter cannot, the former cannot either. What you cannot require, concep-
tually, is that the same agents, for instance individuals, do it twice. They
cannot give up the state of nature twice. But surely one contract can build
ETHICAL PERSPECTIVES DECEMBER 2005
450
upon another in the sense that the legal subject formed by individuals
leaving the state of nature can itself leave the state of nature in turn in a
coalition with other such subjects.
3) The third objection would be that Kant comes too late, as he has
already given away his position. For the insight that republican states can-
not, conceptually speaking, lawfully interfere with each others business
and remain sovereign at the same time, makes sense only in view of a nor-
mative counterpart: a judge who speaks in the name of a higher legal
order. For the only sensible reading of cannot is ought not, and this
amounts to taking the legal point of view already. Therefore it concedes
that such normative legal order should be founded, enacted and enforced.
So I would be inclined to regard the allegedly principled argument that the
state of nature cannot be left twice as flawed. In one sense it can easily be
left twice, because the agents are different, in another sense it is impossi-
ble to leave it even once, because it is the essential though dangerous sup-
plement (to use a famous Derridean phrase) of the rule of law. But note
that this conclusion does not reject Kants argument entirely. Although it
rejects the argument that national states already contain enough warrants
for international peace, it also leaves room for an argument to the effect
that we should not prepare for a world state. But what argument would
that be? Here is where the model of shared sovereignty presents itself as
a feasible interpretation of what Kant had in mind, or should have had in
mind.
3. SURROGATE SOVEREIGNTY AND SHARED SOVEREIGNTY
Should we regard surrogate sovereignty as shared sovereignty? This is
what Berns does, and he is not the only one around. He is joined by, for
instance, Sir Neil MacCormick, who is as convinced as Berns is that the
European Community (or the Union, for optimists) makes a good case
451
ROERMUNDTHE COALITION OF THE WILLING
for shared sovereignty.
8
Now I do not want to question, not primarily at
least, whether Europe makes a good case for the surrogate of a legal
order that Kant had in mind. In fact I think it does, but my reasons do
not hinge on the idea of reciprocity inherent in shared sovereignty.
Let me take issue with the crux of Bernss thesis by arguing in the follow-
ing way.
1) Shared sovereignty presupposes good old sovereignty.
2) What Kant suggests as a surrogate is not shared sovereignty.
3) So either Kants idea does not help much, or it is in need of serious re-
interpretation, of which I can only suggest the beginnings within the
framework of this paper.
9
3.1 Shared sovereignty old sovereignty
Elsewhere (Roermund, 2003), I have tried to make sense of shared sover-
eignty by using Michael Bratmans analysis of shared intentional action.
According to Bratman (1999), actors may be involved in shared intention-
al activity not only if they are doing the same thing (intentionally), but also
if they mesh sub-plans and are committed to mutual response and sup-
port in doing so, notwithstanding their distinct reasons, goals, and strate-
gies. For instance, you and I are taking a walk together, not if we take
the same walk, but if we also, for instance, coordinate our starting time,
the variations of our pace (you need a work-out, while I hate excercise),
the way we talk to each other, and so on. Thus, shared intentional activi-
ty is not identical to shared intentional cooperative activity. Shared inten-
tional action may well consist of sharp competition, for instance when
you and I turn our walk into a race. Also, agents involved in it may give
radically different accounts of their unity or jointness, though they will
not contest the attribution of unity to their enterprise as such.
10
This
clearly applies to the EC, where Member States often have their own
agendas in giving form to an acquis communautaire. But note that this is, in
essence, the model of the social contract all over again. And here we must
ETHICAL PERSPECTIVES DECEMBER 2005
452
doubt, as Rousseau did,
11
if the social contract can found sovereignty? By
the social contract, one cannot establish who are to be parties to the con-
tract. This is a decision that is necessarily prior to the contract, and the
classical concept of sovereignty will reappear in any effort to account for
it. Obviously, this is the problem with any model expressing reciprocity
as the conceptual basis of the legal order, whether we call it contract,
dialogue, polyphony, or even game. By stressing reciprocity in shared
intentional action, one has yet to establish, indeed to decide, who will be
involved as the terms in reciprocal relationships. In cases of self-enclos-
ing orderings, the ordering always seems to precede the order, the saying
seems always prior to the said, as the setting always precedes the set, and
the founding the founded.
12
This is the reason why old sovereignty
returns at the heart of new sovereignty, as a moment of initial decision
making that cannot be shared. It remains initial, in that it initiates the
polis, time and again, by seizing the initiative. The obvious example is the
issue of enlarging the European Union: the decision where to stop enlarg-
ing the Union is a decision that cannot be made on grounds shared by the
candidate(s).
This is the cause of many a problematic phrase lingering on in the
various definitions of the notion of sovereignty, e.g. the famous
Bodinian predicate of the sovereign as legibus solutus; or the Austinian
definition that the sovereign is he who is habitually obeyed by others
while he is not in the habit of obeying others himself; or first and fore-
most the Schmittian phrase (Schmitt 1934, 14) that the sovereign is
both inside and outside the legal order.
13
It is this last phrase, in partic-
ular, that triggered critical reflections on sovereignty by Foucault,
Agamben, and Negri.
14
Analytically minded philosophers meet similar
conceptual puzzles. I refer to Colemans problems with Harts rule of
recognition
15
or Walkers discussions of constitutional pluralism in the
key of late sovereignty.
16
It is also the reason why less incisive legal
theorists in our time reject the whole notion of sovereignty as not only
utterly obsolete but also dangerously self-contradictory.
17
They argue
453
ROERMUNDTHE COALITION OF THE WILLING
that it should be traded for democracy and human rights, only to find
themselves trapped in their replies to questions like who is to defend
democracy? Who is to grant and warrant human rights? Indeed, no
sooner have we sought refuge in reciprocal models of the polity, or
sovereignty awaits us right there, at the heart of reciprocity.
18
In the final
analysis, it seems, sovereignty cannot be shared, as the exercise of
sovereignty is already presupposed in determining between whom it is
to be shared.
3.2 Kants surrogate
Why should we be hesitant to interpret Kants surrogate as pointing to
shared sovereignty? Remember the picture: Kant makes the realisation
of world federalism the surrogate of a world republic - contingent on
good fortune: if good fortune would have it that a powerful and
enlightened people would transform itself into a republic, it could
become the centre of free federative association by other states on a glob-
al scale, which then would gradually grow to a coalition of the willing.
What strikes me in this picture is the emphasis on the first move, which
is unilateral and non-reciprocal. The ensuing process Kant hopes for is
one of aggregation rather negotiation.
There are two readings of this picture of aggregation that I would like
to reject out of hand. The first reading is this: a powerful and enlightened
nation transforms itself into a republic, and then invites others to join it
on conditions set by this grand nation. If this is what Kant had in mind,
his is a plea for imperialism. Not that his plea would not meet with
applause. On the contrary, many a story on the human condition boils
down to it; for instance the worn-out Fukuyama-story of the end of his-
tory, or Hffes idea of global justice.
19
Every polity (why should we hide
behind the word culture?) that presents itself as integrating all other poli-
ties poses as a superior, indeed, supreme power in the classical sense.
It clearly reinforces sovereignty rather than pre-empting it.
ETHICAL PERSPECTIVES DECEMBER 2005
454
The second picture comes closer to what I have in mind, although
it does not seem acceptable either. It is not so much the picture of a
great polity commanding or inviting the others, as it is a picture of the
great and therefore visible polity starting and other polities mimicking.
It is a picture not of following a leader (as the leader is not yet leader),
but of freely acknowledging a pattern of behaviour as paradigmatic.
One could say that Kant counts on luck in mimesis. Then, however, I
venture that the picture boils down to this: if states cannot share an
overriding legal order as theirs, they can at least accept the same legal
commitments as part of their respective legal orders. In other words,
Kant cuts out the reflexive element from the encompassing legal order
as a common enterprise. All states can do the same, although they
cannot do it together. This interpretation, however, would run into no
less great difficulties. It entails, I submit, that there can be no acquis com-
munautaire between these legal orders. For acquis communautaire already
entails the vantage point of a first person plural: the self of a polity.
Not only does this run counter to what matters most in practice, for
instance in the development of European Union Law and WTO law.
But also, on the conceptual level, it leads to an utterly dualist and, in
the final analysis, untenable view of international law. As Kelsen notes,
in this view international law is forced to undergo a complete denatur-
ing in the notion that it is incorporated into the legal system of ones
own state. For within the confines of a state legal system, international
law can no longer perform its essential function of coordinating, of
equally ordering, all states. () The validity of international law can be
abrogated, then, according to the rules of this constitution [i.e. of the
state adopting international law, BvR] in the most extreme case, by
way of a constitutional amendment.
20
So how can we say that the EU
is a good model of the Kantian surrogate, if this surrogate cuts out
what is most central to the EU: acquis communautaire, i.e. sharing as a
form of collective reflexivity, or in more abstract terms, a collective
self?
455
ROERMUNDTHE COALITION OF THE WILLING
3.3 An alternative account
My own reading of Kants proposal, guided throughout by the non-recip-
rocal character of the first move, focuses on what it means for a polity
to transform itself into a republic. At the beginning of this paper, I loose-
ly paraphrased this in modern terms as becoming a democracy under the
rule of law. But what this means in philosophical terms is precisely what
is at stake in this paper. Up to now, the only philosophical account
I offered was that this transformation, like all political acting, builds on
self-enclosure, thus reiterating the internal point of view. More can and
should be said. Firstly, I see no argument to rebut the well-known claim
made by Claude Lefort, to the effect that political self-enclosure necessar-
ily entails reference to a realm beyond the would-be polity, transcending
a society in the sense that it is staged as the ultimate source of legitimate
power over this society.
21
As Lindahl (1997 and 1998) has stressed, this
permanence of political theology entails that the exercise of political
power is governed by a specific logic of representation: sovereign power
is always supreme but one. That is to say, it can only be power over law
if it poses as power by law, and it can only appear to be constituent power
if it presents itself as constituted power: deriving, that is, from the really
constituent power that transcends society. Sovereignty, therefore, is
bound up with the symbolic representation of a vertical dimension of the
polity. Secondly, however strong this claim is, there is another one made
by Hannah Arendt that should somehow be reconciled with Leforts.
22
Political thought, says Arendt, is representative. I form an opinion by
considering a given issue from different viewpoints, by making present to
my mind the standpoints of those who are absent; that is, I represent
them. This process of representation does not blindly adopt the actual
views of those who stand somewhere else, and hence look upon the world
from a different perspective; this is a question neither of empathy, as
though I tried to be or feel like somebody else, nor of counting noses and
joining a majority but of being and thinking in my own identity where
ETHICAL PERSPECTIVES DECEMBER 2005
456
actually I am not (Arendt 1980 [1961], 241). Arendts argument typically
revolves around the first person singular. But this is immaterial; it is easy
to see why the polity as a first person plural, in its relation to other poli-
ties, is in the background. For Arendt, the others in this context are the
ones who are absent, i.e. who do not register as those involved in the poli-
ty. They are the ones who are sacrificed in order to constitute a public
space, a common wealth, and a collective identity. So Arendt claims that
political representation is dependent, not only on a vertical dimension
transcending society, but also on a horizontal dimension, in the sense that
it is mindful of its origin in inclusion / exclusion. Such political mindful-
ness precedes moral judgement. Thus, if we say with Lefort that a polity
constitutes itself from the outside as the polity in virtue of a vertical
dimension, as if it were the only one existing, we should also appreciate,
with Arendt, that a polity can only constitute itself from the outside if, in
virtue of its horizontal dimension, it is obliquely aware of its being one
among many, its members not registering in other polities, similar yet dif-
ferent. Politics is rooted in the fact that men are plural, states Arendt in
the first Fragment on the question What is politics?; and she continues:
Politics is about the being together and the mutual presence of those
who differ.
23
This pertains not only to individuals; polities are plural, too,
precisely in the way they set the stage for representing their foundation.
By consequence, representation of the thinking of the others, rooted as
it may be in the polity as a bounded whole, cannot evade the lateral aware-
ness of not registering in other polities itself. Precisely in order to success-
fully enclose itself, the polity has to take into account that it itself exclud-
ed; i.e. that it is not only the subject, but also the object of exclusion.
This enlarged mode of thinking is the core of Arendts famous read-
ing of the Critique of Judgment as a treatise in political philosophy.
24
It comes quite close, I believe, to a politico-legal reading of what Gadamer
defined as openness in judging: to let something count against yourself
by yourself, i.e. even though no one forces you to do so.
25
This definition
has a clear political relevance: a body politic that is open in this sense,
457
ROERMUNDTHE COALITION OF THE WILLING
that is to say, a body politic that makes something count against its own
self-enclosure in its self-enclosure, even if no one else coerces it do so,
such a polity transforms itself into a republic, to return to our Kantian
core phrase. And if it finds credible institutional forms to represent this
basic, founding gesture, we call it a Rechtsstaat.
Three observations are to be made here. Note, firstly, that this trans-
formation is not based on reciprocity. It is a sort of unilateral self-restraint
in the representational discourse of a polity, by which it recognises that it
should not define its environment exhaustively as a function of its identi-
ty, how ever strongly it is inclined to do so, if it were to follow the logic
of political representation. Therefore, such recognition is not a strategic,
instrumental, or functional one. It is not based, as Luhmann, for instance,
would have it, on trade-offs between cognitive openness and functional
closure. Note also, secondly, that it does not contradict Leforts thesis on
politics as based on self-enclosure. On the contrary, it can be heard only
as an overtone in the dominant chant of the polity, which is based,
throughout, on staging reference to a transcendent source of legitimate
power, and a corresponding articulation of collective identity. To mention
the most obvious example: the reason why democracy accords with the
rule of law is not that majority rules, but that it rules on condition that it
warrants a minority the institutionally embedded chance to become a
majority. Thirdly, what counts against the self-enclosure of a polity is
dependent on how it articulates its identity. If it worships a god, respect
for a non-religious life is a way of recognising what counts against it.
It may be institutionalised by the separation of church and the state. If it
sees itself as a free market society, anticipating the destructive effects of
market failures is a way of recognising what counts against it. It may be
institutionalised by monitors of fair competition.
The enlarged mode of political thinking proposed by Kant governs the
structure of constituent power. Its unilateral character leaves no room for
sharing. Yet, the very same model allows us to assign a place to shared
ETHICAL PERSPECTIVES DECEMBER 2005
458
exercise of sovereign power. To see how and why, remember the double
bind of sovereignty as both constituent and constitutional power. We saw
that constituent power must pose as exercising constitutional power, i.e.
already established and conferred power, in order to be credible from an
action perspective. It is only in retrospect that it can be acknowledged as
constituent. Only if it turns out to have been felicitous in hindsight we call
a revolution a revolution. At the time of its outburst, it is revolt, resist-
ance, or terrorism against the coalition of the willing. In a similar way,
sovereign power as constituent power is only outside the legal order in
hindsight, never at the moment it is exercised. At the time of action,
it anticipates a future polis that has always been a past.
Therefore, Schmitt (in the Agambenian reading) was wrong: the sov-
ereign is never inside and outside the legal order at the same time.
26
At the time of action, the would-be sovereign body has to act as if it were
inside the legal order, i.e. as if it obeyed established law. Established law
is not black letter law. Its rules are admittedly always open to interpreta-
tion and change. Interpretation and change become of course critical
under certain pressing circumstances, and I have no objection to the def-
inition of the sovereign as the agent who decides whether these condi-
tions obtain and what is to be done. But even under such circumstances
supreme power has to pretend to be bound by law, although it can appear
to have gone beyond it in retrospect.
27
Indeed the legal order establishes
supreme authority precisely with a view to taking decisions when things
grow tough.
Where does this leave us with regard to constituting the supra-nation-
al legal order? In the case of an international legal order, we see similar
representational processes of anticipation and retrospection at work.
If one takes these temporal cross-overs into account, it is really a false
start to conceive of such an order as a legal order of legal orders. The
sheer fact that the various domestic legal orders come to acknowledge the
encompassing legal order as the legal order common between them indi-
cates that they do not give up sovereignty when they decide to comply
459
ROERMUNDTHE COALITION OF THE WILLING
with the international legal order. They exercise it, but in a new mix of
constituent and constitutional power. The four freedoms in Europe are a
case in point: they can only remain the basis of the Community if the
Member States will continue to grant them each other. But this presuppos-
es precisely that the competence to grant them remains fully vested with
the Member States. The doctrine of direct effect in EC law is a logical
consequence of this; it forces states to see themselves primarily as mem-
bers in the sense of organs rather than parts.
28
If it is true that constituent power is acknowledged in retrospect, so
that it has to anticipate the future in order to pose as constitutional power
in the present, it is by no means indifferent which institutions of consti-
tutional power are made available. Like in art or in science, also in politics
some institutions are more suited to support (what later appears to have
been) creativity and innovation than others. We are inclined to believe
but this is an empirical law with remarkable exceptions that institutions
with a self-critical climate of exchange, communication, and evaluation do
better in sustaining great talent, new ideas, and smart strategies than insti-
tutions driven by top-down command, rigid programmes and no feed-
back. By virtue of their flexibility, these participatory institutions will eas-
ier accommodate the potentiality of singular initiatives that open up new
perspectives. In the realm of international constitutional law, to take part
in such institutions may well make the impression of exercising shared
sovereignty; until we realise that it is constitutional, not constituent
power that can be shared.
29
REFERENCES
Agamben, G. (1998). Homo sacer. Sovereign Power and Bare Life. Transl. by D. Heller-
Roazen, Stanford, Stanford University Press.
Arendt, H. (1980 [1961]). Between Past and Future. Eight Exercises in Political Thought.
Harmondsworth etc., Penguin Books.
Arendt, H. (1992 [1982]). Lectures on Kants Political Philosophy. ed. with an interpretive
essay by Ronald Beiner. Chicago, University of Chicago Press.
ETHICAL PERSPECTIVES DECEMBER 2005
460
Arendt, H. (2003 [1993]). Was ist Politik? Fragmente aus dem Nachlass. Hrsg. U. Ludz,
Vorwort K. Sontheimer. Mnchen - Zrich, Piper.
Berns, E. (2003a). European Surrogate. The Cultural Diversity of European Unity. W. Arts,
J. Hagenaars and L. Halman. Leiden - Boston, Brill: 449-462.
Berns, E. (2003b). O trouver un schme mdiateur entre lhospitalit et la politique des
tats modernes? Derrida. M. Mallet and G. Michaud. Paris, ditions de lHerne:
232-239.
Bratman, M. E. (1999). Faces of Intention. Selected Essays on Intention and Agency. Cambridge,
Cambridge University Press.
Coleman, J. (2001). The Practice of Principle. In Defense of a Pragmatist Approach to Legal Theory.
Oxford, Oxford University Press.
Foucault, M. (1988). Power/Knowledge. Selected Interviews and Other Writings 1972-1977. Ed.
by C. Gordon, New York, Pantheon Books.
Gadamer, H.-G. (1975). Wahrheit und Methode. Grundzge einer philosophischen Hermeneutik.
3., erw. Aufl. Tbingen, Mohr.
Hardt, M. and A. Negri (2000). Empire. Cambridge (Mass.), Harvard University Press.
Kelsen, H. (1992). Introduction to the Problems of Legal Theory. A translation of the First
Edition of the Reine Rechtlehre or Pure Theory of Law, by Bonnie Litchewski
Paulson and Stanley L. Paulson, with an Introduction by Stanley L. Paulson.
Oxford, Clarendon Press.
Kelsen, H. (1994). Reine Rechtslehre. Einleitung in die rechtswissenschaftliche Problematik. 1.
Aufl., 2. Neudr. der 1. Aufl. Leipzig und Wien 1934 mit Vorwort zum Neudruck
von Stanley L. Paulson und Vorrede zum 2. Neudr. von Robert Walter. Aalen,
Scientia Verlag.
Kelsen, H. (1998). Sovereignty. S.L. Paulson and B. Litschewski Paulson (eds.), Normativity
and Norms. Critical Perspectives on Kelsenian Themes. Oxford: 525-536.
Lefort, C. (1986). Essais sur le politique (XIXe-XXe siecles). Paris, Du Seuil,.
Lindahl, H. (2002). Gadamer, Kelsen and the Limits of Legal Interpretation.
Phnomenologische Forschungen: 27-49.
Lindahl, H. (2003). Dialectic and Revolution. Confronting Kelsen and Gadamer on
Legal Interpretation. Cardozo Law Review 24(2): 769-798.
Lindahl, H. K. (1997). Sovereignty and Symbolization. Rechtstheorie 28: 347-371.
Lindahl, H. K. (1998). Democracy and the Symbolic Constitution of Society. Ratio Iuris,
11: 12-35.
Lindahl, H. K. (2001). Sovereignty and the Institutionalization of Normative Order.
Oxford Journal of Legal Studies 21: 165-180.
MacCormick, D. N. (2004). Questioning Post-Sovereignty (review article). European
Law Review 29: 852-863.
Mouffe, C. (2000). The Democratic Paradox. London, Verso.
Negri, A. (1992). Le pouvoir constituant. Essai sur les alternatives de la modernit. Trad. E. Balibar
et Fr. Matheron. Paris, PUF.
Roermund, B. v. (2003a). First-Person Plural Legislature: Political Reflexivity and
Representation. Philosophical Explorations 6(3): 235-250.
461
ROERMUNDTHE COALITION OF THE WILLING
Roermund, B. v. (2003b). Sovereignty: Unpopular and popular. Sovereignty in Transition.
N. Walker. Oxford - Portland (Or), Hart Publishing: 33-54.
Roermund, G. v. (2000). Volksvertegenwoordiging. Rousseaus Maatschappelijk verdrag in de
spiegel van de rechtsstaat. Leende, Damon: 160 pp.
Rousseau, J.-J. (1762). Du contrat social ou principes du droit politique.
Schmitt, C. (1934). Politische Theologie. Vier Kapitel zur Lehre von der Souvernitt. 2. Aufl.
(1. Aufl. 1922). Mnchen - Leipzig, Duncker & Humblot.
Vollrath, E. (1993). Hannah Arendts Kritik der politischen Urteilskraft. Die Zukunft
des Politischen. Ausblicke auf Hannah Arendt. P. Kemper. Frankfurt a.M., Fischer
Taschenbuch Verlag: 34-54.
Waldenfels, B. (1987). Ordnung im Zwielicht. Frankfurt a.M., Suhrkamp.
Waldenfels, B. (1994). Antwortregister. Frankfurt a. M., Suhrkamp.
Waldenfels, B. (1999). Vielstimmigkeit der Rede. Studien zur Phnomenologie des Fremden, 4.
Frankfurt a. M., Suhrkamp.
Waldenfels, B. (2001). Verfremdung der Moderne. Phnomenologische Grenzgnge. Gttingen,m
Wallstein Verlag.
Walker, N. (2001a). All Dressed Up. Oxford Journal Legal Studies 21(3): 563-582.
Walker, N. (2001b). Human Rights in a Postnational Order: Reconciling Political and
Constitutional Pluralism. Sceptical Essays on Human Rights. T. Campbell, K. D.
Ewing and A. Tomkins. Oxford, Oxford University Press: 119-141.
Walker, N. (2002). The Idea of Constitutional Pluralism. The Modern Law Review 65(3):
317-359.
Walker, N., Ed. (2003). Sovereignty in Transition. Oxford, Hart Publishing.
NOTES
1. Berns (2003), 461.
2. We, to be sure; not Kant. Cf. BA 24, the very last sentence, and BA 25 where democra-
cy in Kants sense is usually a disaster weil alles da Herr sein will.
3. Berns summarises them as quatre excellentes raisons (2003), though I wish to present them
here in a slightly different order. As will become clear, I find them less than excellent.
4. Waldenfels (1994), 202.
5. Denn wenn das Glck es so fgt: da ein mchtiges und aufgeklrtes Volk sich zu einer Republik (die
ihrer Natur nach zum ewigen Frieden geneigt sein mu) bilden kann, so gibt diese einen Mittelpunkt der fdera-
tiven Vereinigung anderer Staaten ab, um sich an sie anzuschlieen, und so den Freiheitszustand der Staaten,
gem der Idee des Vlkerrechts, zu sichern, und sich durch mehrere Verbindungen dieser Art nach und nach
immer weiter auszubreiten. The translation is from Immanuel Kant, Perpetual Peace:
A Philosophical Sketch, Kant: Political Writings, ed. H.S. Reiss, trans. H.B. Nisbet (Cambridge:
Cambridge UP, 2003 [1970]) 104.
6. Rousseau 1762, II, 3.
ETHICAL PERSPECTIVES DECEMBER 2005
462
7. In a similar vein, see Mouffe on reconciliation: a good that exists as a good only as long
as it cannot be reached, (2000), 137. I submit that this goes for all Habermasian counterfactual
presuppositions of critical discourse.
8. Cf. MacCormick (2004). See Lindahl (2001) for a critical review.
9. In other words, either Berns is right in understanding Kant, but then his account refers
us back to where we came from: sovereignty as a moment of sheer decision on who is to be count-
ed in the number of those who are going to share. Or Kant is up to something else: the decision,
by a great nation, to refrain from exercising power and take the risk of not being reciprocated. My
discussion with Berns is, I suppose, that reciprocity has to be founded as much as a legal order.
10. What does this mean in actual practice? It means that these actors will try to convince
their audiences of their respective accounts, but not at the costs of using force or leaving the poli-
ty in case they fail. As long as they can make a distinction between opting out and walking away,
the unity of the subject-agent retains a prima facie credibility. But they cannot make that distinc-
tion at will or make it a matter of unqualified negotiation without giving up their claims to repre-
sentation: some forms of opting out will be regarded as walking away. The fact that some mem-
ber states of the EU opted out with regard to the social or the monetary parts of the Treaty, was
a major contestation of what the European legal order was about in the eyes of the other member
states. So were the (much earlier) Solange decisions by the German Constitutional Court, when it
was decided that the rulings of the European Court of Justice would only have direct effect in the
BRD as long as its performance in protecting human rights would meet the standards set by the
German Grundgesetz (to be judged by the same German Court, to be sure). As long as these modes
of opting out do not meet with a veto from other parties to the Treaty, and as long as a veto from
other parties does not lead to going solo and leaving the Treaty, the format of ultimate unity is not
simply negated by contestation; rather it is reconfirmed by a form of contestation that does not
prompt its protagonists to radical practical implications. Radically contesting what would count as
the most acceptable account of the unity of the European legal order is, on the level of speech
acts, one way of radically confirming that such unity is what counts at the end of the day.
11. For my admittedly unorthodox Rousseau interpretation, see Roermund (2000).
12. I am indebted to Waldenfels here, in particular: Waldenfels (1987; 1994; 1999; 2001).
13. Agamben expressly interprets Schmitt as saying that the sovereign is inside and outside
the legal order at the same time, (1998), 15. Strictly speaking this is not what Schmitt says.
14. Foucault (1988); Negri (1992); Agamben (1998); Hardt and Negri (2000).
15. The rule of recognition, we are told, exists only when officials act in a certain way; but
whether or not individuals are officials in the relevant sense seems to depend on the existence of
a rule of recognition. After all, people are officials in virtue of the laws that create officials,
Coleman (2001), 100-101.
16. Walker (2001); Walker (2001); Walker (2002); Walker (2003).
17. For explicit counterarguments, see Roermund (2003).
18. And Bush abused this predicament when, in January 2003, he challenged the UN to take
its own resolutions (against the Saddam Hussein regime in Iraq) seriously or else the USA would
lead a coalition of the willing.
19. I owe Hans Lindahl for pointing this out, although perhaps he would opt for a different
interpretation. I quote from a manuscript Lindahl kindly shared with me, Appendix to
463
ROERMUNDTHE COALITION OF THE WILLING
Globalization and the Politics of Boundaries, which criticises Hffes Democracy in the Era of
Globalization. See p. 29 of this book: the global civilization begins in and spreads out from one
great region, the West.
20. Kelsen (1994), 143, quoted from Kelsen (1992), 116-117.
21. See Lefort (1986), in particular the essay Permanence du thologico-politique?.
22. I follow a line of thought argued by Vollrath (1993),which I think should be taken into
account by all supporters of Lefort. The link to Leforts thesis is mine.
23. Both quotations are from Arendt (2003 [1993]), 9. Viskers point, made elsewhere in this
volume, that one should realise that extreme differences do not register is well-taken.
24. In particular, she keeps referring to 40 of the Kritik der Urteilskraft; cf. Arendt (1992
[1982]), 71; cf. Truth and Politics, in Arendt (1980 [1961]), 241.
25. Cf. Gadamer (1975), 343: Offenheit fr den anderen schliet () die Anerkennung ein,
da ich in mir etwas gegen mich gelten lassen mu, auch wenn es keinen anderen gbe, der es
gegen mich geltend machte.
26. And Agamben is perhaps too generous in conceding him this point.
27. This is powerfully argued with regard to the ECJs role in the development of European
Union law by Hans Lindahl; cf. Lindahl (2001); Lindahl (2002); Lindahl (2003).
28. Here I think Kelsen was right. See Kelsen (1994), 150ff. See also Kelsen (1998), 529:
The so-called sovereignty of the state, then, is nothing other than its immediate relation to
international law.
29. I am grateful to Hans Lindahl for critical comments on an earlier draft. He does not
agree with my charitable Arendt interpretation. For him, Arendt remains under the spell of reci-
procity, so that my reference to her concept of the polity makes my argument self-contradictory.
I hope to argue in another paper in greater detail that there is a sense in which Arendts concept
of political self-inclusion entails an oblique awareness (permeating various forms of first person
plural reflexivity) that those who are excluded are still included, not only as excluded but also as
excluding. But of course this does not amount to reciprocal relationships.
ETHICAL PERSPECTIVES DECEMBER 2005
464