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How Useful Is the Analogy of Divorce in Theorizing about Secession?1

Published online by Cambridge University Press:  13 April 2010

Jason P. Blahuta
Jason P. Blahuta
Affiliation:
University of Ottawa
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Dialogue: Canadian Philosophical Review / Revue canadienne de philosophie , Volume 40 , Issue 2 , Spring 2001 , pp. 241 - 254
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Copyright © Canadian Philosophical Association 2001

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References

Notes

2 Buchanan, Allen, “Towards a Theory of Secession,” Ethics (January 1991): 326.Google Scholar

3 Nielsen, Kai, “Secession: The Case of Quebec,” Journal of Applied Philosophy, 10 (1993): 29–43 (p. 35).CrossRefGoogle Scholar

4 Gauthier, David, “Breaking Up: An Essay on Secession,” Canadian Journal of Philosophy, 24 (1994): 359.CrossRefGoogle Scholar

5 Aronovitch, Hilliard, “The Political Importance of Analogical Argument,” Political Studies, 45 (1997): 88.CrossRefGoogle Scholar

6 The physical distinction between a person and a people does raise the issue of compensation for items whose cost was shared by both partners, but due to their nature are unable to be divided in the event of a separation. Surely no lawyer would ask for a cosmetic surgery to be reversed as part of a divorce settlement, but she might ask that her client be compensated for his or her investment in the surgery. Likewise, the social services and development of resources deployed within the seceding territory cannot be returned, but may be a focus for compensatory claims.

7 Ewin, R. E., “Peoples and Secession,” Journal of Applied Philosophy, 11 (1994): 226.CrossRefGoogle Scholar

8 Wellman, Christopher H., “A Defense of Secession and Political Self-Determination,” Philosophy & Public Affairs, 24 (Spring 1995): 144.Google Scholar

9 Gauthier, “Breaking Up,” p. 359.

10 Kymlicka, Will, “Is Federalism a Viable Alternative to Secession?” in Theories of Secession, edited by Lehning, Percy (New York: Routledge, 1998), pp. 111–50 (p. 120).Google Scholar

11 See Ibid., pp. 120–22, for a fuller discussion of the distinction between national minorities and immigrant minorities.

12 Ewin suggests that post-immigrant secessions should not be tolerated, as this is nothing other than a cunning way of bloodlessly invading a country (“Peoples and Secession,” pp. 228–29). Nielsen later qualifies his position (Rethinking Nationalism, edited by Couture, JocelyneNielsen, Kai and Seymour, Michel «Calgary: University of Calgary Press, 1996», pp. 1–61)Google Scholar, but, as I argue in the section “The Implications of the No-Fault Divorce Analogy,” this distinction does not completely rule out a post-immigrant secession, but merely insists upon the qualification that the minority in question have a national consciousness. In effect, the distinction that Nielsen draws is only a delay and not a permanent barrier to post-immigration secessionist movements.

13 The secular nature of this assumption is reflected in Buchanan's definition of marriage as “a human creation designed to satisfy the needs of those who live within it” (“Towards a Theory of Secession,” p. 326).

14 This significance is not reflected in the no-fault divorce analogy, as is seen by Buchanan's statement that no-fault divorce or unilateral secession is justified by the marriage, or, analogously, the political union's “not satisfying the needs or aspirations for which it was undertaken” (“Towards a Theory of Secession,” p. 326). Although Kant's Protestantism serves as an example of a religious conception of marriage, “[m]atrimony is an agreement between two persons by which they grant each other equal reciprocal rights, each of them undertaking to surrender the whole of their person to the other with a complete right of disposal over it” (“Duties Towards the Body in Respect of Sexual Impulse,” in Lectures on Ethics[ London: Methuen, 1930], p. 167)Google Scholar, the essential ingredient that the no-fault divorce analogy ignores is the transition from an I to a we attitude among the participants. Such an attitude, although common to religious and romantic conceptions of marriage, is weaker in a casual common- law arrangement and unlikely in a marriage that is strictly a matter of convenience. One could argue that the no-fault conception of divorce does allow for a conception of marriage to have an intrinsic value that does override many (but not all) of the particular aspirations of the individual participants, but that this priority is conditional upon the continued affirmation of the participants. However, the problem with this objection is that unless the transition from the I to the we has been made, the question of which aspirations have to be fulfilled in order to garner a participant's affirmation remains in question; this is a scenario laden with the potentiality for blackmail if not entered into in good faith.

15 Unless the marriage is a priority for both parties, any form of marriage counseling such as constitutional reform would be irrelevant. This is meant merely as an implication of the no-fault divorce analogy, and it should be noted that the possibility of such marriage counseling actually working, at least in the Canadian scenario, has been treated with scepticism by some (Kymlicka, “Is Federalism a Viable Alternative to Secession?” pp. 112-13). Also, Cass R. Sunstein argues against a constitutional right to secession—a constitutional prenuptial agreement—on the grounds that it “would increase the risks of ethnic and factional struggle; reduce the prospects for compromise and deliberation in government; raise dramatically the stakes of day-to-day political decisions; introduce irrelevant and illegitimate considerations into those decisions; create dangers of blackmail, strategic behavior, and exploitation; and, most generally, endanger the prospects for long-term self-governance” (“Constitutionalism and Secession,” The University of Chicago Law Review, 56 [Spring 1991]: 634).Google Scholar Likewise, in cases of prolonged constitutional reform there exist similar threatsof blackmail, strategic behaviour, and factional struggle. This is not meant as a dismissal of constitutional reform, only to stress that unless such negotiations are entered into in good faith, they will quickly degenerate into these abuses.

16 Welhnan, “A Defense of Secession and Political Self-Determination,” p. 146, n.5.

17 Ideally, a no-fault divorce would require a court only for purposes of determining the settlement of property and the custody of children. However, the no-fault analogy offers no guidance as to what type of formula should be used to determine the redistribution of assets, liabilities, and territory. Presumably each side would seek a formula that would favour their position, and, without an authoritative international legal system to impose a particular formula in accordance with accepted ideas of justice, agreement on a formula is unlikely.

18 Horowitz, Donald L., “Self-Determination: Politics, Philosophy, and Law,” in National Self-Determination and Secession, edited by Moore, Margaret (Oxford: Oxford University Press, 1998), pp. 181–214 (p. 191).CrossRefGoogle Scholar

19 Ibid., pp. 191–92.

20 This could be partially explained, but not justified, by Wellman's claim that secession “necessarily involves a claim to territory” (“A Defense of Secession and Political Self-Determination,” p. 144). Any further secessions or partitions would be a threat to the new state, as the new secession would seek to remove territory from them.

21 For example, if Quebec were to secede from Canada, the union of Canada would simply continue without the participation of Quebec. The secession would not in principle destroy the political union that holds the other provinces together, but merely remove Quebec from that union.

22 Buchanan, Allen, Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec (Boulder: Westview Press, 1991), p. 11.Google Scholar

23 This point was brought to my attention by Aronovitch's “Why Secession Is Unlike Divorce.”

24 Citing the instances of the Katanga region's attempted secession from the Congo and a movement in northern Italy that wishes to shed the burden of supporting the economically challenged southern region, Bryan Schwartz and Susan Waywood argue that “[preserving unity also prevents richer parts of a state from abandoning their poorer compatriots” (“A Model Declaration on the Right of Secession,” New York International Law Review, 11 [Summer 1998]: 8).Google Scholar

25 While such a situation between persons is sad, in certain cases it can be intuitive. For example, a person diagnosed with a degenerative disease may not want to be an economic or emotional burden to her spouse, and so will seek a divorce even though her partner objects and remains committed to her.

26 Nielsen, “Secession,” p. 39.

27 Couture, Nielsen and Seymour, , eds., Rethinking Nationalism, pp. 59–60.Google Scholar

28 Ibid., p. 49.

29 Nielsen, “Secession,” p. 39

30 The situation is further complicated, because there is no definition of what constitutes the concepts of self-determination or a people in international legal documents such as the U.N. Charter, thus the terms are often used inconsistently, or, worse, for self-serving purposes (Schwartz and Waywood, “A Model Declaration on the Right of Secession,” pp. 15–17).

31 Nielsen, “Secession,” p. 39.

32 Ibid., p. 31.

33 This seeming paradox is caused by confusing the promise to protect minority rights with the question of secession—the two are separate and independent issues—after all, if a seceding nation fails to protect a minority's rights, the secession is not invalidated. These promises, like the divorce analogy itself, may be a strategic ploy to ease the fears of those who are at risk of becoming new minorities (and their sympathizers elsewhere). Furthermore, if such promises were not made the nation which the secessionists wish to leave would then have an excuse to block the secession.

34 As evidence of the lack of an adequate international framework for dealing with the problems of oppressed peoples, it should be noted that the most the international community (as represented by the United Nations Security Council) has been able to do for the Kurds is implement with limited success a trade embargo. The no-fly zones are a product of American and British foreign policy and are not supported by the international community as a whole.

35 This does not mean that all should be denied self-determination because only a few are capable of it. Take the following example: a medical cure is discovered for a serious condition from which thousands suffer. The cure is incredibly difficult and costly to reproduce (so much so that immense government subsidies are required) and the most that can be manufactured is enough for a handful. Faced with the problem that there is not enough to go around, would we deny treatment to all who were afflicted with this condition? Surely not. However, we would object to treating only the richest, as this would conflict with our notions of justice. Other factors such as the patient's responsibilities to their family and the community, their age, and chances of survival would be used in the decision-making process, not wealth.

36 Aronovitch, “Why Secession Is Unlike Divorce,” p. 88.

37 Even if the divorce analogy, in any of its forms, were a good one—which it is not—it would be limited to Western societies. A more useful approach may be to seek an analogy that is not so culture specific.