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Neo-Kantian theories of self-determination: a critique

Published online by Cambridge University Press:  23 May 2016

David Miller
David Miller*
Affiliation:
Nuffield College, University of Oxford
*
*Correspondence to: David Miller, Nuffield College, University of Oxford, Oxford, OX1 1NF. Author’s email: david.miller@nuffield.ox.ac.uk
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Abstract

Neo-Kantian political theories, such as those developed by Jeremy Waldron and Anna Stilz, aim to provide an account of state legitimacy and territorial boundaries that avoids the problems faced by rival nationalist theories. Immanuel Kant’s own theory of the state appears to be biased towards the status quo, and therefore has difficulty in explaining what is wrong with rights-respecting colonialism or the annexation of one state by another. Two possible ways forward are explored. One involves making state legitimacy conditional on meeting more stringent standards of distributive justice. The other involves appealing to the idea of a self-determining ‘people’. However the latter must avoid collapsing into either a version of nationalism (if the ‘people’ are identified in cultural terms) or a form of voluntarism (if the ‘people’ are required subjectively to ‘affirm’ the regime that governs them). Thus neo-Kantian theories cannot deliver a plausible account of self-determination without, like Kant himself, tacitly invoking political identities of the kind that they seek to repudiate.

Keywords

Self-determinationLegitimacyTerritoryColonialismStilzWaldron
Type
Articles
Information
Review of International Studies , Volume 42 , Issue 5 , December 2016 , pp. 858 - 875
Copyright
© British International Studies Association 2016 

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References

1 I do not assume that jurisdiction must be exclusive, since there can for example be federal arrangements in which regions or provinces are given partial jurisdiction over portions of a state’s territory, but the point is that here too jurisdiction is always over a bounded geographical area.

2 Colonialism can take on a number of different forms, and there are specific wrongs associated with each of them, but alien rule is one of its pervasive features that raises questions of justification. For a recent discussion focusing exclusively on this feature, see Ypi, Lea, ‘What’s wrong with colonialism’, Philosophy and Public Affairs, 41:2 (2013), pp. 158–191 CrossRefGoogle Scholar.

3 I shall focus in particular on Waldron, Jeremy and Stilz, Anna. See Waldron, Jeremy, ‘Two conceptions of self-determination’, in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (Oxford: Oxford University Press, 2010), pp. 397–413 Google Scholar; Stilz, Anna, ‘Why do states have territorial rights?’, International Theory, 1:2 (2009), pp. 185–213 CrossRefGoogle Scholar; Stilz, Anna, ‘Nations, states, and territory’, Ethics, 121:3 (2011), pp. 572–601 CrossRefGoogle Scholar; Stilz, Anna, ‘Decolonization and self-determination’, Social Philosophy and Policy, 32:1 (2015), pp. 1–24 CrossRefGoogle Scholar; Stilz, Anna, ‘The value of self-determination’, Oxford Studies in Political Philosophy (forthcoming)Google Scholar. Lea Ypi has also extended Kant’s theory of the state in new directions in, ‘What’s wrong with colonialism’, and in Ypi, Lea ‘A permissive theory of territorial rights’, European Journal of Philosophy, 22:2 (2014), pp. 288–312 CrossRefGoogle Scholar, but her focus is not on what constitutes a ‘people’ for purposes of self-determination – she is agnostic about that – but on the duty falling on any political community to enter into ‘rightful’ political relations with other communities.

4 Miller, David, On Nationality (Oxford: Clarendon Press, 1995)Google Scholar, chs 2 and 4; Miller, David, Citizenship and National Identity (Cambridge: Polity Press, 2000)Google Scholar, chs 7 and 8; Miller, David, ‘Debatable lands’, International Theory, 6:1 (2014), pp. 104–121 CrossRefGoogle Scholar.

5 I draw here on my analysis in Miller, David, ‘Property and territory: Locke, Kant, and Steiner’, Journal of Political Philosophy, 19:1 (2011), pp. 90–109 CrossRefGoogle Scholar. For more detailed accounts of Kant’s theory of state: see, for example, Waldron, Jeremy, ‘Kant’s theory of the state’, in Immanuel Kant, Toward Perpetual Peace and Other Writings on Politics, Peace, and History, ed. Pauline Kleingeld (New Haven and London: Yale University Press, 2006), pp. 179–200 Google Scholar; Ripstein, Arthur, Force and Freedom: Kant’s Legal and Political Philosophy (Cambridge, MA: Harvard University Press, 2009)CrossRefGoogle Scholar, chs 6–7; Flikschuh, Katrin, ‘Kant’s sovereignty dilemma: a contemporary analysis’, Journal of Political Philosophy, 18:4 (2010), pp. 469–483 CrossRefGoogle Scholar.

6 Kant, Immanuel, The Metaphysics of Morals, trans. Mary Gregor (Cambridge: Cambridge University Press, 1996)CrossRefGoogle Scholar, Part I, §44, p. 90.

7 I mean that there is no place for actual consent, whether express or tacit, in Kant’s story. Hypothetical consent is another matter, and Kant does sometimes (see, for example, Kant, Metaphysics of Morals, §52, pp. 111–12) speak of the state embodying an ‘original contract’ while insisting that its actual origins are likely to have involved the use of coercion against ‘uncivilised men’.

8 Kant, Metaphysics of Morals, §8, p. 45.

9 Waldron, ‘Two conceptions of self-determination’, p. 406.

10 For contrasting views, see Flikschuh, ‘Kant’s sovereignty dilemma: a contemporary analysis’, and Ypi, ‘A permissive theory of territorial rights’.

11 See Kant, Metaphysics of Morals, §61, pp. 119–20; Kant, Immanuel, Perpetual Peace: a Philosophical Sketch in Hans Reiss (ed.), Kant’s Political Writings (Cambridge: Cambridge University Press, 1971), pp. 102–105 Google Scholar. For a thorough discussion and an attempt to remove Kant’s ambiguities, see Kleingeld, Pauline, Kant and Cosmopolitanism: The Philosophical Idea of World Citizenship (Cambridge: Cambridge University Press, 2012)Google Scholar, ch. 2.

12 Kant, Perpetual Peace, p. 114.

13 Ibid., p. 133.

14 See Kant, Perpetual Peace, pp. 113–14. For evidence that Kant believed in national character, see his discussion of the characters of various European nations in Kant, Immanuel, Anthropology from a Pragmatic Point of View in Immanuel Kant, Anthropology, History, and Education, ed. Gunter Zoller and Robert Louden (Cambridge: Cambridge University Press, 2007), pp. 407–415 Google Scholar.

15 For Kant’s radical change of heart over the moral acceptability of colonialism, see Kleingeld, Pauline, ‘Kant’s second thoughts on colonialism’, in Katrin Flikschuh and Lea Ypi (eds), Kant and Colonialism: Historical and Critical Perspectives (Oxford: Oxford University Press, 2014), pp. 43–67 CrossRefGoogle Scholar.

16 See Kant, Perpetual Peace, pp. 106–7.

17 See Kant, Metaphysics of Morals, §58, pp. 117–18.

18 For an attempt to clarify Kant’s thinking here, see Arthur Ripstein, ‘Kant’s juridical theory of colonialism’, in Flikschuh and Ypi, Kant and Colonialism, pp. 145–69. Ripstein summarises his reading in the claim that a colonised people ‘is not fully a moral person because it is entirely passive in its relations to others’ (p. 162). I examine this idea of ‘moral personality’ later in the article.

19 Kant, Perpetual Peace, p. 94.

20 Kant, Anthropology, p. 408.

21 Waldron, ‘Two conceptions of self-determination’, p. 407.

22 Might the argument be made that the Mozambicans possessed a legitimate state at the time before the Portuguese arrived, so the act of colonisation was never permissible in the first place, and that explains its wrongness? But this solution faces two difficulties. One is that we can’t be sure, in the case of actual colonial regimes, that there was a legitimate political authority covering the relevant area before colonisation occurred. Perhaps there were just somewhat disorganised local communities, or rule by the satraps of a distant land empire. The other difficulty is that the history of virtually every state will at some point include a morally dubious act of conquest, so any realistic version of Kantianism cannot insist that for a state to be legitimate, it must have an immaculate pedigree.

23 I assume here, perhaps anachronistically, that one can speak of ‘Palestinians’ in the period before the First World War.

24 Both Waldron and Stilz argue explicitly against conflating self-determination and democracy, and allow that political self-determination may be consistent with some non-democratic forms of government. See Waldron, ‘Two conceptions of self-determination’, p. 408; Stilz, ‘Why do states have territorial rights?’, p. 209; Stilz, ‘Nations, states, and territory’, p. 589.

25 Separation by salt water cannot by itself be sufficient to destroy legitimacy, or we would have to conclude that Athens cannot legitimately govern Crete or Rhodes, or Madrid govern Lanzarote and Tenerife.

26 Buchanan, Allen, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford: Oxford University Press, 2004)Google Scholar, esp. ch. 8.

27 Buchanan, Justice, Legitimacy, and Self-Determination, pp. 353–9. I shall not discuss the critique of colonialism that locates its injustice in the usurpation of the colonised people’s territorial rights. This critique may indeed be valid, but it is not available within neo-Kantian theory, since according to that theory territorial rights follow from rather than precede political jurisdiction – so a successful colonising power will necessarily supersede the rights of the indigenous group by establishing jurisdiction. This point is made by Ypi, ‘A permissive theory of territorial rights’, pp. 300–1.

28 The latter was included in his earlier discussion of the issues in Buchanan, Allen, Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec (Boulder, CO: Westview Press, 1991), pp. 38–45 Google Scholar.

29 Buchanan, Justice, Legitimacy, and Self-Determination, pp. 361–2.

30 The republicans could of course point backwards towards what had happened half a century earlier. But it would need a further argument to show why a state should lose legitimacy now because of rights-violations that had occurred in some previous period. We don’t, for example, think that the US is not now a legitimate state because of its record on slavery, whatever view we hold about the need for apology and compensation.

31 Waldron, ‘Two conceptions of self-determination’, p. 410.

32 For a full-blown voluntarist view, see Beran, Harry, ‘A liberal theory of secession’, Political Studies, 32:1 (1984), pp. 21–31 CrossRefGoogle Scholar; for a part-voluntarist ‘hybrid’ view, see Wellman, Christopher, ‘A defense of secession and political self-determination’, in Christopher Wellman, Liberal Rights and Responsibilities: Essays on Citizenship and Sovereignty (New York: Oxford University Press, 2014), pp. 98–118 Google Scholar.

33 Waldron, ‘Two conceptions of self-determination’, p. 411.

34 Another author who appeals to ‘respect’ to explain the wrongness of even benign colonial rule is Wellman, Christopher, A Theory of Secession: the Case for Political Self-Determination (Cambridge: Cambridge University Press, 2005), pp. 55–57 CrossRefGoogle Scholar. According to Wellman, ‘colonization is an affront to the colonized in the form of an attitude that says, “You cannot govern yourselves properly, and so we must govern you”’. But Wellman makes it explicit that the same argument applies to any group that wishes to secede and can show that it has the capacity to perform basic political functions, so this makes his position voluntarist in the way that, I claim, a neo-Kantian position cannot be. If denying any group self-determination means disrespecting its members, this leads to conclusions that no defender of Kant’s theory of the state, including Waldron, could accept.

35 Stilz, ‘Why do states have territorial rights?’, p. 209.

36 Stilz also addresses the more difficult case where the state being annexed is not legitimate – she takes as her example the hypothetical case of Nazi Germany being annexed at the war’s end by the US. To explain what would be wrong about this, she has to invoke a German ‘people’ as the holders of a residual right to territory independently from the German state, yet without lapsing into nationalism. See Stilz, ‘Nations, states, and territory’, pp. 590–2, and for a critical discussion Moore, Margaret, ‘Which people and what land? Territorial right-holders and attachment to territory’, International Theory, 6:1 (2014), pp. 121–140 CrossRefGoogle Scholar.

37 In an attempt to justify the asymmetry, Stilz refers to the legitimate expectations of those who are part of the existing scheme that it should continue: see Stilz, ‘Nations, states, and territory’, p. 594, fn. 34. But although some weight must be given to such expectations, it cannot be decisive, since the same would also apply, for example, to citizens of colonial empires about to be deprived of their colonies.

38 Waldron, ‘Two conceptions of self-determination’, p. 409.

39 Stilz, ‘Nations, states, and territory’, p. 582.

40 Stilz, ‘Decolonization and self-determination’, p. 15.

41 Stilz’s position at this point in the argument might be better described as ‘neo-Hegelian’ than as ‘neo-Kantian’, as she recognises herself: ‘freedom additionally requires that individuals who sustain state institutions together experience this activity as an expression of themselves, not as something that they are coerced into performing by an alien power’ (Stilz, ‘Decolonization and self-determination’, p. 12).

42 Stilz, ‘Decolonization and self-determination’, pp. 20–1. I suggest later that there is little evidence to support these claims about distinct political priorities. Where political disagreement occurs, it is precisely over the question of whether these peoples should have states of their own, as opposed to devolved powers within a larger state, rather than about political values in general.

43 Stilz, ‘The value of self-determination’, p. 22.

44 Stilz argues that her position remains distinct from consent-based theories of political legitimacy because it does not allow ‘disaffected individuals’ to refuse to participate in the state. Secession is only an option for groups that are not ‘dispersed’ but are ‘territorially organized’ and have ‘broadly representative practices’ (Stilz, ‘Decolonization and self-determination’, p. 18). But defenders of consent theories also impose such requirements: for example Beran requires that the secessionist group should be ‘territorially concentrated’ and ‘sufficiently large to assume the basic responsibilities of an independent state’ (Beran, ‘A liberal theory of secession’, p. 30) and Wellman, ‘A defense of secession and political self-determination’ sets similar conditions. So in making this argument Stilz only distances herself from a version of consent theory so extreme that no-one actually holds it – except perhaps anarchists who might use it as a reductio of the very idea of state legitimacy.

45 See, for example, Curtice, John and Ormston, Rachel, ‘Is Scotland more left-wing than England?’, British Social Attitudes, Special Report, 42 (2011), available at: {http://www.nuffieldfoundation.org/sites/default/files/files/scotcen-ssa-report.pdf}Google Scholar; Henderson, Ailsa, ‘The myth of meritocratic Scotland: Political cultures in the UK’, in Philip Cowley and Robert Ford (eds), Sex, Lies and the Ballot Box (London: Biteback Publishing, 2014)Google Scholar. Henderson writes: ‘Scots are not more meritocratic or communitarian than English or Welsh residents. Even where there are differences, they fade once you control for demographic characteristics such as social class. Scots feel differently about the UK, about how well it runs and how it should organize itself, but they don’t necessarily feel differently about how a state in general should operate and what it should do for people.’ (p. 104)

46 According to Waldron, ‘it is probably also true that the differences between the two approaches to self-determination are more ideal-typic than real. Each may approach the other in various regards, inasmuch as culture and identity may grow out of proximity.’ (Waldron, ‘Two conceptions of self-determination’, p. 412) Stilz also concedes that the groups picked out by her political cooperation criterion will often have cultural ties as well (and the examples she gives of ‘peoples’ who lack national cultures – Belgium, Canada, and India – are certainly highly contestable); see Stilz, ‘Decolonization and self-determination’, p. 19.

47 See, for example, Putnam, Robert, ‘E Pluribus Unum: Diversity and community in the twenty-first century’, Scandinavian Political Studies, 30:2 (2007), pp. 137–174 CrossRefGoogle Scholar; Johnston, Richard, Banting, Keith, Kymlicka, Will, and Soroka, Stuart, ‘National identity and support for the welfare state’, Canadian Journal of Political Science, 43:2 (2010), pp. 349–377 CrossRefGoogle Scholar; Berg, Linda and Hjerm, Mikael, ‘National identity and political trust’, Perspectives on European Politics and Society, 11:4 (2010), pp. 390–407 CrossRefGoogle Scholar; Reeskens, Tim and Wright, Matthew, ‘Nationalism and the cohesive society: a multilevel analysis of the interplay among diversity, national identity, and social capital across 27 European societies’, Comparative Political Studies, 46:2 (2013), pp. 153–181 CrossRefGoogle Scholar.

48 Waldron, ‘Two conceptions of self-determination’, p. 409.

49 Ibid., p. 412.

50 Kant, Perpetual Peace, p. 114.

51 This charge applies more directly to Waldron than to Stilz, since Stilz, as we have seen, believes that the peoples who have a right of self-determination are those with an established history of political cooperation – evidence, presumably, that they have been able to keep their mutual antipathies in check.