Notes on Professor Ring’s Article

Notes on Professor Ring’s Article

I apologize for arriving late to the party; I have only just had a chance to read Professor Ring’s fascinating article completely through.  There are many reasons why I would come to this article already predisposed to like it – I started out life as an international tax lawyer, for example, and I am also an unapologetic defender within the international law academy of robust democratic sovereignty.  Having read the actual article, I am impressed far beyond any tendencies to, um, ‘confirmation bias’.  It’s a terrific piece, well argued, and provocative.  I am going to simply put down some reactions, in no particular order and, this being the blogosphere, no particular overall argument in mind.  Just reactions.

Distributive efficiency, fairness, and sovereignty.  I was particularly intrigued with Professor Ring’s thesis that tax policy – its distributive and redistributive effects within a sovereign democratic political community – ought to imply deep questions about the positive moral value of sovereignty.  I say this as a democratic sovereigntist who has sometimes argued that the deep issues of sovereignty involve security, while such things as “mere” economic policy such as trade, etc., etc., can be multilateralized without a backward look.  No more.  (Actually, I wrote something like that two days ago, but after reading this article, that passage will go ‘poof’.)  Professor Ring quite persuades me that these issues raise deep questions about the legitimate democratic community.  In this regard, I was strongly reminded – strongly enough to pull it down off the shelf and start rereading it – one of the great, neglected works of political theory, Michael Walzer’s Spheres of Justice.  In some respects, this article seemed to me a direct expression of Walzer’s defense of the idea that a political community had obligations to its own members, including in matters of distribution and redistribution, that were more binding than those of general cosmopolitanism.  The book is a defense of membership in a political community, a defense of the idea that certain things can morally extend to members and not to non-members, and, I suppose, it is much of what Peter does not accept.  Human rights are often invoked today in defense of the proposition that the moral accident of membership should not define differences; Walzer gets it exactly right, in my view, when he says:

The effort to produce a complete account of justice or a defense of equality by multiplying rights soon makes a farce of what it multiplies.  To say of whatever we think people ought to have that they have a right to have it is not to say very much.  Men and women do indeed have rights beyond life and liberty, but these do not follow from our common humanity; they follow from shared conceptions of local goods; they are local and particular in character. (at xv)

Defining sovereignty.  I think Lincoln’s definition of sovereignty is still the best one: a political community, without a political superior.  I find myself unhappy with the kind of move made by Chayes and Chayes in defining a “new sovereignty” in which it some simply turns out to be … not sovereignty.  That is, if you want to tell me that the benefits of giving up the traditional concept of sovereignty because the benefits of joining, even giving up your political community, are so great that the tradeoff is worth it, fine.  But it’s not fine to tell me that this is actually the “new sovereignty” or ‘true” sovereignty or something that accomplishes the tradeoff by definitional fiat.  Much of the literature, starting with Chayes and Chayes, seems to me to do exactly that.  It’s a mystification of sovereignty that spares having to make the argument. 

Democracy, size, and the common market.  Professor Ring makes, somewhat cautiously, the argument that a planetary demos or a global democratic community with the moral legitimacy to make tax policy for its members, a global government in a fairly robust sense, is not really possible.  Many bona fide liberal internationalists have acknowledged the point, notably Anne-Marie Slaughter in the opening pages of A New World Order:

[W]orld government is both infeasible and undesirable.  The size and scope of such a government presents an unavoidable and dangerous threat to individual liberty.  Further, the diversity of the peoples to be governed makes it almost impossible to conceive of a global demos.  No form of democracy within the current global repertoire seems capable of overcoming these obstacles. 

As Professor Ring notes, taking account of the political science literature, democracy does have size limits; she cites very interesting work by Marc Plattner, co-editor of the Journal of Democracy, among others.  Plattner’s co-editor, Larry Diamond, has done empirical work on size and population in relation to democracy, with the strong suggestion that smaller is better for democracy.  To which I would add, what the world’s large democracies really represent is a tradeoff between the requirements of democracy, which favors frankly smaller, and the benefits of the internal common market – which is a network and improves with size.  We – well, we Hoover Institution types, anyway – tend ideologically to unite democracy and market, but with respect to the size dimension, it would appear, rather, that the two are in some tension.

Legitimacy.  Legitimacy arises in this article as a more or less assumed necessity for a political order, which is surely right.  How it is achieved in the modern world is (we democratic sovereigntists think) through democracy. It is not the only path to legitimacy (in the Weberian sense of a mere descriptive fact about the acceptance of a social order); it is not so far a necessary feature of the legitimate order in, for example, Bhutan (although it held national elections for the first time in 2008).  But, as Thomas Franck pointed out a number of years ago, it is increasingly a sine qua non of legitimacy.  Neither is democracy sufficient; as the Bush administration has learned to its sorrow, when it says “democracy,” it actually means something much more fraught than that, something much closer to “liberal market democracy,” not the world’s rising illiberal but elected authoritarians.  As I have tried to point out in other contexts, as the UN and other locales of nascent global governance seek to extend their authority, they discover that the legitimacy hithertofor conveyed to them is insufficient to exercise political authority.  The response is, naturally, to look around for mechanisms by which to increase it; since democracy in any ballot box sense appears beyond reach, even to liberal internationalists such as Slaughter, the UN has reached to various stand-ins, most notably ‘global civil society’.  This just seems to me – as to John Bolton, in an observation quite different from his usual cast-iron realism – a form of corporativism, skipping the democracy part and seeking legitimacy by anointing various ‘corporate’ (Church, trade unions, different interest groups in society, to take the Franco or Peron models) groups as the representatives and intermediaries of the people.  This is a fundamental problem because, well, they’re not.

But let me make one other observation about legitimacy.  Steve Krasner appears several times in Professor Ring’s notes (although not, unless I missed it, his central work on this subject, Sovereignty: Organized Hypocrisy).  We are on a Hoover Institution task force together, and in conversation recently, he remarked that he was quite struck by the attention paid by the lawyers to the concept of legitimacy in international relations – it was, he said, something that quite simply the political scientists did not especially think about.  I was startled, and said, but what about Weber?  He responded that he did not think that political science accounts of sovereignty, democracy, or much of anything else took account of the social fact of legitimacy, what it meant and how it was achieved.  This made me realize how much political science had changed as a discipline since I had been paying attention to it in terrorism studies in the early-1980s at the Journal of Terrorism and Political Violence, in which legitimacy and the concept of a legitimate social order were inevitably central concepts.  Again, although I am never much moved by juridical analyses of legitimacy except for the purposes they serve – juridical ones – it does greatly startle me to hear that political science is not deeply involved in the analysis of legitimacy as a social fact about a social order.

Democratic accountability.  There is a tendency in the literature to understand the moral value of democracy as essentially subsumed under the category of accountability.  I don’t think I am unfair to Professor Ring’s article in suggesting that this is somewhat the view there.  But important as accountability is, I do not think the moral value of democracy is merely instrumental to that end.  If democracy as a value is subsumed to anything, I would say it is subsumed to precisely what Locke said was the condition of legitimacy in modernity: consent.  The reason I raise this is that the global governance literature has many arguments to the effect that since we can find mechanisms of accountability other than democratic accountability, we need not worry about democracy so much.  And it is true that in some social orders and circumstances, accountability is provided for, and better provided for, through other means.  In my university, fiscal accountability comes through the bureaucracy of financial controls.  Democracy is merely one means to accountability, although an irreplaceable one in most political systems – but it is a value of its own, because consent of the governed is its own irreducible moral good.

Great article.  I haven’t said a word about tax policy and when a political community should enter a tax regime that involves rules for all players and when it should withdraw.  But I might suggest – however weird this might sound – that Professor Ring might want to look at Lincoln’s First Inaugural Address in this regard.  Why?  Because it addresses the arguments of joining and quitting.  And it does so in a way weirdly parallel to Professor Ring’s argument – that is, one that addresses the deepest questions of political theory yet does so from within a matrix of commerce and money: the argument of the First Inaugural is one that is essentially drawn from the law of partnership – consent of the rest in order lawfully to withdraw – and, by some accounts at least, an argument Lincoln drew from his own experience as a private commercial lawyer.

(I’ll go back and add some links later.)

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General, International Human Rights Law, Trade & Economic Law
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