1 Devolved Popular Sovereignty; Reconciling Majority Rule and Individual Liberty

1.1 Introduction

The purpose of this chapter is to define devolved popular sovereignty and reconcile popular sovereignty and majority rule with individual liberty. The central premise of the proposed model is that the shortcomings of majority rule and the risk of minority oppression can be alleviated by combining the Rousseauean idea of popular sovereignty with the idea of devolution.

Historical Background

Individual Liberty and Hobbes's Social Contract

The ultimate basis for political power is often thought to have been a real or implied social contract. The real or implied social contract is an agreement that every individual entered with every other individual to protect himself against the dangers of the state of nature.

In Hobbes's version the first and only task of political society is to name the sovereign (whether individual or group). The contract itself is permanent and irrevocable and commits the individual to absolute obedience.

The main problem with this view of the world is its lack of legitimacy with respect to the descendants of the original contractors. Even if we assume that an individual can sign away his own liberty, is it legitimate that he can commit his descendants to slavery? Can it really be true that we are bound by our ancestors and have to accept any government we happen to inherit?

Most people would supply a resounding NO to the question raised above.

Individual liberty and Locke's limited legislative authority

The next stage in political theory is characterized by Lockean ideas. Locke maintained that the legislative could only act for the public good. Its powers were limited.

If the legislative exceeded its powers, the people were authorized to resist and if necessary, overthrow the government and institute a new legislative.

In a sense this view solved the problem of self-inflicted slavery. The social contract was still thought to be permanent and irrevocable, but the powers of government were limited.

However, two issues remain:

Although the contract is limited, is it acceptable and legitimate for one generation to act for its descendants?
By whom or how is it to be determined whether the limited social contract has been breached?

Individual liberty and Rousseauean majority rule

Rousseau tried to get around the problems of the Lockean contract in several ways:

First, he postulated that individual members of society were formally to consent to the existing institutions upon coming of age.

Secondly, he required the inclusion of all citizens in the deliberations and votes that led to expressions of the general will (enactment of new laws). Simplified, it might be said that Rousseau answered question b) above by instituting majority rule.

Rousseau's contract is neither permanent nor irrevocable: The general will may only enact laws that are addressed to the common good of the society's members, and that extends the same rights or obligations to all citizens. If a law does not fulfill these conditions, the social contract is violated and its obligation lapses.

However, Rousseau does not specify the practical consequences of a lapse of the social contract, and the interpretation of what forms acceptable law is effectively left to the majority. There is no limitation on this majority rule, except those limitations that the majority may elect to impose on itself and the vague guidelines mentioned above.

Though Rousseau didn't intend it this way, it is not hard to see how this system of government can lead to oppression of minorities and individuals and suppression of individual liberty.

1.2 Devolved popular sovereignty and individual liberty

The central premise of the proposed model is that the shortcomings of Rousseau's governmental model can be alleviated by combining the Rousseauan concept of popular sovereignty (general will) with the idea of devolution.

Liberty as a set of outcomes vs. liberty as a just process

By devolved popular sovereignty is meant a principle or system where popular sovereignty is ordered according to group size. The ordering of popular sovereignty is inverse, so that within its proper sphere (i.e., within its jurisdiction, between group members) the smaller group's sovereignty overrules the sovereignty of the larger group of which it is part. This means that a member state of a confederation will be able to overrule central government decisions within its own borders and as long as it confines itself to its own citizens.

It also means that sovereignty reaches its maximum value at the individual level. As long as the individual confines himself to actions that have no adverse impact on anyone else he may do as he pleases. Thus the combination of devolution and popular sovereignty preserves both majoritarian democracy and individual liberty. This combination also transforms liberty from a static set of "objective" criteria ("objective" because hardly anyone agrees on what they are) to the outcome of a dynamic, just and generally acceptable process. This process also allows multiple interpretations of what forms liberty to exist independently and simultaneously.

Two corollary principles make the proposed model stand out in terms of practicality: a) the correlation between sovereignty and statehood, and b) the correlation between statehood and territory.

Sovereignty and statehood

In its practical implementation, the concept of individual or group sovereignty is not supposed to work at the level of each individual decision. It is intended to work at the level of adherence to governmental institutions. "As long as I am a citizen of a state, I am bound to follow the laws of that state as determined by the majority of its citizens or its legitimate government". However, at any point in time a group of any size may declare itself a new state. Since the group itself is smaller than the total, it follows that its sovereignty is superior to that of the state itself. The group members are a subset of the total number of citizens of the state. As the group declares itself a new state, each group member ceases to be a citizen of his or her former state, and the relations between the group and their former state or states take on the character of relations between states. Within this framework, a state is any entity, whether consisting of a group or an individual, that interacts with its neighbors or its surroundings through a state of nature.

Statehood and territory

Strictly speaking, it may be sufficient to define a state as any entity that interacts with its neighbor through a state of nature. After all, this definition is closely related to the ancient definition of a nation as a group of people rather than as a territory. From a practical point of view however, it is convenient that a state has a territory. The fact is, today no state is recognized without territory. Today territory and statehood go together. This insistence on a one to one relationship between territory and statehood is the major factor slowing or preventing the erection of new states since the whole surface of the Earth is claimed by one state or another.

I am proposing that this problem be resolved by allowing not only the withdrawal of minds and bodies from individual states but also any property belonging to those citizens wanting to erect a new state. As real property cannot be physically moved, withdrawal of real property is synonymous with its reclassification. If a group of people wants to erect a new state, any real property owned by group members is reclassified as the new state's territory. This view also corrects the present anomaly where real property is different from other property in that it somehow ''belongs to" a particular state. Real property like any other property, belongs to individuals, and if they decide to relocate themselves to another state, they may take with them their real property just like other property.

It follows that most new states are likely to be very small states at the outset. However, the important issue isn't whether the territory is large or small, but the fact that it does have an initial territory, thereby fulfilling one of the requirements of statehood. Many smaller states, including such diverse countries as Iceland, Luxembourg, Singapore and Monaco, seem to be thriving. Such small states are obviously quite dependent on their neighbors, but there seems to be no practical limit or cut-off point in terms of state size, population or territory, as long as they are able to interact peacefully with other states.

If the new state is successful in providing the freedoms, liberties and services that people seek, its territory is likely to expand rapidly as more people in its immediate geographical vicinity switch allegiance.

Conclusions

In contrast with Rousseau and the other social contract theorists, the proposed model makes democracy (and majority rule) immediately compatible with individual liberty without any need of interpretation. No more do we have to preface the call for democracy and popular sovereignty with the proviso that somehow individual liberties must be protected. The protection of individual liberty becomes an integral part of the model itself, rather than something that has to be added at the end. In addition, its consistency from the large units of nations to the level of the individual also makes it both easy to understand and easy to apply.

Each individual comes to life unbound by the previous promises of his ancestors, and with all liberties still intact. In this model, power has not been given away either to kings, nobility, legislatures or the "general will". It simply hasn't been exercised, it lies dormant. As soon as our individual or group sovereignty is exercised, it overrules that of state government. Our individual sovereignty as experienced in the state of nature may be dormant, but it is still there.

Within each state, the general will is determined by majority rule based on popular sovereignty, or by the original social contract (constitution).

1.3 Practical issues related to the application of devolved popular sovereignty

Free speech, an example of application

What is said about protecting individual liberty and minorities, however made up, applies to human rights in general. For instance, if an individual is denied the right of free speech within a particular state, he may declare himself a new state and speak freely as much as he wants. He has just exercised his superior sovereignty. From a practical point of view it is not very likely that a single individual will erect a new state. The overhead simply becomes too great as his entire interaction with the outside world has to take place across state borders. If free speech or any other right is infringed in any serious way, however, it is far more likely that a large group or even a major part of the country secedes. On the other hand, the certainty that this is a legitimate alternative may restrain the majority sufficiently in its exercise of power to make secession un-necessary.

The individual as a state

It may seem ridiculous to allow a single individual the right to erect his own state. It is very unlikely that such an action will take place, but as a matter of principle it is important that it might take place. A comparison with free speech as practiced in the Western World may be helpful. In most Western countries any individual may start his own newspaper. The power of this principle is not related to the fact that most newspapers are launched by individuals or that each individual is likely to launch his own paper. Most papers these days are launched by major corporations, and there are thousands of people to every paper. But the fact that free speech is individualistic prevents the government from artificially restricting entry into that market. This in turn, makes the market behave, almost, as if every individual was already part of it. Individuals refrain from starting papers because their points of view are already represented by one paper or another. The market is (almost) as diverse as it would have been if every individual published his own paper.

Let's employ the viability argument on newspapers and see what happens. Let's assume that free speech is not a right that pertains to the individual. Here, the government may plausibly argue that any individual citizen's newspaper is not viable and should not be allowed. Individual citizen's point of view, it might be argued, is not what counts. What counts is the free speech of organizations representing larger groups of people. To make sure that these larger groups of people are legitimate, there probably should be some kind of licensing system. - And by the way, since everybody (or at least those that count) have access to all papers, there is really no need for more than one or two papers in every major city. This will avoid unnecessary duplication and save resources.

The system I have just outlined is in fact the system and line of reasoning employed by the former regimes in Eastern Europe and most authoritarian regimes. It is a paradox that these regimes that disallowed news media started by single individuals probably spawned more individual citizen's newspapers, as underground carbon copied newsletters, than any Western country where the news business is unrestricted. Individual free speech is not important because every individual will take advantage of it, but because, if it is recognized, it transforms society in such a way as to make individual use unnecessary.

In today's world many groups try to build their own states or separate from empires or federations. What can possibly happen if we let them build their own states? What if we allowed every individual the right to build his own state? Would we get very many new states? At the beginning some, later, - a few. The act of allowing peaceful state erection by individuals would transform politics and society so that it would no longer be necessary for most minority groups to build a state of their own.

War and forcible annexation

As long as the principle of devolved sovereignty applies, human rights and individual liberties are protected. However, with all the wars going on around the world, what would prevent an existing state from simply annexing its newly erected neighbor by force. There is no easy answer to this question. What can be empirically observed is that few if any democratic states forcibly annex their neighbors. There are at least 3 reasons why force should not be used: a) The attacking state always runs the risk that the attacked state will defend itself by armed resistance, b) Condemnation may damage or strain the attacker's relations with other states and by that hurting its own people both in the short term and in the long term, and c) The "policeman" whether in the form of the United States, the United Nations or the proposed Confederation may arrive to sort things out.

Fundamentally, faced with arms, any theory about how the world ought to solve its problems breaks down. The power of political theories lies in their general acceptance and legitimacy. A government that does not follow the norms will be illegitimate and therefore more susceptible to overthrow.

Anarchy or a criminal's paradise?

Is this anarchy or a criminal's paradise? No, it is not. The proposed constitution has additional mechanisms for preventing crime, but even in its unrefined form, the proposed model does allow sanctions against criminals.

If an individual decides to make a living by stealing from everybody else, he can certainly declare himself a separate state and by that avoid state sanctions as long as he sits tight. However, being a state unto himself rapidly becomes uncomfortable as he runs out of food and other supplies. And how is he going to spend his loot. In general, in order for crime to pay, there has to be a mechanism for interacting with the outside world. Somehow either the criminal has to cross a border himself to get supplies, or to be able to continue stealing, or to enjoy the fruits of his crimes, or someone else has to bring him supplies. If he crosses the border himself, he by that comes within the jurisdiction of the state on the other side. Either this is the state where the crime was committed, in which case he goes directly to trial, or it is likely to have an extradition treaty with the state where the crime was committed, in which case he also goes to trial.

If he continues to sit tight, the neighboring state or states have the option of intercepting food and other supplies, and even if this can be bypassed he continues being a prisoner in his own home.

However, this system may work toward de-criminalizing victim-less crimes, since such "criminals" may put up their own state and enjoy such crimes with impunity among themselves. In such cases, as in free speech, a blockade is not likely to be effective, as there is no injured party seeking redress.

1.4 Summary

This chapter defines individual liberty as the outcome of the combined processes of popular sovereignty and radical devolution.

This redefinition makes liberty consistent with democracy.

At the lowest level, radical devolution allows each individual to erect his own state. In order to make a state viable, it has to have its own territory. Since all land on the Earth is already occupied, it is no use saying that people may withdraw from society by going somewhere else. This withdrawal from any particular state is made possible by recognizing that property belongs to individuals and not states. The new state's territory is made up of the real estate owned by its citizens.

Revised: 2004-07-02