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Secession

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Secession

Secession

    The Morality of Political Divorce from Fort

    Sumter to Lithuania and Quebec

Allen Buchanan

    Westview Press BOULDER ? SAN FRANCISCO ? OXFORD

    -iii-

    All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system, without permission in writing from the

    publisher.

    Copyright ? 1991 by Westview Press, Inc.

    Published in 1991 in the United States of America by Westview Press, Inc., 5500 Central Avenue, Boulder, Colorado 80301, and in the United Kingdom by Westview Press, 36 Lonsdale Road, Summertown, Oxford OX2 7EW

    Library of Congress Cataloging-in-Publication Data

    Buchanan, Allen E., 1948-

    Secession : the morality of political divorce from Fort Sumter to

    Lithuania and Quebec / by Allen Buchanan.

    p. cm. Includes bibliographical references and index.

    ISBN 0-8133-1132-2.--ISBN 0-8133-1133-0 (pbk.).

    1. Political obligation--Moral and ethical aspects. 2. Secession--

    Moral and ethical aspects. I. Title.

    JC329.5.B83 1991

    320'.01'1--dc20 91-13396

    CIP

    Printed and bound in the United States of America

    The paper used in this publication meets the requirements ?+? of the American National Standard for Permanence of Paper for Printed Library Materials Z39.48-1984. 10 9 8 7 6 5 4 3 2 1

    -iv-

Contents

     Preface vii

     Acknowledgments xvii

     1 The Problems of Secession 1

     The Practical Need for a Theory of Secession, 1

     Secession and the Main Problems of Political Philosophy, 7

     The Plan of This Book, 9

     The Concept of Secession: Preliminary Clarification, 9

     Notes, 22

     2 The Morality of Secession 27

     The Strategy, 27

     The Case for a Moral Right to Secede, 29

     Individual and Group Rights? 74

     Notes, 81

     3 The Moral Case Against Secession 87 Protecting Legitimate Expectations, 87

     Self-Defense (as a Justification for Resisting Secession) , 91

     Protecting Majority Rule, 98

     Minimization of Strategic Bargaining, 100

     Soft Paternalism, 101

     The Threat of Anarchy, 102

     Preventing Wrongful Taking, 104

     Distributive Justice, 114

     Notes, 124

     4 A Constitutional Right to Secede 127

     The Need for a Constitutional Theory of Secession, 127

     A Framework for Constitutional Design, 129

     Two Pairs of Ideal Type Models for a Constitutional

    Right to Secede, 131

     The Problem of Representation, 139

    -v-

     A Right to Secede Versus Other Constitutional Rights

    for Groups, 143

     Notes, 148

     5 Conclusions 151

     An Overview of the Moral and Constitutional Theory

    of Secession, 151

     Applying the Theory, 157

     Notes, 162

     References 163

     About the Book and Author 167

     Index 169

    -vi-

    Preface

    Perhaps no other question of political philosophy, or of international law,

    pregnant with such unutterable calamities, has ever been so partially and

    superficially examined as the right of secession.

    -- Albert Taylor Bledsoe

    These lines were penned in 1866 in a book that attempted to prove that an implicit constitutional right to secede existed in the United States at the time of Southern

    1secession. They are as true today as they were then. From Quebec to Lithuania to the Ukraine to Azerbaijan, new secessionist movements are springing up and old ones are rejuvenating, with no end in sight; and the stakes are high. Yet official pronouncements, media coverage, and the discourse of ordinary citizens about these extraordinary events all suffer from superficiality and confusion, while the leading figures of political philosophy, past and present, are virtually mute on the issue of secession.

     Neither Plato, Hobbes, Locke, Rousseau, Hegel, Marx, nor Mill devoted any serious attention to secession. It is true, of course, that the topic was hotly debated by

    statesmen-political philosophers such as Webster and Calhoun in America in the period

    2preceding and during the Civil War. However, as will become clear later, the peculiarities of the American situation greatly narrowed the focus of thinking on secession; and even within those confines, no adequate, systematic analysis of secession emerged.

    One especially striking feature of current debate over secession is its overtly moral character. Even those who usually take a certain perverse pride in posturing as moral skeptics or realpolitikers inevitably speak the language of right (and rights) and wrong when it comes to secession. Gorbachev says that American indignation at his resistance to Lithuanian secession is hypocrisy, coming from a country that reveres Lincoln for crushing its own secessionist movement. Quebecois claim a moral right to an autonomous society. Many Western observers condemn secessionist talk by Azerbaijanis or Ghurzhis, saying that these peoples want autonomy so they will be free to commit

    atrocities against Armenians and others. The question is not whether

    -vii-

    the debate about secession will be framed in moral terms. Rather, it is this: Can a coherent and illuminating moral framework for grappling with the real world problems of

secession be developed?

    Some purport to abstain from the moral debate, dismissing moral judgments about secession and other major political conflicts as naive, declaring with a smug, world-weary

    sigh that naked power, as always, will decide the issue. The cynic assumes either that there is no such thing as moral reasoning and that there are no moral judgments, but only subjective tastes parading as judgments, or that moral beliefs are motivationally impotent, that only the lust for power determines behavior in the political realm. Such pessimistic conclusions about the morality of secession, I shall argue, are exaggerated. It is possible to think coherently about the morality of secession, and some positions on secession are more reasonable from a moral point of view than others. Systematic moral reflection can provide substantive guidance. This book aims to do just that. Whether it succeeds in doing so the reader can determine only after reading it.

    But at the outset I would remind the cynic that his assumption that moral judgments play no role in determining what individuals and nations really do is highly improbable in light of one very simple fact: Even the most ruthless perpetrators of injustices, and especially

    those scoundrels who have been among the most skillful manipulators of motivation, have invariably recognized the importance of providing moral justifications for their actions. From Julius Caesar's attempt to justify the invasion of Gaul as a purely defensive

    measure to Adolf Hitler's claim that conquest is the prerogative of the master race, tyrants as well as defenders of freedom have tried to justify their policies morally.

    Now, if what people believe about what is right or wrong has no effect on their behavior,

    the struggle for the high moral ground that invariably pervades the world of international as well as domestic politics, and that is waged everyday in conflicts over secession, would make no sense. If one acknowledges that moral beliefs do influence behavior and also

    grants the rather modest claim that some moral beliefs are more justified than others, one is already in a position to appreciate and participate in an attempt to think about the morality of secession in a clear-headed, sensitive, and systematic way.

    In more optimistic moments I am tempted to say that the first three chapters of this book present a moral theory of secession and that the fourth then uses the moral theory to develop a theory of the constitutional right to secede. In one sense this is quite accurate:

    Sometimes moral philosophers use the term 'theory' in a relatively unambitious way to refer to any serious and at least minimally successful attempt to think self-consciously

    and selfcritically, in a systematic, consistent, and principled way, about what we ought or

    ought not to do in some area of human activity where hard choices must

    -viii-

    be made. At the very least, the concept of a theory can serve as a guiding ideal for our investigation--a standard of rigor, completeness, and insight the pursuit of which, even if ultimately unsuccessful, can spur us on to do the best of which we are capable.

    The notion of theory has another advantage: The proper evaluation of a theory is always, ultimately, comparative. In general, when we try to decide whether or not to accept a theory, the appropriate question is not "Does it explain all the data or solve all the problems?" but, rather, "Is it the best theory available?" In judging the moral views on secession presented here (whether one honors them with the title 'theory' or not), the fundamental question is not whether they solve all or even most of the moral dilemmas of secession, but whether they improve significantly upon the current prevalent ways of thinking about the issue. In the end, the only way to refute a theory conclusively is to advance a better theory.

    Nonetheless, this use of the term is risky, especially in interdisciplinary contexts, because, for some, 'theory' has much grander connotations. Perhaps a prudent

    compromise would be to say that this book offers a moral framework for thinking about

    secession that provides consistent and reasoned guidance for some of the many hard choices we confront concerning secession and that this framework can serve as the beginning of a theory of secession (in the more ambitious sense). However, if even the term 'framework' suggests more completeness and finality than is warranted here, a still

    more humble characterization of the enterprise might be: Moral reflections on secession.

    Contemporary scholarship on international law does contain opposing views on whether or under what conditions there is a legal right to secede; and, at times, almost in spite of themselves, international lawyers take moral positions. Yet they do so without anything

    like a systematic examination of the moral issues and often without any clear distinction between moral and legal questions. To my knowledge, the reflections contained here are the closest thing to a moral theory of secession currently available. That will change

    quickly, I have no doubt. In some ways this state of affairs is liberating: One bold or foolish enough can plunge right in and try to grapple with the problems without being crushed beneath the paralyzing weight of a mountain of previous thinking to be sifted

    through. (Thus the pioneer striving for a truly systematic moral theory of secession might be tempted to say: "If I have not seen very far, it is because I stood on the shoulders of midgets!") At the same time, the risks of making a fool (or, as this is a moral issue, a

    knave) of oneself are correspondingly greater. When the contemplation of these risks oppresses me, I console myself with the hope that this volume will be classified--and

    judged--as an early work on the moral theory of secession!

    Though an early work, it is not simply a reaction to the current spate of secessionist movements in the Soviet Union or to the resurgence of

    -ix-

    secessionist sentiment in Quebec or elsewhere. My own interest in secession predates

    these events. At most, the current headlines on secession prompted me to undertake sooner rather than later something I had intended to do for many years. My interest in secession stems from three seemingly unrelated sources: my sense of the profound

    tragedy of the American Civil War, my interest in and personal experience of the struggle for human rights in South Africa, and my ambivalent love of liberalism as the least bad political philosophy among the alternatives.

    Reflection on the origins of the American Civil War have convinced me that the only sound moral justification for resisting Southern secession was the liberation of blacks. For as we shall see, it is hard to fathom how just the need to "preserve the Union" could justify the staggering destruction of human life and property that ensued. (One in every four Southern men of military age died in the conflict, and the number of Union soldiers who

    fell in the series of battles from the Wilderness to Cold Harbor, from May to June in the last year of the war, nearly equaled the total number of Americans who died in Vietnam; moreover, two-thirds of the South's wealth, excluding property in slaves, was destroyed

    3) in the war.

    The true tragedy of the American Civil War is not simply that the losses were so great, but

    that the only goal which could have justified them was not fully attained: Slavery was abolished, but the task of liberating black Americans was left unfinished. Not until the Civil Rights Act of 1964 and the 1965 Voting Rights Act--one hundred years after the

    fighting had ceased --did blacks in the South secure some of the most fundamental civil rights. Thus in one sense the South won the Civil War: Southern whites preserved their domination over blacks, developing new forms of institutional racism that reached a

    crescendo in the Jim Crow Laws, after the institution of slavery was swept away by the

    4war.

    Any sensitive student of the American Civil War is bound to be struck by the fact that on both sides there was a profound moral ambiguity concerning what the war was really

    being fought for. And it is hard not to believe that this lack of moral clarity infected the peace, reinforcing other factors that led to a failure of nerve in completing the task of black liberation. Because many, perhaps most, Northerners believed that the primary if

    not the exclusive war aim was to preserve the Union (and that, as Lincoln actually said,

    5abolition of slavery was justified only as a means toward that end ), it is not surprising

    that the commitment to improving the condition of blacks waned once the crisis of

    disunion was past. My sense is that most Americans to this day have not squarely faced the moral issues raised by Southern secession.

    For good or for ill, the vividness of the issues of the American Civil War is fading with each

    successive generation, even in the South. By contrast, the second source of my interest in secession is a social revolution now in

    -x-

    progress: the battle against apartheid. I have been privileged to bear witness to this

    heroic struggle for black liberation. In 1988 1 traveled extensively in South Africa, speaking to diverse individuals and groups on the role of appeals to justice in the social revolution occurring in that beautiful and tragic country and attempting to defend the

    liberal emphasis on individual rights against those on the left and on the right who would denigrate them.

    That visit impressed upon me the tremendous ethnic and political diversity of South Africa. Throughout numerous discussions of the prospects for constitutional reform and

    eventually for a postapartheid constitution, two questions kept surfacing: Will a constitutional framework of exclusively individual rights suffice, or should group rights of some sort be included; and will there be one South Africa or will the process of social

    revolution result in fragmentation? These two questions intersect in a third: Should a constitution for postapartheid South Africa include a right to secede? Some South Africans (black and white) with whom I spoke were willing to explore the latter query.

    Others thought that even talking about secession ran the risk of weakening the solidarity essential for the success of the struggle against apartheid.

    The third source of my interest in secession is my long-standing effort to understand

    liberalism and to ascertain its strengths and weaknesses. By 'liberalism' I mean something in a sense quite simple, though at the same time quite general and inclusive: that core of the Western tradition in political philosophy which is committed first and

    foremost to the basic individual civil and political rights that find expression in the great documents of the French and American revolutions. (This understanding of liberalism, I should emphasize, is much more basic than a number of political philosophies that

    present themselves under that title; and it is not to be identified with any of its more particular variations, such as the antiwelfare, police-andnightwatchman state

    "liberalism" that is known in America as libertarianism. Indeed 'liberalism', as I shall use

    that term, is itself noncommittal as to the extent of the proper distributive or redistributive functions of the state.) It had puzzled me that liberalism, a political philosophy that preeminently values self-determination and prizes diversity and that

    views the state as a human creation to serve human needs, not a deity or an unalterable fact of nature, should have so little to say about secession. Moreover, in assessing the criticisms of liberalism advanced by those contemporary thinkers who call themselves

    6 I had begun to think more critically about what they take to be communitarians,

    liberalism's exclusive concern with individual rights and to wonder whether it might have room for group rights of some kind, including perhaps a right to secede. Recent political

    events have made the question of whether liberalism can accommodate a right to secede all the more pertinent: In many cases, secessionist movements, especially in the Soviet Union, are

    -xi-

    riding the crest of what appears to be--or at least purports to be--a liberal revolution.

    My problem, therefore, was not lack of interest, but rather, how to translate this interest

    into a systematic and fruitful inquiry into the morality of secession and the idea of a constitutional right to secede. Here a conflict of roles soon emerged. On the one hand, I

hoped to adopt the traditional philosophical posture of gadfly--to criticize prevalent ways

    of thinking about the issues, ruthlessly exposing hidden assumptions, answering one

    question with two or more, further complicating the difficult and making strange the familiar. Since Socrates, the gadfly has been a valuable, if exasperating, contributor to society.

    On the other hand, work I had done over the years in so-called applied ethics, particularly

    in the ethics of health care, had convinced me that philosophers can play a more constructive role--that the tools of moral philosophy, if properly employed, can actually provide some guidance in the world of action. But the attempt to engage in genuine

    action-guiding, that is, normative ethics, while at the same time preserving the rigor and ruthless selfcriticism of the traditional philosophical gadfly, is exceedingly difficult. At times the result approaches schizophrenia--or rather, not just a split in the mind, but in

    the heart as well.

    More precisely, the conflict is this. On the one hand, any proffered moral guidance on a topic like secession must satisfy two conditions: It must be reasonably concrete, and it must justify its recommendations by arguments that are widely accessible, not just convincing to colleagues who happen to share one's own deep philosophical views. That is, one must say something of normative significance about the issues without first solving all the fundamental problems of moral theory to the satisfaction of professional moral philosophers. The only sane approach to doing this is to begin with widely shared moral principles and values and to attempt to develop new and useful guidance by carefully formulating and refining them, articulating their interconnections and implications, and modifying and improving or even discarding some of them where necessary. The principles in question are gleaned from common-sense morality, from

    points of agreement among the major ethical traditions, both religious and secular, and from the most stable and fruitful core of the law, especially the common law, understood as an institutional embodiment of techniques of practical reasoning for dealing with

    7 conflicts of interest, developed and refined over many generations.

    On the other hand, for the philosophical gadfly, none of this is enough. He will demand something more ambitious, more foundational, and more intellectually self-sufficient.

    Why rely at all upon ethical or legal traditions; or, more to the point, why rely upon one tradition rather than any other? Surely an adequate view on secession must be derived from adequate theories of distributive justice and of political obligation and, ultimately, from an adequate

    -xii-

    metaethical theory--a theory that explains the nature of moral discourse and provides an account of what ultimately makes a moral judgment or principle valid.

    When giving an informal presentation of my work on secession to a small group of philosophers and political scientists, I was confronted by such demands in extreme,

    almost caricature, form. One philosopher (a logician, not a moral philosopher) asked me to formulate my "theory" of secession by filling in the blank, "Secession is morally justified if and only if __, "with a list of necessary and sufficient conditions, 1, 2, 3, etc. My somewhat grumpy reply was that I doubt if anyone could plausibly fill in the blanks for almost any hard moral issue. For example, is it really reasonable to think that one could

    say "killing another human being is morally justified if and only if 1, 2, 3"? Often the most one can reasonably aim for is to supply some of the necessary conditions and some of the sufficient conditions.

    A political scientist in the same group expressed undisguised indignation that my

    treatment of the topic failed to make clear which (single!) fundamental moral decision rule I was relying on. Was it utilitarianism (maximize overall utility), or was it the maximin principle (choose the option that has the least bad worst outcome), or the

    libertarian principle of private property rights, or what? My response to this demand was not so much irritation as astonishment. I believe that most moral philosophers now agree that there is no single over-arching principle (and certainly none of the above!) that is a plausible basis for all moral decisions. Further, the same worries about the arbitrariness of starting points that lead the philosopher as gadfly to be suspicious of initial reliance on common-sense moral principles apply as well to grand "fundamental" principles. None has been shown to be uniquely rational or uniquely appropriate in any way.

    So for three distinct reasons I begin in medias res--in the midst of what I believe to be

    some of the most widely held and least controversial moral views--rather than

    attempting to develop a foundational ethical theory and then to apply it to secession. First, neither I nor anyone else possesses a fully developed, uniquely valid moral theory in the ambitious sense (or at least not one that is substantive and concrete enough to tell us much of interest about secession). Second, even if such a theory were available, it would be inaccessible--and, I am confident, quite uninteresting--to the majority of those

    who are interested in real-world struggles about secession and who may play some role

    in deciding those contests. Finally, I am especially concerned with the relationship between liberalism and secession, both because of my own predilections for that view

    and because it is liberal ideas that are currently sweeping across the international political landscape. Hence it makes a good deal of sense to rely, at least initially, on substantive moral beliefs and styles of argument that are part of the broadly liberal tradition in ethics,

    politics, and law.

    -xiii-

    Some, no doubt, will charge me with liberal bias. More specifically, they may assume that my use of styles of argument characteristic of liberalism commits me to individualism,

    opposition to which unifies an otherwise diverse collection of schools of thought from Marxism to communitarianism to deconstructionism and critical theory. In addition to their opposition to liberal individualism, what unites these quite different views is their remarkable unclarity about what individualism is, their failure to articulate a plausible

    alternative to it, and the lack of any convincing argument to show precisely how the liberal emphasis on individual civil and political rights is necessarily linked to the kind or

    8 kinds of "individualism"that are objectionable.

    Instead of attempting to defend liberalism, however, I want to emphasize that this book can be seen as a fundamental criticism of liberalism in at least three respects. First, I

    make a case here for certain group or collective rights, including a right to secede--and

    liberalism, as it is ordinarily understood, and not just by those who criticize it for its "individualism" but by some of its champions as well, is said to recognize only individual rights. Second, I argue that the grounds for justified opposition to political authority are broader than liberalism usually admits: Revolution or secession can be justified as efforts to relieve injustices other than those consisting of the violation of individual rights. In

    particular, I show in Chapter 2 that a group may be justified in opposing the state with force if that group is the victim of discriminatory redistribution--that is, if the state's

    economic policies or taxation schemes systematically work to the disadvantage of that

    group and for the benefit of others, in the absence of any sound moral justification for this difference in treatment. Third, I argue that under certain conditions a group is justified in seceding if doing so is necessary for the preservation of its distinctive culture or form of

    communal life. Each of these conclusions is a sharp departure from what is often taken to be a central feature of liberal individualism: the exclusive preoccupation with individual rights and a corresponding failure to appreciate the importance of community or group

    membership for the individual's well-being and very identity.

    Hence if I am to be convincingly convicted of the charge of "individualism," that will take some showing. My critic would have to specify the sense in which the view developed in

    this book is individualistic and what it is about this (at best rather attenuated)

    individualism that is defective. More specifically, she would need to show that there is some incoherence or other flaw in the idea of a moral-political framework that includes

    both individual rights and collective rights. In Chapters 2 and 5 1 provide a positive defense of the mixed approach, arguing that the most plausible account of what rights are makes it clear that there are both individual and group rights. There I also argue that an "individualistic" justification can be given for group rights, but that the relevant notion of individualism is wholly innocuous and

    -xiv-

    affirms, rather than denies, the value and centrality of community in people's lives.

    I prefer to think of this volume as making a case for significantly modifying liberalism, for pruning back its excessively individualistic elements. But I have no strong objection if

     some should see it instead as a rejection of liberalism, so long as they understand that it is not a repudiation of the individual rights associated with that theory but, rather, an attempt to supplement them.

    This is not to say, however, that what follows is neutral with regard to disputes between

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