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Secession Battles Better Solved by Rule of Law

Secession Battles Better Solved by Rule of Law
A sticker with a heart in the Spanish national colors is displayed during a military parade on the national holiday known as "Dia de la Hispanidad" or Hispanic Day, in Pamplona, northern Spain, Thursday, Oct. 12, 2017. Spain observed this day amid a significant crisis, as its northeastern region of Catalonia seeks independence. (Alvaro Barrientos/AP)

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Tuesday, 17 October 2017 11:10 AM Current | Bio | Archive

Recent referendums supporting independence of Catalonia from Spain and of Kurdish areas from Iraq reflect confusion about the nature of government and the meaning of democracy.

The relationship between government and governed is fundamentally an involuntary association. As Max Weber put it, the state is "a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory." Mao Tse-tung noted that "All political power grows out of the barrel of a gun." Earlier, St. Augustine observed that "justice being taken away, then, what are kingdoms but great robberies?"

The relation between robber and victim is the essence of an involuntary association.

A right to secede is incompatible with the nature of government. How could people voluntarily withdraw from an involuntary association? The American Civil War correctly determined that states have no legal right to secede.

Brexit, the pending United Kingdom withdrawal from the European Union, is legal because the European Union is not a government. The USSR constitution guaranteed each union republic the right to secede, but it was not a real constitution since its provisions were not legally enforceable.

Involuntary association with government is tolerable if government observes the rule of law, imposing sanctions (deprivations of life, liberty, or property) only on individuals who violate a general rule of action. We can avoid sanctions by obeying the laws, and genuine laws cannot be too draconian since they must apply to everybody.

Democracy offers additional protection, letting voters replace top leaders when they think better ones are available. However democracy is not and cannot be "government by the people," the people being an unorganized mass incapable of doing anything, let alone governing. Democracy is government by some people, limited in what they can get away with by the people.

Elections can put needful limits on existing governments but cannot determine when new governments should be created or existing ones eliminated or divided.

There is no orderly way to implement Woodrow Wilson's famous belief that all "peoples" have the right to self-determination. The key problem lies in determining which individuals will be considered members of a particular collective "people." For deciding who belongs to a group, majority decisions cannot do the job.

Before we can determine whether a majority favors something, the electorate's membership must first be defined. To decide whether residents of Catalonia should be part of the Spanish nation, who should vote? The people of Catalonia? The people of Spain including Catalonia? The people of Spain excluding Catalonia? A local majority may be a tiny minority in a broader context. If the context is debatable, indeed is the principal subject of the debate, everything is debatable.

This is not just a Spanish or Iraqi problem. Boundary disputes are rampant. Should Quebec be a part of Canada? Should Northern Ireland be a part of the United Kingdom, or of the Irish Republic? (Or independent? Or subdivided?!) Should Chechnya be a part of Russia? Should Kashmir be a part of India? What about Hong Kong? The Canal Zone? Kuwait? Israel? Puerto Rico? Scotland? Crimea?

A possible solution to this problem is suggested by American labor law, which faced a similar problem: how to determine the membership of a collective "bargaining unit." The National Labor Relations Act was written by people strongly committed to democracy. The law requires that decisions whether to designate a sole bargaining agent be made by vote of the workers. But the NLRA did not provide for elections to determine which workers would belong to a particular bargaining unit. A vote cannot determine who is to vote.

Instead, the National Labor Relations Board (NLRB) conducts hearings, listens to arguments about which workers should be included in or excluded from the bargaining unit, and authoritatively decides where the boundaries will be. Voting on whether to designate a sole bargaining agent can then proceed.

A world government could provide the same service with regard to secession movements and disputed national boundaries. The U.S. Supreme Court does this when it resolves border disputes between states. The world government would reduce the importance of national borders and make disputes about them less troublesome. But we have no world government.

Even a world agency, empowered only to decide authoritatively when borders are disputed or people seek to merge or disintegrate existing political entities, would be a big help.

Historical maps tracing the last thousand years, even just the last hundred years, make it clear that political systems have always expanded and contracted, risen and disappeared. There is no reason to think today's governments are immune.

Until we have such an agency, the greater importance of borders combined with a lack of principled ways to resolve disputes about them is a recipe for continuing trouble, trouble which sometimes leads to wars.

Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. He received his Ph.D. from Johns Hopkins University in 1966, and has been a National Merit Scholar, an NDEA Fellow, a Woodrow Wilson Fellow, and a Fellow in Law and Political Science at the Harvard Law School. His college textbook, "Thinking About Politics: American Government in Associational Perspective," was published 1981 and his most recent book is "The Case of the Racist Choir Conductor: Struggling With America's Original Sin." His columns have appeared in newspapers in Michigan, Oregon, and a number of other states. To read more of his reports — Click Here Now.

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PaulFdeLespinasse
An agency, one only to decide when borders are disputed or people seek to merge or disintegrate existing political entities, would help. Until we have such an agency, the greater importance of borders combined with a lack of principled ways to resolve disputes about them is a recipe for trouble.
nlra, nlrb
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2017-10-17
Tuesday, 17 October 2017 11:10 AM
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