Humane Studies Review

Volume 8, Number 1 Fall 1992

Secession, Group Rights and the Grounds of Political Obligation

by John Tomasi

Book Review

A review of Allen Buchanan's Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec (Boulder, CO: Westview Press, 1991)
Was Lincoln's decision to wage the American Civil War, a war to save the Union, a horrible moral mistake? (see note 1) If the contemporary generation of Estonians and Latvians had a right to secede from the state in which they found themselves, then do the Ukrainians, Moldovans and Uzbeks? Do Petersburgers and Muscovites? Should there now be two sovereign nations on the northern border of the United States, Canada and Quebec? Is there any moral reason why Texas must remain part of the United States? Must Hawaii? Must Vermont? If groups, such as Quebecois and Estonians, may rightfully secede from the nation states in which they find themselves, then might individuals, people such as you and me, have a right to secede as well? In a stimulating new book called Secession, Allen Buchanan provokes thought about many questions like these.(see note 2) By the end of Buchanan's excellent discussion, one finds that these questions -- questions that surface in newspapers every day -- have led to pressing issues at the very base of political theory. Along the way Buchanan is a very lively, provocative guide. Secession is an intellectual journey that I highly recommend you make.

What is secession? Like revolution or emigration, secession is a way of challenging political authority. But, Buchanan says, secession presents that challenge in its own distinctive way. The aim of the political revolutionary is to overthrow the existing government or to force very basic changes in the constitutional, economic, and/or sociopolitical system. By contrast, the secessionist aims not at dissolving (or radically altering) the state's power but at restricting the jurisdiction of the state in question. Unlike the revolutionary, " the secessionist does not deny the state's political authority as such, but only its authority over her and the other members of her group and the territory they occupy" (p. 10). Emigration offers another way a group may challenge or free itself from the authority of a state. As Buchanan says, members of a religious or ethnic group may claim a right to emigrate from a state and thus remove themselves from the state's jurisdiction without thereby challenging the state's claim to authority as such (that is, without challenging the state's authority over citizens who remain behind). Unlike a right of revolution, a right of emigration challenges not the state's authority per se but only the state's authority to control exit from the state's territory. Buchanan says, " secession, by contrast, is an effort to remove oneself from the scope of the state's authority, not by moving beyond the existing boundaries of that authority but by redrawing the boundaries so that one is not included within them" (p. 11). The contrast between emigration and secession reveals a crucial point about secession: unlike emigration, secession necessarily involves a claim to territory (p. 11).

Different kinds of secession can be distinguished depending on the geographical situation of the seceding group. There is what Buchanan calls " central" or " hole-of-the-donut" secession where the seceding group claims title to territory completely surrounded by the remainder state; " peripheral" secession is more common, where the area laid claim to is part of but not wholly imbedded in the remainder state (pp. 14-15). Typically, secession is undertaken by minority groups, but Buchanan says this need not be the case: the path of secession can be taken by a majority of people (p. 15). Further, the secessionists may constitute not only the majority of the people of the existing state, they may also lay claim to the larger share of the existing state's territory (p. 16). Secession may be " local" or " national" : if a group in some political county secedes to form a new county within the existing political system, this is an example of local secession; national secession, where a group exits from the sphere of the existing state's authority, is more familiar and is the form of secession on which Buchanan focuses (p. 15). Finally, the right to secede is usually claimed to be held by groups rather than by individuals. While Buchanan calls the question of individual secession " intriguing," he adopts the term " individual independents" for individuals who claim a right like a secession right, and reserves the term " secessionists" for groups only (pp. 13-14). These distinctions noted, Buchanan can define the right of secession: " a right to secede is a right, ascribed to a group, to engage in collective action whose purpose is independence from the existing state, where the coming to be independent includes the taking of territory" (p. 75).

Buchanan identifies and evaluates no less than twelve distinct arguments that might be advanced as justification(s) for a right to secede. Let's consider the most important of these.(see note 3)

Perhaps the most important and rhetorically powerful pro- secessionist argument is what Buchanan calls the " Pure Self- Determination" or " Nationalist" argument. This argument for secession is based on the idea that every people is entitled to its own state: thus, as a matter of right, cultural boundaries and political boundaries should coincide. The United Nations General Assembly Resolution 1514 explicitly endorses this nationalist principle of self- determination, declaring that " all peoples have the right to self- determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development" (quoted at p. 48). But Buchanan says that the principle of self-determination is either too indeterminate to be of much use (since " people" is so ambiguous) or it is implausible because it leads to so much fragmentation (since pluralism is so much a part of modern nation states) (p. 49). Buchanan suggests that the popular appeal of this principle depends precisely on its vagueness. He says this principle " is a kind of placeholder for a range of possible principles specifying various forms and degrees of independence" (p. 50). It is the power of these more basic principles that explains the attractiveness of the nationalist banner. According to Buchanan, central among the more basic principles for which self-determination serves as a place-holder is the principle that a group may secede to protect its culture from being destroyed (p. 50). We shall consider that principle shortly. But as a self-standing argument for secession, Buchanan concludes that the nationalistic principle of self- determination is " one of the least plausible justifications" for secession (p. 48).

A much better justification for secession, and indeed perhaps the strongest one, comes into play when a group secedes in order to rectify past injustices. As Buchanan says, this argument has application to many actual secession movements in the world, notably those of the Baltic Republics. By this rationale, a region has a right to secede if that region was unjustly incorporated into the existing state (p. 67). Such unjust incorporation could happen in either of two ways: " the seceding area may have been directly annexed by the currently existing state" (as with the Baltic Republics); or " it may have been unjustly acquired by some earlier state that is the ancestor of the currently existing state" (as with Bangladesh's secession from Pakistan, which, along with most of the Indian subcontinent, previously had itself been incorporated into the British Empire by conquest) (p. 67). In either form, the argument for secession as a way to rectify past injustices is powerful because in such cases " secession is simply the reappropriation, by the legitimate owner, of stolen property" (p. 67). The right to secede, in such cases, is an instance of the general right of a person to reclaim what is his own. The argument from rectificatory justice is perhaps the most potent grounding for a right to secede because this sort of justification directly delivers one crucial desideratum of a claim to secede: a valid claim to territory.

Indeed, so important is the territorial claim component to any putative right of secession, and so directly is that component delivered by the argument from rectificatory justice, that one might believe that secession could only be justified by a rectificatory claim to territory. (see note 4) However, Buchanan is right to reject this position as being implausibly strong. For, as Buchanan says, there are valid non-rectificatory justifications for secession.

For example, Buchanan says a group may have a right to secede if that group is seeking to secede from a state " in order to protect its members from extermination by that state itself" (p. 65). By elaborating on the historical case of a group of Polish Jews who from 1941 to 1945 battled to establish and maintain a Jewish sanctuary state in a portion of Poland (that was occupied by Germany), Buchanan claims that self-defense can in some cases provide a compelling justification for a group's having a right to secede (p. 66). Note that in self-defense cases, the pro-secession justification does not itself rest on a valid territorial claim: the concern from which the justification gets its push is not a concern about territory but the concern that the group avoid extermination. Therefore, Buchanan says, there are powerful moral justifications for a right to secede that while not founded on a valid territorial claim can nonetheless generate one.

One of the most interesting nonrectificatory justifications of secession arises when a group wishes to secede in order to preserve its cultural identity. Buchanan sets out five conditions that must be met for secession to be justified by the preservation-of-culture argument. First, the group's culture genuinely must be in jeopardy (p. 61). Second, less drastic ways of preserving the culture -- such as so-called " group rights" (see below) -- must be inadequate (pp. 56-9, 61). Third, the culture must not, like a Nazi culture, be itself pernicious and below minimum standards of justice (pp. 56, 61). Fourth, " the group must not be seeking independence in order to establish an illiberal state, that is, one which fails to uphold basic individual civil and political rights, and from which free exit is denied" (p. 61). Finally, " neither the state nor any third party can have a valid claim to the seceding territory" (p. 61).

Of the twelve pro-secession arguments Buchanan discusses, the cultural preservation justification raises the most difficult theoretical questions. First, each of the five conditions required for such a right to obtain raises questions of its own. For example, how do we know when a culture is in " genuine jeopardy" rather than merely undergoing a natural transformation? And when, in a liberal state that recognizes private property, does a state ever have a valid claim to property? (see note 5) Second, Buchanan says that the most often heard pro- secession argument -- the argument from nationalistic self- determination -- is a rhetorical placeholder for the cultural defense argument (p. 50) (see note 6); yet Buchanan also says of the cultural defense argument that, because of its five conditions, this argument is " of rather limited utility" and will " only rarely" justify secession (p. 64). But does that mean that many of the most familiar and moving secession arguments, the ones so often headlining recent news reports, may be fallacious? A third set of questions raised by the cultural preservation argument is still more theoretical, and goes straight to the heart of one of today's most heated academic disputes: the debate between communitarians and liberals. The debate is between liberal individualists and their communitarian critics, who worry that the liberal emphasis on individual rights tends to corrode the more harmonious forms of interpersonal attachment that make human life worth living at all. (see note 7)

Buchanan says the dispute between communitarians and liberals is arguably " the most vigorous debate of contemporary political philosophy." Interestingly, he suggests in another place that " one reason for the current impasse in this debate may be a failure on both sides to take seriously the possibility of secession as a way of preserving a general commitment to the liberal framework while accommodating the fact that there are some forms of community that may not be able to flourish within it but which it would be wrong to force to conform" (" Toward a Theory of Secession," Ethics Vol. 101 [January 1991], p. 324). Because Buchanan views secession as a group right, and because Buchanan offers his argument in favor of secession rights as a solution to the liberal/communitarian debate, we can locate Buchanan as one of those who think liberalism should reply to the communitarian critique by recognizing group rights, instead of only the more traditional individual ones. Buchanan is not alone in adopting this view. In the last several years, several liberals -- most notably Will Kymlicka -- have argued that a commitment to liberal principles positively calls for the recognition of group rights. Kymlicka, whom Buchanan cites approvingly (pp. 38- 40, 53-54), argues that the way for liberalism to preserve communities is for it to recognize special group property rights and language rights for cultural minorities, such as Inuit or Quebecois in Canada. (see note 8) Buchanan advocates secession as merely the most extreme of the group rights that liberalism can recognize in order to make room for community (pp. 74-81, 148).

However, it is far from clear that recognizing " group rights," including group secession rights, is the best way for liberals to meet the communitarian challenge. And, to return to a question raised in the beginning of this essay, why should we assume that secession need be supported by a group right at all? Can individuals have a right to secede? Buchanan thinks they cannot, since he thinks a group's right to secede cannot without loss be reduced to a collection of individual secession rights. This is because " it is impossible to spell out the content of the decision in which the individual has a right to participate [that is, seceding as part of a group] without referring again to the group" (p. 76). He concludes, "if an individual right is one that...can be exercised independently by an individual, then the right to secede...is not an individual right" (p. 76).

But note that Buchanan's argument assumes, quite without warrant, that the conceptual possibility of one's having a right to participate in some action depends on the conceptual possibility of the action's being described wholly in terms of rights-talk. Plainly, this needn't be so. People who have individual rights can use those rights to engage in collective actions of all kinds, even when a description of those (complex) actions cannot be reduced without loss into lists of the rights of the participants. A description of the rights people have is only one ingredient in the description of many of the things people choose to do -- including many of the most interesting and significant things they do. (see note 9) As a conceptual matter, the shift to individual secession rights requires only a shift in the rhetoric of secession: from " As a matter of justice, my group may be allowed to secede" to " As a matter of justice, every person here is free to secede if he wishes and, by the way, we in my group have decided to secede together right now."

I suspect that Buchanan's reluctance to think in terms of individual secession rights is rooted not in a conceptual worry but in a practical one. Recall that one reason Buchanan rejected the Nationalistic Self- determination argument was his worry that, in a world of deeply pluralistic nation states, this grounding for secession might lead to endless fragmentation. In another place, Buchanan describes as a reductio ad absurdum the slide from recognizing secession rights first for large groups, then for smaller ones, and finally for individuals. About the (" absurd" ) end of that slide, Buchanan jokes " not Everyman's home his castle; rather, Everyman's yard his country" (p. 102). (see note 10)

But there is no reason to think that if a liberal state recognized individual rights of secession that state would find itself subdivided into a patchwork of quarter-acre countries. High costs of exit, along with other considerations, including perhaps an awareness of the benefits of cooperation, would likely make it fairly unusual that people would take the drastic step of asserting their right to secede and building perimeter fences. Still, it may be important for a state to recognize rights held by individuals even when individuals would not (or even should not) exercise those rights by asserting the claims associated with them. (see note 11) If individuals have a right to secede, one way each may exercise his right is by asserting his claim and exiting his political community. But a citizen's recognition of his right to exit politically also empowers him to do something very different: he may withhold his claim and remain, with his land, a part of his political community. When the state recognizes that each citizen may rightfully secede when he chooses, and yet when (many) citizens choose to stay on, an important transformation occurs: citizens become politically empowered by being made responsible for their participation, day by day, in the political project of their state.

Some professed libertarians will no doubt agree with me that liberalism should recognize an individual right of secession, yet they may feel that my argument has taken a seriously wrong turn. They might say, " What's wrong with Everyman's yard his country?!" The point of individuals having rights to secede, they will say, is to enable people to do just that. After all, libertarianism is all about the minimal state: what better way to get there than by breaking up nation states yard by yard?

A view that is anarchistic in that sense does not deserve the title " libertarian." For libertarianism need not involve a commitment to the minimal state. (see note 12) Rather, libertarianism is a commitment to the recognition and protection of a strong set of individual rights, central among them rights to property and to contract. What people, individually or collectively, choose to do with their rights, how they use their rights to bind themselves with one another, is something about which " libertarianism" has little to say. This suggests the possibility that libertarianism is not so much a thesis about the breadth of legitimate political obligation, but about the nature of it: it is the thesis that the state, whatever its form or girth, is legitimate only when it exists by the choice of each of those subject to it.(see note 13)

Reflections on an individual right to secession reveal that there are two different understandings about the goals of one's commitment to libertarianism, about the hopes one has for a society where many other people come to share that commitment. By the first understanding, the goal of libertarianism is to break down modern nation-states so that self-owning individuals will be set free. But a second understanding of libertarianism expresses a different hope: by it, the aim is not so much to take down modern society but to transform it. By the second view, one advocates radical libertarian change not so that people will be " made free" but so that they may come to be bound to one another in the appropriate way. The difference is no small one.


Notes
1. For an excellent historical discussion of this question, see Sheldon Richman " The Anti-War Abolitionists: The Peace Movement's Split over the Civil War," The Journal of Libertarian Studies, Vol. 4, No. 3 (Summer 1981).

2. At least, Buchanan's arguments help us with all these questions but the last one, the one about individual secession. I'll have more to say about that below.

3. Other pro-secessionist arguments Buchanan discusses include the argument from liberty (pp. 29-32), from the good of furthering diversity (pp. 32-3), from satisfaction of the limited goals of political association (pp. 35-6), from making entry easier (pp. 37-8), from escaping discriminatory redistribution (pp. 38-45), from enhancing efficiency (pp. 45-8), and the argument from consent (pp. 71-3).

4. This is the position of Lea Brilmayer, who argues that a group's possessing a valid claim based on rectificatory justice is a necessary condition of that group's possessing a right to secede (see Brilmayer, " Secession and Self-Determination: A Territorialist Reinterpretation," Yale Journal of International Law, Vol. 16, No. 1, January 1991, pp. 177-202).

5. For discussion of this question, see Lea Brilmayer's " Consent, Contract, and Territory," University of Minnesota Law Review Vol. 74 (1989).

6. Note, though, that Buchanan does not say that the self- determination principle is always or only a placeholder for the preservation of culture argument.

7. Two major communitarian texts are Michael Sandel's Liberalism and the Limits of Justice (Cambridge: 1982), and Alasdair MacIntyre's After Virtue (Notre Dame: 1984). The classic exposition of the debate is Amy Guttman's " Communitarian Critics of Liberalism," in Philosophy and Public Affairs Vol. 14 (1985). I suggest an individualist solution in " Individual Rights and Community Virtues," in Ethics Vol. 101 (1991). For a fascinating alternative solution, see Stephen Macedo's Liberal Virtues (Oxford: 1990). I review Macedo's solution in Ethics Vol. 102 (1992).

8. Kymlicka argues that cultural communities provide individuals with a context for choice, and since liberal justice is based on the importance of choice, liberalism should recognize those group rights required to preserve cultural choice contexts (Liberalism, Community and Culture [Oxford: 1989]). For a critique (and a reply by Kymlicka), see Chandran Kukathas, " Are There Any Cultural Rights?" and Kymlicka, " The Rights of Minority Cultures," both in Political Theory Vol. 20 (February 1992).

9. For example, people can get themselves married even without there being a group right to marriage. Justice does enough toward getting people " down the aisle" when it sets out individual rights protecting spouse-selection. It simply doesn't matter that it is impossible to spell out the content of the notion " marriage" without referring again to a group (i.e. the couple) rather than just to individuals and their discrete marriage-related rights.

10. Buchanan rejects that reductio (which he considers as an objection to secession of any sort) because it assumes, unlike Buchanan, that secession must be an unlimited right (pp. 102-4). Note that in the text I too reject that reductio, but for a very different reason (a reason that stands with or without the assumption Buchanan rejects).

11. I examine this idea at length in my Oxford D.Phil. thesis, Liberalism Beyond Justice: A Conceptual Model for Liberal Community (1992).

12. This claim, and the argument that flows from it, are controversial. Their controversiality turns mainly on how one understands the term " state." Because I am not prepared to offer an account of the word " state" in this essay, I offer the following argument only as a suggestion. I hope soon to develop these ideas in another essay devoted to these problems.

13. A rich discussion of the role of choice in political obligation is Plato's Crito. A good modern treatment is A. John Simmons' Political Obligation (Princeton University Press, 1979). Buchanan discusses consent as a justification for secession at pp. 70-3.


John Tomasi is an IHS R.C. Hoiles Postdoctoral Fellow and a Visiting Research Fellow at the University Center for Human Values, Princeton University. He is completing his D.Phil. in Philosophy at Oxford University.

Copyright 1992 by the Institute for Humane Studies.

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