The Sovereignty Myth: On the Limits of Political Authority

By Dr. Jeff Mirus ( bio - articles - email ) | Mar 15, 2012

Let me try again to make the limited and uncertain character of human government clear enough so that everyone can see the point. My first effort was in yesterday’s commentary, The Immigration Paradox: Blindness is Forbidden. There I attempted to explain, though perhaps confusedly, that no concept of national sovereignty can trump the rights and duties that inhere in the human person. I believe that this point, so obvious to many of us when it comes to intrinsic evils, is lost almost entirely in more complex areas, such as immigration. I offer the following reflections to help close that gap.

All of us grow up in a particular culture and most of us take for granted the conventions of that culture, ascribing to them a certain rightness and necessity that they really do not have. This is particularly true of the arrangements in place for political governance, which control so many aspects of both private and public life. We take for granted that our political arrangements simply are what they are, and we tend to assume that “the way things are” is inevitable and exists by a sort of transcendent right. Catholics are absolutely correct to see the Church in this light, but it is not true of the State. And while they may see this clearly when there is an intrinsic moral conflict, they may be slow to change patterns of thought which are less obviously inadequate.

In truth, however, the very nature of all political authority is provisional and limited. This includes the authority of the modern nation states in which most of us reside. Unfortunately, the precise limitations of this authority are often difficult to articulate. Hence these extended reflections.

The Origins of Political Authority

As I indicated yesterday, there is no specific law or necessity by which different kinds of political authority arise in different times and places. Some societies may inherit a king or a queen, with traditional attitudes about who possesses the right and obligation to rule and who does not, the origins of which are lost in the mist of time. Other societies may have a tribal organization. Still others may enjoy traditions of law which have been worked out slowly through a strong sense of equity. And others may revere specific constitutions, written documents which set forth the precise manner in which political authority will be erected and will function. In some cases, a particular generation may find itself not with a revered constitutional inheritance but with the need to create a new constitution which, for better or worse, will come to be both accepted and revered by future generations.

There is certainly something inevitable, necessary, natural and even right about the evolution of a public authority in general. Public authority arises from the social nature of man, who thrives only in community, and who therefore understands that in addition to individual and private goods there is also something called the common good of the community as a whole. To be stable, peaceful, free, multi-faceted and prosperous, every community needs to attend to such things as defense against external enemies, protection from abusive behavior within, equitable settlement of disputes, fair dealings between the powerful and the weak, the definition and protection of private property, the provision of infrastructures which might otherwise be unattainable, and other similar things which are central to either the protection or the enhancement of the common good.

But the point here is that no particular set of political structures and procedures is inevitable, nor is any political structure (or even an entire nation) morally self-contained. That a particular political order should hold sway over some specific expanse of territory is not inevitable. That the members of a governed community should hold a particular conception of political authority is not inevitable. Nor are these things necessary. Nor are they, in their particulars, ordained by God. Nor do they require unconditional obedience. They are all, every one, provisional. They exist because, by some complex set of events and ideas, they “happened”. I grant that they are widely accepted as legitimate because some form of public order is both natural and beneficial to man. But insofar as they fail significantly in their purpose of securing the common good, legitimacy will be increasingly questioned until such time as, under a new set of pressures and conditions and values, things change.

The two broad and universal principles that emerge from this first reflection are: (1) A public order is natural and normal to the human person because, according to his social nature, the human person can reach his God-given potential only in community; and (2) By whatever means the public order is established and comes to exist, its sole purpose and justification is to serve the common good. Everything else about any particular form of the public order is merely provisional.

Thus even when a particular public order appears in a certain culture as “inevitable”, it remains inescapably provisional. It is subject to continuous evaluation with respect to its justifying purpose. Its decrees, in and of themselves, lack ultimate moral force. The particular shape and scope of its present existence is devoid of ultimate necessity.

An Illustrative Case: Property

We can, I believe, learn something more about the political order from a consideration of how intertwined its affairs are with the basic rights which inhere in the human person. Let us take just one example, the right to property.

Private property is an indispensable means for the human person to root himself in a community, to gain a true stake in community affairs, to secure his future, to express his particular interests and genius, to make a living for himself and his family, to contribute to the well-being of the community and, indeed, to collaborate with God in the finishing and perfection of all Creation. Property is a natural extension of personal identity and human industry. In its varied forms it is also a signal means by which a community as a whole enhances its common good. The Church wisely specifies that ownership of property is a natural human right.

But we should see at once how interconnected this right of property is with the public order. If a man claims to own X, how does he establish his claim to X, such that other members of the community rightly recognize his ownership? If there are competing claims to X, how are they adjudicated? For land in particular, which is initially used in common, how is ownership to be regulated and recorded such that disputes are minimized? When might a claim to ownership be denied because it would infringe on the rights of another or negatively impact the common good?

These questions are both inevitable and necessary, and so the public order is always involved in some way in questions of property—despite the fact that it is the person and not the public order that has the right to own property. At one level this is because of the universally recognized advantage of ownership procedures, entrusted to a public authority to ensure fairness, in order to minimize disputes, avoid violence, ward off chaos and, in short, to protect and enhance the common good. This is a universal pragmatic response to a constant human need. But at a deeper and more theoretical level, public involvement is justified because ownership signifies the personal possession of some portion of what, by Divine decree and the natural law, is destined for the use of all. In Catholic social teaching, this principle is called the universal destination of goods.

Every human right is limited. (This is true even of the right to life; otherwise killing in self-defense, including warfare and capital punishment, would be always and everywhere immoral.) Moreover, rights are closely related to duties, so closely that some theorists argue that they inescapably arise from duties. We can see, for example, that the duty of parents to form and educate their children necessitates the right of parents to choose and control the education their children receive. But again, every right is limited by potentially opposing duties and corresponding rights. Thus I have a duty to protect my neighbor’s child, if I can, from an abusive parent. This right will usually be exercised in the name of the community, with theoretical impartiality by the appropriate political authority; but however exercised, the duty gives rise to a right. For example, we may constrain a parent whose idea of a proper formation and education is to lock his child in a closet for extended periods of time. In addition, of course, the child also has a right to the care a parent has a duty to give.

Now the right to private property is closely linked to my own duty to contribute to my personal well-being, the well-being of my family, and the well-being of the community as a whole. The right to private property may be limited by a failure in these duties, and particularly by a habit of selfish acquisition which significantly undermines the universal destination of goods. Thus according to Catholic moral teaching, a person does not have a right to more property than he can use productively, especially when this competes with the claims of others to possess property, which they also have the right to do, or when a person’s ownership and use of property negatively impacts the common good properly conceived.

Exactly what role the public authority will play in resolving such questions, and how it will arrive at its judgments, will vary widely. How aggressive the public authority should be in looking for “actionable inequities” is certainly questionable. What we will find in all such discussions is that the broad principles involved are difficult to apply with clarity and precision. Especially in what we might call the middle range of cases, the issues at stake are often murky, but they become considerably more obvious and actionable at the extremes.

Thus we learn two new principles about the public order here, while reinforcing an earlier point. First, the public order is inextricably involved in the adjudication of claims about rights which actually inhere only in the human person (and not in the public order itself). Second, the authority of the public order derives directly from the actual rights which inhere in the human person, of which both the protection and the proper limitation are essential to the common good. Third the approaches, mechanisms and solutions adopted by the public order with respect to the issues thus raised are, again, inescapably provisional. As such, they are always and continuously evaluated against the very human rights it is the burden of the public order to adjudicate.

Moreover, as with the possible abuses the public order is called upon to redress, so too with the abuses perpetrated by the public order itself. There can be great disagreement and confusion in the middle range, but the injustice of the political authority becomes obvious as its handling of human rights progresses toward the extremes—or, of course, when it enacts or enforces any rule which is actually intrinsically immoral.

The Limitations of Political Authority

I hope it is well-established now that political authority is essentially linked to the common good, that it is inescapably rooted in the human rights of the community in which it evolves, and that it is subject to moral scrutiny. Another way of saying this is that political authority, to be legitimate, must be docile to the natural law. Government does not in itself generate or possess the principles of morality by which its policies must be shaped. These moral principles come from nature, which is prior to government, and they are native to the persons over which the government, by whatever accident of history, presides. Again, government is ordered to the common good of persons who have, in their very nature, both duties and rights.

The case of punishment may be taken to demonstrate the implications of this moral claim. In most societies, there is near universal agreement that a person acting in his “private” capacity may not apprehend, judge and punish someone who appears to have stolen something. But acting in his “public” capacity, a person may so apprehend, judge and punish. Now note: This is not because the public order has its own special source of morality. It is because societies recognize that, to minimize the evil of injustice and reduce the possibility of social chaos, it is wise to leave alleged criminals to the public authority, an authority instituted (among other reasons) precisely to fairly balance the competing justice claims of the private persons who make up the community.

This wisdom should not obscure the fact that the fundamental morality involved, so far from being ignored or transcended by political authority, is the very ground of its proper service and scope. In the absence of such an authority, it would be both necessary and acceptable for a private person to apprehend a thief, recover his (or his neighbor’s) property, punish the offender, and seek to prevent him from stealing in the future. But anyone who did this consistently and effectively would soon be recognized as possessing public authority. For the prospects for justice and peace are enhanced when such things are removed from the vagaries of human emotion and the cloudiness of personal judgment and reserved by general consent to a more neutral authority representing the “public”. Thus it can become an offense against the common good “to take the law into your own hands.” Nonetheless, the moral claim of the public authority does not derive from its own peculiar vision of the good; the moral claim derives from the natural law, especially as discerned through the corresponding rights and duties of the persons who make up the community in question.

The same is true, to take one final example, of government funding. Taxation is simply the means—however it evolves into its specific form—by which the community funds the public order’s proper role of protecting and enhancing the common good. Neither the purposes for which taxes are used nor the taxing power in itself derives from some invented Reason of State. No, both are conditioned by the matrix of duties and rights of the human persons who are members of the community in question. Taxation itself arises from the inescapable duty of each person, as a social being, to make a positive contribution to the common good of the community of which he is a part and from which he benefits. This is why taxation, properly conceived and implemented within just limits, is not theft.

Immigration Revisited

If I might return to the subject of immigration briefly (the subject of my previous essay), we can now see at once that immigration is one more of those vexing issues which must be morally addressed with the assistance of a public order devoted to the common good. It must not be addressed on mere whim or self-interest, but in accordance with a proper understanding of the rights and duties which inhere in all the human persons involved, among whom there may be competing claims.

Now the Church has formally taught in several places (as I cited yesterday) that the human person has the right to move and/or to migrate. She has also taught that this right to migration must be “for just reasons.” That is, one does not have the right to move somewhere in order to commit immoral acts. And she has alluded to the “rights and duties” of governments to take appropriate steps regarding problems arising from demographic change. All of this is to say that there is a personal right to migrate but, like other personal rights, it is not absolute. Whether this right takes precedence amid competing claims will depend partly on other factors relating to the common good, and will potentially involve legitimate government intervention.

But it would be unjust here to uphold the “rights and duties” of government as if they derive from some special source, as if they do not derive, in part, from the very right of persons to migrate. As usual, the government must adjudicate competing claims in the light of its duty to protect and promote the common good, but this now must be seen to include the good of possible newcomers—who are not, as Pope John XXIII noted, deprived by their foreign birth of their membership in the human family. Again, the policies of government in this matter, as in all others, will be as provisional as government itself. And again, there will be legitimate disagreement and no little obscurity concerning the best course in the broad mid-range of solutions. But moral clarity will more easily emerge at the extremes.

I ask the reader to consider one final clarifying thought before we move on, the question of whether a government may morally erect a barrier around the country it governs so that no person may enter (or perhaps leave) without the approval of the State (I almost wanted to write “the Commisar”). Most would immediately see the evil of this barrier when applied to those who wish to leave a country. Older readers recall the era of the Iron Curtain. But I would like to raise the distinct possibility that a barrier to keep everyone out is also profoundly immoral, though it is a common topic of discussion in the United States.

I make no definitive statement here, but in light of all that I’ve said about the provisional and limnited nature of human government (and therefore about the alleged indisputable authority of the modern State), perhaps we can all rethink any knee-jerk reactions to ensure they are not based on a faulty premise. I recall again John Paul II’s comment: “the Church…asks what the right to emigrate is without the corresponding right to immigrate.”

The Church and Sovereignty

Some commented on my earlier essay with remarks which, to me at least, appear clearly to rely on the dangerous oversimplification of national rights and national sovereignty which frequently afflicts those who grow up assuming that the system in which they live is a system both necessary and good. A key purpose of these reflections is to raise questions about the territories presided over by modern States, and to suggest that the nature of State authority is not nearly as clear as we tend to think.

Moreover, that authority is always morally limited by the complex of rights and duties which inhere in the members of the communities in question, which in an age of globalism increasingly include to some degree stakeholders in that larger human community which spans the whole earth. This point has been made repeatedly by all the social encyclicals of the past fifty years. (It is a point that has too often been denounced as “leftist” by, among others, American conservatives. I am trying to deepen the conversation here.) In any case, all of these factors which condition what I have called the provisional and limited nature of the political order serve to mitigate any reflexive and exalted claims of “national sovereignty”, as if it is sufficient for the purpose of acting morally to have unanswerable physical power over a particular territory. We are not to do things “because we can.”

In conclusion, it may be helpful to reflect on the difference, in these key respects, between the Church and the State. The provisional and indeed morally constrained character of the public order in all its specific political, governmental and territorial forms means that only a very limited notion of sovereignty really applies to nations or to any other political unit. This is in stark contrast to the Church.

Consider that the specific form of the Church did not arise haphazardly out of peculiar circumstances, opportunities and values which vary from time to time and from place to place. Unlike the political order, the Church cannot take a thousand different forms. She has her essential constitution, her structure and her mission directly from God Himself. She is the exclusive custodian of spiritual and moral information which has been revealed not only in some measure to all in the natural law but in greater detail through a special Revelation. She alone possesses the Magisterial authority to define, explain and encapsulate infallible moral principles.

This constitutes a sort of absolute sovereignty under God, and this alone. Sometimes we forget, blinded as we are by the habitual patterns of thought in the culture in which we were raised, that the State has no comparable claim in its own sphere. The Church is neither accidental nor provisional nor capable of being other than she is. The State is all of these things. We do well to keep this in mind when we discuss the alleged authority of the State to do as she pleases, whether within her borders or not. The State has no absolute rights. Nor can she teach the human community any principles of her own. The State is derivative, not primary, even when we have no answer to her power. To think otherwise, even if only when certain challenges make us personally uncomfortable, is to embrace the Sovereignty Myth.

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