"Can There Be a Right to Secede?" Philosophy 70:273 (July, 1995): 341-362, by R.E. Ewin (University of Western Australia)
Reviewed by Avery Kolers (University of Arizona) ([email protected])
win proposes two necessary conditions for a right to secede. Ultimately,
he concludes that such a right could obtain only in a case where a
member-state of a federation decided to withdraw from the union. In any
other case, Ewin claims, there can be no right to secede. Ewin's necessary
conditions are (1) that the putative right to secede be the type of right
that arises by agreement or special circumstances, not the type of right
that holds universally; and (2) that the seceding party be a "personated"
group.
Ewin separates rights into two types. The first and narrower sense includes rights and duties arising through a "relatively formal relationship that exists between [a] person and some other person" (342). One performs duties of this type not due to the nature of the act itself (say, doing the dishes), but because of the context (say, having promised). The second and broader sense denotes rights "held simply by virtue of their content and not ... at all dependent on legislation, conventions, promises" (342). Ewin argues that the former sense has priority over the latter, except in extreme cases: one cannot commit murder in order to fulfill a promise. Also, the narrow sense is obviously limited to cases relevant to the formal relationship that gives rise to the right: "that I am the parking inspector might entitle me to move your car, but does not entitle me to insist that you buy tickets to the Parking Inspectors' Ball" (343).
The narrow sense of right "requires that one be the sort of being to which it makes sense to attribute a decision" (346). And in order to discover whether a group can be this "sort of being", Ewin applies Hobbes's distinction between a "people" and a "multitude". Since an individual cannot have a right to secede or constitute herself as an independent state, it follows that neither can a multitude of individuals. Rather, a group that could hold this right must be not only a constituted group but "personated" in that "it can commit its members to various things". "[W]hether or not it can produce a uniformity of views amongst the [members], its view constitutes the [members'] view on this matter" (354). Essentially, a personated group has rights like an individual, and then some.
A moral right to secede would permit secession by the holder of that right irrespective of the parent-state's preferences; impeding secession would be morally unjustified. Because the putative right must be understood in the narrow sense, Ewin seems to say that the right can arise only if the treaty (or similar process) under which a personated group entered the federation expires or is abrogated. The secessionist group would also have to have remained personated throughout the period of union. Ewin concludes that cases that meet these conditions, though the most uninteresting of secessionist movements, are the only ones to which a moral right could pertain. In all other cases, it is a question of might, not right.
Ewin's article rests on shaky foundations. First, splitting up rights into these particular two subsets is at best incomplete. He argues that the narrow sense has priority over the broad by saying, "there is some reason to believe" that it does (342), but does not explain this reason. The example he uses to illustrate merely obfuscates: "I should refrain from kicking the cat no matter what, ... but I can be required to do the dishes tonight ... only at the will of the person to whom I promised to do them" (343). I see no decisive reason to regard the narrow sense as prior. Narrow-sense rights apparently decide issues "whenever there is dispute about rights in the broad sense" (345), but then broad-sense rights "show only what limitations there are on any rights (in the narrow sense) that do exist" (349). How could narrow-sense rights be prior if broad-sense rights delimit them? And isn't possession of broad-sense rights the basis upon which anyone can hold narrow-sense rights? There must be something else going on that Ewin fails to capture. Moreover, Allen Buchanan, with whom Ewin disagrees extensively, portrays the right to secede in Ewin's broad sense (348); this implies that requiring a narrow-sense right to secede is contentious. But Ewin merely asserts his position, failing to support it.
Ewin is also unclear on "personated" groups. He contrasts the Royal Automobile Club with a Native American tribe, showing that the former is non-personated because it cannot commit its members to anything and is a casual association of persons with one common interest; whereas the tribe is personated because it can commit its members "as a lawyer can commit a client" (354). But here again Ewin merely describes the categories, failing to offer an explanation of how groups become personated. The intuition he is appealing to is at best weak in less well-chosen dichotomies. Ewin claims that only states seceding from federations could have a right to secede -- "assuming that the federation was formed by independent states" (357). A minority group, though, could conceivably become personated (due to oppression, say) even if it had never been independent or even considered itself distinctive prior to being oppressed. The decisive factor here cannot be pedigree. Moreover, the process of becoming personated in Ewin's estimation is foggy, since each instance requires that the group already be personated. When the group in question is not personated, Ewin says, "the claim [of a right to secede] will be false" (361). But if personation arises from prior independence, which requires personation, then Ewin's explanation goes nowhere.
On some minor points, especially certain criticisms of Buchanan, Ewin is no doubt correct. But since he is at best unconvincing on his two central issues, his analysis fails.