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Published online by Cambridge University Press: 03 August 2018
This paper considers the connections between the Statehood/recognition debate in international law and social ontology. I aim to show that certain theories of social ontology, which I call Groupjective Internalism, can be used to defend Constitutive Theories of Statehood. Among philosophers whom I consider committed to Groupjective Internalism are major figures in the field: Searle, Gilbert and Tuomela. This is an interesting result as Constitutive Theories are generally looked upon with suspicion in international law.
The author owes a special debt of gratitude to Patrick Emerton and Jayani Nadajaralingam who have both read through numerous versions of this paper. Additionally, comments from Jason Grant Allen, Thomas Harre, Peter Lawrence, Jan Mihal, Dale Smith and the attendees of the 2014 Melbourne Doctoral Forum on Legal Theory and 2015 Australian Society of Legal Philosophy Conference have been very helpful. Thanks also to the CJLJ anonymous reviewer.
1. Crawford, James, The Creation of States in International Law, 2nd ed (Oxford University Press, 2007) at 5.CrossRefGoogle Scholar
2. I have only found two published articles analysing international states from a metaphysical perspective. Edward Robinson, “An Ontological Analysis of States: Organisations vs Legal Persons” (2010) 5:2 Applied Ontology (2010) 109; Sebastian Jodoin, “International Law and Alterity: The State and the Other” (2008) 21 Leiden J Int’l L 1. There is an unpublished paper by Jason Grant Allen, “Of Cabbages and Kings: ISIS and the Nation State” which deals with Searle and Statehood although in a slightly different way from this paper. He also briefly touches on the topic in an editorial note: Jason Grant Allen, “What is Transitional Constitutionalism and How do we Study it?” (2014) 3:4 Cambridge J Int’l & Comp L 1098. None of these papers however have addressed the Constitutive-Declaratory divide in statehood formation which is the focus of this paper.
3. The oft-repeated line in most international law commentaries is that Constitutivism is dead. See Crawford, supra note 1 at 21; Shaw, Malcolm N, International Law, 6th ed (Cambridge University Press, 2008) at 447;CrossRefGoogle Scholar Dixon, Martin, Textbook on International Law, 7th ed (Oxford University Press, 2013) at 134-35;CrossRefGoogle Scholar Hall, Stephen, Principles of International Law, 3rd ed (Lexis Nexis, 2011) at 199–200.Google Scholar
4. This at least is the project as laid out by Searle, John, The Construction of Social Reality (The Free Press, 1995) at 1–4.Google Scholar Epstein is more abstract about the point of social ontology. For him social ontology defines social facts and explains what their building blocks are. He does not commit to the building blocks being brute facts. Brian Epstein, “A Framework for Social Ontology” (2016) 46: 2 POS 147 at 147, 149.
As a terminological point, there is some debate whether facts “exist” or “obtain”, but I will use the term exist here given that it is a term that Searle uses as well. I also am not entirely precise whether I am referring to facts or objects/particulars, but this distinction does not affect the substance of my arguments.
5. This is not a radically new idea in law in general. The recent project by Scott Shapiro to reduce legal facts to social facts would also support this approach: Scott Shapiro, Legality (Harvard University Press, 2011). More practically, in Australian constitutional law it has been suggested that the power to legislate on marriage, copyrights and bankruptcy, do attempt to hook on in some way to social institutions that exist external to the constitution. Michael Stokes, “Meaning, Theory and Interpretation of Constitutional Grants of Power” (2013) 39:2 Monash U L Rev 319 at 322.
6. Crawford, supra note 1.
7. Stephen Hall, supra note 3 at 194-95.
8. Kingsbury, Benedict, “The International Legal Order” in Tushnet, M & Cane, P, eds, The Oxford Handbook of Legal Studies (Oxford University Press, 2005) 283.Google Scholar
9. See, for example, Buchanan, Allen, Justice, Legitimacy and Self-Determination (Oxford University Press, 2004) at 102;Google Scholar Rawls, John, The Law of Peoples: With “The Idea of Public Reason Revisited” (Harvard University Press, 2001).Google Scholar
10. Originally elaborated by Hume, there is a literature that develops this: Julian Dodd & Suzanna Stern-Gillet, “The Is/Ought Gap, the Fact/Value Distinction and the Naturalistic Fallacy” (1995) 34: 4 Dialogue: Canadian Philosophical Rev 727; Hare, RM, The Language of Morals (Oxford University Press, 1952);Google Scholar Moore, GE, Principia Ethica (Cambridge University Press, 1922);Google Scholar John Searle, “How to Derive an ‘Ought’ from an ‘Is’” (1964) 73:1 Philosophical Rev 43.
11. Ibid.
12. To be precise these criteria fall under meta-metaphysics.
13. Ted Sider, “Ontological Realism” in Chalmers, David, Manley, David & Wasserman, Ryan, eds, Metametaphysics: New Essays on the Foundations of Ontology (Oxford University Press, 2009) at 385;Google Scholar John Searle, “The Limits of Emergence: Reply to Tony Lawson” (2016) 46:4 J for the Theory of Social Behaviour 400 at 404.
14. This argument assumes that simplicity applies not just to theories of social ontology but theories of theories of social ontology (i.e., meta-social ontology).
15. My claim is not that theorising social ontology is logically necessary to theorising about meta-social ontology. My claim is much weaker and lies at a pragmatic level (rather than logical necessity): if one wants to do metatheoretical reasoning, one practically needs to have some basic knowledge about the theories that they are reasoning about. For an analogous debate in moral philosophy, there is disagreement whether metaethical theorising requires theorising about ethics. See Tristram McPherson, “Metaethics and the Autonomy of Morality” (2008) 8:6 Philosophers Imprint 1.
16. Margaret Gilbert, On Social Facts (Routledge, 1989) at 58; FA Hayek, “The Fact of the Social Sciences” (1943) 54: 1 Ethics 1 at 2-3; John Searle, supra note 4 at 23-26; Thomasson, Amie, “Artifacts and Human Concepts” in Margolis, Eric & Laurence, Stephen, eds, Creations of the Mind: Theories of Artifacts and their Representation (Oxford University Press, 2007);Google Scholar Tuomela, Raimo, Social Ontology: Collective Intentionality and Group Agents (Oxford University Press, 2013) at 220.CrossRefGoogle Scholar
17. Elder, Crawford, “On the Place of Artifacts in Ontology” in Margolis, Eric & Laurence, Stephen, eds, Creations of the Mind: Theories of Artifacts and their Representation (Oxford University Press, 2007);Google Scholar Patrick Emerton, “Political Freedoms and Entitlements in the Australian Constitution—An Example of Referential Intentions Yielding Unintended Legal Consequences” (2010) 38:2 Federal Law Rev 169; Rebecca Mason, “Social Ontology Naturalised” [unpublished manuscript] online: personal website, http://www.remason.org/uploads/8/1/2/6/8126749/social_ontology_naturalized_march_2015_draft.pdf. I would also add Durkheim as belonging to this group since he thinks of social facts as lying outside the consciousness of individuals. However, note that Gilbert has given an internalist reading of Durkheim as being committed to group beliefs (so perhaps social facts are not within the consciousness of individuals but in the consciousness of the group). Durkheim, Emile, The Rules of Sociological Method, translated by Hall, WD (The Free Press, 1982) at 51-52. Gilbert, ibid at ch 5.CrossRefGoogle Scholar
I would add that this is not the same debate as the holist and individualist debate (i.e., the debate whether we explain social facts based on groups or the actions of individuals in the group). One can be an individualist and an externalist: the proper explanation of social facts is at the individual level, but it is only about their external actions and not their mental states. One can also be a holist and an internalist: the proper explanation of social facts is at the group level, but a complete explanation is in regards to collective mental states.
18. Sally Haslanger & Jennifer Saul, “Philosophical Analysis and Social Kinds” (2006) 80 Proceedings of the Aristotelian Society Supplementary at 99-100. Haslanger’s original example is used to illustrate a different distinction from the one I discuss here.
19. Mason, supra note 17, calls this the Standard View in social ontology. This assertion is backed up by the fact that major figures in the field subscribe to some form of internalism, supra note 16.
20. Supra note 2.
21. For a more detailed defence of this see John Searle, supra note 13.
22. Searle, supra note 4 at 8-9.
23. Searle does not clearly state what he means by “depends”. As stated before I too do not try to define the relation.
24. The question is what then do we do with mental states? We want to say they are brute objects, but they seem to be dependent on human intentionality. Searle’s answer to this (as I interpret him) is to introduce the distinction between observer-relative features and intrinsic features of reality. He defines intrinsic features of reality as ‘[features] that exist independently of all mental states except for mental states themselves, which are also intrinsic features of reality’ (supra note 4 at 12). Observer-relative features are properties of an object that is only describable in terms of relations with an observer. A mental state is not observer relative as in a world with only one thinking person, he would still have a mental state even if that person was not aware of it himself. Social facts are observer-relative but not intrinsic. Some might think that the definition of intrinsic features of reality is rather ad hoc, but I shall leave it to others to defend. Searle, supra note 4 at 9-13.
25. Searle, supra note 4 at 23-26; Searle, John, Making of the Social World (Oxford University Press, 2010) at ch 2;CrossRefGoogle Scholar List, Christian & Pettit, Phillip, Group Agency: The Possibility, Design and Status of Corporate Agents (Oxford University Press, 2011);CrossRefGoogle Scholar Margaret Gilbert, supra note 16; Bratman, Michael, Faces of Intention: Selected Essays on Intention and Agency (Cambridge University Press, 1999); Raimo Tuomela, supra note 16.CrossRefGoogle Scholar
26. Admittedly this is a rather short and oversimplified elaboration of a complex topic. For further reference see ibid.
27. Searle, supra note 4 at 8-9. I have added the term “individual”, which is not found in Searle, to avoid the charge that “This burrito costs $5” cannot be epistemically objective since it is dependent on the attitudes of society in general towards money.
28. Tuomela, supra note 16 at 220.
29. This is my own slight modification to Tuomela’s groupjective thesis. Firstly, Tuomela claims that all group-social facts (i.e., group constructed social facts) are groupjective, not just those having to do with the existence and nature of institutions (ibid at 219). I don’t think this is true. Consider “Burritos are 5 Australian dollars”. This proposition describes a fact that involves the institution of Australian money, but it can be correctly asserted about burritos in Malaysia (i.e., by converting the Malaysian ringgit to Australian dollars). By limiting groupjectivity to propositions about the existence and nature of institutions, I get rid of these kinds of counterexamples.
Secondly, there is an issue of how to deal with propositions that contain the group that accepts the social institution, e.g., “The Prime Minister of Australia is Malcolm Turnbull”. This proposition seems true in any group—e.g., it would be true even for a Frenchman or American. Nevertheless, this proposition already has the group context built into the proposition via the phrase “of Australia”. Hence these kinds of propositions are already groupjective despite being true for people outside of Australia.
30. In fact, Tuomela claims that Truth Groupjectivity entails epistemic objectivity for a group. See ibid at 220.
31. Searle, supra note 4 at 27-28.
32. The original formulation was just “X counts as Y in C”, see ibid at 27-28 and 38-40. However, in Searle (supra note 25 at 99) we get this more elaborate version separating the Y and the F.
33. Some might say that for States, we should follow Smith and Searle’s freestanding view instead, where there are no underlying X’s, just the collective acceptance that “entity Y has the function F in C”. See Smith, Barry, “John Searle: From Speech Acts to Social Reality” in Smith, Barry, ed, Searle, John (Cambridge University Press, 2003) at 19–25; Searle, supra note 25 at 100.Google Scholar
34. Searle, supra note 4 at 57.
35. Tuomela, supra note 16 at 225.
36. Ibid.
37. Ibid at 226.
38. Ibid.
39. See generally, Armstrong, David, Truth and Truthmakers (Cambridge University Press, 2004).CrossRefGoogle Scholar
40. Tuomela, supra note 16 at 219.
41. Ibid at 224.
42. Ibid.
43. “…we are not just creating Y status functions for their own sake but to assign powers—positive, negative, conditional, and so on—to actual people by relating them to the Y status functions created”, Searle, supra note 26 at 102.
44. Ibid.
45. ‘The system, once accepted by the participants, commits them to the acceptance of facts within the system.’ Ibid at 103.
46. Gilbert, supra note 16 at 8.
47. Ibid at 237.
48. I should note that Gilbert’s view of a collective belief does not reduce to individual beliefs. See ibid at 290.
49. Ibid at 308.
50. Ibid at 306.
51. Ibid at 411.
52. Supra note 3.
53. Crawford, supra note 1 at 4-5; Malcolm Shaw, supra note 3 at 445-46.
54. Crawford, supra note 1 at 5.
55. Tuomela, supra note 16 at 26.
56. Crawford, supra note 1 at 5.
57. In the Searlean context, Searle explicitly mentions the indirect method (supra note 25 at 99) but not the direct method. He was also possibly making something of this distinction when talking about codification (supra note 4 at 53).
58. See, generally, Wetzel, Linda, Types and Tokens: On Abstract Objects (MIT Press, 2009).CrossRefGoogle Scholar
59. Thomas Grant, “Defining Statehood: The Montevideo Convention and its Discontents” (1999) 37 Colum J of Transnat L 403 at 408.
60. Crawford, supra note 1 at 31.
61. Art 1, Montevideo Convention on the Rights and Duties of States, 26 December 1933, 165 LNTS 19.
62. Shaw, supra note 3 at 202.
63. Amy Eckert, “Constructing States: The Role of the International Community in the Creation of New States” (2002) 13 Journal of Public and International Affairs 19 at 23.
64. Rothwell, Donald, Kaye, Stuart, Akhtakavari, Afshin & Davis, Ruth, International Law: Cases and Materials with Australian Perspectives, 1st ed (Cambridge University Press, 2010) at 278-79.CrossRefGoogle Scholar
65. James Crawford lists the capacity to enter into legal relations and independence as two different criteria, supra note 1 at 61-63.
66. In Reference re Secession of Quebec [1998] 2 SCR 217, 227. It is unclear if the right to secession through self-determination is available in contexts other than decolonialisation (see Hall, supra note 3 at 213-14).
67. This is the notion that ‘an entity is not legitimate if it comes into being by displacing or destroying a legitimate state by a serious act of injustice’. Allen Buchanan, supra note 9 at 264.
68. Thomas Grant states that since the demise of the Soviet Union and Yugoslavia, some theorists propose that have argued that a condition for statehood was that a successor state seceded in a way as allowed by the constitution of parent state (although Grant does disagree with this). Grant, Thomas, The Recognition of States: Law and Practice in Debate and Evolution (Praeger Publishers, 1999) at 99–106.Google Scholar For more on internal constitutions as a requirement see Alan James, “System or Society” (1993) 19 Rev of Int’l Studies 269 at 269.
69. Grant, supra note 59 at 431.
70. Grant, supra note 59 at 96-98; Eckert, supra note 63 at 26; Dixon, supra note 3 at 135.
71. HLA Hart, The Concept of Law (Clarendon Press, 1961) at 868-69. Hart describes it as societal pressure/demands/customs, but I shall assume the concepts are roughly interchangeable.
72. For example, Crowe argues that using Searle’s theory of social ontology leads to natural law. Jonathan Crowe, “Law as Artifact Kind” (2014) 40:3 Monash U L Rev 737 at 752.
73. Dixon, supra note 3 at 134 states that relativism is an ‘insoluble theoretical and practical problem’. Crawford, supra note 1 at 5, mentions that some people will find the notion of relativistic states as ‘a violation of common sense’.
74. I would think that Hans Kelsen would agree with this approach as he once stated: ‘[T]he legal existence of state … has a relative character. A state exists legally only in its relations to other states. There is no such thing as absolute existence’. Hans Kelsen, “Recognition in International Law: Theoretical Observations” (1941) 35 Am J Int’l L 605 at 609.
75. For further reference see Searle, John, Intentionality: An Essay in the Philosophy of Mind (Cambridge University Press, 1983) at ch 5 andCrossRefGoogle Scholar Searle, John, Rediscovery of the Mind (MIT Press, 1992) at ch 8.Google Scholar
76. Searle, supra note 4 at 129; Searle, supra note 25 at 31.
77. Ibid at 147.
78. Tuomela, supra note 16 at 218.
79. Ibid at 215.
80. Ibid at 217.
81. Karl Menger, “On the Origin of Money” (1892) 2:6 The Economic Journal 239 at 250; Hayek, FA, Law, Legislation and Liberty (University of Chicago Press, 1973) ch 2;Google Scholar Emma Tieffenbach, “Searle and Menger on Money” (2010) 40 POS 191; Tony Lawson, “Comparing Conceptions of Social Ontology: Emergent Social Entities and/or Institutional Facts?” (2016) 46:4 Journal for the Theory of Social Behaviour 359 at 367.
82. Tieffenbach, ibid at 203.
83. Ibid at 202.
84. Ibid at 191-92.
85. Tuomela, supra note 16 at 220.
86. Ibid at 230.
87. Tieffenbach, supra note 81 at 192; Lawson, supra note 81 at 360.
88. For a survey of the vagueness literature see Timothy Williamson, Vagueness (Routledge, 1994).
89. Crawford, supra note 1 at 234.
90. Ibid at 237.
91. Ibid at 238.
92. Supra note 17.
93. Quentin Skinner, “A Genealogy of Modern State” (2009) 162 Proceedings of the British Academy 325.
94. Robert Sugden, “Spontaneous Order” (1989) 3:4 J Economic Perspectives 85.
95. Ibid at 91.
96. Ibid at 97.
97. A strategy J is an ESS if for all strategy’s I, playing J against J is better than I against J. For simplicity let us label the strategy of recognising a State as R and not recognising as NR. Playing, R against R and NR against NR meets this requirement as they are better than playing R against NR and NR against R respectively. See John Maynard Smith & George Price, “The Logic of Animal Conflict” (1973) 246 Nature 15 at 17.
98. Sugden, supra note 94 at 97.
99. Ibid at 91. Cf David Lewis, Convention: A Philosophical Study (Harvard University Press, 1969).
100. In the literature on conventions, the reasons for having more than one ESS is due to the arbitrariness of conventions. Consider a convention of what side of the road to drive on. The convention might arise that we all drive on the right side or left side of the road. There is however nothing intrinsically better about the right or left side of the road, which is why conventions are considered arbitrary. Andrei Marmor, “On Convention” (1996) 107(3) Synthese 349 at 349.
101. Sugden, supra note 94 at 96.
