The State and Its People

In On the People's Terms, Philip Pettit argued that we are, now and around here, fated to a political condition of state-bound life. It thus matters whether we have reason to affirm the state as an instrument for, and medium of, the realization of justice. It is to address this issue that Pettit's new work The State takes up the task of providing a vindicatory genealogy of the modern constitutional state. The book is divided into two quite distinct parts. The first part is a genealogical account that is intended to provide a functional account of the emergence of the state as a political form. The second part is focused on showing that the emergence of specific functions within the state is intrinsic to the state fulfilling its overall functional role and, crucially, enabling it to move beyond simply fulfilling that role in the direction of realizing justice. In Part 1, Pettit is concerned with providing a genealogy of the state in terms of its function that, he argues, “is to establish and entrench a regime of law under which citizens enjoy a realm of individual security” (p. 66). The first chapter provides a general and persuasively argued account of why human social interactions will give rise to conventions, norms, and laws—and, in contexts of settled agricultural societies, to territorial states. The basic structure of the argument is to show, first, that a David Lewis–type argument concerning conventions can be extended to collectively beneficial but individually burdensome norms given the operation of an economy of esteem; second, that a Hart-type argument concerning the indeterminacies of a system of social norms can take us from the inconveniences of such a system to a legal system; and, finally, that to resolve potential problems confronted by a legal system requires a (skeletal) state whose function is not merely “to resolve indeterminacy, inflexibility, and inefficiency in law” but also “to impose the law coercively on all citizens; to assert a claim to the monopoly right on the use of coercion; to introduce and police the territorial boundaries of the jurisdiction; and to establish a defensive-aggressive profile in relation to other regimes” (p. 60). Having established what he takes to be the function of the state and shown that it would emerge under a fairly general set of conditions, the following two chapters engage in the task of showing that performing this function gives compelling reasons both to incorporate the state so that it can act as corporate agent with a single (sovereign) voice and to adopt a (moderate) decentralized constitution. Pettit's efforts to show that these two aims, traditionally seen as opposed, are compatible make for one of the most interesting discussions in the book. A central move here is to assign sovereignty to the polity as a complex differentiated whole. In Part 2, Pettit aims to show that the functional state can deliver a range of benefits to its people. It will, against absolutists, be able to accommodate exercises of countervailing power by the people. It will, contra radical libertarians, be able to institute and respect important individual rights. It will, against advocates of laissez-faire economics, be able to intervene productively in the market economy. For myself, the most original and intellectually engaging of the arguments that Pettit advances here concerns his discussion of the collective powers of citizens as “the people” of the state. Against the absolutist claim that the people cannot intelligibly exercise power against the sovereign, Pettit introduces the helpful idea of a “spandrel right,” that is “an unintended and inescapable by-product” (p. 183) of the functional operation of a system of right. Hence, he notes that jury trials that serve the function of enabling the accused to be judged by their peers enable as a by-product the right of juries to nullify the law regardless of the directives of the judge and argues that any type of sovereign constructed by a constitution gives the people a spandrel right to civil disobedience. However, Pettit goes further than this in arguing that the people can also legitimately exercise extra-constitutional power against the sovereign. His key move here is to reject the dichotomy of unincorporated people and incorporated people (still present in On the People's Terms) and the related paradox of constitutional regress by highlighting the point that the idea of the citizenry as engaged in joint agency contrasts with both the disjoint sense of the unincorporated multitude and the collective sense of the people as corporate agent. Pettit refers to the people exercising joint agency as “the incorporating people” and we can think of the people in this sense as the agents of constituent power. A question that arises at this point concerns Pettit's equation of the people with the citizenry. We might reasonably note that the unincorporated multitude is composed of all the individuals who are entangled in the system of conventions, norms, and laws from which the state is precipitated. However, it is entirely possible that only some of these individuals will be constituted as citizens of the state. Who, then, are the subjects of the spandrel right, and who are the subjects of the incorporating people exercising extra-constitutional power? Pettit's response to both of these questions appears to be “the citizens.” As I read Pettit, the spandrel right of civil disobedience is a right only enjoyed by citizens and not those who are subject to the coercive authority of the state but are excluded from citizenship. But then since the excluded have reason to assert complaints and demands even if they do not have a right to do so, they should surely be seen as part of the incorporating people who jointly exercise constituent power. Without an acknowledgment that incorporating people encompasses individuals who are not citizens, Pettit's argument becomes unable to address struggles for citizenship. It thereby confronts a problem analogous to that he poses to the dichotomous view he rejects (p. 200) in that he would be forced to say that when women succeeded in their struggle for citizenship, the (incorporating and incorporated) “people” ceased to exist and were replaced by another “people” which is, as he puts it, “counterintuitive to the point of being absurd” (p. 200). the state that emerges there will appeal to citizens for the protection that it provides against those with whom it is needed, and in the domestic case this means against other citizens, however inclusive that class, not against those who are already subordinate and relatively powerless. (p. 63) This is an odd argument. Power is a positional good. The relevant “agents of power” are not pre-individuated (hence the two basic rules of power: “divide and rule” and “in unity, strength”). So in the context of a society with laws under which only a small group are citizens and the larger masses are not, part of the appeal of the state for the citizens is not simply to protect them against each other but also to make them a unity capable of exercising collective power through the state over the non-citizens and preventing non-citizens from becoming the kind of joint agent that can choose to leave or transform the state. Now if it is the case that the relatively subordinate and powerless are not to be seen as part of the incorporating people of the state, that is, are not to have any claim to the legitimate exercise of extra-constitutional power against the sovereign, then it looks to me that it is part of the function of the state to reinforce the power of citizens over those subject to the state who lack this status. Pettit can resist these problems by disambiguating two senses of citizenship, namely, political citizenship as a status within the state marking out those who possess full rights from those who do not and national citizenship as a status of membership of this state vis-à-vis other states. This disambiguation would enable him to identify those who possess the spandrel right of civil disobedience and the people who can legitimately exercise extra-constitutional power over the sovereign with the class of national citizens. He can then make sense of the struggles of, for example, the Chartists and the Suffragettes as the struggles of national citizens for political citizenship without absurdity and in a way that shows that the function of the state need not be intrinsically tied to reinforcing the power of citizens over those nationals subject to the state who lack this status. This does not entirely get Pettit off the hook since his account would still, I think, be unable to accommodate, for example, the struggles of immigrants (regular or irregular) for naturalization rights. This points to a final worry that I have with the form of Pettit's argument, namely, that like classical social contract theory it focuses on the state in a way that, it seems to me, fails to adequately acknowledge that the function of the state is reciprocally bound up with the function of the system of states of which it is a part. Pettit recognizes that, on his genealogical account, the state necessarily exists among a plurality of states and ties this condition to its function in terms of policing territorial borders and defense, but he does not ask what the function of the system of states that coevolves with the state is and how this may reciprocally shape the function of the state. I have only touched here on a couple of the many arguments that Pettit offers in this densely argued and rewarding work that manages to be simultaneously dry and absorbing, and only on some of the concerns that his arguments will provoke. But everyone working in the field of political philosophy will benefit by engaging with this book. I am grateful to Ludvig Beckman, Richard Bellamy, Seyla Benhabib, Ross Carroll, Sophie Grace Chappell, Peter Niesen, and Ben Saunders for their comments and reactions to earlier drafts of this review.