'The Metaphysics of Statehood' by David Tan in (2018) 31(2)
Canadian Journal of Law and Jurisprudence comments
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. In one of the classic texts on States in international law, James Crawford notes that
‘[a] State is not a fact in the sense that a chair is a fact, it is a fact in which a treaty is a fact: that is, a legal status attaching to a certain state of affairs’.
This seems like a proposition about metaphysics (i.e. a proposition about the nature of reality). How can we distinguish between facts about institutions (such as States) and facts about things like chairs? If we do discover the nature of institutional facts, then what does this tell us about Statehood? What are these existing state of affairs that Crawford claims the status of Statehood is attached to? Despite the similar questions both metaphysicians and international lawyers are asking, little research has been done to place debates about State recognition within the framework of analytic metaphysics.
This paper attempts to remedy this gap and show that metaphysical enquiry can shine light on debates in Statehood formation. In particular, there is a subdomain of metaphysics called social ontology that explains the nature of social and institutional facts. The main goal of this paper is to show that social ontological theories classified as Groupjective Internalism can be used to defend Constitutive Theories of Statehood formation. Constitutive Theories are theories that require entities be recognised by other States in order for those entities to be States. This is a significant conclusion as Constitutive Theories are not well regarded by many international lawyers. One caveat is that this paper aims to show that Constitutive Theories are true if Groupjective Internalism is true. This paper will not defend Groupjective Internalism itself but I argue in Section 2.1 that assuming its truth is neither problematic nor uninteresting.
This paper’s argument is roughly as follows: Internalist theories of social ontology posit that the existence of institutions (including States) depend on certain groups of people having beliefs about those institutions (e.g. believing that States exist). Hence, States exist only in virtue of some group believing that they exist. Who are these groups of people that must believe recognise that some entity is a State? I will introduce the notion of Groupjectivity, a term coined by Tuomela, to show that these groups must be other States. Since both Internalism and Groupjectivity stipulate that some entity is a State only when other States believe that it is, this is tantamount to the Constitutive Theory. Lastly, I show that social ontology can also deal with the problem of relativism which is frequently raised against Constitutive Theories.
Section 1 will introduce social ontology and will explain why it is important for debates about Statehood. Section 2 will then introduce Groupjective Internalism. Lastly, Sections 3 and 4 provide a defence of Constitutive Theories of Statehood.
