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Sovereignty in Historical Context for Self-Sovereign Identity - Natalie Smolenski


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Natalie Smolenski is an anthropologist who leads business development for Learning Machine, a blockchain technology firm specializing in self-sovereign digital identity. As an author and public speaker, she focuses on the intersections of identity, technology, and government. By bringing a scientific perspective to distributed digital technologies and social transformation, she helps audiences from all backgrounds understand how individuals connect to form communities and build the infrastructures of the future.

This presentation reflects the first installment of a wider project examining the origins and potential of self-sovereign identity. While the term “self-sovereign identity” has become commonplace within digital identity circles and in the media, what it means in theory and in practice is hotly contested. In this project, Natalie examines various cultural, legal, and technical approaches to both sovereignty in general and self-sovereignty in particular in order to better understand what is being contested and why–and what the stakes are. This presentation kicks off the project with a historical overview of some of the approaches to and questions about sovereignty within the European (theologico-) political tradition and sets the stage for the next installment, which more closely examines the connection between sovereignty and value.

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Sovereignty in Historical Context for Self-Sovereign Identity - Natalie Smolenski

  1. 1. Sovereignty in Historical Context Natalie Smolenski SVP Business Development Learning Machine @NSmolenski Photo by Matthew Henry on Unsplash
  2. 2. Animating Question What Is Sovereignty? A theory about the nature and derivation of power in human societies. Theories of sovereignty are usually used to account for state power. However, states are not the only actors who exercise sovereignty. Homage of Edward I to Philip IV from Jean Fouquet’s Les Grandes Chroniques de France
  3. 3. Animating Question What Is Sovereignty? Most states claim their sovereignty derives from transcendental ideals like God(s), Justice, Law, or “the will of the people.” Accordingly, sovereignty is characterized by both identity and difference between the source of power and the instrument that wields that power. This overlap and tension has given rise to violent political contestation throughout human history.
  4. 4. Mediaeval Political Theology
  5. 5. – Paul, Letter to the Romans, 13:1 (NIV) “Let everyone be subject to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God.”
  6. 6. – The Norman Anonymous, c. 1100 “He said ‘Render unto Caesar the things that are Caesar’s,’ and did not say ‘unto Tiberius the things that are Tiberius’. Render to the power (potestas), not to the person. The person is worth nothing, but the power is just. Iniquitous is Tiberius, but good is the Caesar.”
  7. 7. All Power Derives from God ● Norman Anonymous: 11th-12th century cleric. ● Power is a property of the NATURE of a thing. ● As all power comes from God, the powerful partake of the NATURE of God. Office is irrelevant. ● Human kings are deified by the “grace” of the sacraments. Power is conferred liturgically. ● Kings have dual NATURE: human and divine.
  8. 8. The Investiture Struggle ● Sparked by Pope Gregory VII’s insistence on the pope’s sole right to appoint bishops. ● Dictatus papae (The Papal Dictation) (1075) ● Triggered 50-year conflict between the papacy and kings, particularly Holy Roman Emperor Henry IV.
  9. 9. The Investiture Struggle ● Resolved by Concordat of Worms, 1122 CE: ● Emperors may no longer appoint bishops, but they preside over elections, make appointments in case of disputes, & invest bishops with power “by the lance”. ● Bishops carry military obligation (fealty) to Kings.
  10. 10. Introduction of Roman Law ● Justinian: Roman Emperor (r. 527 - 565) ● Corpus Juris Civilis: Rewriting of Roman Law completed under his decree. ● Rediscovered by Western Europe during 11th century. ● Foundation documents of the Western legal tradition. ● “Not the Prince rules, but Justice though the Prince.”
  11. 11. Introduction of Roman Law ● Gratian: Canon lawyer from Bologna. (12th Century) ● Decretum Gratiani ● Sources: Roman law, the Bible, Church Fathers, papal decretals, acts of church councils and synods. ● Foundation of Canon Law until 1918
  12. 12. Sovereign: Above & Subject to Law ● John of Salisbury (1120 - 1180): English philosopher and Bishop of Chartres. Wrote Policraticus (1159): ● “The Prince is the Image of Justice.” ● The Prince is both: ● Legibus solutus (above the Law) - as “persona publica” ● Legibus alligatus (serf of the Law) - as “persona voluntans”
  13. 13. Sovereign: Above & Subject to Law ● Frederik II: Holy Roman Emperor (r. 1212-1250) ● Liber Augustalis: collection of Sicilian Constitutions written by Bologna-trained jurist Petrus de Vinea (1231) ● Revives foundational narrative of conferring sovereignty onto the Prince by Roman Quirites (citizens): lex regia ● Emperor = lex animata (the Living Law). Father and son of Justice (as Christ is to Mary). ● Frederick declares himself free from laws but bound by Reason (Ratio).
  14. 14. Law Is Sovereign, But Can’t Bind the King ● Henry of Bracton (1210-1268) ● On the Laws and Customs of England ● The King is bound by Natural/Divine Law, but this also confers upon him extraordinary rights and powers. ● Bracton uses example of Quirites to stress constitutionality of King’s power.
  15. 15. – Henry of Bracton (13th Century) “[What has pleased the Prince is Law]—that is, not what has been rashly presumed by the [personal] will of the king, but what has been rightly defined by the consilium of his magnates, by the king’s authorization, and after deliberation and conference concerning it…”
  16. 16. 13th Century Baronial Wars ● Unpopular English Kings: John; his son, Henry III; and his son, Edward I; faced multiple rebellions from Barons. ● Grievances included Baronial indebtedness, lack of due process, onerous and arbitrary taxation, growing Royal monopoly on forest use; and perceived Royal encroachment on the rights of the Church and cities. ● Magna Carta drafted to enshrine Baronial rights vis-a-vis King and end Baronial Wars. ● Council of Barons becomes English Parliament, established to approve extra-feudal taxes. ● Cases could not be brought against the King, but could be brought against His officers.
  17. 17. Split: Feudal vs. Fiscal ● FEUDAL: King’s private property ● FISCAL: property of the State (public, communal, semi-holy) ● Barons confine their disputes to the fiscal-domanial sphere. ● The “fisc” becomes “the Crown”—abstracted notion of Kingship that cannot die. It is the res publica—the “public thing.” Its property is inalienable.
  18. 18. Sovereign: Property-Owning (Collective) Subject ● “Corpus Republicae mysticum,” the mystic body politic, based on “corpus Ecclesiae mysticum”—the mystic body of the Church, an eternal community. ● Church property = res sacrae. It is eternal and belongs to no one/God (res nullius). It may never be alienated. ● State property = res publicae/res quasi-sacrae. It is eternal and belongs to no one/the fisc (res nullius). It may never be alienated. ● Decretum of Gratian: “Hoc tollit fiscus, quod non accipit Christus.” “What is not received by Christ (the Church) is exacted by the fiscus (the State).”
  19. 19. Is Sovereignty Unitary or Plural? ● Medieval notions of sovereignty were often totalizing, yet plural. Led to constant conflict. ● Sovereign medieval entities included: ● Competing Churches which claimed universal sovereignty over the course of human salvation. ● Emperors and kings who claimed sovereignty within their territorial jurisdictions and also laid claim to salvific roles. ● Cities, neighborhoods, and families considered sovereign in different ways. ● Different religious & economic groups living under the same King or Emperor able to formulate and practice their own laws.
  20. 20. Modern Sovereignty
  21. 21. Sovereignty: Modern Definitions ● Merriam Webster, 2018: ● a : supreme power especially over a body politic ● b : freedom from external control : AUTONOMY ● c : controlling influence ● Oxford Public International Law: ● Supreme authority within a territory. ● Principles: ● Territorial jurisdiction ● Immunity ● Non-intervention
  22. 22. Is Sovereignty Unitary or Plural? ● Modern notions of sovereignty can be described as more unitary than mediaeval notions: States (notionally) have full sovereignty within their territorial jurisdictions. ● Largely derived from Peace of Westphalia, which ended the horrific 30 Years War in 1648. ● Even if State power is divided, it is divided within a single political regime. This has afforded the State historically unprecedented power. ● Modern theorists of the unitary (state) sovereign: ● Jean Bodin ● Thomas Hobbes ● Niccolò Machiavelli ● Jean-Jacques Rousseau ● Carl Schmitt
  23. 23. What Limits the Unitary Sovereign? ● Niccolò Macchiavelli (1469 - 1527) ● Sovereignty is a good in and of itself. It means an independent and self-determining political entity. ● Sovereignty is limited by inevitable ill fortune and by the power of other sovereigns. Only Fortuna and power can check power. ● Sovereigns must establish their independence as quickly as they can and maintain it for as long as they can. Most sovereignty comes to an end.
  24. 24. What Limits the Unitary Sovereign? ● Hugo Grotius (1583 - 1645) ● Sovereignty is limited by Natural Law, a set of general moral principles to which all people assent. This includes a right to self-defense, to punish those who have done one wrong, and to reward those who have treated one well. Draws on Roman notions of ius naturale and ius gentium to formulate the first expressions of international law that don’t rely explicitly on Christian moral and legal precepts. Draws parallels between individual and national sovereignty.
  25. 25. What Limits the Unitary Sovereign? ● John Locke (1632 - 1704) ● Sovereignty is self-limiting, because it is based on a two-way social contract. Humans are social and enter into social contracts with one another by and within the Law of Nature. Sovereign people “deed” some of their natural rights (which they continue to retain) to a Sovereign, who rules by their consent. If that Sovereign is unjust, the people may take back their rights and appeal to Heaven for a new ruler. The Sovereign, in turn, models themselves on God, who has limitless power but binds himself only to will and do what is good. In this way, both parties to the social contract self-limit their sovereignty.
  26. 26. What Limits the Unitary Sovereign? ● Baron de Montesqueue (1632 - 1704) ● Sovereignty doesn’t have to be, but should be, limited by the separation of powers. Without the separation of powers, there is no effective check on the abuse of sovereign power. He proposed the separation of powers into three branches: executive, legislative, and judicial. He based his model on the Constitution of the Roman Republic and the nascent British constitutional system.
  27. 27. Self-Limiting Sovereignty: Constitutionalism ● Constitutionalism: representatives of a Sovereign entity develop a framework for governance. ● The Constitution can be considered Sovereign in that the powers and responsibilities of State actors derive from it and are in principle limited by it. ● Alternatively, the authority from which a constitution derives its legitimacy (i.e. “Heaven;” “the people;” “the governed”) may be what is considered Sovereign.
  28. 28. Absolute Sovereignty: Constitutionalism ● Constitutionalism is often mistakenly equated with self-limiting sovereignty. ● In fact, Constitutions can define the exercise of power by the State or particular State actors in ways that refuse to bind the ruler to the law: i.e. “Bractonian” constitutionalism. ● Constitutions may also do away with the separation of powers: i.e. the “Enabling Act,” a constitutional amendment that allowed the Executive Branch to make laws bypassing Parliament under Nazi Germany. ● The doctrine of the “State of Exception” allows State actors to suspend Constitutional limits to their power, ostensibly when extraordinary measures are required to preserve the existence or integrity of the State. ● What begin as “states of exception” frequently become new norms and laws, establishing enduring extra-constitutional rule by powerful State actors.
  29. 29. Questioning Sovereignty Today
  30. 30. Sovereignty: Power Alone, or Also Responsibility? ● Does Sovereignty carry a moral imperative in addition to the characteristic of autonomous authority over a jurisdiction? ● Is the Sovereign obligated to provide for the common good? ● Sovereignty as responsibility for the common good doesn’t get enshrined in Peace of Westphalia, but persists in political theory, national constitutions, religious traditions, and non-religious ethical thought. ● Connected to justice and just war doctrines in Christianity and Islam.
  31. 31. Contingent Sovereignty ● Today, some humanitarian interventionists argue that heads of State can “default” on their sovereignty if they egregiously and consistently violate human rights (a 20th-century evolution of Natural Law). This approach has been called “contingent sovereignty.” ● Yet the United Nations Charter doesn’t allow for humanitarian exceptions to the principle of non-intervention. ● The Security Council is allowed to intervene only if a nation makes a threat to the peace of other nations. But even then, the targeted nation retains a right to self defense.
  32. 32. Contingent Sovereignty Raises Questions ● Who arbitrates whether the Sovereign has failed to secure the public good? On what basis? ● Who arbitrates whether the Sovereign has violated Law, Justice, or Reason? On what basis? ● What measures may be taken against the Sovereign?
  33. 33. The Next Chapter Takeaways A Sovereign body politic may endure indefinitely without either a constitution or separation of powers. Limitations to unitary power are not necessary for statecraft. However, a Sovereign who violates what subjects or others believe to be the source of its power—God(s), Law, Reason, Justice—may find its sovereignty challenged. “God the Geometer”
  34. 34. The Next Chapter Next Questions If not necessarily through governance vehicles like a constitution or separation of powers, on what basis does a sovereign state cohere? What implications does this coherence have for the sovereignty of non-state actors? “God the Geometer”
  35. 35. Principles of Sovereign Cohesion ● 1. War ● Hegel: War tests whether the State can hold as a sovereign collective. Sovereignty is only meaningful if it is recognized, and War is the vehicle for that recognition. ● 2. Property ● The Fisc / Crown / Commonwealth names the collective body of territory, real estate, reserves, and balance sheet that defines the body politic. ● 3. Currency ● The existence and functioning of the State must be financed. The State finances itself largely through taxation. Taxes must be paid in a legally recognized form of currency. The value of currency has a direct impact on the purchasing power of the State. Hence, most sovereign states mint their own currencies. ● Historically, war has been the primary State activity financed by taxation.
  36. 36. Connect to follow the evolution of this project Thank you Natalie Smolenski SVP Business Development Learning Machine @NSmolenski