1. Political facts

John Searle has in what he calls the philosophy of society produced a strong theory of institutions (Searle, Reference Searle1995, Reference Searle2001, Reference Searle2010). The core of that theory is that institutional facts are products of speech acts based in status assignments and generating respected and reiterated we-intentions, agreements and institutions. Jens Stoltenberg is prime minister in Norway – for four years at a time. Soldiers under Norwegian government command are the Norwegian army. Performative speech acts are those that create an institutional reality by stating that the institutional reality exists. They have both world-to-word and word-to-world directions of fit (knowledge: words to world; projects: world to words). An example is money. Certain bits of paper are declared money and therefore, when accepted/respected and applied, have status as money and are then and therefore used for all kinds of economic transactions. Money is a social institutional fact, a fact with a subjective ontology. Governments typically define their own currency. So the simple but powerful Searlean formula for money as an institutional social fact in Norway is ‘the coins and bills of kroners count as money in Norway’; or in general: X counts as Y in context C. Institutions come about through speech acts, agreements, we-intentions, respect for and action on the agreements, the agreements assigning responsibilities. Institutions are weakened when respect for the status wanes.

Searle (Reference Searle1995: 124) suggests that the general theory of institutions can be specified to, for example, political institutions. However, it is in Searle (Reference Searle2007, Reference Searle2010) that a theory of political institutions wielding political power is spelt out. He asks: ‘What sort of power is political power anyhow?’ In answering he limits his concept of political power to deontic power, or power that is assigned to a responsible power-holder and where political actions assign or create new deontic powers, either as rights or as obligations. Brute force is not assigned. The right to use it is. Police can use force against criminals. Criminals may even accept that the police have the right. However, if a government accepts being attacked by the soldiers of another state, then that government is not a representative for an ultimate institution. That government, that state is a subordinate institution. Brute force is not a social institutional fact, because by definition, wielding brute force against another state is not agreed upon by the receiver of such an attack and does not assign the attacked new powers. Rather the opposite. The (successful) attack removes, dissolves the power of the attacked government. In Searle's terms of the political as only deontic, assigned power, war-making is wielding political power only if those attacked support the war-maker.

This is a logical argument given the definition of political power as only deontic power. But the argument is weak logically because of states as ultimate institutions and empirically because a military attack will seldom if ever be respected by those persons and/or institutions directly attacked. There may be others in the attacked society that welcome the attack because they consider those attacked as bad or illegitimate. Use of brute force implies a conflict beyond dialogue or a perception of an uncontrolled, unclear, dangerous situation by the instigators of war. If we see politics as threefold, the creation and constitution of a territorially bordered society, the struggle in that society about its institutional structure and about the (binding) actions of its political institutions, then military and police force would seem to be a constitutive of politics. As both Searle and Max Weber say, no monopoly of brute force, no government.

Searle (Reference Searle2010) retracts somewhat from the idea that to be political, use of force has to have deontic consequences. In the 2010 specification of status assignments Searle admits (contrary to Searle, Reference Searle1995) that ‘some status functions can exist outside established institutions’; and some ‘consequences of institutional facts are not themselves institutional facts’ because the consequences do not assign deontic power (Searle, Reference Searle2010: 23). Searle's example is how the functioning of economic institutions can generate a recession, as a surprise to everyone, without anyone having either the intentions of or specific responsibilities for the unfolding of the recession, and with the recession not assigning new power or responsibilities to anyone. This way of looking at institutions, that they can have – at least immediate – non-institutional consequences, can be a logical opening for the idea that brute force is a political act despite the fact that it does not assign deontic powers to those attacked.

Conflict and oppression are not analytical categories in Searle's theory of institutions. Use of brute force is the obvious strong indication of both. Oppression implies conflict. Oppressive institutions imply that someone or something has to be avoided, and that there are persons inclined to do what should be avoided. Even institutions as such imply exclusion. Might there be a first principle of the evolution of at least political institutions that they emerge against an established institution and often with resistance from it? State-supported soldiers imply conflict. Industrial capitalism arose in at least an implicit conflict to feudal land-based aristocracy and to subsistence small-scale agriculture. Democracy took form in European states against monarchic and bureaucratic power, etc. There is perhaps an evolutionary first principle that political institutions emerge against opposition, and that institutions, once successful, tend towards self-reproduction and conservatism. An implication is that institutions have boundaries, separating members from non-members, and that maintenance of boundaries is a task for all institutions. This evolutionary first principle, if valid, expands the Searlean theory of institutions. They are created through speech acts and agreements, but that creative process in the political domain is set in a context of conflict (to other institutions). If there is no conflict, and no new unrealised demands within existing institutions, it is difficult to understand why political institutions change. If there is no conflict, it is difficult to understand why institutions are oppressive.Footnote ¹

2. Status and power

First, consider Searle's notion of status and power before the 2010 publication. In 2007 he wrote:

Institutional power is deontic power, giving both rights as positive power and generating obligations as negative power. The implication is, if a person or a collective ‘wields the stick’ or applies brute force then that act is not an institutional fact. When a state enters another country with soldiers against that country's government and people's will, as for example the German occupation of Norway or the American attack on Saddam Hussein's Iraq, that act is not a political act or a political institutional fact in Searle's terms. It is the application of brute force. Searle says as much again in Searle (Reference Searle2010):

The ontology of political and brute force is different: political power is deontic; brute force is not. It seems more reasonable to suggest that an occupation, for example the United States’ occupation of Iraq, is the wielding of brute political power, i.e. the United States government using its military force. First intention: deconstruct Hussein's government; second intention: install/elect a government friendly to the United States and its military operation in the country. The military action does not assign deontic powers to the occupied. Searle argues that political force and brute force have different ontologies. My contention is that governments’ use of brute force internally or against another state is an aspect of the wielding of political power. In general, the intentional, planned and acknowledged application of brute force is an institutional fact, of the character newly defined in Searle (Reference Searle2010), as an institutional fact with immediate non- or de-institutional consequences. People are killed. Houses are ruined. Government institutions are broken down.

Searle (Reference Searle2010) does not explicate brute force this way into his theory of institutions. However, he has all along seen brute force as constitutive of states and governments:

This point is repeated: In most cases ‘. . . if no police and no army, then no government’ (Searle, Reference Searle2010: 173). His understanding of the ontology of politics is therefore at least incomplete. Politics, he suggests, is ‘by definition about conflict and its peaceful resolution’ (ibid.: 162). Why just peaceful resolution? He suggests that governments are ‘ultimate’ institutions. How is this special status assignment (‘ultimate’) produced? No suggestion. Why is (any) government dependent upon full control of territory and a monopoly of the legal use of physical violence? He says: ‘The reason that the government can sustain itself as the ultimate system of status functions is that it maintains a constant threat of physical force.’ (ibid.: 171). That begs the question: why the monopoly? Lastly, he has found that especially in democratic societies, governments have deontic control over the military and police forces. But must not that apply in all types of societies, the difference being the extent of the social/elite acceptance of the military and police forces? I might suggest, with low popular acceptance, more internal coercion.Footnote ² My contention is that the evolutionary first principle, force–counterforce, established institution – new agreements, new forms of political organisation – adds a necessary element to Searle's theory of deonticity and institutions. New demands, based in new modes of production, new technologies, etc emanate in new, emerging institutions, confronting/changing/reforming/transcending the existing institutions.Footnote ³ That dialectic is (perhaps) an evolutionary first principle of political institutions, on a par with Searle's theory that institutions are created and reproduced through speech acts.

3. Searle and Schmitt

Searle's specification of political power is reminiscent of Weber's (Reference Weber, Henderson, Parsons and Parsons1947) and Carl Schmitt's (Reference Schmitt and Lomax1996) listings. Political institutions are the ultimate institutions in a society, the super-ordinate institutions that control or have power over the subordinate organisation and practices in a society.Footnote ⁴ Schmitt remarks that politics is a meta-domain giving form to a society without reference to super-ordinate norms beyond the state-building actors’ norms and the standards for subordinate institutions and organisations.Footnote ⁵ The primordial political is therefore physical control of a territory and the drawing of boundaries around it (a society), with the implication that other societies are different and constitutionally external to each other.Footnote ⁶ This implies that politics is engaged in the drawing of boundaries and standardising at some level a society, in defining which people are enough friends to be in a society, and in consequence has borders to other peoples that are not friends in that fundamental sense, peoples which by definition are real or potential enemies for lack of common operational norms and values.

Searle accepts these definitions but argues that democratic states are different.

Searle argues that political contestants in democracies are basically friendly to each other.

Schmitt might not have disagreed. Nation states are units that integrate all at some level of intensity.Footnote ⁷ However, Schmitt's thesis about friend and enemy concerns primarily the relations between states, and by implication, internal opposition also in democracies when it is secessionist. Schmitt's argument is that the primordial political is the delimitation and organisation of societies based in physical force without reference to more universally valid norms, only with reference to the values and norms of the state-makers. For that reason states are in need of brute force in self-defence. Sovereignty is the concept of this autonomy, this basic separation and isolation of nation states from each other and their idea of full control of a territory. Giorgio Agamben (Reference Agamben2010: 62–72) sees the actual possibility of the state of emergency in a nation state as the most clear and intense expression of the sovereign. In that state no agreed-upon rules apply. Everyone is excluded and everyone is included, under the sole power of the sovereign. The global situation is a kind of emergency. Basically there are no rules there.Footnote ⁸ There are no global institutions with the power to implement a set of norms defined as universal. Schmitt was (in 1930) of the opinion that such a situation was good for cultural pluralism. The friend–enemy distinction captures the constitutional void between states. States have monopoly of violence for this reason. There is no ‘super-society’. There are no ‘super-norms’ from which societal differentiation can be deducted. If such a super-society existed, politics might disappear. The super-society norms would become the ‘final’ norms. Universal norms such as common human rights are important, but not as a base for a global state formation.

The primordial political cannot and should not be deducted from external overarching principles because that would imply the existence of a larger, a super-ordinate society – as the origin and social base of those principles. As Linda Bishai and Andreas Behnke (Reference Bishai, Behnke, Odyssesos and Petito2007: 6–7) understand Schmitt:

Because the political is the ultimate community-forming act, the monopoly of violence that states demand and the (possible) killing of the enemy in war have no normative meaning. Both have only an existential meaning: to secure the continued existence of a society against being absorbed into a ‘super-society’.

Therefore in Schmitt's terms, democratic states are as much in need of a monopoly of violence as not-democratic states. Democratic states can as willingly as undemocratic states engage in ‘killing the enemy’. Schmitt's argument is that only when the enemy (state) really threatens a state's existence is war-making justified, and then, as he says, only politically not normatively justified. Schmitt upholds the idea of politics as a wilful/powerful formation of an ultimate society without real reference to a universalised norm and as implication, the government demanding a monopoly over legal use of violence. A plurality of such autonomous societies is a necessary condition for a non-totalitarian world and/or for avoiding a world without politics.Footnote ¹⁰

Absolute control of a national territory under plural conditions is tenuous and can make other states real enemies. Searle adopts the same view. The monopoly of violence is constitutive of governments. Schmitt suggests that states’ monopoly of violence, and use of violence when attacked and when establishing a society, is the prime, primordial political act, upholding (or expanding) a society. Searle does not see it that way. Searle limits politics to areas of agreements, despite the historical reality of war-making. Schmitt suggests that a norm-specific agreement as base for a global state would not be the beginning, but the end of politics, the end of humanity itself.

4. Status assignments

It follows from Searle's theory of accepted abstract status assignments and performative speech acts that power is deontic, assigning rights, responsibilities, etc. Subordinates of the president wield some of the president's authority. This principle of indirect status assignment might also apply to the president's soldiers; the more soldiers and material equipment, the more military power under the president's control. The brute power of the car engine can, so to speak, empower its owner. For example, it makes the implementation of at least some agreements both possible and easier. The same might apply to the brute force of soldiers. Once under the president's control they become an aspect of the institutional power of the president. When they act, they are acting politically, in the sense of acting on behalf of and as part of the president's/the American government's political power.Footnote ¹¹ This is Searle's theory. Abstract status assignments are (nearly) always given to words, people, things and processes. The United States’ invasion of a recalcitrant country (a) probably has acceptance in at least some leading elites in the United States and is in that sense deontic, or an institutional political fact and (b) in the invaded country the action sets (at least) two institutions into a conflict relation: the American government and the government of the invaded country. That wedge, that open space, with two parties in conflict is then a non-institutional effect of the occupation. The conflict is defined by the conflicting parties or by ‘institutions in action’ and in time affects the organisation of society. The use of brute force would in this sense be a political act, a wielding of political power. The implication is that soldiers are both forms of power, both brute force (soldiers in action) and deontic power (soldiers in the American government system). The political power of governments or nation states is a combination of deontic power assumed assigned by a nation and brute force, with control of the latter in the name of assumed nation interests as the constitutive element of both government and society.

5. Why a monopoly?

Searle agrees with the Weberian statement: no governments without a monopoly of legalised control and use of brute force. Searle has tried to explain the monopoly with a reference to umpires in baseball games. Umpires uphold the agreed-upon rules of the game and make binding decisions in unclear conflict situations. The metaphor speaks at best to the role of the police inside states, but hardly to the military monopoly of states. The military protects the state against external enemies. The military is used when negotiation breaks down, or when an enemy suddenly moves into the state's territory.Footnote ¹² The military is there to guard the autonomy and the sovereignty of the state. The space between sovereign states is in principle void of any institution with autonomous brute force.Footnote ¹³ If the government is legitimate, then that weakens the government's need for a monopoly of the use of physical force. With a legitimate government most citizens would probably accept a military establishment and be willing to engage in defending the country's sovereignty. The monopoly, as Schmitt suggests, is better explained in relation to assumed or real enemies of the state, either internally or externally. To speak of baseball teams as enemies seems a misnomer. Rather, as Searle would say, two baseball teams in competition and an agreed-upon set of rules are constitutive conditions for the game. This is his point in Searle (Reference Searle2010:103): ‘This is why we have baseball umpires and criminal courts. Given the system of constitutive rules, did the act in question actually fall within the rule?’ Exactly. Umpires decide on conflicts over existing rules. States are the rules. Brute force is the necessary means for establishing and upholding them and their governments.

6. Boundaries and exclusion

Searle's theory of political power is developed without the time element, without any evolutionary first principle and without highlighting the question, the fact of boundaries. However, all institutions have a history, in effect a time- and place-specific status assignment and therefore boundaries, more or less penetrable. More encompassing institutions, in the sense of encompassing more members and more aspects of their lives, have more powerful boundaries. Adjacent societies where members could directly benefit from resources in the other society, and at present adjacent and other nation states, have the most specific and controlled boundaries. The time element is important for the quality, content and intensity of the status assignments: the police in Norway had a different task and status in 1850 than in 2000. The boundary of a state defines the geographic area where the complex encompassing political status assignments are real and active. It limits the population that comes under the state's authority and its physical power. Markets with money – more weakly – exclude people without money, or without the market-specific currency. The combination of institutionalised values and boundaries are also developmentally important. Changing/modifying institutional status assignments can be more or less difficult. Some members may find it necessary to exit to develop new institutions. New social-cultural formations outside existing institutions may deem the formation of new institutions or radical change of existing institutions necessary for realising their new interests and life values. The possibility of penetrating through existing institutional boundaries may vary. Compare, for example, the difference between the French and British states. French state organisation is specialised, hierarchical and closed to its environment, and so revolutions are quite common. The British state, however, is less hierarchical, with more power to professional groups, and a strong central power, with the consequence that it has more ability to adjust to reformers, without changing the overall value/class orientation of the state (Nettl, Reference Nettl1968).

An institutional status assignment will always generate an inclusion/exclusion process, drawing a more or less precise borderline. Border passing is important. When a person moves from private to public sector, the person is incorporated into a new, public status assignment. When a person is employed in a firm she gains, or takes on some of the firm's status and authority. The same applies to being recruited into the military. The soldier takes on some of the state's authority, some of its status. A soldier fighting a recalcitrant population in another country does not lose that status assignment. The soldier wields (part of the state's) political power through brute force with (usually) immediate non-institutional effects in the enemy country. This is an outline of the evolutionary first principle of political institutions. New nation states are typically created internally in older states or through amalgamation of existing states, through revolutions and wars. When established, they have boundaries and are conservative, reproductive. Governments often have a history of conflict and exclusion, which gradually is transcended through new agreements in civil society, based in new modes of production, new technologies, etc. They replace existing arrangements. New movements in civil society generate new agreements, new demands for institutional organisation. They can gain power and some become new governments. The transition takes the form of a breach (regime change, crisis, revolution, etc) or what Krasner (Reference Krasner1984) called a punctuation of an equilibrium generating a new one.

Searle's theory of the creation of institutions, through speech acts, status assignments, declarations and agreements, implies that all institutions have boundaries. New institutions can take/create a new space beside others, but often they overlay and destroy existing institutions. The latter is nearly always the case for ultimate institutions. Searle has not explicated an evolutionary first principle or the boundary problematic (except for its transformation from a physical to a symbolic form), especially not for political institutions, where boundaries are most important.

The exclusivity of nation states explains partly their lack of interest in popular legitimacy inside other states. They do need a level of acceptance among other governments. Or the opposite relation can pertain. If a state is strong enough on brute force it can do without international acceptance and can wage uninhibited war against other states to expand its control of territory and populations. The British-led opium war against China (Marks, Reference Marks2002), Nazi Germany's expansive war-making (1936–1945) and the American attacks on Vietnam, Iraq and Afghanistan are examples. The United States has warred against many states, but has not itself been attacked by a foreign state. That can in general dull the interest or the insight into the evolutionary conflict aspect of institutions (Judt, Reference Judt2008). In this sense, state boundaries are essential for state sovereignty and a premise for (conflictual and cooperative) interstate relations.

States typically see the world's population divided into nations: one nation, one state (seldom realised). Nations are by definition different. This idiosyncratic identification of the population living within the state's territory is important for state legitimacy. If a state ruled only a section of a larger, culturally unitary population, its legitimacy would be in jeopardy. A separate nation state in Texas or on the west coast of Norway is unlikely for this reason. Norway, Denmark and Sweden share a long common, if conflictual, history and the same language, but are today seen as three nations, each with a sovereign and independent state.Footnote ¹⁴ The three nations are, despite basic similarities, seen as different. If the populations were seen as one Scandinavian nation, the three governments would most likely be regional authorities within one (new) nation state with a common government. States do also actively define nations and make them different (Gellner, Reference Gellner1987, Reference Gellner2006). This difficult and precarious process of national identification and state control of a specific territory is part of the reason for the states’ demand of monopoly over the organised instruments of violence. Without, both secessions from and integration of existing states into new larger ones would probably be much more likely. Schmitt's argument that states integrate diverse population groups within their boundaries and reduce the likelihood of civil wars seems pertinent.

My contention is that an evolutionary first principle of political institutions is their development through a dialectic of power, opposition, conflict and a new (precarious) equilibrium. That principle implies institutional boundaries, the exclusiveness of institutions, their development through external opposition and conflict and their transcendence when new institutions reach a certain level of power.

7. The public–private divide

Searle reiterates the point made by many (e.g., Casanova, Reference Casanova1992; Heilbronner, Reference Heilbronner1993) that nation states typically distinguish between state and society or between a public and a private sector. This is a first principle of nation states. Historically the public–private divide represents a withdrawal of political authority from society, leaving a (regulated) private sector open for citizen initiatives, self-organising and privately owned capital production through wage-labour. The nation state construction opted for individual and group freedom, for freely organised production, and gradually, for democracy. The private sector made open, oppositional political organising possible. With national and local parliaments, social movements could penetrate into the state and gain (a piece of) political power. The distinction made for an expansion of private property. With privately owned firms, markets expanded and competition became a common mechanism, driving forward new technology, more efficient production and more and cheaper products. The monopoly over the legal use of violence has been a counterweight against oppositional and especially secessionist movements. The expansion of wage labour and the rise of labour movements in the wake of expanded capitalist industrialisation in the private sector was an element potentially threatening government power in many countries. If political movements could occupy a piece of the state's territory and organise soldiers there, the stability of governments and the nation state as such would be threatened. Therefore, it seems, with more freedom to society and more industrial technology, more physical brute power was organised into the state. Politics withdrew from society but became at the same time more powerful by increasing the number of soldiers and police under government control. Logically then, only the nation state could legally organise and use soldiers. The right to use soldiers in society became a prerogative of the state, of the government or of the head of state. That right was located firmly in the public sector under the control of whichever government that was in command. Most states allow for the instalment of a general state of emergency. Not only are the political institutions the ultimate institutions. Military power is also the ultimate power.

Nation states can be seen as a format of private property in their own right. Nation states demanded full ownership of the territory under its control. Nation states were thus double systems of private property, defending the relative right of private property internally and demanding absolute ownership of its territory. Control of society had for ages been a question of mustering enough brute force to control a territory. The nation state did not change or transcend that format of rule: first control of territory, then development of society. Absolute government/state ownership of territory was called sovereignty. Precise geographical boundaries defined where that sovereignty would be enforced. Such ownership demanded military force equal to or exceeding that of other actors/states interested in gaining control of the same territory. Absolute ownership easily makes contesters ‘enemies’. Being ahead of contesters created the arms race. Martin Edmonds (Reference Edmonds1988: 2) calls that process the security dilemma. One state's defensive military organisation is the benchmark for the other state's military power. It should for security purposes be a bit stronger, creating a vicious upward spiralling of the military power of states.

In this way the (present) nation state era of political organisation might be called the era of expanded private property. Absolute private property does not admit of super-ordinate norms or actors in the management of property. Nation state sovereignty therefore implies its backing in brute force. It is when private property is relative that it can be (and must be) managed by super-ordinate institutions. No such effective institutions are (as yet) established for powerful management of nation state property. Or, what is the same – nation states have (so far) not accepted ‘citizenship’ in continental or global ‘state-democratic’ institutions (with states as members) with power over resources, populations and territory. The idea/reality of absolute property and the monopoly of legal use of brute force seem therefore related. The security dilemma explains why the power of the military most often exceeds what is needed to keep control of the state's internal population, to avoid civil war. As the late Charles Tilly suggested, nation states are historically and basically criminal-like war-making institutions for elite control of territory, resources, population and foreign threats.

Nation state sovereignty can add an understanding to the democratic form of rule in nation states. Democracy can be a trade-off. Governments need tax money and soldiers from the population. Parliaments and elections admit power to the population. More power to parliaments, more willingness to pay taxes and supply soldiers. Stein Rokkan (Reference Rokkan and Tilly1975) suggested that democracy came late in the (European) state formation process. First there was military control of territory, then elite formation of central institutions and ground rules, recruitment of people into those institutions and gradually elections and (in northern Europe) a last stage of redistribution of resources from rich to poor, called the welfare state.Footnote ¹⁵ Control of territory with brute force comes first. Democracy – if at all – comes later.

8. Unequal agreements

The ultimate character of the nation state (globally) gives it an institutional priority. The constitutive rules of the nation state set limits on the kind of institutions that can be organised within it. Common land and water ownership, worker-owned and managed industry and socially responsible corporations are difficult to establish. Secessionist and revolutionary organisations are largely illegal. Military dictatorships are common, class dictatorships uncommon. In democracies politics is largely limited to value and interest representation (Pizzorno, Reference Pizzorno, Birnbaum and Leca1990). Direct rule, through plebiscites is uncommon, etc. In this sense the nation state everywhere has territorial sovereignty, monopoly of legal use of force and the public–private divide as constitutive rules. Those agreements are unequal. The population is the subordinate. Elites and regimes can arrange institutions differentially within those powers/constraints: adjust the power of sovereignty institutions (military power) and change the public–private balance (in either direction). The nation state structure is thus prior to the organisation of internal institutions and sets limits on internal organisation. The state that emerges from brute force and manages to uphold its power in the international system of states sets the parameters for organised action and institution building within it. Carving out with force a space for a nation state seems to be the (present) primordial political status assignment. In the present interstate system that nation state space has to be upheld by military force. Schmitt (Reference Schmitt and Mouffe1999) argues it is important that it is so. State sovereignty favours cultural pluralism globally and the existence of politics, that is, the right and the possibility of a section of the global population to create and uphold an idiosyncratic and autonomous society. Brute force either in practice or as threat determines where the borders are drawn. State formation using force is in this sense at present a political primitive. The values of the successful state-forming elite constitute the field of acceptable agreements/projects and institution building within the nation state. That can change as power relations in the state change. Therefore, as Searle suggests, the nation state's monopoly on legal wielding of brute force in its territory is the ultimate political status assignment in the modern, European-dominated period of global history (‘No monopoly of force, no government’). The status assignment as state is void, as Searle accepts, without soldiers and military equipment being within the political status and under the effective command of political leaders at the state level. Therefore a triple constitution of the political is needed: a consolidated elite strong enough to control the whole population in the territory, institutions that are accepted and supported at least by that elite and the possibility of wielding of brute force to effectively uphold established borders and chosen basic institutions. The actual distribution of power and support within that triple constitution can vary. In a democracy, for example, the actual wielding of power by the elite can nearly disappear and be overtaken by routine and professional management of institutions because everyone considers the arrangement of institutions as either a natural given or as legitimate.Footnote ¹⁶

The monopoly of violence has at least two formats (a double status-assignment) in nation states, as police and military: the police as a regulatory force internally upholding the law, and the military establishment under government control as a constitutive rule of nation states as such. It is, I suggest, the double private property/exclusionary character of nation states that makes the double monopoly necessary.

Can we eye a post-nation-state scenario? Can a common pool and common property, common land and ocean ‘property’, as developed by, for example, Hardin (Reference Hardin1968) and Ostrom (Reference Ostrom1990), become a common form of ownership generating new forms of political authority and power? The ocean-commons was a strong institutional idea in Norwegian fisheries in the first half of the 20th century, as long as resources were seen as abundant beyond real fishing capacity (Gran, 2010). A move in the direction of common property organisation, multilateral state-citizenship or state-democratic organisations and global agreements between regional political authorities might be such a scenario.

Nation states are built on unequal agreements, or skewed or hierarchic status assignments (basically between rulers and ruled). Carving out a territory for a nation state was (nearly) always a military elite project, hurting many and variously dependent upon popular support. Nation states order internal politics hierarchically, with a government separate from and over the people, more or less for the people and to varying degrees installed/elected by the people. Upholding a country's sovereignty and borders is (nearly) always a question of military power. Soldiers are separated from the population. If military power of a nation state implodes, other states (usually) take over. This basically violent character of nation states is part of the reason why democracy comes seldom and late. Peoples’ freedoms within nation states – and in economies within them – are usually products of a drawn-out mobilisation and struggle, of social–political movements in civil society against governments, against closed privately owned corporations, where success is not a product of rational, open dialogue and negotiations, but usually of movements gaining so much power that their demands are transformed to rights defined in laws and new institutions that supersede existing institutions (the evolutionary first principle). Freedoms are state-assigned freedoms. Freedoms that are not actively defended therefore often deteriorate. The primordial authoritarian/absolutist nation state creeps in on them. People in democracies may influence the election of leaders, but once in power they are (to a large degree – also in democracies) autonomous rulers. The people, through experience and socialisation, may feel strong patriotism. They may support their governments, also when they go to war. The acceptance of the basic nation state order is at present, with the globe divided between nation states, seldom a product of Searlean explicit speech acts, agreements, and common obligations. Such acceptance and support are often an a posteriori process of socialisation, education, integration and training. Searle says as much:

In this sense most agreements within nation states are between unequal partners, even if social movements outside established national institutions now and then permeate into or become government. The Searlean theory is relevant for understanding the formation of the nation state elites and their competitors, and for the organised integration of the population into the nation state. Upholding social and cultural pluralism globally might, as Schmitt suggested, imply that the primordial political act is continuously repeated, of powerful community formation with boundaries to others and without reference to super-ordinate norms and values. If that is correct, then a monopoly of legal use of violence might be a condition for (a) internal peacefulness (the umpire function) despite unequal agreements and (b) a reproduction/defence of community/cultural pluralism globally. Even the European Union as an interstate organisation with some sovereignty over member states is (so far) an elite-driven process, with the elites struggling for project legitimacy. Movements confronting the functionality of nation states and their individual sovereignty and absolute ownership of territory are not common. Multilateral state-democratic institutions, with states as members, such as the United Nations and the European Union, are weak.

9. Weak multilateral institutions

States hardly have mechanisms for testing their legitimacy in populations in neighbouring or other more distant states. For this reason the logical processes of status assignments to governments are largely limited to the population living within the state's territory. Searle's status assignment theory applies primarily to the relation between a government and its population. It hardly applies to relations between states. A hypothesis is that nation state sovereignty has blocked negotiations about and status assignments to multilateral, state-democratic institutions and international agreements across nation state boundaries about common management of territory and relations between state-defined populations.Footnote ¹⁷

Politics can be seen as assigning status to and setting the borders between legal and illegal or between legitimate and illegitimate institutions in the state-controlled territory. In the modern European period from about 1600, creating nation states as the ultimate political institutions has been a main project of European elites.Footnote ¹⁸ The elites’ monopoly of violence has been a major instrument in the formation of nation states. Counterfactually we can argue, with Searle, that without the monopoly of brute force it would have been difficult to give form to any stable nation state or government and to stave off other elites’ separatist ambitions. As Schmitt underscores, nation state sovereignty was historically dissolution of ‘universalisms’, empires and papacy. Democracy was an order in defence of particularisms (demos, peoples). Democracy integrated social groups inside nation states. Universals such as justice and humanity implemented through a global super-ordinate state can rupture all communities, and implemented (by someone, for example, through a global war in favour of humanity) can emanate in totalitarian global rule.Footnote ¹⁹

Occupation of a territory implies the occupant's superior physical power. In general, it can be argued that elite military strength determined the expanse and location of state boundaries. The boundary demarcated a kind of balance of powers. The monopoly was necessary for mobilising state-forming power and an instrument that under democratic conditions could reduce the threat of civil wars. Thus, the legal use of physical force against its own population or against an enemy state is dependent upon precise and absolute state boundaries. The monopoly is related to criminal control inside democratic states, and generally to the imagined and real existence of enemies of the state. All nation state elites or leaderships are engaged in securing, as far as possible, absolute control over a territory and its population. It is when states are willing to assign sovereignty to interstate and multilateral political authorities that those authorities can attain some autonomous military power. Lacking common, transparent and powerful institutions with states as ‘citizens’, each sovereign state will never be fully convinced that a neighbour state or any other state has basically peaceful intentions.

10. Monopoly of soldiers a constitutive rule of nation states

Searle has developed a strong theory of institutions, of the constitution and formation of social institutional facts as he calls it. He has suggested strong connections between speech acts, agreements and the formation – and demise – of institutions. I suggest that an evolutionary first principle, the fact that political institutions develop in a type of hierarchic dynamic struggle, with new institutions emerging on new/changed modes of production and social life, often against established institutions struggling to retain old system power, is a missing link in Searle's analysis of political institutions. That principle makes the boundaries of institutions, their exclusivity and the internal reproduction of their value structures, their internal integration, much more important than what emerges in Searle's work.

The status assignment to nation states is at present that they are ultimate, based in military control of a territory and – in principle – in control of all activities on that territory. The freedoms within them are therefore typically state-assigned rights, products of successful political struggle and legalised. The territory is the absolute property of the state. As Searle acknowledges, internally states typically separate public from private sector. In contrast to the absolute ownership of the state's territory, internally private ownership of land is a relative right. Citizens must succumb to legal government decisions on private property. States hardly accept a similar ‘citizen’ status in interstate and multilateral institutions. The 50 states (and one district) in the United States accept such state citizenship. The European Union has some authority and some police- and legal institutions to make and implement decisions that members are obliged to accept. The United Nations has hardly any such binding decision-making authority, except when the permanent members of the Security Council agree.

The nation state is the premise for subordinate organisation of politics, economics, ethics, legality, etc. Nation states demand a monopoly of legal use of the instruments of violence. Nation state institutions assign political status and authority to the military, to soldiers and to the selected government-managed material instruments of violence. When government soldiers use brute force to attack and occupy a foreign recalcitrant state (i.e. go to war) the brute force of government soldiers is an instrument of political power. After the physical impact the attack affects the deontic powers of the governments in conflict. The use of brute force is non-institutional in Searle's terms in the sense that it is not accepted, not seen as a responsible act, by those who are attacked. However, it seems unreasonable of Searle to limit the concept of the political to only deontic power. Brute force as threat and in use is constitutive of nation state politics, together with the deontic power of nation state governments, their acceptance by at least parts of the internal population.

Searle has compared governments to umpires in baseball games. The metaphor is haltingly useful for grasping the status assignment of governments inside nation states, but, however, a poor metaphor for grasping the character of nation state governments in their relations to each other. Nation states, I argue, have been and still are ultimately established and reproduced from ‘the barrel of the gun’. Their governments turn to the use of soldiers when popular trust and acceptance wanes or for warring against assumed or real enemies. Umpires in baseball games are easily eliminated if popular trust disappears. Baseball games are over when time is out. Nation states are historically created by elites wielding military power. If one state collapses, others take its place. Nation states are primitive institutions, limited in their dependence upon popular trust and (at present) embedded in and reproductive of the institution of private property. Brute force is non-institutional, not deontic power in immediate use, but plays a formative role in creating, delimiting and reproducing independent states and communities, at least in the present stage of nation state organisation of politics globally.