Power in Sovereignty and its Popular Legitimation: On the Semantics and Contingency of Popular Sovereignty

Chapter 5
Power in Sovereignty and its Popular Legitimation: On the Semantics and Contingency of Popular Sovereignty

The self-description of society as a democratic polity reflects on the typically modern tension between democracy as a contingent form of government and democracy as an imagined definite form of social totality. It is already present in Tocqueville’s early analysis of democracy as government depending on a shared civic culture which, nevertheless, is historically and socially contingent itself. The notion of the sovereign people as polity representing the collective foundations and moral expressions of society and thus legitimizing power of government is paradoxically countered by the fact that these foundations and expressions need to be communicated by this government and its power structures. Democratic polity legitimizes power of government, yet the same power constitutes such polity and its laws facilitate the semantics of popular sovereignty both materialized and limited by the rule of law.

Theories of legal and constitutional pluralism make a fascinating story of a revival of social theory in mainstream jurisprudence and theory of law.¹ They show that law, like other normative orders, is determined by its social reference and response to the ‘practical regulatory requirements of communal life’.² Despite numerous criticisms of the Weberian concept of law and power by theorists of legal pluralism, this view is surprisingly close to Max Weber’s early sociological findings that structural preconditions of the law’s existence are not exclusively limited to the state and political sovereignty.³ Unlike the Weberian sociology of law, sociological theories of legal pluralism and societal constitutionalism, however, are typical of one particular failure – the failure of methodological and normative depoliticization.

To understand this depoliticization and normative ambitions hidden in conceptual antinomies and theoretical paradoxes of theories of legal pluralism, one has to analyse, for instance, Teubner’s differentiation of le politique and la politique.⁴ While institutionalized politics, state constitutions and the expert knowledge of governing technocrats allegedly threaten to monopolize politics, societal constitutions facilitate a high degree of social autonomy. Instead of formalizing society in the medium of law, they use it to refer to social processes external to the political and legal form. Societal constitutionalism thus involves a paradox of criticizing the political and legal form of la politique while using its concepts to describe non-political processes of self-limitation and self-constitution of different social systems and sectors of global society. The paradox of the political self-denial and external expansion of the concept of constitution is a hallmark of societal constitutionalism which both completely depoliticizes the concept of constitution and gives it the most prominent political role of le politique by relocating it to a higher level of theoretical abstraction and identifying it with both functional differentiation and societal alternatives to institutionalized politics.

Teubner especially calls for the following methodological modifications: disconnection of the constitution from statehood (thus opening the semantics of constitutionalism for transnational regulatory regimes); decoupling the constitution from institutional politics (thus opening the possibility of identifying other areas of global civil society as possible constitutional subjects together with transnational regimes); decoupling the constitution from the medium of power (thus making other media of communication in other specific systems possible constitutional targets).⁵

Teubner’s concepts of fragmented global legal pluralism and societal constitutionalism actually represent a grand critique of power politics and politics in general. Political constitutions are referred to as ‘Beelzebub’,⁶ casting out the devil of the power expansion of the political system by its self-limitation. Teubner feels comfortable when discussing non-state social orders and private transnational regimes as constitutions but desperately seeks to avoid the typical constitutionalist language of constituent and constituted power, and even suggests avoiding the classical political and philosophical concept of ‘self-determination’ in societal constitutionalism.⁷

When discussing the classical differentiation of constituent and constituted power, Teubner even resorts to the physics-driven conceptualizations of a ‘communicative potential’ and ‘social energy’⁸ which merely steers the reciprocal irritations between society and individuals, respectively communication and consciousness, and thus does not represent a specific semantic contribution to the legal and political autopoiesis. However, such an approach reduces the problem of the modern democratic constitutional subject, which is communicated precisely in the difference between constituent and constituted power, to the constitution’s external referencing and ‘the area of perturbation where individual consciousness encounters social communication’.⁹ This interface of individual consciousness and social communication does not indicate any constitution of the people as a collective with political identity or intersubjective communicative power.

Beelzebub’s power remains the same devilish instrument for Teubner even if it comes in the angelic guise of discourse ethics. In fact, he is so uneasy about the differentiation of constituent and constituted power that he wants to leave it to psychologists, medical doctors and priests.¹⁰ Any possibility of a sociological examination of the constituent/constituted power differentiation as specific self-referentiality in both politics (through the medium of power) and law (through the medium of constitutional normativity) is thus lost.

Nevertheless, Teubner’s concept of societal constitutions cannot be easily dismissed as just another project of global civil society and a theory of depoliticization by societal constitutionalism and global governance. It involves the possibility of reformulating constitutional sovereignty as a process of permanent self-constitutionalization by the functionally differentiated systems of globalized law and politics. It also opens the possibility of rethinking sovereignty as part of the functional differentiation that is typical of coupling and structural irritations emerging between globalized law and politics and the symbolic self-descriptions of different polities.

So heavily drawing on Savigny and Ehrlich’s concept of legal science examining the forces silently operating behind legislated laws, theories of societal constitutionalism and legal pluralism, however, need to be confronted by the persistent Weberian question of power, legality and legitimacy of the modern state and other, especially supranational and transnational political organizations. The concept of legitimacy as the transformation of social power into political domination represents a modern sociological response to the political and jurisprudential problem of sovereignty as the transformation of potentia to potestas. The sovereignty question, therefore, is to be reformulated as a sociological question of power structures and the semantics of their legitimation within and beyond the state which cannot be ignored by ever more refined and detailed legal pluralism studies of horizontal legal networks, their global constitutionalizations and spontaneous social evolution.¹¹

Sovereignty, Power and the State in Global Legal Pluralism

As regards functional differentiation and asymmetries in legal and political globalization, Luhmann treated the legal system of global society as ‘a special case’¹² and warned against overlooking huge legal differences in different parts of the globe. In the absence of globally centralized legislation and decision-making, a global legal order, according to Luhmann, evolves through the generalized semantics of human rights and their violations. Legal globalization is facilitated by the general expectation that states, these differentiated ‘segments’ of the global political system,¹³ are responsible for their compliance with human rights and make them an intrinsic part of legislation and law enforcement.¹⁴ The divergence in legal developments at the level of global society, nevertheless, is so significant that it raises the very question of the functionality of a global legal order.¹⁵

Unlike Luhmann, Teubner never doubts the unity of the global legal system and the autopoiesis of its operations beyond the state and international law structures and organizations. Despite this theoretical optimism, global legal plurality, nevertheless, hardly can be interpreted mainly as non-state spontaneous and heterarchical social evolution and constitutionalization, because: a) the state and its hierarchical practices and power continue to be part of the process of legal globalization; b) the process of globalization comes with its specific power configurations and hierarchies beyond the state organization.

Power has not disappeared as the political medium in globalized society.¹⁶ It cannot be removed from global politics by depoliticized governance like caffeine from coffee beans by decaffeination.

Similarly, the trend towards internal heterogeneity and decentralization of the state¹⁷ leads to the reconfiguration of state power rather than its replacement by horizontal forms of depoliticized governance and societal constitutionalism. The state ‘is a central player even in producing its own downsizing’¹⁸ in the process of globalization. State power practices and strategies can lead to both the renationalization and transnationalization of politics in global society. States thus redefine themselves in the global ‘meta-power game’.¹⁹

The state’s decentralization and globalization give rise to internal legal pluralism which, however, replicates and even expands state power practices. For instance, private security companies may be granted extensive powers to conduct surveillance of electronic communication and data of whole populations and act outside the rule of national and international law.²⁰ In this context, Sousa Santos, for instance, profoundly disagrees with Teubner’s decentred, depoliticized and spontaneously evolving heterarchical sociological concept of global law without the state²¹ and comments that:

[T]he depoliticization of the state and destatization of social regulation … show that under the same name – the state – a new, larger form of political organization is emerging, articulated by the state itself, and composed of a hybrid set of flows, networks, and organization, in which state and non-state, national and global elements combine and interpenetrate.²²

The state, which used simultaneously to occupy communicative space within the legal and political systems and dominate the organization of their structural coupling, becomes just another organization of global society facilitating the operations of supranational and transnational politics and law.²³ Nevertheless, the continuing operative capacity of the state as a distinct form of social organization has not entirely vanished even in the polycentric and pluralistic globalized world.²⁴

Furthermore, moving beyond the limits of state politics-centred constitutionalism does not change the political character of collectively binding decisions and decision-making processes associated with any kind of constitutionalism. Global constitutionalism simply cannot dispose of its politics²⁵ because power persists as an autonomous medium of global social communication. It, therefore, needs to be theorized against the background of global transformation of statehood and structural coupling between politics and law in the constitutions of nation states and beyond them.

In this context, it has to be emphasized that state and politics are two distinct categories and the nation state is just one of many forms of modern contingent power structures.²⁶ Instead of the pronounced end of state sovereignty in global society, sovereign states continue to operate as power organizations in political and legal constellations of global society. The international state pluralist order coexists with transnational orders and cosmopolitan idealistic aspirations in globalized politics and law.²⁷ The nation state still is the most common form of political organization not just in the supranational system of European society but even in global society characterized by a great variety of international, supranational and transnational institutionalizations and organizations.²⁸ The sovereign state’s power only becomes part of much more complex supranational and transnational power structures and asymmetries.

In this social condition, the state sovereignty question may be reformulated in the following words: What power do sovereign state authorities have in the Europeanized and/or globalized legal and political systems? What is the relationship between these authorities and other authorities enforcing the laws and making political decisions in supranational and transnational organizations and networks?

The simple fact that global society falls short of any form of global political sovereignty concentrated in a single transnational organization does not justify theoretical conclusions of the end of sovereignty. The sovereignty question always has involved the problem of legitimation and neither Europeanization nor globalization changed it. Unstructured, contingent and socially pervasive power creates its legitimation strategies and establishes legitimate frameworks of its operations – national, supranational and transnational.²⁹

The modern state’s paradox of constitutionalism as the permanent communication of political sovereignty through the medium of legality cannot be resolved by the legal pluralist claim that constitutionalism is just another name for the juridification of functionally differentiated sectors of global society completely dissociated from the power operations and asymmetries of constitutional politics. The constitutionalization of different sectors of global society is a process of increasing rather than limiting the power operations regulating these sectors. The global systemic plurality of functionally differentiated society, therefore, calls for theoretical reconsideration and reconceptualization of the modern notion of constitutional sovereignty as part of the genealogy and semantic transformation of contingent power structures emerging in globalized society and its systems of positive law and politics.

Enter Power, Exit Law?: Societal Power beyond Politics and its Critique

Capillary power permeating all social areas has its ‘capillary constitution’ which permeates the state constitution, yet its specific mode of self-imposition is beyond the state constitution’s control. Teubner recalls Derrida and Foucault’s view of capillary power achieved beyond juridical power and political sovereignty through scientific disciplines and technology,³⁰ yet never explores its political context and impact. Foucault, however, contrasted power as capillary transgression of social institutions to the constitution of right organization and judicial techniques of social control. Rather than societal spontaneity and self-regulation, it is the extremity of power at its outer limits and violent interventions that defines its capillarity and societal pervasiveness.³¹

This position may be summarized as ‘enter power (in various guises); exit law’.³² Capillary power, by its definition, rules out the possibility of some constitutional containment and rule-based settlement. It signifies expansive societal power unbound by any rules, customs and regulatory regimes. It is a model of the power of extremity directly contrasted to the power based in the sovereignty of either monarchical or democratic right and judicial exercise.³³

The history of power is far too complex and extreme to be contained by interests, customs, laws or the juridical fiction of sovereignty and its institutional settlement. Power is not a state of affairs and something that agencies can possess and exercise as force. It has the relational character and thus only can be comprehended as the interplay between opposing terms and techniques and the war raging at the periphery – multiple capillaries of the social body.

According to Foucault, modern society is constituted by internal wars as the precondition of its survival and protection. Civil war, so much abhorred by legal and political theorists in early modernity, cannot be eliminated by any sovereign power. Constitution of the sovereign state from the war-like state of nature only masks the fact that the civil state is the continuation of civil wars by other means.³⁴ Wars and struggles continue in the laws and political institutions which are officially legitimized by their capacity to regulate and limit power.

This state of permanent social wars signifies a retreat from the political constituent notion of the sovereign nation to the medical notion of population and/or the biological notion of racially defined and internally divided nation.³⁵ Indeed, Foucault notes that the nation is characterized by the state, its potential and capacities. ‘The nation is the State’ – it is constituted by its ability of self-administration through state control.³⁶ However, the nation is not just a juridical category of self-rule which is the necessary precondition of the formation of constitutional government and the delegation of power. It is equally defined by its historical existence and social functions and apparatuses, such as the army, justice, the church and the administration.³⁷

These social functions and apparatuses are much more important for understanding the production and circulation of power in the body of modern society than abstract images of the political nation and the legal fiction of state sovereignty.³⁸ They determine who is the enemy of society and which strategies and wars need to be launched to defend society against these enemies within its body.

The rise of modernity is subsequently described by Foucault as the diminishing role of the rule of law and political sovereignty which get replaced by new and more effective modes of disciplinary power over individual bodies and populations. The problem of sovereign authority governing the state territory and its individual inhabitants was replaced by the problem of various authorities administering populations and shaping their selves through ‘governmentality’.³⁹

Foucault’s concept of the juridico-discursive power in the first volume of The History of Sexuality is therefore profoundly different from the power of limiting legality. It is an expansive and formative bio-power.⁴⁰ This contrast draws on Foucault’s earlier view that ‘power produces; it produces reality; it produces domains of objects and rituals of truth’.⁴¹ A genealogy of power thus needs to critically highlight this jurisprudential production of sovereignty and the sovereign right as ‘truth’⁴² of modern politics emerging in the medieval Western legal system.

According to Foucault, the sovereign right disguises the actual multiplicity of techniques of social domination by the institutionalized and centralized system of the sovereign rule.⁴³ This critical view considers the complex conceptualization and semantics of sovereignty as a mere discourse production of truth, the function of which is both the obfuscation of the multiplicity of subjugations taking place in society and the legitimation of the particular form of politically institutionalized and socially centralized subjugation.⁴⁴ The sovereign right is an instrument of social domination, yet domination is not just:

… the brute fact of the domination of the one over the many, or of one group over another, but the multiple forms of domination that can be exercised in society; so, not the king in his central position, but subjects in their reciprocal relations; not sovereignty in its one edifice, but the multiple subjugations that take place and function within the social body.⁴⁵

While Weber considers domination a legitimate exercise of power based on social obedience and acceptance, Foucault defines domination in terms of techniques of subjugation involved in social discipline.⁴⁶ Underneath the code of legality, disciplinary power supervises and produces normality by non-legal and more effective means of disciplinization.⁴⁷ This is the reason why, according to Foucault, the problem of sovereignty as the obedience of individuals submitting to the legitimate right of ultimate, centralized and institutionalized power needs to be replaced by the study of polymorphous techniques and procedures of subjugation in society.⁴⁸

Sovereignty of the Social Norm

In modern society, ‘the juridical is increasingly incapable of coding power, of serving as its system of representation’.⁴⁹ Instead of the system of positive law, it is now the power and expansion of the social norm that are important for the order and discipline of modern society. The rise of socially productive bio-power corresponds to ‘juridical regression’.⁵⁰

Capillary power extends beyond the limits of the sovereign state and its official laws and functions as a disciplinary power of social norms.⁵¹ Views and conceptualizations of Hobbes and Machiavelli, these generally recognized founding fathers of modern political theory, need to be abandoned because they are grounded in the realm of institutionalized politics and its legal form of the legitimate right. As Foucault comments:

… rather than asking ourselves what the sovereign looks like from on high, we should be trying to discover how multiple bodies, forces, energies, matters, desires, thoughts, and so on are gradually, progressively, actually and materially constituted as subjects, or as the subject.⁵²

Machiavelli’s image of the Prince’s politics of absolute power exempt from the laws and Hobbes’s concept of Leviathan with the legal right to sovereignty are dismissed as ‘false paternities’⁵³ because they exactly raise the question of how a multiplicity of individual wills gets transformed into a unity and single political will and body. Absolute power of sovereignty constitutes one political subject.

Foucault, however, contrasts this image of the political subject constituted by sovereignty to the multiple subjects constituted by polymorphous power techniques emerging at the periphery of and beyond the limits of institutional politics and its constitutional form.⁵⁴ He presents a sweeping critique of juridical theories of power and sovereignty.⁵⁵ Inadequacy of the juridical focus on absolute power is summarized in the following words:

From the Middle Ages onward, the essential role of the theory of right has been to establish the legitimacy of power; the major or central problem around which the theory of right is organized is the problem of sovereignty. To say that the problem of sovereignty is the central problem of right in Western societies means that the essential function of the technique and discourse of right is to dissolve the element of domination in power and to replace that domination, which has to be reduced or masked, with two things: the legitimate rights of the sovereign on the one hand, and the legal obligation to obey on the other.⁵⁶

Indeed, the sovereignty model of society drawing on the simple differentiation between the sovereign and its subjects is useless for depicting complexities of modern political power and its legitimation. Reciprocity of political will established by the fictional social contract is too weak and the habit of obedience hardly can be separated from other techniques of social domination and subjugation.

Foucault’s dissolving of the state by power politics⁵⁷ and denunciations of sovereignty, nevertheless, do not mean a complete denial of the state and law’s functionality within the power constellations of modernity.⁵⁸ Law rather becomes a battlefield and tactics⁵⁹ and the normative force of bio-power can be channelled through constitutions, legal codes and the legislature’s constant activities.⁶⁰