Sovereignty, or Post-Sovereignty?: A Social Systems Theoretical Perspective

Chapter 2
Sovereignty, or Post-Sovereignty?: A Social Systems Theoretical Perspective

However, legal and political fragmentations and the emergence of different sectors of transnational law should not be considered as either democratically illegitimate structures resembling pre-modern autocratic political settlements, or the most recent example of what Jeremy Bentham described as ‘anarchical fallacies’¹ of law that is not commanded by the political sovereign and draws on hasty generalizations and abstract propositions susceptible to the moral and political abuse.

In this chapter, I therefore initially address the proliferation and critique of the sovereignty discourse and the normative expectations of some major and typical theories of sovereign and post-sovereign politics and law. I subsequently engage in a historical and conceptual analysis of sovereignty and highlight its persistence in the systems of positive law and politics. In the second half of the chapter, I draw on the autopoietic systems theory’s distinction of social structures and semantics and consider sovereignty as part of the self-referential semantics of both the legal and political systems. However, sovereignty cannot be perceived as a concept signifying the unity of society integrated by fundamental values and ultimately governed and controlled by one power centre and its laws. I argue that theories and images of sovereignty as unity need to be replaced by the autopoietic social systems theoretical view in which the self-limiting and self-referential concept of sovereignty concurrently operates through the functionally differentiated systems of politics and law at national, supranational and transnational global level.

Theories of Post-Sovereignty and Globalization

The first stream is represented, for instance, by political, social and normative theories of Manuel Castells, Immanuel Wallerstein and many other scholars working in the field of networks and systems of global governance. According to these theories, ‘a governance model of sovereignty’ has been emerging in which sovereignty is ‘fragmented and distributed across a range of institutions’.² They claim that the historical role of the state as a central social and political organization is over and believe that hierarchical political structures are gradually being replaced by horizontal networks of political communication and decision-making increasingly facilitated by non-governmental institutions and global ‘world systems’.³ These theories commonly build on the specifically modern contrast between state, government or sovereign politics and administrative governance or depoliticized social engineering. It is a contrast between the state and civil society in which the ‘soft’ power of civil society eventually prevails over the ‘hard’ power of the modern state. Political governments are allegedly being replaced by depoliticized forms of global governance. Different forms of societal management and constitutionalism⁴ assume the state’s authority. Global social engineering gradually marginalizes the importance of national sovereign politics.

The second stream is equally critical of the concept of state and national sovereignty and often has the same political ethos like theories of global and transnational governance. However, it is less interested in the spontaneity of evolution and self-constitution of global society. It rather builds on the prescriptive concept of social and political transformation of global society⁵ and is typical of the discourse of global human rights, cosmopolitan ethics and democracy⁶ which methodologically represents an eclectic mixture of universalist ethical normativism and sociological constructivism.⁷ According to these theories, globalization allegedly leads to the global civil society⁸ and a global sociology of human rights.⁹ Adherents of a cosmopolitan legal system of human rights and universal civic virtues, such as Ulrich Beck, David Held, Mary Kaldor, Daniel Levy, Thomas Pogge and others, insist that the decoupling of society and the nation state has significantly transformed the notion of sovereignty and that it is time to transform humanitarian ideals into a regime of global protection of human rights that ‘can be considered as a Leviathan writ large’.¹⁰

The existing international frameworks, including the body of international law, allegedly need to be redesigned and used as the foundation of the global political power necessary to tackle contemporary planetary challenges, especially the strategies, risks and disasters of global capital.¹¹ Global ‘foundations have developed in the lifeworld for a cosmopolitan republicanism centred on freedom of the individual’¹² which will politically challenge the dominance of the global market and the epistemological rule of economics. This dominance needs to be countered by a sovereign cosmopolitan legal order enhancing the protection of human rights instead of imperial interests¹³ and the emerging global political order based on the sovereignty of cosmopolitan values and governance.¹⁴ According to this view, human rights are social institutions unlimited by state borders and national cultures.¹⁵

Contrary to these views and calls for global post-sovereign governance, cosmopolitanism and globally sovereign human rights ethics, the third stream of political and legal thinking claims that power politics associated with state sovereignty has not disappeared but acquired new forms and modes of social communication and supranational or transnational organizations. In the spirit of Hegelian philosophy, these theories, therefore, analyse sovereignty’s transformation rather than its disappearance. Scholars, such as Anthony Carty, Jean Cohen, James Rosenau and others, examine how the sovereign nation states have been swamped by the totalizing tendencies of new power configurations operating at global level. They subsequently urge to rethink state sovereignty in this period of crisis in international law and politics and to reinforce the democratic legitimacy of the international order by reinforcing and reinventing democratic legitimacy and decision-making procedures at nation state government level.¹⁶

According to these theoretical views, the sovereignty of the nation state and international politics have been significantly weakened by much more powerful global networks, institutions and agencies.¹⁷ The democratic political form of the sovereign nation state, therefore, needs to be used to construct democratically legitimate political institutions at supranational and global levels. Popular sovereignty and democratic legitimacy existing at the nation state level thus have to be preserved and used as a tool for strengthening the democratic legitimation of the international and global political order. In other words, supranational and global democratic transformation is impossible without the democratic procedures and tools successfully used by the nation state.¹⁸

Responding to the legal and political challenges of contemporary global world society and reflecting on the notion of sovereignty and power in international relations, Jean Cohen, for instance, critically asks: ‘What is to be the new “nomos” of the earth and how should we understand globalized law?’¹⁹ In her answer, she admits that the sovereignty-based model of international law gives way to an Empire-based world order which sidelines the project of cosmopolitan justice and universal human rights. Nevertheless, Cohen insists on the usefulness of the discourse of state sovereignty in international politics and law and calls for the revitalization of the sovereignty-based paradigm of international public law to confront the Empire’s power and domination in international affairs.²⁰ In this concept of international law, sovereignty is treated as ‘a concept of eternal return’²¹ and mutually equal sovereign states can be bound even against their will by an authorized international agency.

Between the Empire, International Public Law and the State of Exception

As Jacques Derrida points out: ‘[O]ne cannot combat, head-on, all sovereignty, sovereignty in general, without threatening at the same time, beyond the nation state figure of sovereignty, the classical principles of freedom and self-determination’.²² Sovereignty is inseparable from the rationalism of the state and the principle of unconditionality. However, the modern state’s sovereign power to decide on the exception and the right to suspend all legislated rights and freedoms is inseparable from the very existence of civil rights, political freedoms and the democratic character of statehood.

According to this view, sovereignty transgresses the technology of political power and its discriminations and injustices within liberal constitutional settlements. The administrative violence of sovereign power goes hand in hand with political self-determination and force, transforming the constitutional settlement. Sovereignty thus opens the possibility of constitutional and political change.

This position has been advocated, in particular, by Giorgio Agamben who, along the same lines of argument as Carl Schmitt almost a century ago, states that legal sovereignty may be defined by the ability to suspend itself. The central characteristic of sovereignty is its extra-legal surplus that can be used to introduce extra-constitutional political change.²³ Agamben paints a dark picture of contemporary Western civilization and its liberal democratic regimes in which citizens are always at risk of becoming ‘homo sacer’ – a person that can be detained and even killed without legal reason.²⁴ The political existence of human beings cannot be separated from their everyday lives, and the exception becomes the rule and ‘a paradigm of government’.²⁵ The state of exception as normality, instead of Schmitt’s extra-juridical power and Kelsen’s supreme rule of the juridical system, is the originary structure of sovereignty and its basic law.²⁶

Writers such as Agamben, Derrida or Hardt and Negri attempt to destabilize current national and global political settlements and explore different agencies and strategies for the transformation of politics, law, identity and ethics. Their primary goal is dictated by fear that the constituent power of a political collectivity may be contained and fatally rationalized by formal legality and constitutional democratic institutions. They seek to escape the trap of ‘constituting the constituent power’ by various suggestions of activism, resistance, openness, ethical exposure to the otherness, reflexivity, critique and so on.

As Agamben comments, constituent power is never constituted, and calls upon the constituted power to act. The problem of constituent power becomes the problem of ‘the constitution of potentiality’.²⁷ However, it would be superficial and wrong to treat these highly aestheticized and speculative philosophical treatises as just another addition to the typically modern discourse on constitutionalism, especially the relationship between the constituent power of the people, as one indivisible collective agency, and the constituted power of formal legal rules, procedures and state institutions. The argument is not about the fact that constituted power depends on its constituent founder whose composition, ethical and political characteristics may always be questioned and challenged. It, rather, attacks the self-referential capacity of constituted power to generally and exclusively constitute political power.

Sovereignty and the Seductive Ethics of Critical Theory

While theories favouring emerging horizontal forms of global societal management and constitutions involve a typically modern social theoretical and political belief in the diminishing role of the state and the growing role of spontaneous societal processes, theories warning against the political risks of globalization either seek to strengthen the democratic legitimacy of the politics of global governance, or reinvent the democratic sovereign state as a first pillar of the legitimate global political order. In other words, some theories favour new variations on the theme of the withering away of the state and the growing role of soft laws and depoliticized administration while others either design global ethics of human rights and cosmopolitan values, or continue to believe in the hard laws of power and sovereignty politics and mainly seek to reinvent and transfer the principles and values of modern democratic politics from the nation state to the global level.²⁸

Modern political and legal philosophies and theories often combine theoretical, practical and evaluative ambitions and controversially employ key concepts in both descriptive and normative terms. Abstract concepts such as sovereignty, nation, legitimacy, justice, fairness and polity invite critical judgments and substantive considerations beyond the analytical framework of social sciences. The fact that the concepts of sovereignty and post-sovereignty are highly generalized, vague and susceptible to metaphorical use also means that these concepts are ethically seductive.²⁹ They are an intrinsic part of the popular ‘life-as-philosophy’ belief according to which it is possible to change the world if you know how to describe it and find the most persuasive conceptual tools.

Recent theoretical calls to abandon the concept of sovereignty and replace it by a more suitable conceptual framing of politics and law, which would better respond to the profound structural changes of political ‘sovereignty in transition’,³⁰ often do not deny their primarily political purposes. They subject a descriptive scientific enterprise to a superior prescriptive politics and ethics. They construct normative and semantic alternatives to the existing legal, political and international practices and language canons and often coincide with the political zeal and ethics of late humanist projects.³¹ Legal and political theorists and philosophers call for humanity to be rescued from economic exploitation, environmental disasters and so on through global political and legal organization and engagement beyond the limits of the sovereign state.

However, these calls fall into a particularly dangerous trap, that of critical theory aimed at constructing correct theoretical hypotheses and concepts to open a route for correct political practices.³² According to these streams within critical theory, correct practice will circularly feed the process of ever more correct theory. The absolute distinction of the world as it is and the world as it ought to be – this counterfactual imperative of any prescriptive critical theory – thus continues to build on early modern semantics of social science as a form of the social world’s foundation and/or transcendence and theoretical observation as a necessary precondition for correcting the failures and manifold forms of ‘alienation’ of this world.³³

This ‘dialectic’ effort to transform society by a critical and prescriptive theory draws on the idea of a historical progression and the deviant state of existing social and political condition. State sovereignty and national governments must be replaced by global post-sovereign politics, cosmopolitan ethics and human rights, multinational democracy and post-national governance which are treated as both analytical concepts and counterfactual projects yet to be achieved by political and legal agents with a little help from their theorizing friends. For instance, the recently popular critical thoughts of Hardt and Negri have been driven by the ideal of the self-organization of the globalized multitude against the malign sovereign power of the Empire. Their apocalyptic visions are informed by a moralistic distinction between the natural goodness of the multitude and the evil nature of the Empire and the ultimate victory of good over evil.³⁴

In modernity, sovereignty was addressed in many different ways by many of the finest political and legal scholars and philosophers, from Bodin and Hobbes to Habermas and Foucault. Its numerous definitions and conceptualizations continue to circulate in the body of legal and political knowledge and thinking. Understanding the extent and meaning of current critical approaches to sovereignty, therefore, requires analysing and contextualizing the history and evolution of the concept of sovereignty and its theories.³⁵ In the next section, I, therefore, briefly summarize this evolution and historical reconceptualizations of sovereignty.

The Evolution of Sovereignty in Modern Politics and Law: a Brief Historical Reconceptualization

Our constitution is called a democracy because power is in the hands not of a minority but of the whole people … We are free and tolerant in our private lives; but in public affairs we keep to the law. This is because it commands our deep respect.³⁶

These famous sentences, noted in Thucydides’s History of the Peloponnesian War, are from Pericles’s funeral oration over Athenian soldiers who died during the first year of the Peloponnesian War. They describe the overall settlement of the Athenian polis including the rule of law and the distinction between private morals and public interests which directly contradicts the modern misconception of ‘the liberty of the Ancients’³⁷ falling short of private autonomy. Constitution is a matter of political power, the law’s ultimate command of public affairs and the general social condition of life in polis. It stretches from power politics to the authority of law and mores conducting both private and public affairs of the Athenian society. In other words, it describes issues and problems commonly associated in modern political and legal theory and philosophy with the concept of sovereignty as power of a command, its juridical form and the overall life form of political society.

The question of sovereignty is relatively recent and modern, yet its structural and semantic preconditions are ancient.³⁸