By Winston P. Nagan & Craig Hammer
The world’s most daunting challenges are outcomes of the current configuration of sovereign institutions. Below, Winston P. Nagan and Craig Hammer consider whether current understandings of authority and power justify this configuration, and suggest that the challenge is to evolve a constitutive process that more accurately reflects the prevailing distribution of power in the world.
Sovereignty is a wooly concept; centuries of analysis, debate, dissensus, exasperation and conflict have borne out that it means different things to different people. Despite or perhaps due to this lack of definitional clarity, the concept enjoys continuing vitality and invites continuing effort to lessen the ambiguity.
There is a universe of disputation on the theory of sovereignty, which we will not repeat here. Rather, our objective is to reflect on emerging understandings of the theory’s two primary pillars, ‘power’ and ‘authority’, and what they mean in the complex exercise of contemporary governing competences in the global social process. These understandings are relevant to the current dynamism, instability and asymmetry inherent in the global economy, world politics, and their myriad intersections, as well as in the cultural, psychological, and other emblematic dimensions of the human condition which actuate social behaviors. These understandings are likewise central to continuing efforts by a range of actors using political and legal skills to establish a framework both to improve the quality of authoritative decision-making in the name of the public good and to elevate world politics beyond the reach of sovereign absolutism.
The State and the Constitutive Process
The State is currently the foremost territorially organised body politic that triggers sovereign claims, and is often defined by its essential characteristics. This includes, for example, control of a territorial base with determinable boundaries; control of a population connected by notions of group affiliation and identity; controlling internal power and related competencies; and the power of international representation. These characteristics were elaborated in a corpus of legal theory exemplified by the scholarship of jurists Thomas Hobbes, David Hume, Jeremy Bentham and John Austin, which essentially identified the State and law as one and the same. Such theories have often diminished the role of authority and enhanced the role of power in the function of the sovereign.
This idea that the sovereign possesses naked power has long been disputed, from Henry Maine’s criticism of Austin to Ronald Dworkin’s total rejection of positivism. Policy Sciences scholar Michael Reisman clarifies the concepts of power and authority vis-à-vis sovereignty; he explains that for a sovereign claim to be authoritative it must be accompanied by an ‘authority signal’, or some symbol of obligation and prescriptive power.1 The strength of this signal proportionally infuses the claim with a weak or strong normative dimension in the State or body politic – it must be honored and enforced, such as under the authority of constitutionalised competence, written or otherwise. Empirically, a constitution codifies expectations about the allocation of authorised governing competence, and is thus a process of continuous cooperation, communication, and collaboration to ensure stability of these expectations. Conflict is also a part of the ‘constitutive’ process, inherent in the ever-present contestations for power and the stabilisation of these contestations.
State regimes can thereby ‘constitute’2 or institutionalise authority by stabilising claims and expectations about power, for example through negotiated transfers of power, or else through conflict or other means, toward achieving the broadest possible agreement as to how the basic institutions of decision are established and continuously sustained within a particular territorial boundary. In other words, sovereign claims that count as ‘law’ are those which are acknowledged to be legitimate standards by officials of sufficient stature, for which there is pressure to conform and which allocate goods, honors and values through authoritative, controlling procedures and institutions. Legal philosopher HLA Hart described the constitutionalisation of authority and control as representing a ‘rule of recognition’.3
The concept of sovereignty thus raises the more fundamental question of whether rules governing the global population should be solely considered as an aggregation of decision-making processes or dictates by a relative few officials through the prism of approximately two hundred territorially independent bodies politic, or something broader. After all, global society is endlessly more complex than what can be captured and crystallised by the decisions of this small handful of officials. Do current understandings of authority and power – particularly regarding issues that affect or threaten humanity, in part or whole – justify the current governance configuration? Or might there be another way? Should our conceptions of sovereignty and the State accommodate new understandings?
The Global Social Process, Progress & the Evolving Character of Sovereignty
The global social process is a useful lens through which to view the evolving concept of sovereignty. Legal philosopher Harold Lasswell explained that the social process describes the context in which and with which each individual interacts.4 It effectively describes (and enables social theorists to map) the complex interplay of variables, including multitudes of stakeholders, the sovereign State, the flow of interaction, and contested resources.
Progress happens within the global social process in fits and starts. In his early analysis Douglass North asserted that institutions evolve in ways to approximate efficiency. After decades of empirical analysis, he refuted this earlier perspective and concluded that societies only aberrantly possess relatively efficient institutions. In other words, institutions are often inefficient. With this conclusion, North opens the door to the possibility that prevailing institutions can actually be hindrances to growth, development, and the public good. Sovereign institutions are outcomes of the global social and constitutive processes, and can thus function with varying degrees of efficacy and be subject to deficits. Indeed, the world’s most daunting challenges, from the persistence of poverty traps and growing economic inequality to consumptive inefficiency, and from food and water insecurity and climate change to the changing face of conflict and fragility, are outcomes of the current configuration of sovereign institutions.
In Federalist No. 10, future American President James Madison remarked, in an exhortation against domestic factionalisation, on the unacceptability of circumstances under which ‘the public good is disregarded in the conflicts of rival parties, and … [when] measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority’5 John Stuart Mill put it another way – he suggested that representative democracy can identify and promote the common good, insofar as representation is not undermined by unscrupulous, biased, or otherwise ineffective actors.6 He further suggested that universal suffrage and active public participation in governance can not only constitute authoritative decision-making, but also sharpen the public’s moral barometer by eschewing sectarian, chauvinist preferences for collective deliberation and priority-setting.
Recent data on voter turnout (as a percentage of the voting age population per country) indicate generally dismal levels of public participation in governance in OECD countries in particular, and around the world.7 Perhaps even more distressing is the quality of governance received in those countries with even high voter turnout levels. Indeed, Madison’s and Mill’s caveats about the destabilising effects of State capture and the so-called ‘tyranny of the majority’ are key. Vast amounts of recent governance and corruption data from an array of organisations such as The World Bank8 Transparency International,9 and regional organisations such as the Mo Ibrahim Foundation10 exemplify the enormity of State capture challenges yet to be overcome.
When we try to envision the future evolution of international polity and law, we find it difficult to imagine either the conditions or the forces that might compel the entrenched self-interests of the present system to relinquish their privileged status in support of a different constitutive process, one truly founded on the principles of representative democracy and human rights. In retrospect, we can identify social, political, and constitutive processes, such as in the transformation of America during its Civil War and the American Civil Rights movement, or in India during its Independence movement, or in South Africa during the Anti-Apartheid movement, or post-communism democratic reforms in Eastern and Central Europe, and elsewhere. But while these events were taking place, their outcomes where far from apparent. What now appears logical, inevitable, and is increasingly taken for granted had earlier appeared unrealistic or unattainable to most people.
Threshold Considerations on an Emerging Global Constitutive Process
A system of global constituted governance must be meaningfully reflective of and responsive to the full range of stakeholders to be a realistic alternative. An accessible example of what might count as the emergence of a global constitutive process is the founding of the United Nations. It represented an effort to establish a higher level of authority beyond the State to safeguard world peace and promote human development in the wake of World War II. In practical terms, the power of the victorious allied nations was used to constitute the new structure and vest it with authority, coupled with the stability-inducing-cum-expectations-managing step of promulgating an organisational constitution: the United Nations Charter. It is therefore significant that the Charter affirmed certain universal values and principles that extend beyond the principles of State sovereignty. However, the legal system established by the Charter was and remains dominated by the authority of the handful of State victors of World War II – the Permanent Members of the United Nations Security Council. While this constitutive process might have been necessary or efficient in October 1945, the world has since changed dramatically. Today, it is an outmoded approach; each successive General Assembly Debate bears out the tension between parochial localism and crony nationalism on the one hand and challenges posed by cosmopolitanism and universalist identifications on the other.
The challenge then is to evolve a constitutive process that more accurately reflects the prevailing distribution of power in the world, including demographic changes in the global North and South; the emergence of new economic powers, such as the BRICS; the transformative force of the Internet, mobile and other technology; the globalisation of finance and commerce, in many cases at the expense of State power; the rise of global civil society; and more. A significant reform of the United Nations is indeed overdue and inevitable.
So, what might a fundamental constitutive change look like? Must it be a gradual evolutionary development from past precedent or could it come as a revolutionary assertion of a new and higher principle which acquires legitimacy by the will and organised power of those who assert it, backed by the aspirations of billions seeking more and better security and well-being? In short, could the individual and/or humanity claim or enjoy certain sovereign rights? This raises several more questions.
The next governing competence to be constituted must necessarily be rooted in emerging understandings of authority and power which is sufficiently open to maximal stakeholder participation, emphasise rational good governance in the common interest, and diminish coercion. The global explosion of electoral democracies in the world – from twenty-two in 1950 to 120 of the now 192 States, comprising 58.2% of the global population – exemplifies the growing recognition that the people are the ultimate source of authority for governance. It will indeed be a challenge to find a governance paradigm that is not constituted by some preexisting archetype of centralised power and authority, but rather which is reflective of the dynamics of human interaction and self-regulation.
Elinor Ostrum, for example, suggested that empirical research should be undertaken to identify effective niche (rather than the ubiquitous panacea) solutions to governance problems affecting the commons,11 which may be relevant beyond ecological contexts. The theoretical foundations of this approach are predicated on the existence of micro-social law in smaller communities, such that an aggregate of micro-communities can safeguard the common good more effectively than macro-level approaches. Burns Weston and David Bollier’s complementary scholarship on ‘green governance’ similarly broadens the scope of law to consider public goods that transcend the contemporary sovereign constraints.12
The Lessons of History
History demonstrates that a shift from the prevailing understanding of authority and power governing global society is not only possible, but that it is also inevitable. It also warns us against the error of mistaking the status quo for the permanent, for even the most powerful sovereign institutions of the past – the Church in 15th century Europe, the British Empire in 1900, the Soviet Union and Communist Bloc in 1980 – which seemed impregnable at the time, declined rapidly and inexorably when conditions were compellingly ripe for new dispensations.
About the Authors
Winston P. Nagan is Sam T. Dell Research Scholar Professor of Law, University of Florida College of Law; Affiliate Professor of Anthropology, University of Florida; Visiting Fellow, Brasenose College, Oxford; Honorary Professor, University of Cape Town, South Africa; Director, Institute for Human Rights, Peace and Development, University of Florida; Former Chair of the Board, Amnesty International (USA); Former President, Policy Sciences Center; Fellow, Royal Society for the Encouragement of Arts, Manufactures; and Chair, Program Committee of the World Academy of Art and Science.
Craig Hammer leads the World Bank Institute’s Global Media Development program. He is a member of the Society for the Policy Sciences; Member, Council of Editors for the Journal of Law and Politics (Moscow, Russia); Associate Fellow, the World Academy of Art and Science; Senior Fellow, Institute for Human Rights and Peace Development, University of Florida College of Law; and Legal Advisor, Coordinating Body of Indigenous Organisations of the Amazon River Basin (Quito, Ecuador). The findings, interpretations, and conclusions expressed in this article are entirely those of the authors, they do not necessarily represent the views of the World Bank Group, its Executive Directors, or the countries they represent and should not be attributed to them.
References
1. Reisman, W.M. (1981) International Lawmaking: A Process of Communication, 75 ASIL Proc. 101, 110.
2. Lasswell, H. and McDougal, M (1992). Jurisprudence For A Free Society: Studies in Law, Science and Policy, 93 n.1.
3. Hart, H.L.A. (2nd edition 1994). The Concept of Law 80-81, 94-95, 99, 107-109
4. Lasswell, H. (1971) A Preview of the Policy Sciences 15.
5. Madison, J. (1787) The Federalist No. 10: The Utility of the Union as a Safeguard Against Domestic Faction and Insurrection (cont’d), Daily Advertiser.
6. Mill, J.S. (1861) Considerations on Representative Democracy.
7. The International Institute for Democracy and Electoral Assistance, The Voter Turnout Database, available at http://www.idea.int/vt/
8. The World Bank, The Worldwide Governance Index 1996-2011, available at http://data.worldbank.org/data-catalog/worldwide-governance-indicators
9. Transparency International, The Global Corruption Barometer 2003-2013, available at http://www.transparency.org/research/gcb/overview
10. Mo Ibrahim Foundation, The Ibrahim Index of African Governance 2007-2012, available at http://www.moibrahimfoundation.org/iiag/
11. Ostrom, E. et al. (1994). Rules, Games and Common Pool Reseources. 12. Weston, B. and Bollier, D. (2013). Green Governance: Ecological Survival, Human Rights, and the Commons.
