An understanding of the nature, power, authority, and legitimacy of collective bodies has engaged philosophers and political theorists since before the time of Aristotle. The character, nature and limits of collective political commuinities – particularly that of nation-states – has proven to be particularly contentious. Complexity is added to contention in the twenty-first century as economic, social, identity-based, and religious communities seek--and sometimes succeed--in exercising authority once reserved solely to the political community of nations.
Aristotle famously asked (himself): "What is a City? For upon this there is a dispute: for some persons say the city did this or that, while others say, not the city, but the oligarchy or the tyranny. We see that the city is the only object which both the politician and legislator have in view in all they do: but government is a certain ordering of those who inhabit a city" (Aristotle, Politics Book III, ch. 1, at 66).
Drawing on insights from Aristotle’s Politics (sadly, Aristotle's answer does not completely satisfy in a world composed on communities in which ethnicity, religion, race and other diostinguishing characteristics of social organization are not held constant), and Michel Foucault’s Discipline and Punish it is possible to conceive of collective organizations as autonomous and sovereign, when viewed externally, and as coercive hierarchical disciplines when viewed inside. I argue that these insights are equally applicable to formerly non-sovereign collective bodies exercising sovereign authority – corporations, revolutionary organizations, organized criminal networks and religious organizations – collective bodies exercising sovereignty that overlaps with that theoretically reserved to the nation-state. I then explore the consequences of this premise in two contexts – the first is that of the multinational corporation seeking to exploit the wealth of a political community, and the second is that of a non-state organization engaged in acts of mass murder. In the 21st Century, both corporation and terrorist organization have become Aristotle’s "City."
Consider the following questions: Is it possible to declare war on Osama bin Laden? Should Daimler-Chrysler AG be accorded a formal voice within the framework of the WTO? Is the Communist Party of China right to view the Fulang Gong, or any otjer autonomous collective not controlled by the Communist Party itself, as collective competitors for the control of the Chinese Communist state, and on that basis treat them as a sovereignty threatening enemy? To what extent are any collective entities free of the authority of the states in which or against which they operate? To what extent do either constitute autonomous institutions free of dependence on the “master collective” – the nation-state?
Aristotle provides a useful starting point for a consideration of the autonomy of collective bodies. I am willing, like Aristotle, to concede the autonomy of the nation-state as embodying the grundnorm. This autonomy of the nation-state, as the premier form of the collective body is based on shared custom. Thus, a mere multitude of people living together is insufficient to constitute a state, “for even if persons so situated should come to one place, and every one should live in his own house as in his native city, and there should be alliances subsisting between each party to mutually assist and prevent any injury being done to the other, still they would not be admitted to be a city by those who think correctly, if they preserved the same customs when they were together as when they were separate.” (Aristotle, Politics, Book III, ch. IX, at 83). But the autonomy of the collective body, as it presents itself to strangers, does not pass through to the internal organization of the collective, “for a city is a certain number of citizens.” (Id., Book III, ch. I, at 66). Not every person that forms part of the collective is a citizen of the collective body. The city is reserved for those who preserve the same customs.
Aristotle looks to notions of wealth and power as the basis for the social ordering within a city. Divisions within any collective on the basis of wealth and status provide the basis for the formation of states as monarchies, democracies or aristocracies, or for the degeneration of states into oligarchies or tyrannies. Law itself can play only a small, and perhaps perverse, role in the character of collectives. “For a law derives all its strength from custom, and this requires long time to establish; so that to make it an easy matter to pass from the established laws to other new ones, is to weaken the power of laws.” (Id., Book II, ch. VIII, at 50).
Aristotle suggests the connection between law, custom, social order, political power and the constitution of a state as we know it. But he makes no claim that law is inevitably tied to legilation, or that the power to order social behaviors is inseparably tied to the sonstruction of political community. It seems clear that law, custom and social order can exist separate from the political community that draws it opower from their invocation. Eacj of those is used, but not owned, by the "city." Thus, the suggestion appears to be that a certain mix of fundamental ingrediants, when put together in a number of ways, cam produce a "city," a community with power over its members.
Modern theory has added a set of more nuanced insights. Most useful is Michel Foucault’s argument, in his work Discipline and Punish, that collective organizations can be understood to exist as autonomous and sovereign, when viewed externally, and as coercive hierarchical disciplines when viewed internally. Culture, as practiced within a collective body, is the perfect disciplinary institution. It is "a network of mechanisms that would be everywhere and always alert, running through society without interruption in space or in time." (Foucault, Discipline and Punish, 208-209). What Foucault calls the "disciplines" evidences the separablity of the elements that make for sovereignty. The disciplines provide a way of understanding that political community, law, and power, are not necessarily tied together in a single form producing a single sort of authentic power community--the nation-state. Sovereignty, understood as a self-conscious autonomy backed by power among a community of individuals, is not invaliably tied to the organization of states.
Yet Aristotle’s Politics, and Foucault’s Discipline and Punish, though both instructive, fail us when we consider collective bodies of great power and cohesion other than the nation-state. Traditional thought viewed the city as the culmination of social organization, with all other forms of collective organization merely an imperfect part of this whole. All collectivities strive toward the construction of a state. “For which reason every city must be allowed to be the work of nature, if we admit that the original society between male and female is; for to this as their end all subordinate societies tend, and the end of everything is the nature of it.” (Aristotle, Politics Book I, ch. II, at 3). Yet governance of the individuals, the citizens of non-state collectives, requires the same effort to unitary custom. Supreme power is now shared by a nation- state with a host of state and non-state actors.
Technology and custom has produced global systems of organization that evidence Aristotle’s postulate that ultimate sovereignty is lodged only in the state. The insights developed to explain the state as an autonomous body are equally applicable to formerly non-sovereign collective bodies exercising sovereign authority – corporations, revolutionary organizations, organized criminal networks and religious organizations – collective bodies exercising sovereignty that overlaps with that theoretically reserved to the nation-state. Government has once again begun to pass to any number of collectives exercising portions of the power once exercised exclusively by nation-states. Each of these has become an Aristotelian ‘City.’ The formation of custom has begun to move to supra-national bodies whose work applies to all collectives. In this emerging reality there is little difference between the nature of a nation-state and that of a corporation, or of an organization such as Islamic Jihad? The corporate actor is ‘fictional’ because it is not identical with the real organization but only with the semantics of its self-description. It is ‘real’ because this fiction takes on structural effect and orients social actions by binding them collectively. Max Weber came closes to capturing this ambivalence by treating collectivities only as ‘ideas’ in the heads of judges, officials and the public, while at the same time assigning them ‘a powerful, often decisive, causal influence on the course of action of real individuals.’” (Teubner 1988 at 138; Weber 1978 at 13). As a result, modern international law, based on Aristotelian notions of a hierarchy of collective bodies headed by sovereign nation-states, no longer reflects the realities of the power or organization of the multitude of collective demi-sovereigns that now operate throughout the world.
The consequences of these premises are far reaching first in the context of corporations and then in that of non-governmental organizations that assert a sovereign capacity once thought exclusively as belonging to the state. Modern multi-national corporations may seek to exploit a traditional nation-state. Traditional analysis would suggest a hierarchy of authority in which the nation-state assumes dominance in any relationship between it and the corporation. After all, a state has a soul – a corporation has shareholders. Yet, when the corporation is large enough, old enough and free enough of dependence on any one state for its capital, labor, or markets, the opposite may occur. Moreover, where the corporate collective acts as the agent of another nation-state, or regional trade collective, the political authority of the corporation may vastly exceed that of the nation-state. Is the corporation a state actor? Conventional theory suggests it is not. This economic collective body should be regulated like any other merchant on the street corners of any city. But it cannot be. It acts with all the authority of a state actor. Its autonomous and independent character is as well defined as that of the nation-state that it seeks to exploit. Its disciplines, its culture, are as compelling as those of any political community. Should it not be deemed a state actor? Or perhaps it should be considered a proxy of the state – like the old Hudson’s Bay and East India Companies. Treatment as a sovereign requires a disregard of the authority of another nation to regulate ‘creatures’ of its own creation. Yet, treatment as an independent actor will result in a disregard of the power of the incorporating political state to control its subordinate creatures.
The second requires consideration of a non-state organization engaged in various political acts within and outside the borders of any one nation-state. Consider a series of acts of mass murder conducted under the auspices of an organization that determines that a nation-state is its enemy for reasons of religious, cultural and political difference. The organization has effectively utilized the most potent symbol of state sovereignty – the control of violence. It has deployed armies. It has killed. Yet, under conventional theory, the organization is merely a group of individuals whose actions are on a par with personal criminal activity. This criminal activity must be controlled like any random act of individual criminal activity within a state. But it cannot be. The collective acts with the authority and power of a state. Ought the collective be treated like a sovereign? If the answer is yes, then should the United States conclude that a particular organization was responsible for the destruction of the World Trade Center in New York, the United States may declare and conduct a war against this entity. But should, instead, this entity be considered a proxy of the nation-states that have consented to its actions or otherwise participated in the activities of the collective? Accepting this more traditional notion could permit the United States to treat a nation-state on whose territory the offending organization operated, as the director of that organization, and on that basis declare and conduct a war against it. Treatment of non-state collectives as sovereigns must result in an abandonment of the exclusivity theory of political sovereignty within nation-states. Such treatment would loosen the relationship between a particular geography and a sovereign collectivity. Non-state collective organizations would effectively function like a state within the geography of a nation-state. This is wholly outside traditional notions of international intercourse. Yet, such a loosening has marked theory for some time. Consider the Jews, until very recently, a stateless collectivity capable of independent political activity within nation-states traditionally constituted. Even today, Jewish ties to a geography are hotly disputed by another collectivity, Islam, which itself claims an identity tied both to territory (the dar al-Islam) and to the character of a universal stateless being. Is any ideological or cultural community different?
In the 21st Century, both corporation and terrorist organization have become Aristotle’s city. The notion of distinctions between state actors, holding a monopoly on power, and other collectives, clearly subordinate to the state actors, holds no practical reality in the 21st century. Collectivities that operate only as the expressive vehicles of the individuals in charge also fail to grasp the parallelisms between state and other collective organizations. In the future, multiple sovereigns will exercise partial and overlapping sovereignties in an increasingly confused world. The phenomena of multiple demi-sovereigns cannot be understood except through a linked analysis focusing on law, cultural sociology, and philosophy. The development of the quasi-sovereign provides a critically important venue for the interdisciplinary study of law, culture and the humanities. Law alone fails to adequately explain the emergence of new quasi-sovereigns, and has provided an impediment to effective responses by other political communities. Cultural studies provide insight into the nature of custom and discipline which provide the structure of these sovereigns. Political theory and philosophy provide the means of constructing a new basis for understanding emerging forms of political organization that, in turn, can equip law with the language needed to regulate the new reality in accordance with emerging custom on a global scale.
Reference List:
ARISTOTLE, POLITICS (WILLIAM ELLIS, TRANS. 1912)-
Backer, Larry Catá, Economic Globalization and the Rise of Efficient Systems of Global Private Lawmaking: Wal-Mart as Global Legislator. University of Connecticut Law Review, Vol. 39, No. 4, 2007.
MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON 208-209 (ALAN SHERIDAN, TRANS. 1979) (1975).
Gunther Teubner, Enterprise Corporatism: New Industrial Policy and the ‘Essence’ of the Legal Person, 36 AM. J. CORP. L. 130 (1988)
Max Weber, Economy and Society 13 ff (1978).
Aristotle famously asked (himself): "What is a City? For upon this there is a dispute: for some persons say the city did this or that, while others say, not the city, but the oligarchy or the tyranny. We see that the city is the only object which both the politician and legislator have in view in all they do: but government is a certain ordering of those who inhabit a city" (Aristotle, Politics Book III, ch. 1, at 66).
Drawing on insights from Aristotle’s Politics (sadly, Aristotle's answer does not completely satisfy in a world composed on communities in which ethnicity, religion, race and other diostinguishing characteristics of social organization are not held constant), and Michel Foucault’s Discipline and Punish it is possible to conceive of collective organizations as autonomous and sovereign, when viewed externally, and as coercive hierarchical disciplines when viewed inside. I argue that these insights are equally applicable to formerly non-sovereign collective bodies exercising sovereign authority – corporations, revolutionary organizations, organized criminal networks and religious organizations – collective bodies exercising sovereignty that overlaps with that theoretically reserved to the nation-state. I then explore the consequences of this premise in two contexts – the first is that of the multinational corporation seeking to exploit the wealth of a political community, and the second is that of a non-state organization engaged in acts of mass murder. In the 21st Century, both corporation and terrorist organization have become Aristotle’s "City."
Consider the following questions: Is it possible to declare war on Osama bin Laden? Should Daimler-Chrysler AG be accorded a formal voice within the framework of the WTO? Is the Communist Party of China right to view the Fulang Gong, or any otjer autonomous collective not controlled by the Communist Party itself, as collective competitors for the control of the Chinese Communist state, and on that basis treat them as a sovereignty threatening enemy? To what extent are any collective entities free of the authority of the states in which or against which they operate? To what extent do either constitute autonomous institutions free of dependence on the “master collective” – the nation-state?
Aristotle provides a useful starting point for a consideration of the autonomy of collective bodies. I am willing, like Aristotle, to concede the autonomy of the nation-state as embodying the grundnorm. This autonomy of the nation-state, as the premier form of the collective body is based on shared custom. Thus, a mere multitude of people living together is insufficient to constitute a state, “for even if persons so situated should come to one place, and every one should live in his own house as in his native city, and there should be alliances subsisting between each party to mutually assist and prevent any injury being done to the other, still they would not be admitted to be a city by those who think correctly, if they preserved the same customs when they were together as when they were separate.” (Aristotle, Politics, Book III, ch. IX, at 83). But the autonomy of the collective body, as it presents itself to strangers, does not pass through to the internal organization of the collective, “for a city is a certain number of citizens.” (Id., Book III, ch. I, at 66). Not every person that forms part of the collective is a citizen of the collective body. The city is reserved for those who preserve the same customs.
Aristotle looks to notions of wealth and power as the basis for the social ordering within a city. Divisions within any collective on the basis of wealth and status provide the basis for the formation of states as monarchies, democracies or aristocracies, or for the degeneration of states into oligarchies or tyrannies. Law itself can play only a small, and perhaps perverse, role in the character of collectives. “For a law derives all its strength from custom, and this requires long time to establish; so that to make it an easy matter to pass from the established laws to other new ones, is to weaken the power of laws.” (Id., Book II, ch. VIII, at 50).
Aristotle suggests the connection between law, custom, social order, political power and the constitution of a state as we know it. But he makes no claim that law is inevitably tied to legilation, or that the power to order social behaviors is inseparably tied to the sonstruction of political community. It seems clear that law, custom and social order can exist separate from the political community that draws it opower from their invocation. Eacj of those is used, but not owned, by the "city." Thus, the suggestion appears to be that a certain mix of fundamental ingrediants, when put together in a number of ways, cam produce a "city," a community with power over its members.
Modern theory has added a set of more nuanced insights. Most useful is Michel Foucault’s argument, in his work Discipline and Punish, that collective organizations can be understood to exist as autonomous and sovereign, when viewed externally, and as coercive hierarchical disciplines when viewed internally. Culture, as practiced within a collective body, is the perfect disciplinary institution. It is "a network of mechanisms that would be everywhere and always alert, running through society without interruption in space or in time." (Foucault, Discipline and Punish, 208-209). What Foucault calls the "disciplines" evidences the separablity of the elements that make for sovereignty. The disciplines provide a way of understanding that political community, law, and power, are not necessarily tied together in a single form producing a single sort of authentic power community--the nation-state. Sovereignty, understood as a self-conscious autonomy backed by power among a community of individuals, is not invaliably tied to the organization of states.
Yet Aristotle’s Politics, and Foucault’s Discipline and Punish, though both instructive, fail us when we consider collective bodies of great power and cohesion other than the nation-state. Traditional thought viewed the city as the culmination of social organization, with all other forms of collective organization merely an imperfect part of this whole. All collectivities strive toward the construction of a state. “For which reason every city must be allowed to be the work of nature, if we admit that the original society between male and female is; for to this as their end all subordinate societies tend, and the end of everything is the nature of it.” (Aristotle, Politics Book I, ch. II, at 3). Yet governance of the individuals, the citizens of non-state collectives, requires the same effort to unitary custom. Supreme power is now shared by a nation- state with a host of state and non-state actors.
Technology and custom has produced global systems of organization that evidence Aristotle’s postulate that ultimate sovereignty is lodged only in the state. The insights developed to explain the state as an autonomous body are equally applicable to formerly non-sovereign collective bodies exercising sovereign authority – corporations, revolutionary organizations, organized criminal networks and religious organizations – collective bodies exercising sovereignty that overlaps with that theoretically reserved to the nation-state. Government has once again begun to pass to any number of collectives exercising portions of the power once exercised exclusively by nation-states. Each of these has become an Aristotelian ‘City.’ The formation of custom has begun to move to supra-national bodies whose work applies to all collectives. In this emerging reality there is little difference between the nature of a nation-state and that of a corporation, or of an organization such as Islamic Jihad? The corporate actor is ‘fictional’ because it is not identical with the real organization but only with the semantics of its self-description. It is ‘real’ because this fiction takes on structural effect and orients social actions by binding them collectively. Max Weber came closes to capturing this ambivalence by treating collectivities only as ‘ideas’ in the heads of judges, officials and the public, while at the same time assigning them ‘a powerful, often decisive, causal influence on the course of action of real individuals.’” (Teubner 1988 at 138; Weber 1978 at 13). As a result, modern international law, based on Aristotelian notions of a hierarchy of collective bodies headed by sovereign nation-states, no longer reflects the realities of the power or organization of the multitude of collective demi-sovereigns that now operate throughout the world.
The consequences of these premises are far reaching first in the context of corporations and then in that of non-governmental organizations that assert a sovereign capacity once thought exclusively as belonging to the state. Modern multi-national corporations may seek to exploit a traditional nation-state. Traditional analysis would suggest a hierarchy of authority in which the nation-state assumes dominance in any relationship between it and the corporation. After all, a state has a soul – a corporation has shareholders. Yet, when the corporation is large enough, old enough and free enough of dependence on any one state for its capital, labor, or markets, the opposite may occur. Moreover, where the corporate collective acts as the agent of another nation-state, or regional trade collective, the political authority of the corporation may vastly exceed that of the nation-state. Is the corporation a state actor? Conventional theory suggests it is not. This economic collective body should be regulated like any other merchant on the street corners of any city. But it cannot be. It acts with all the authority of a state actor. Its autonomous and independent character is as well defined as that of the nation-state that it seeks to exploit. Its disciplines, its culture, are as compelling as those of any political community. Should it not be deemed a state actor? Or perhaps it should be considered a proxy of the state – like the old Hudson’s Bay and East India Companies. Treatment as a sovereign requires a disregard of the authority of another nation to regulate ‘creatures’ of its own creation. Yet, treatment as an independent actor will result in a disregard of the power of the incorporating political state to control its subordinate creatures.
The second requires consideration of a non-state organization engaged in various political acts within and outside the borders of any one nation-state. Consider a series of acts of mass murder conducted under the auspices of an organization that determines that a nation-state is its enemy for reasons of religious, cultural and political difference. The organization has effectively utilized the most potent symbol of state sovereignty – the control of violence. It has deployed armies. It has killed. Yet, under conventional theory, the organization is merely a group of individuals whose actions are on a par with personal criminal activity. This criminal activity must be controlled like any random act of individual criminal activity within a state. But it cannot be. The collective acts with the authority and power of a state. Ought the collective be treated like a sovereign? If the answer is yes, then should the United States conclude that a particular organization was responsible for the destruction of the World Trade Center in New York, the United States may declare and conduct a war against this entity. But should, instead, this entity be considered a proxy of the nation-states that have consented to its actions or otherwise participated in the activities of the collective? Accepting this more traditional notion could permit the United States to treat a nation-state on whose territory the offending organization operated, as the director of that organization, and on that basis declare and conduct a war against it. Treatment of non-state collectives as sovereigns must result in an abandonment of the exclusivity theory of political sovereignty within nation-states. Such treatment would loosen the relationship between a particular geography and a sovereign collectivity. Non-state collective organizations would effectively function like a state within the geography of a nation-state. This is wholly outside traditional notions of international intercourse. Yet, such a loosening has marked theory for some time. Consider the Jews, until very recently, a stateless collectivity capable of independent political activity within nation-states traditionally constituted. Even today, Jewish ties to a geography are hotly disputed by another collectivity, Islam, which itself claims an identity tied both to territory (the dar al-Islam) and to the character of a universal stateless being. Is any ideological or cultural community different?
In the 21st Century, both corporation and terrorist organization have become Aristotle’s city. The notion of distinctions between state actors, holding a monopoly on power, and other collectives, clearly subordinate to the state actors, holds no practical reality in the 21st century. Collectivities that operate only as the expressive vehicles of the individuals in charge also fail to grasp the parallelisms between state and other collective organizations. In the future, multiple sovereigns will exercise partial and overlapping sovereignties in an increasingly confused world. The phenomena of multiple demi-sovereigns cannot be understood except through a linked analysis focusing on law, cultural sociology, and philosophy. The development of the quasi-sovereign provides a critically important venue for the interdisciplinary study of law, culture and the humanities. Law alone fails to adequately explain the emergence of new quasi-sovereigns, and has provided an impediment to effective responses by other political communities. Cultural studies provide insight into the nature of custom and discipline which provide the structure of these sovereigns. Political theory and philosophy provide the means of constructing a new basis for understanding emerging forms of political organization that, in turn, can equip law with the language needed to regulate the new reality in accordance with emerging custom on a global scale.
Reference List:
ARISTOTLE, POLITICS (WILLIAM ELLIS, TRANS. 1912)-
Backer, Larry Catá, Economic Globalization and the Rise of Efficient Systems of Global Private Lawmaking: Wal-Mart as Global Legislator. University of Connecticut Law Review, Vol. 39, No. 4, 2007.
MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON 208-209 (ALAN SHERIDAN, TRANS. 1979) (1975).
Gunther Teubner, Enterprise Corporatism: New Industrial Policy and the ‘Essence’ of the Legal Person, 36 AM. J. CORP. L. 130 (1988)
Max Weber, Economy and Society 13 ff (1978).
No comments:
Post a Comment