The Problem of Sovereignty in Globalized Times

Abstract

This article argues that the delineation of the current debate on sovereignty in times of globalization and the manner of questioning are problematic. Although various understandings of sovereignty differ in terms of content, they nevertheless reproduce the same conceptual structure: of a rigid binary separation into internal/external, national/global, a container theory of space, the need to search for the supreme, a (political, ethical, legal) skepticism and the idea of the uniformity of the sovereign entity (state, people, law). The continuity of this conceptual structure has contributed to the fact that not only our political, social and legal thinking and imaginaries have been shaped for centuries by the logic of sovereignty thinking, but also and above all our political practices. The article works out the manner in which this conceptual structure – and not just the content of the concept – is already theory-forming in terms of the structural composition of social and political realities, circumstances, problems and approaches, and its consequences cannot be reflected upon in a debate that postulates the concept of sovereignty. My criticism is that, in the process, important empirical insights about the driving forces of globalization and the economic materiality of global power relationships get lost and decisions are taken that are questionable in a normative sense, in terms of the authorization of actors on the one hand and the delegitimization and exclusion of actors on the other.

I. Introduction

Ever since Bodin and Hobbes, the concept of sovereignty has been a foundational, a worldview-conceiving political concept. What makes it thus, is its bonding capacity. ¹ The concept creates an inside and an outside, it encompasses political ideas of order toward the inside (security, peace, hierarchy) and outside (equality of states, prohibition on intervention, etc.), it drafts assumptions about the essence of the law (commando theory of law), the basic configuration of public power, and relates all of these ideas to each other. Due to its extraordinary status, many thinkers have discussed anew the concept, as a result of historic turning points such as the French Revolution or the two world wars, and have tried to reconcile it with the situation that arose. Over the course of the French Revolution, for example, Bodin’s princely sovereignty was replaced by popular sovereignty. The people became the pouvoir constituant. The associated idea of the common will, its formation and identification differ from the singular will of a prince. Some authors see in this a contribution to the “de-arbitrization” of sovereignty; ² other authors do not share this view. ³ Structurally, however, the idea of the people as the pouvoir constituant remained beholden to the logic of the idea of sovereignty. For here too, as in all of these debates, the question was who or what was the superanus. To whom or what must the special quality “of being the supreme power or supreme order of human behavior” ⁴ be assigned: the people (popular sovereignty), the law (legal sovereignty), parliament (parliamentary sovereignty) or the state (state sovereignty)? ⁵

However, the academic discussion of the concept of sovereignty has changed. The rise of “global informational capitalism,” ⁶ the role of multinational concerns, the significance of supranational organizations, the emergence of transnational migration networks and much more has led to a “questioning of sovereignty.” ⁷ During the course of numerous different processes of de-bordering, of integration, and of (social) differentiation, which are generally associated with globalization, the sovereignty of the state, both internally and externally, is being fundamentally questioned. So, the discussions about the concept of sovereignty are not new; what is new, rather, is the fact that “the object encompassed by the concept of sovereignty” ⁸ is itself a matter of debate, i.e. the existence of a self-constituted ultimate authority (structure). The question of whether sovereignty should continue to have a place in our political and legal vocabulary has shifted to the forefront of the academic discourse. Is the concept still suitable for categorizing and describing political and legal developments, and making them understandable?

Some authors argue that a “vertical dispersal of sovereignty” ⁹ can be observed, and that we have already entered the era of post-sovereignty; ¹⁰ this view is not shared by others. ¹¹ The debate about the concept has become quite confusing. Sociologists, legal scholars and political scientists describe and conceive a world order in which the concept of sovereignty oscillates – both empirically and normatively – between insignificance and redefinition. ¹² Sovereignty has thus become a “contested academic concept.” ¹³ During the course of these debates, a whole range of new conceptual compounds have been, and are still being, created, such as “post-Westphalian sovereignty,” ¹⁴ “late sovereignty,” ¹⁵ “divisible sovereignty,” ¹⁶ “pooled sovereignty,” ¹⁷ “multilevel sovereignty,” ¹⁸ “disaggregated sovereignty” ¹⁹ − to name just a few of them. All of these attempts are aimed at rethinking and redefining the meaning and function of sovereignty for a newly emerging global order.

Below I represent the proposition that both the delineation of the sovereignty debate and the manner of questioning are problematic. The concept of sovereignty is a foundational concept in the sense that it conceives an entire worldview. Although various understandings of sovereignty differ in terms of content, they nevertheless reproduce the same conceptual structure. This structure consists (a) of a rigid binary separation into internal/external, national/global, own/foreign, self/other. This separation is (b) related to the spatial-theoretical assumption that space is a container with clear, fixed boundaries. (c) The question of sovereignty is always motivated by the search for the supreme or for the base; (d) associated with this is a (political, ethical, theological, legal) skepticism and (e) the idea of a uniform and self-contained entity (state, people, law). Similar to Jens Bartelson’s account in Sovereignty as Symbolic Form (2014) ²⁰ and Jonathan Havercroft’s Captives of Sovereignty (2011), I argue that this conceptual structure, the so-called ontology of “sovereign-centered political theorizing” ²¹ − and not merely the content of the concept − is already theory-forming, and its consequences cannot be reflected upon in a debate that postulates the concept of sovereignty. ²² In other words: By positing the concept of sovereignty, I argue, one can recognize that which we call social and political reality only in a very specific manner, namely in terms of sovereignty theory – with regard to its structural composition, circumstances, problems and approaches. It is not reality that forces the concept of sovereignty and makes it indispensable as an analytical tool; rather, sovereignty-centered political theorizing arranges reality in such a manner that it satisfies the ontological premises of this thinking and theorizing. My criticism is that, in the process, important empirical insights about the nature and challenges of globalization get lost and questionable decisions are taken in a normative sense, in terms of the authorization of actors on the one hand and the delegitimization and exclusion of other actors on the other.

In order to develop this criticism, I shall first outline the contours of sovereignty-centered theorizing. To this end, I examine the confrontation between Carl Schmitt and Hans Kelsen, who discussed what they called the problem of sovereignty against the background of the European interwar period. Naturally, other authors could have been chosen from the numerous publications on the concept of sovereignty. However, the selective significance of Schmitt and Kelsen results from the fact that both authors were the protagonists of the first major debate under modern auspices (modernization of international law as cooperation law, formation of international organizations, international trade, societal pluralization) on the significance of the concept of sovereignty. Today, this so-called Weimar debate on the problem of sovereignty is regarded as a central reference in research. In addition, Kelsen and Schmitt are among the most important legal and state theorists of the 20th century and are the founders of respective schools of thought. And although they held contrary views on what constitutes the problem of sovereignty and how it could be tackled, their answers are almost identical in structural terms. I argue that this is due to the underlying conceptual structure of sovereignty that they both exhibit, and I will use the debate between the two authors to uncover this conceptual structure. I then turn to the current discussion on the status of sovereignty. In examining the thoughts of Jean Cohen and Dieter Grimm, I take up two authors from different fields – political science/theory (Cohen) and law (Grimm) – with well received contributions in Europe and the USA who essentially present a similar survey of the global development of law, but who draw fundamentally different conclusions. While Cohen speaks of the changing form of sovereignty, Grimm claims to detect a loss of object. Their different methodological view of the problem of sovereignty – political science analysis especially with regard to the changing practice of international organizations (IOs) vs a legal doctrine’s perspective – is also symptomatic of the debate in which political scientists and legal scholars often clash in this debate. In the next part, reverting to the considerations of Reinhard Koselleck on the relationship between conceptual work and social analysis, I formulate a fundamental unease with Cohen’s and Grimm’s treatment of the concept of sovereignty. Essentially, this unease derives from the sense that both fail to recognize that concepts should not be understood merely as indicators that refer to social contexts; a concept is also always a factor of these contexts, which places limits on our experience and on our theorizing. I next show that Grimm and Cohen – despite their different conclusions – reproduce the conceptual structure of the idea of sovereignty and thus tend toward an under-complex analysis of the political, legal and social reality.

II. Kelsen, Schmitt and the Problem of Sovereignty

1 Starting positions

Under the term problem of sovereignty, both Carl Schmitt and Hans Kelsen attempted to identify conceptually the legal-political constellation as it appeared in the European interwar period. Against the background of the political situation of the Weimar Republic, Schmitt considered “the fundamental problem of the concept of sovereignty” to be the “connection of actual power with legally highest power.” ²³ Schmitt assumed that “the legal idea cannot realize itself”; ²⁴ that “the legal idea cannot translate itself independently.” ²⁵ Precisely for this reason, that which he called the “force” ²⁶ of law was necessary – a structure of power and authority that is able to create and maintain the “normal” condition of order, in which laws can be applied in the first place. In terms of the supposed dualism between true socio-political power – the sociological element – and the sovereignty claim of a uniform legal system, Schmitt clearly favors power. This decision has fundamental legal and constitutional-theoretical consequences: Law as “‘situational law’” ²⁷ and the integration of the exception into the constitution as a supra-legal element.

Instead of trying to eliminate the sovereign by means of liberal constitutionalism, ²⁸ viewing it merely as a “point of ascription” ²⁹ and suppressing the question of sovereignty – “by a division and mutual control of competences” ³⁰ – Schmitt argues for the “juristic significance” ³¹ of a sovereign power. What he demands is that the idea of the complete suspension of the legal order is incorporated into the legal order and at the same time, the power that holds authority should be concerned with this suspension. What might appear tautological at first glance – the power that holds authority should be concerned with … – resolves upon closer inspection into a “sociology of the concept of sovereignty.” ³² This means that an actual political power receives authority only when its “historical-political status” corresponds and can be harmonized with the “general state of consciousness” ³³ of an age. Formulated in terms of legal theory, when the “juristic construction of the historical-political reality can find a concept whose structure is in accord with the structure of metaphysical concepts.” ³⁴ Schmitt underpins this view with his claim that “all significant concepts of the modern theory of the state” are “secularized theological concepts” not only for historical reasons, but also due to “their systematic structure, the recognition of which is necessary for a sociological consideration of these concepts.” ³⁵ What Schmitt means by this is that the authority of a power depends on whether it is compatible substantively and structurally with the idea that people develop about God and the world and their place in the world over time. The question of sovereignty is therefore also a question as to whether the idea of a supreme entity or absolute authority can convince those people living in a society at a particular time and corresponds with their desires and imaginations.

In contrast to Schmitt, Hans Kelsen approaches his sovereignty-theoretical considerations fundamentally differently. For him, the problem of sovereignty lies in how one conceives the relation of two different legal orders – that of national and of international law – to each other. The problem of sovereignty refers to the systematization of legal norms and cannot “be answered through an inquiry into its natural or social reality.” ³⁶ Kelsen writes: “Sovereignty in the sense of supreme authority can be nothing else but the quality of a legal order. Therefore, the problem of the sovereignty of the state is the problem of the sovereignty of the national legal order in its relation to the international legal order.” ³⁷

In his view, therefore, the problem of sovereignty can be answered in two principle ways: either the national legal order is the highest order, or the international legal order is superanus. To Kelsen, the side we favor is not a scientific matter, but an ideological one. Traditionally, in the first case – the “primacy of national law” ³⁸ – we speak of the sovereignty of the state. But this sovereignty of the state is not a question that is in any way connected with the “certain amount or degree of real power.” ³⁹ The sovereignty of the state arises purely and simply when “one presupposes a national legal order as a supreme order.” ⁴⁰ Even states that have less power compared to the great powers, are deemed to be as “equally sovereign as these powers,” ⁴¹ if they view only their own national legal order as the highest order. According to this idea, international law is only then valid when it is considered by the state to be binding, thus becoming part of the national legal order, and guides the organs of the state.

If, on the other hand, we resolve the problem of sovereignty by regarding the international legal order as the highest order, we merely need to justify the validity of the national legal order – and not argue in favor of a world state that has the factual power to enforce this legal order. According to Kelsen, the validity of the national legal order then derives from the “principle of efficacy,” ⁴² a standard of international law that, when applied to the question of the validity of national law, says that the government of a community is deemed to be a legitimate government, and the community is considered to be a state, when it exercises “effective control over the members of this community” and is “independent of other governments of analogous communities.” ⁴³ Kelsen very clearly formulates the consequences brought about by this second approach:

If this construction of the relation between international and national law is accepted, one cannot speak of sovereignty of the state in the original and proper sense of this term. The “sovereign,” i.e., the supreme order, is the international and not the subordinated national legal order. The term “sovereign state,” if used in this construction, acquires a meaning utterly different from its original and proper sense. It expresses that the national legal order is subject only to the international and not to other national legal order […]. ⁴⁴

Kelsen recommends refraining from using the concept of the sovereignty of the state in this case − not even by prefixing an adjective such as relatively, since this adjective is a “contradiction in terms.” ⁴⁵

2 The ontology of sovereignty-centered theorizing in Schmitt and Kelsen

It is obvious that Schmitt and Kelsen approach the problem of sovereignty differently in terms of content, and reach contrary conclusions: power versus law; decision versus norm; social facticity versus normative attribution. However, although they each represent different substantive positions, their answers nevertheless demonstrate a clear structural similarity in a formal, temporal and territorial/spatial respect, which I would like to call the ontology of sovereignty-centered theorizing.

For both it is first clear that the question of sovereignty must be the question of the most supreme or the base. This is shown clearly by Kelsen, for example, when he writes that one cannot speak of relative sovereignty, since this phrasing implies a contradiction in terms. The terms or the conditions of the concept of sovereignty, demand that when an object – law, people, state – is to be endowed the status of sovereignty, this object must be granted an unlimited and absolute “validity” ⁴⁶ or power (Schmitt). But the absoluteness is only one formal demand of the sovereignty concept on its object. Uniformity and singularity are other terms of the concept: In the sovereign decision, the singular will of a person or a similar “power complex,” i.e. the state ⁴⁷ is realized; for Schmitt, two sovereigns within one order are conceptually inconceivable, i.e. in terms of the logic of sovereignty. This is made even clearer by Kelsen. The reason why Kelsen rejects the dualism or pluralism of legal orders is because the accompanying “simultaneous validity of two systems of norms” ⁴⁸ leads to contradiction and conflict. What is therefore required, in Kelsen’s view, is (a) the sovereignty of one legal order – whether the national or international legal order – and (b) the uniformity of these legal orders, to avoid the conflict of norms. A further moment becomes clear here, which is necessarily associated with the “captivation with sovereign-centered political theorizing” ⁴⁹ : anticipatory skepticism. This means that all theorizing and thinking starts from the abstract assumption that in social, political, legal, epistemic debates, we inevitably reach the point when only a decision of last resort can solve the conflict and prevent us from chaos and disorder. The conflict of norms presented by Kelsen, which can be resolved only with an either-or logic, attests this skepticism just as much as the security dilemma of realism, the commando theory of law or the theory of the state of emergency. Talk is silver, deciding is gold. And the temporal structure of this sovereign decision always points to the moment; sovereignty knows only one kind of temporality: hic et nunc.

As well as these formal and temporal demands on the object of the concept, sovereignty is also accompanied by a very specific spatial-theoretical assumption. The political entity given the status of sovereignty – state, law, people, nation etc. – is conceived in spatial terms as a container. Such a container sets the boundary as an insurmountable fact that works with strict delimitations – internal and external, national and international, own and foreign, insider and outsider etc. ⁵⁰ Carl Schmitt accordingly called the concept of sovereignty a “borderline concept.” ⁵¹ In the case of state or popular sovereignty, this container thinking is obvious. Here one presupposes a territorial understanding of basic units; and the question of belongingness and non-belongingness can also be clarified absolutely by means of the territorial question. But also, any talk of legal sovereignty as defined by Kelsen conceives law as a space that produces a metaphorical container as its scope of application by means of (absolutely) set limits. Whenever this legal thinking attains a scalar dimension – in the sense of national versus international law –, this – metaphorical – container thinking is also territorialized. ⁵² Within the area of sovereignty theory the container concept is not problematic, but rather functional. It corresponds with the idea that political entities can be delimited as legal spaces as territorial units or legal orders and are as such independent of the actions of individuals. It only becomes problematic when the manifold processes of de-bordering, integration and differentiation of social, economic, cultural and political coexistence questions the plausibility of such an order of things.

One objection that can be made at this stage might be that while the similarity in structure is apparent, the discourse took place against the background of very different legal and political realities than is now the case. In particular, the development of global politics and law changed fundamentally after 1945. It is therefore by no means self-evident that the aforementioned structural similarities are reproduced in current debates on sovereignty. Moreover: Even if that were the case, it is not yet clear why that should be a problem.

III. The Present Debate About Sovereignty

1 Starting point

The Federal Constitutional Court of Germany argued in the so-called Lisbon judgment that the “Treaty of Lisbon neither transfers constituent power, which cannot be affected by the constitutional bodies, nor does it abandon state sovereignty of the Federal Republic of Germany.” ⁵³ And elsewhere it says: the sovereign “state is neither a myth nor an end in itself but the historically grown and globally recognized form of organization of a viable political community.” ⁵⁴ To reinforce this view, the judges state that the principle of democracy is closely interwoven with sovereignty and they emphasize that the principle of the conferral of powers may not be infringed by the progressing European process of unification. In the Lisbon judgment, the Federal Constitutional Court also names those areas that are deemed to be domaines réservé and which may not become part of the community method, i.e. being the matter/subject of the supranational decision-making bodies (social security, citizenship, monopoly on the use of force, the raising of credit, criminal justice, and so on). By staking out the boundaries of the supra-nationalization process in this manner, supra-nationalization appears to be “reconciled” with the idea of sovereignty.

Within the academic sovereignty debate, for which the Lisbon judgment also plays an important role, the matter is much more controversial. It is discussed explicitly whether the concept of sovereignty remains suitable, in an age of globalization, for categorizing political and legal developments, for making them understandable, and providing orientation. This debate (including its blind spots) can be illustrated by comparing two opposing viewpoints, namely that of Dieter Grimm, which he outlines in his book Sovereignty. The Origin and Future of a Political and Legal Concept (published in German in 2009; in English 2015) and Jean Cohen’s Globalization and Sovereignty (published 2012). While Grimm assumes that we face a decline of sovereignty, Cohen sees things differently. According to Cohen, sovereignty must certainly be redefined substantively, but it continues to remain absolutely relevant as an ordering principle of law and politics.

Interestingly enough, both authors essentially proffer the same survey of the global legal development and in principle address the same change processes under the keyword “supra-nationalization” – they simply interpret it differently: Thus both Grimm and Cohen point to the fact that after the end of the Cold War, economic and military coercive measures taken against states by the United Nations Security Council (Chapter VII/UN Charter) increased. Both highlight the restriction of the principle of consensus in international politics by measures of qualified majority (procedure of the EU Council of Ministers) or “negative consensuses” (dispute settlement procedure of the World Trade Organization (WTO)), and stress that the resulting decisions are binding for member states. Cohen and Grimm address the newly-created courts and tribunals that have departed from the traditional framework of international law – either by conducting investigations even where these concern citizens of states that have not subjected themselves to the jurisdiction (e.g. the International Criminal Court); or by allowing states to bring legal actions against other states for the manner in which these have treated their citizens on the latter’s territory (contrary to the non-intervention clause); or even by allowing individuals to sue a state (as in the case of the European Court of Human Rights). In particular with reference to the last point, both emphasize that international human rights protection had made the individual partially a subject of international law, thus restricting state action.

2 Grimm vs Cohen

Grimm now interprets this supra-national legal development as a loss of sovereignty. He often speaks of the state’s “self-limitation with the transfer of sovereignty rights to a superordinate political entity” ⁵⁵ – in contrast to the traditional self-limitation without such a transfer. While the national constitutions have authorized this transfer, the use made of these rights by the international and supra-national organizations can no longer be controlled by the constitution. The transfer of competence might well have been self-determined; however, the exercise of this competence no longer is. Grimm dryly observes: “Even a loss of sovereignty that conforms to the constitution is still a loss of sovereignty.” ⁵⁶ Since, in his view, the international and supra-national organizations also have no sovereignty, he believes that the concept has lost its object as a result.

Grimm presents this analysis with some regret and a dose of skepticism. For instance, he emphasizes that the decline of sovereignty thankfully breached state absolutism; however it has been accompanied by severe losses in democracy and legitimation. For this reason, he points out that, from a normative perspective, the constitutional loss of sovereignty is not desirable; rather, sovereignty these days is synonymous with the protection of democracy: “Sovereignty’s most important function today lies in protecting the democratic self-determination of a politically united society with regard to the order that best suits it . . . Today sovereignty protects democracy.” ⁵⁷

In Jean Cohen’s book Globalization and Sovereignty (and in numerous essays), we encounter more or less the exact same description of the problem. She also places the problem of sovereignty in the relation of the sovereign national states to the newly-created supra-national entities such as the EU, UN, WTO and so on, whose legal claim to primacy and the exercising of sovereign power present a challenge to the state. However, in contrast to the assumption of the decline of sovereignty, she makes a decided plea for the “continuing importance of sovereignty.” How does she justify this?

In Cohen’s view, it is “empirically more accurate and normatively preferable” ⁵⁸ to construe the changes in global politics in the sense of an “emergence of a dualistic world order.” ⁵⁹ It is true that we are confronted with a large number of legal and political regimes of global governance, whose institutional structure, decision-making bodies and legal output “have acquired an impressive autonomy with respect to their member states and one another.” ⁶⁰ At the same time, however, we have sovereign states, which produce consensus-based international law. This aspect is swept all too rashly under the carpet. Without doubt, global legal development has led to a new political culture of sovereignty, namely “from one of impunity to one of responsibility and accountability.” ⁶¹ Sovereignty is now characterized by the principle of the responsibility to protect and respect for human rights on the one hand and by the principle of the sovereign equality of states, territorial integrity, self-determination and a renunciation of violence on the other. A sovereign state understood in this manner remains and indeed should remain the central actor in the institutional setting of international politics – not least because it is the site of democratic self-determination. ⁶² Against this background, the concept of sovereignty ought to be redefined substantively, but the epistemic function of the concept of sovereignty as “an ordering principle […] is still relevant today.” ⁶³ With regard to this substantive redefinition, it makes no sense to either cling to a solipsistic understanding of sovereignty along the lines of Schmitt, or to join the ranks of those who equate the concept with a hotchpotch of competencies and erroneously advocate conceptual compounds such as divided, pooled, or shared sovereignty.

The answer to the problem of sovereignty today, namely the defining of the relationship between the state and supra-national entities, therefore lies not only in a policy of re-strengthening the nation state. Rather, one solution is the federation as a political form of organization, with the EU as a prototype. Cohen calls such a federation a “feasible utopia,” ⁶⁴ since it is able to uphold the principle of sovereign equality of states and best represents the current formation of a new regime of sovereignty. In contrast to cosmopolitism and cosmopolitan constitutionalism on the one hand and the critical Global Governance theory on the other, Cohen argues that the paradigm of “constitutional pluralism” ⁶⁵ should apply, both between the national states within this federation and also in the relation of such federations to other institutions of global governance.

IV. Loss of Object vs Change in Form – or: What Is Conceptual Work?

Loss of object vs change in form – this is the status of the discussion. From Cohen’s perspective, the object of the concept of sovereignty is only in question when one essentializes a certain historical understanding of sovereignty, instead of reconstructing the concept from the real legal development. And indeed, this criticism applies to Grimm; he does in fact present a fixed definition of the concept of sovereignty. To him, sovereignty means: (a) states as the sole subjects of international law; (b) with the right to self-determination internally and independence externally, secured by the prohibition on intervention; and (c) state self-limitation without the transfer of sovereign power. And his analysis then shows that precisely this understanding of sovereignty is challenged by the global legal development – and he regrets this. Even more: In Dieter Grimm’s view, Cohen’s method of reconstruction is also questionable – pointing out that words which persist in the texts of contracts and resolutions are in themselves insufficient indicators of stable contents. ⁶⁶ For example, talk of human rights and democracy does not always mean the existence or practice of human rights and democracy in reality. The same also applies in the case of sovereignty. Grimm seems to argue, in line with Reinhard Koselleck, that when the experiential substance of the concept and its “space of expectation coincide less and less,” ⁶⁷ then the analytical and orientation-giving power of the concept is simply obsolete. Following Grimm, that is also knowledge obtained, which can/might be used to counter Cohen’s accusation of essentialization.“ For her part, Jean Cohen might respond by rightly claiming that the knowledge attained is only presumed, and has been gained deviously only by means of essentialization. With Grimm, one could counter that there is no way of getting around a certain degree of essentialization; otherwise we could not grasp the fundamental changes, and could only speak from then on of the change in form.

What can be seen here from the examples of Cohen and Grimm is symptomatic of the sovereignty debate. There is no doubt that one can learn a lot from Grimm and Cohen with regard to global legal development, but the state of discussion has become bogged down. The debate is moving in circles, and the authors appear to be separated from each other by a glass wall. A change in form or a loss of object? Answer: It depends all on the understanding of sovereignty we take as our starting point.

My unease about this frontline derives from the circumstance of how conceptual work is carried out and the relation between conceptual analysis and social analysis is understood in both cases. The starting point of the debate is marked by the question as to whether the concept of sovereignty remains suitable for categorizing political and legal developments and for making them understandable. According to this understanding, which Grimm and Cohen also take as the basis of their work, concepts are there to measure the diversity of empirically traceable developments. Reinhard Koselleck gets to the heart of this epistemological understanding of concepts when he writes that a “concept bundles up the variety of historical experience together with a collection of theoretical and practical references into a relation that is given and can be experienced only through the concept.” ⁶⁸ According to this view, therefore, “the semantic function and performance” ⁶⁹ of a concept depends on its indicative function. In other words, it depends on the extent to which a concept encompasses the social and political circumstances. Grimm and Cohen follow this logic and arrive, as shown, at contrary conclusions. For Cohen, the concept fulfills its indicative function; Grimm doubts this.

Dealing with concepts in such a way is problematic, since there is no reflection on the degree to which concepts already pre-structure our view and our thinking. Reinhard Koselleck sees this problem clearly when he argues that a “concept is not simply indicative of the relations which it covers; it is also a factor within them. Each concept establishes a particular horizon for potential experience and conceivable theory, and in this way sets a limit.” ⁷⁰ Accordingly, the choice of concepts in general and of the concept of sovereignty in particular is not a neutral matter, since the concept of sovereignty follows an intrinsic logic and structure, which functions as such in an ascriptive manner and undertakes an anticipatory allocation and arrangement of things. So, if we conduct conceptual work only in one way and think only about the indicative function of a concept, we overlook the extent to which the structure of concepts takes effect behind our back.

Specifically, therefore, my criticism is that, while Grimm and Cohen think about the content of the concept of sovereignty in terms of the history of ideas, they do not, however, address the question as to how the formal structure of the concept of sovereignty already pre-structured the horizon of their usage and analysis. In other words: They do not address critically the ontology of sovereignty, i.e. the basic structure of sovereignty thinking. This means that the political-legal thinking of Grimm and Cohen remains sovereignty-centered in a negative sense. Behind the backs of the authors, so to speak, and conveyed by means of the form, the concept of sovereignty develops its worldview-conceiving function in the thoughts of Cohen and Grimm. Specifically, this means that the conditions of the possibility of recognizing, the assumption of the structural layout of political-social reality, the pattern for detecting possible hazards, problems and solutions are already determined in advance – without them, however, reflecting critically on this definition and determination.

Examining sovereignty in an age of globalization by assuming a treatment of concepts that understands these not only as indicators, but also as factors, must first therefore clarify the reduction of a sovereignty-centered analysis. Starting from three key ontological characteristics of sovereignty-centered thought (the binary separation of internal and external; the postulation of a uniform and self-contained sovereign entity, and the search for the supreme), which I identified in the confrontation between Kelsen and Schmitt and which arose once again in Cohen and Grimm, I will show that such structured thinking only barely does justice to the political specifics of globalization processes, which measure the ambivalent role of the state today and misjudge the emancipatory potential of denationalization.

V. The Transnational Constellation and Unsuitability of the Concept of Sovereignty

1 Internal/external

Sovereignty-centered thinking is based on binary separations such as internal/external, national/global, own/foreign, self/other. That is the analytical pattern of this thinking. Everything that is not within the area of validity of state-sovereign law is outside of it. According to Grimm and Cohen, sovereignty, as a matter of principle, has the task of preventing the rule of the outside over the inside. Accordingly, we read in Jean Cohen:

As such, sovereignty means autonomy of a legal order vis-à-vis the outside and its internal supremacy, and political self-determination meaning non-imposition of political form or rule by outsiders or foreigner powers. ⁷¹

Adopting this container conception of space with its binary separation into inside/outside, Grimm and Cohen maneuver themselves into a position where they are incapable of grasping the sociological findings on globalization in conceptual terms. In brief: their thinking suffers from a sociological deficit. In what sense?

Despite their different perspectives, the numerous sociological and political-economic studies on transnationalization processes demonstrate that the binary separation between internal/external or national/global is no longer convincing. Irrespective of whether we look at Manuel Castells’s thoughts on the network society and the “informational age,” ⁷² revert to studies on the formation of transnational spaces, ⁷³ or draw upon research on transnational law, which is not characterized adequately either with conceptual opposites such as private versus public or national versus international ⁷⁴ − the description of the world as an internal and an external is more than sub-complex. That which we now call globalization takes place to a very large degree in and within the nation state. ⁷⁵

As an example, Saskia Sassen identified this finding in her sociological and political-economic studies. Sassen demonstrates that the decisive components of the global system are developed within the national/nation state. In this context, she speaks of “capabilities,” ⁷⁶ meaning the ability to take collective measures and achieve collective results. The span of that which is meant by the so-called capabilities ranges from the monopolization of violence, legal security, the formation of political will, to the provision of a system of beliefs and values, the organization of the food supply and so on. The example of legal security in particular explains concisely how the nation state itself is “one of the key enablers and enactors of the emergent global scale.” ⁷⁷ Once, the rule of law constituted the central accomplishment of the nation state. Today, key components of the system of the rule of law (the clarity and consistency of laws, legal security and non-retroactivity, legal protection and so on) contribute to the fact that a globalized economy is possible in the first place. In the area of intellectual property rights (patents, copyright, trademark law) or the standardized principles of accounting, for example, globally-operating companies have demanded globally standardized types of instruments. To ensure the success of these demands they require the support of the state of establishment; states must also cooperate actively in the development and implementation of the legal standards. By this means, an “operational space” ⁷⁸ is produced that is partly embedded in the national legal system, but which also operates beyond this boundary, because the primary aim is the global economy. Thus, globalization is not interpreted here primarily as supra-nationalization that approaches the state from the outside; here, globalization is denationalization, but in a specific sense: the old components of the national legal system are used, but endowed with a new, global logic. ⁷⁹

Important driving forces in this process of reprogramming are national legislators, the judiciary and executives, internationally operating companies and markets that are nevertheless settled in the nation state. By means of social practices, they contribute to the fact that those practices and institutions that are based in the national are furnished with a new, global logic. Neither this logic nor its key components simply come only from outside. Accordingly, these processes also cannot be captured with an internal/external logic.

2 The uniformity and self-containment of the sovereign entity

Sovereignty-centered thinking assumes that that entity which is furnished with the blessing of sovereignty – in this case the state – appears in a uniform and self-contained manner. This assumption results in the idea that the central challenge today is the relation of the state to supra-national institutions – in other words, to external powers that question its self-determination. Both the assumption and the challenge postulated should be treated with skepticism.

On the one hand, the state has gone through a change in form. The modern state now appears increasingly as a “disaggregated state.” In other words, it acts in the form of policy- and issue-specific government networks and “transnational cooperation of authorities” ⁸⁰ – from the Group of Twenty (G20) to the European Border and Coast Guard Agency (Frontex) to the Basel Committee on Banking Supervision. What we can observe are embedded and networked practices of governing, with which the state remains a central actor, indeed is part of this supposedly external power – even though it does not act in a uniform or self-contained manner, from a center. Rather, it has transnationalized in the form of these government networks and administrative cooperation. Today, such a transnationalized state plays a decisive role in designing the livelihood of many people. But how does it do this?

This raises a second objection – the question of what the central challenge actually is today. Political-economic studies point to the fact that the de-bordering, integration and differentiation processes of global-capitalist economics are not constituted beyond the state − somewhere out there − but rather in the state. The key terms for this are de- and re-regulation, privatization and the marketization of public functions. ⁸¹ Authors such as Saskia Sassen, Susan Strange or Claire Cutler have worked out that the privatization and denationalization or dismantling of the state go hand in hand with each other; and that this privatization of public power and “the rise of private authority [is] not simply an external force” that limits the power of the state, but is “endogenous to the state.” ⁸² The central feature in the formation of private-economic power structures is that capabilities that once served the public interest or the reason of state, such as instruments of economic, fiscal or monetary control or other regulating institutions have been reprogrammed in the sense of a new private-economic normativity. The state acts, but the context of meaning of its actions has changed. The balance between work and capital, redistribution of income and wealth, social peace or the common good was replaced by principles of market conformity, such as competitiveness, locational advantage, flexibility, cost pressure, privileged access to capital, technological control or entry into rich and wealthy markets. ⁸³ Accordingly, Sassen represents the theory that “key elements of this new normative order enter the public realm where they get represented as part of public policy or public objectives; this contributes to denationalize what had historically been constructed as national state agendas.” ⁸⁴ Similar arguments are also presented by Wolfgang Streeck. According to Streeck, the consolidation state – the new state model of the incipient 21st century – is a product of state-political denationalization, internationalization and economic liberalization, which is primarily obligated to securing market conformity and which de-democratizes politics. ⁸⁵ It is therefore far from the case that the state can be identified simply as a bastion of democratic self-determination; the state is an important architect, agent and victim of the structure of global financial capitalism. A structure, incidentally, that plays no role either for Cohen or for Grimm.

3 The search for the supreme

Sovereignty-centered thinking asks per se who or what is superanus; to whom or what the special quality is to be ascribed “of being the supreme power or supreme order of human behavior” (Kelsen). Drawing this question into the center is the third feature of sovereign-centered political theorizing. Since mid-early modern times, this supreme power has been the state; for Cohen, it remains the state; for Grimm, the place of supreme power is vacant, but his thinking remains sovereignty-centered.

What marks the essence of the idea of a supreme power is that all other powers – economic or civic – are thought to be enclosed and subordinate. This in turn has consequences, since the actions of these subordinate powers are regarded as less significant and less important than that which the supreme power, the state, does.

To what extent is that view problematic? It is problematic, because sovereignty-centered thinking, according to Claire Cutler, thereby avoids the questions as to “(…) who or what thinks or produces law today.” ⁸⁶ According to the structure of sovereignty-centered thinking, the exercise of political and legal power is allocated to the public sphere of the government; economic relationships and activities, in contrast, are not deemed to be directly political and are associated with the private spheres of individuals and markets. The economy is therefore at best an object of political action.

It is therefore also symptomatic that theorists of sovereignty, as Grimm and Cohen, when considering global political processes, know only two kinds of actor − states and global governance institutions. Private economic actors are not considered at all. What states and global governance institutions do is political, and political is equated with significant, important, primary; economic, in contrast, is equated with secondary, private, profane. Hidden behind this, of course, is also a normative program, namely that of the (democratic) self-determination of society through the state. But there is a high price to be paid for this program: The political power of private-economic actors remains invisible. Despite the political influence and participation of global private economic actors in the generation of national and international law, global standards, the filing of international contracts, ordinances and regulations, they cannot be captured conceptually by sovereignty thinking. Global private economic actors have a political “non-status” in sovereignty-centered thought. ⁸⁷ However, this thinking produces a growing gulf between the theory and practice of the factual exercise of power in a globalized age. To the extent to which this separation is upheld and the economic materiality of global relationships of power and rule are not considered in conceptual terms, sovereignty thinking also remains blind to those causes that prevent the realization of their normative postulates in the world.

Wendy Brown, on the other hand, in her considerations on sovereignty, strives to capture this economic materiality of global relationships of power and rule. She argues that states and sovereignty “come apart from one another” ⁸⁸ due to the growing power of transnational economic institutions and the domination of the political rationalities of neoliberalism. This doesn’t necessarily result in a decline in power and significance of the state but it leads to the fact that “states persist as non-sovereign actors.” ⁸⁹ Brown is convinced that “many characteristics of sovereignty” migrated to the “unrelieved domination of capital” ⁹⁰ (and religiously legitimated violence) which appears and acts as a new sovereign these days.

While Brown’s thesis of a separation of state and sovereignty is illuminating, I disagree with her account of capital as the new sovereign and argue for detaching the analysis of the global transformation of power and domination from a heuristic of sovereignty. To conceive of capital as a uniform and self-contained sovereign entity leads to an under-complex analysis that ignores the struggles in the field of (political) economy and fails to grasp the actual democratic problem. An example can help to illustrate my concerns: Andreas Nölke pointed out that a purely technical issue, such as the harmonization of accounting standards, which has been implemented by the International Accounting Standards Board (IASB), a private agency based in London, is of great political importance. At the heart of the transition from historic cost to current fair value accounting lie fundamentally different views on the role and function of companies in a society. While fair value accounting “perceives companies as property of its owners” and “takes an investor’s perspective,” historic cost accounting, in contrast, “gives much more weight to other stakeholders of a company – most notably to creditors, but also to management and employees.” ⁹¹

The decision to implement fair value accounting proved fatal during the financial crisis of 2007–8, and like many others it was taken within the established channels and institutions to which citizens generally are denied access. There are disputes, even political battles within these private organizations and among the involved actors, producing winners and losers with tremendous political and economic costs, although the public is neither aware of it nor involved. In short: There is no uniform and self-contained sovereign entity, named capital, with a homogenous will overpowering all other interests. The problem is of different shape. The organization and composition of our economic coexistence is not a matter of public debate and struggle in which political alternatives become visible as competing options on the political stage and with the need to justify and convince. Rather, political decision-making and standard-setting is outsourced to semi-public or even private organizations such as global law firms, consultancies, expert commissions, standard-setting agencies. ⁹²

4 Conspiracy against the emancipatory potential of denationalization?

In addition to the weaknesses described in the analysis of globalization processes, sovereignty-centered theorizing also conspires against the emancipatory potential of denationalization. ⁹³ How can this be understood?

At first glance one might think that sovereignty can serve as protection against the particular interests of transnational corporations (TNCs) − for example by preventing them from selling off raw materials. At the same time, however, this claim misjudges the fact that in many cases the selloff of natural resources, the granting of mining rights, the establishment of so-called special economic zones, especially within so-called less developed countries (LDC) and least developed countries (LLDC), or the regulation of patents often occurs on behalf of the state and its sovereign power of disposition. Without doubt, there are political conflicts in which the state and its political and economic elites act against the economic interests or large corporations. But the state in the transnational constellation is a “cunning state,” ⁹⁴ which in many other cases takes the side of TNCs. Shalini Randeria has worked out that the political will of the cunning states to use the options that are open to them, has also dwindled. ⁹⁵ One example she refers to in order to corroborate her claim is the Indian patent law. Randeria argues that the Indian state did not use the flexibility granted to it by the Doha Declaration (on trade-related aspects of intellectual property rights and public health), in this case with regard to pharmaceutical patents. In line with the work by Rangnekar, ⁹⁶ she establishes that the provisions of the new Indian patent law were more due to internal pressure than external constrictions. The Indian state could have passed somewhat different laws, even within the WTO framework, and could have exhausted the flexibility of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) to the full, in order to better protect the interests of small farmers and consumers of medication. Instead, it gave greater priority to the interests of powerful sections of its pharmaceutical industry. ⁹⁷ According to Rangnekar, the explanation for the ambivalent attitude of the Indian state in matters of intellectual property probably lies in the changing interests of some powerful Indian pharmaceutical companies, which profit from stricter patent protection. For these do not only rely on the production of generic substances for export, but also want to share the advantages of outsourced clinical research and the opportunities of the global marketing of cheap Indian medication with western competitors.

Sovereignty does not necessarily serve as a bulwark against selloffs; in many cases the sovereign state serves the private-economic imperative. The actual problem therefore seems to be the lack of democratic process. Political protest and resistance by indigenous populations against the economic exploitation of their habitat is therefore usually directed against the political and economic elites of the country, who are blessed with this sovereignty, and who consent to this exploitation and profit from it, rather than against the respective TNC itself. In the process, they receive support from transnational activist networks. And it is precisely against these transnational activist networks that sovereignty-centered thinking is aimed. For these networks indeed consist of “outsiders” ⁹⁸ and “foreigners” ⁹⁹ from a sovereignty-theoretical perspective, but they enact and seek to realize humanity as a political concept. ¹⁰⁰

These days political protest is increasingly transnationalized. Protest movements are composed of networked groups and people from very different countries and/or the protest is itself transnational in nature – whether because the protest is (also) directed against non-domestic actors ¹⁰¹ or because it defines the problem as global-political. ¹⁰² Particularly the latter aspect − conceiving and addressing the impending political, socioeconomic and cultural challenges in global-political perspective − is decisive. For by these means, certain variants of transnational activism still imagine and fight for a political notion of humanity and globality that contests the compromise, fabricated behind closed doors and in line with the logic of global capitalism, between sovereign nation states, government networks, TNCs, IOs and – still in some cases at least – a few (highly professional) NGOs. Without such an alternative imaginary – the global res publica, the world, humanity – there is no global politics in the strictest sense. ¹⁰³ Against this background, a critical analysis of the formation of political order must focus on the different strategies and practices (of the state or states, including each government network), which attempt to prevent or at least significantly restrict the public visible conflict about this imaginary common cause.

The state receives support in this undertaking from sovereignty-centered political theorizing. For, due to its ontological premises, this theorizing conspires – deliberately or not – against that emancipatory potential which forms selectively and transnationally during the course of the dismantling and denationalization process of the state, by providing a “discursive opportunity structure” ¹⁰⁴ for those who want to delegitimize activists from other countries as foreigners and outsiders. ¹⁰⁵

Sovereignty thinking is state-centered and furthers, by these means, the history of state power. For sovereignty-centered political theorizing, therefore, humanity cannot be an independent political concept, ¹⁰⁶ but only a derivation of the smallest common denominator of sovereign nation states that are willing to cooperate, enriched by a moral minimum consensus.

VI. Outlook

The concept of sovereignty is not a political concept like any other, but holds a special status: it is a foundational concept, a worldview-conceiving political concept. Certainly, there have been philosophers, legal and political thinkers time and again who have thought about alternatives to sovereignty thinking, or who have described political events and experiences as standing in an explicit frontline position to sovereignty-centeredness. Hannah Arendt’s work in general and her description of the American revolution and founding history as decidedly anti-sovereign in particular is certainly one of the more prominent examples of this. In political and legal thinking, however, they have not been able to prevail as they have failed to offer an adequate alternative to the bonding capacity of the concept of sovereignty.

Sovereignty as a meta level concept is so hard to shake precisely because it integrates a whole series of historical experiences, normative expectations and hopes, functional relations and systemic-structural interdependencies into a systematic theoretical and practical functional and meaningful context, and bundles them up into a relation that is given and can be experienced only through the concept. And although the content of the concept has changed, the form of sovereign-centered theorizing, its conceptual structure has remained untouched. Its key features are the binary separation of internal and external, the postulation of a uniform and self-contained sovereign entity, and the search for the supreme.

It is precisely the continuity of this conceptual structure that has contributed to the fact that not only our political, social and legal thinking and imaginary has been shaped for centuries by the logic of sovereignty thinking, but also and above all our political practices. Sovereignty is put into effect by corresponding practices – from diplomacy to border protection, from politicians’ speeches to court rulings – that “simulate sovereignty,” ¹⁰⁷ even in those cases where there is none. Theoretical criticism can only make limited changes to these practices. Nevertheless, my main concern is to point out how deficient a sovereignty-centered analysis of politics in globalized times really is, what it fails to get into view, and what fictions it perpetuates. ¹⁰⁸ But what kind of concrete conclusion can we draw from these considerations for our analysis of state and politics in globalized times?

There seems to be a need for a theory of state that can do justice to the transnational and network-like character of state action – both empirically and normatively. Such a theory must reflect comprehensively the complex tension between the state as a self-contained entity and the state as a network-like governing practice. Such comprehensive reflection appears to be difficult to reconcile with the insistence on sovereignty and the associated idea of the state as the bastion of the common good and of democratic self-determination. Instead, we have to grasp – also conceptually – the normative ambivalence of the state in the age of globalization. Moreover, the phase of political transformation that has been underway for some time is still by and large opaque from the perspective of state theory; in it, however, a strongly deductive formation of theory and concept would appear to have become exhausted. One alternative might be to describe anew the practices of the political and to reconstruct and criticize them from its own intrinsic logic. In the process, we should not shy away from taking up or creating new concepts – concepts that are formed in the confrontation with and criticism of the practices and structures of governing on the one hand, and those of political protest and activism on the other. By these means it might be possible to find out what constitutes the promise of democracy today, and which paths are available for its realization – or must yet be created.