sovereignty is employed as a source of justification. There is an extensive collection
of studies devoted to the analysis of sovereignty in the information era but the
approach here is that of dispute resolution. Thus, the discussion is limited to serve
this purpose, although several other theories would deserve a proper analysis based
on their merits. At this point it suffices to describe sovereignty as the supremacy of
a single authority over a specific territorial area. This supremacy, however, is under
constant attack as a result of the globalisation of markets, finance, politics and
technology. In the language of politics, sovereignty is defined in terms of power
and influence, the increasing interdependency between different states on a global
playground.
41 In the legal system the principle of sovereignty is coded with the
language of legal/illegal, with a transcendental drive for justifying the use of force.
In sovereignty, the political and legal systems overlap. This means that the
operation is shared by the coding of both systems. In the political system
sovereignty follow the language of politics, i.e. the generalised medium of power
that makes the distinction between power and opposition. Sovereignty is a
structure formed by these shared operations and given the form of constitution.
The structural coupling of constitution also explains why the legal system lumps
together the concept of sovereignty, the importance of the nation-state and the
mandate of the public courts in dispute resolution. Traditionally, these three
phenomena have been closely connected, although this no longer necessarily
applies from the perspective of the political system.
Luhmann identifies the structural coupling between the political system and
the legal systems as the constitution of a state, which transforms to the
languages of both power and law.
42 The legal system inadvertently simplifies
the language of power, because the nuances of the discourse of power are not
relevant to the legal side of the structural coupling. The political power to
legislate is read as a source of legislation by the legal system. Naturally, the
power of legislation is not the only source for law but it still preserves a primary
position from the system’s perspective. It could be asked whether the legal
system is able to understand the language of (political) power only if it is
combined with legislative power, as this provides fuel for the system’s application
of the code, for its autopoiesis.
The legal system is very closely connected with the territorial area of a nationstate. This also explains why legal systems have difficulties in adapting to legal
issues raised within the globalised sub-systems of economy, politics, technology
or private regimes. The emergence of private regimes does not contest the
connection between law and the nation-state but more precisely the regimes
both reveal the existence of this connection and challenge its usefulness. The
question remains whether it is possible for law to understand sovereign power
without a connection to the state, or to understand power in terms of interdependence. If yes, how is the language of power translated to the language of
law? Through new structural couplings, through redefining sovereignty, or
through casting it aside and finding something else? If no, is the legal system
doomed to the same fate as the nation-state, to an existence under the growing
restraints of globalised systems, which limit its scope of power? If the legal system
Sovereignty and state agenda 117
of studies devoted to the analysis of sovereignty in the information era but the
approach here is that of dispute resolution. Thus, the discussion is limited to serve
this purpose, although several other theories would deserve a proper analysis based
on their merits. At this point it suffices to describe sovereignty as the supremacy of
a single authority over a specific territorial area. This supremacy, however, is under
constant attack as a result of the globalisation of markets, finance, politics and
technology. In the language of politics, sovereignty is defined in terms of power
and influence, the increasing interdependency between different states on a global
playground.
41 In the legal system the principle of sovereignty is coded with the
language of legal/illegal, with a transcendental drive for justifying the use of force.
In sovereignty, the political and legal systems overlap. This means that the
operation is shared by the coding of both systems. In the political system
sovereignty follow the language of politics, i.e. the generalised medium of power
that makes the distinction between power and opposition. Sovereignty is a
structure formed by these shared operations and given the form of constitution.
The structural coupling of constitution also explains why the legal system lumps
together the concept of sovereignty, the importance of the nation-state and the
mandate of the public courts in dispute resolution. Traditionally, these three
phenomena have been closely connected, although this no longer necessarily
applies from the perspective of the political system.
Luhmann identifies the structural coupling between the political system and
the legal systems as the constitution of a state, which transforms to the
languages of both power and law.
42 The legal system inadvertently simplifies
the language of power, because the nuances of the discourse of power are not
relevant to the legal side of the structural coupling. The political power to
legislate is read as a source of legislation by the legal system. Naturally, the
power of legislation is not the only source for law but it still preserves a primary
position from the system’s perspective. It could be asked whether the legal
system is able to understand the language of (political) power only if it is
combined with legislative power, as this provides fuel for the system’s application
of the code, for its autopoiesis.
The legal system is very closely connected with the territorial area of a nationstate. This also explains why legal systems have difficulties in adapting to legal
issues raised within the globalised sub-systems of economy, politics, technology
or private regimes. The emergence of private regimes does not contest the
connection between law and the nation-state but more precisely the regimes
both reveal the existence of this connection and challenge its usefulness. The
question remains whether it is possible for law to understand sovereign power
without a connection to the state, or to understand power in terms of interdependence. If yes, how is the language of power translated to the language of
law? Through new structural couplings, through redefining sovereignty, or
through casting it aside and finding something else? If no, is the legal system
doomed to the same fate as the nation-state, to an existence under the growing
restraints of globalised systems, which limit its scope of power? If the legal system
Sovereignty and state agenda 117