not yet constitute the failure of sovereignty as a source of justification. Instead,
the question is, what would sovereignty as a source of justification mean if the
nation-states are unable to extent their control to cross-border private dispute
resolution? Without actual possibilities of providing sufficient redress, sovereignty
starts losing its impact – and this in turn would diminish its justificatory power.
This opens up another set of questions, namely, whether private autonomy is a
more credible source of justification than sovereignty, which is discussed in the
next chapter. However, the feasibility of sovereignty as a source of justification
for dispute resolution depends on the concept’s possibilities to perceive and
categorise use of force other than that wielded by state courts. Thus, the question
is, can sovereignty as a source of justification provide us with other means of
understanding the challenge these models entail instead of just qualifying them as
a part of private autonomy? How flexible is the concept of sovereignty?
As stated above, the origins of sovereignty can be located in the writings of
Bodin in the sixteenth century, later discovered in the concept of Westphalian
sovereignty, further elaborated by social contract theories, distinctions between
internal and external, de facto and de jure etc. were made to contextualise the
concept’s content. Originally, sovereignty referred to the person of the sovereign
ruler – a context very different from its current-day use. The concept of sovereignty
was later transferred from the sovereign king to the people, to the consent of the
governed, but did not receive international consequences in a similar way to the
earlier absolutist sovereignty. Thus, Henkin argues, sovereignty as a fundamental
normative axiom of international law should no longer be perceived as such.
63
Others have voiced similar opinions on various different grounds from empiria to
philosophy. Koskenniemi divides such criticism into three categories. Sociological
critique accentuates that no state can actually exist as autonomously as the theory of
sovereignty would suggest. According to moral criticism, the concept of sovereignty
caters for the state’s egoism, which is the reason for several political cataclysms in the
previous century. According to the logic-systemic criticism, sovereignty can have no
independent meaning without referring back to the fundamental question of the
relationship between constitutional and international law.
64
Two Finnish legal scholars, Tuori and Syrjänen, suggest that the disintegration
of state sovereignty could present a way forward. They both argue that sovereignty as the interpretative framework of law is old-fashioned and has outlived its
usefulness. Syrjänen claims that considering societal peace as the product of state
sovereignty leads us astray, for in late modern society there is no sovereign power
that is not restricted by international or national limitations, such as human
rights. Syrjänen suggests that, instead of perceiving law and justice in a state
context, we should review it in accordance with Niklas Luhmann’s system theory,
as a part of social systems and their interaction, as society’s law.
65
From a systems theory perspective, the inability of procedural law to effectively
resolve cross-border civil disputes is a result of the close connection between the
law and the nation-state. While the subsystems of commerce and technology are
global in nature and give rise to disputes, discrepancies between systems follow.
66
In other words, legal rules are established by national legislative processes and
130 Three quests for justification
the question is, what would sovereignty as a source of justification mean if the
nation-states are unable to extent their control to cross-border private dispute
resolution? Without actual possibilities of providing sufficient redress, sovereignty
starts losing its impact – and this in turn would diminish its justificatory power.
This opens up another set of questions, namely, whether private autonomy is a
more credible source of justification than sovereignty, which is discussed in the
next chapter. However, the feasibility of sovereignty as a source of justification
for dispute resolution depends on the concept’s possibilities to perceive and
categorise use of force other than that wielded by state courts. Thus, the question
is, can sovereignty as a source of justification provide us with other means of
understanding the challenge these models entail instead of just qualifying them as
a part of private autonomy? How flexible is the concept of sovereignty?
As stated above, the origins of sovereignty can be located in the writings of
Bodin in the sixteenth century, later discovered in the concept of Westphalian
sovereignty, further elaborated by social contract theories, distinctions between
internal and external, de facto and de jure etc. were made to contextualise the
concept’s content. Originally, sovereignty referred to the person of the sovereign
ruler – a context very different from its current-day use. The concept of sovereignty
was later transferred from the sovereign king to the people, to the consent of the
governed, but did not receive international consequences in a similar way to the
earlier absolutist sovereignty. Thus, Henkin argues, sovereignty as a fundamental
normative axiom of international law should no longer be perceived as such.
63
Others have voiced similar opinions on various different grounds from empiria to
philosophy. Koskenniemi divides such criticism into three categories. Sociological
critique accentuates that no state can actually exist as autonomously as the theory of
sovereignty would suggest. According to moral criticism, the concept of sovereignty
caters for the state’s egoism, which is the reason for several political cataclysms in the
previous century. According to the logic-systemic criticism, sovereignty can have no
independent meaning without referring back to the fundamental question of the
relationship between constitutional and international law.
64
Two Finnish legal scholars, Tuori and Syrjänen, suggest that the disintegration
of state sovereignty could present a way forward. They both argue that sovereignty as the interpretative framework of law is old-fashioned and has outlived its
usefulness. Syrjänen claims that considering societal peace as the product of state
sovereignty leads us astray, for in late modern society there is no sovereign power
that is not restricted by international or national limitations, such as human
rights. Syrjänen suggests that, instead of perceiving law and justice in a state
context, we should review it in accordance with Niklas Luhmann’s system theory,
as a part of social systems and their interaction, as society’s law.
65
From a systems theory perspective, the inability of procedural law to effectively
resolve cross-border civil disputes is a result of the close connection between the
law and the nation-state. While the subsystems of commerce and technology are
global in nature and give rise to disputes, discrepancies between systems follow.
66
In other words, legal rules are established by national legislative processes and
130 Three quests for justification