People Innovation Excellence

THE CRISIS OF SOVEREIGNTY

By SHIDARTA (June 2018)

Some time ago, I promised to write a prologue for a book publication initiated by my students of the Doctorate Program of Law at the Islamic University of Indonesia in Yogyakarta. When this prologue is made, the book has not reached the reader’s yet. However, there are important parts of the prologue that I wrote, which I would like to disseminate in this brief article.

In the discourse of legal philosophy, there are several theories of sovereignty. These theories are the theory of God’s sovereignty, the sovereignty of the state, the sovereignty of the people, and the sovereignty of the law. The phrase “crisis of sovereignty” shown in the title of this article, actually refers to the crisis according to all theories of sovereignty. However, since law is generally interpreted as a product of the lawgivers, the term ‘sovereignty’ in many contexts ultimately leads to the sovereignty of the state.

The book to be launched soon is an anthology of legal philosophy. The topic raised revolves around the crisis of state sovereignty. The basic idea arises from the article of Amy Swiffen entitled “Law without A Lawgiver: Legal Authority after Sovereignty “published in 2011 in Law, Culture and the Humanities 7 (1): 66-80. In essence, Swiffen, an associate professor in sociology and anthropology of Montréal based-Concordia University, wants to describe the current state of affairs, which she claims it has been a sovereign crisis because of many legal authorities whose status no longer rests on the basis of nationality. This claim points out the classical debate between the schools of natural law and legal positivism. If traditional versions of natural law promote the universality of the law, on the contrary since the 19th century legal positivism shifts the popularity of the school by promoting the territoriality of the law within a country’s sovereign territory. In the mid-twentieth century, Swiffen noted the emergence of a legal phenomenon that offers the renewal of natural law, thanks to the strengthening of issues surrounding human rights and the existence of non-sovereign forms of governance. If in the traditional version the natural law is highly theological nuance, then this time more rational dimension, though still cannot dispel the theological spirit.

In my philosophy of law lectures, I often underline the continuity between the nature of law understood by the traditional versions of natural law versus the legal positivism of Austin and Kelsen. This is not denied by Swiffen in her writing. For example, she also sees the duty of lawgivers to work hard at making laws substantially moral. This kind of law is a law that can bring valuable life, happiness, and legal order. Legal positivists want to narrow their point of view by no longer questioning the substance of the law. For, if we believe in the rulers who determine the law, then we must believe in the quality of [whatever] the law they produce. For that, Austin had to remind: “The existence of law is one thing, its merit or demerit another.” Also Kelsen said. “Legal norms can have any kind of content and be valid.”

Swiffen’s article is a simple reflection of the usefulness of the schools of legal thought as the analytical blade in philosophical thinking on a legal phenomenon. This example demonstrates how learning to understand patterns from different schools of legal thinking is a necessity, especially for those who are studying a doctorate degree in law. These schools of thought provide the foundation for every theoretical building of the law, so that a certain theoretical standpoint can be tested by the respective schools of legal thought.

On the basis of these readings, my students as the authors of this book then agree to develop their writings into several sub-topics each starting from a certain school of legal thought to examine whether there is a sovereign crisis in the discourse of the legal system. These writings were once presented in a class of legal philosophy, which was then I briefly commented to make it more feasible to present to a wider audience in the format of an anthology. Of course there is always a great deal of refutation of the views expressed in these writings, but the determination to share knowledge by publishing to the audience is a step that should be appreciated.

If such schools of legal thought are to be simplified, then there may be at least six major streams, which I consistently introduce by names: (1) natural law; (2) legal positivism; (3) utilitarianism; (4) historical school of legal thought; (5) sociological jurisprudence, and (6) legal realism. I need to underline that each of them still has problems with respect to the variants brought by its exponents. Therefore, schools of legal thought here are closer to certain figures of the legal philosopher. Furthermore, if the issue of sovereignty crisis is collided with the perspectives of each school, then briefly their summary can be seen in the following table:


 

No. School of Thought View on sovereignty Notes on the crisis of sovereignty
1 Natural Law

(as represented by Aquinas)

Law is a universal morality that traditionally its substance comes from the command of the Creator; both good and bad the law is measured from the content of morality (this view expressed represents the opinion of the soverignty of God).

 

The sovereignty of God’s version of this school will experience a crisis if the role of the trancendental divine teachings (religion) is also in crisis. Instead, it can renew itself by offering another version of universal sovereignty, derived from a more rational humanism.
2 Legal Positivism (Kelsen) Law is the formal command of the political ruler, while the substance can be anything (sovereignty of the state). The sovereignty of the state over this school is in crisis when there are offers of non-state laws that are considered more efficient and effective. An example is the phenomenon ‘criptocurrency’, which also offers a mutually agreed rule, without being tested by permission from the government.
3 Utilitarianism

(Bentham)

Law is the formal order of the ruler, but the effect of the law’s enforcement must be beneficial to as many people as possible; it is this benefit that then becomes the benchmark of good law (the sovereignty of the state as well as the sovereignty of the people)

 

The sovereignty of the state and the sovereignty of the people according to this school are in crisis as the state fails to give access to minority groups. This group will seek other access, for example now through the widespread use of social media, so that minority voices are no longer identical to the weaknesses of their bargaining position before the law.
4 Historical School of Legal Thought

(von Savigny)

 

The law is the result of the historical journey of a society, so it does not require any formal power intervention; law is a living organism along with the life of its supporting community (sovereignty of the people)

 

The sovereignty of the people according to this school is in crisis when the state fails to protect minority groups, so that the legal life of a particular society must adapt to external forces outside the community, which can come from both national and international scope. History is not always natural, but deliberately created (by design), as well as the history of law.
5 Sociological Jurisprudence

(Pound)

Law is a synthesis between the laws of the state and the living law developed within society, which judges interpreted through their decisions on concrete cases; interrelated judgments of judges are essential to establish a precedent as a reflection of the true law (sovereignty of the law). The sovereignty of the law according to this school is in crisis when judges are trapped by the precedent, so that the judge’s creativity space is reduced to the same condition as always assumed to occur in legism. The judge is just a mouthpiece of precedent.
6 Legal Realism (Frank) Law is a reaction to symbolic and contextual patterns of behavior, so there is no need for any substantial or formal benchmarks to be called law. The law is established by the judge through the facts. As long as the parties concerned are satisfied with the settlement of a legal case, that is enough to be called a good law (the sovereignty of the people [?]) This school came to criticize the crises that [would] occur in the earlier schools of thought. This school does not rely on any sovereignty, except on the sovereignty of the parties to decide what is best for their own interests. This view will experience a crisis when the legal disparity becomes a big issue that is challenged by the wider community. This can happen because the courtrooms are also miniaturized from many conflicting interests, and are not always ‘fair’ to marginalized people in society.

The imposition of the sovereignty of state and law in the above table indeed has the potential to cause a polemic because one of the tasks of the state is to formulate the law. Legal positivism tends to view law as the product of political power, so it would be more appropriate to classify the sovereignty theory of this genre in the theory of state sovereignty. In the meantime, it would be better for sociological jurisprudence to interpret the sovereignty that it pursues as a state sovereignty, provided that the law in the context is no longer fully under the authority of the state. Law is the product of a ‘narrower state power’, that is, only the judicial authority. What they mean the law is judge-made law.

The most unique school with a view to the crisis of sovereignty is legal realism. There are many thoughts that intersect with legal realism. I chose to place this school as a large house where critical thoughts about the existence of legal formalism are accommodated, most of which belong to the typical legal postmodernism. They do not believe in the jargon that is expressed by legal positivists, such as ‘rule of law’ and ‘legal reasoning’. This school is therefore already in a position to see the law under conditions of sovereignty crises. The law is in a state of chaos because the state fails to produce the quality of legislation and the quality of satisfactory decisions (of concrete legal cases).

The theory of people’s sovereignty used by historical schools and legal realism has spectral differences. One is wider than the other. The historical school includes a relatively large society, even over generations for a long time. This involvement yields long-lasting tradition (longa et inveterata consuetudo). On the other hand, there is a small or medium-sized model (micro and meso) of tradition that can only comprise one community in a certain space and time. Legal realists do not choose to work with an anthropological perspective, but legal semiotics optics. So if it wants to be labeled the theory of sovereignty used by this school as ‘people’s sovereignty’, then this choice remains open for discussion.

The emergence of disruptive innovation phenomena (such as online transportation in Indonesia) and cryptocurrencies (in global arena) by bringing their own regulatory models in the absence of state law, in the view of legal realism, is very reasonable to happen in the midst of the state’s inability to overcome the problems through a legal formalism approach. Ordinary people do not see such phenomena as bothersome, but countries that rely on legal formalities will judge otherwise. The online transportation or the cryptocurrency does not require any state justification for their existence. Let the justification be given by the public who becomes the business partner of the service providers. This business model creates its own rules of the game, prior to the role of the state in control. State authority seems paralyzed because it has been proven that people can take the initiative to develop their own legal model without having to wait for legislation. The sovereignty crisis [of the country] is actually shown in these cases.

As a lecturer who teaches philosophy of law for those students, I always encourage them to write their own analyses. Let the book be self-assessed by its readers whether it is successful in responding to questions about sovereign crises using a philosophical perspective of law. Sapere aude! Sapere scribere! (***)


 

 


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