The State as a Form of Technology, Cont.
A while ago, I mentioned that I was working on a proyect on the state as a form of technology. I've now completed a second full draft of a paper for this proyect and posted it to my website [Link(PDF) - now it works!], thinking it might well be of some interest to readers of this blog (I'll be presenting it at the MPSA meeting). It's still a pretty rough draft, especially in the final sections; I'd love to hear your thoughts on it (the first section greatly benefitted from the comments to my earlier post on the subject). There's a section on the law which might especially benefit from some criticism from this group. Here's a selection (more after the break):
We may conceptualize the law for our purposes as constituting a network of authority and authorizations: one node in the network (a person) authorizes another node in it (another person) in some regular, speech-based way (via “legal speech”) until we reach an actual human being who is thereby empowered to act in the physical world, that is, to stamp a piece of paper, to move a physical object, to arrest another person, to speak some words out loud, and so on, or the reverse (prevents someone from stamping a piece of paper, moving a physical object, and so on). Authority and authorization thus “travel” from node to node, person to person, authorizing some and prohibiting others to act. The law is thus a kind of network technology: it ties together different individuals through relatively stable “protocols” (the language of the law) and systems of interpretation of these protocols (e.g., law courts) so as to regulate the basic pattern of their interactions.
“Legitimacy,” from this point of view, is simply membership in one such network of authorizations. To those who are nodes in the network, the network itself is legitimate, that is, they in principle (though not always in practice) accept the assignments of authority coming from properly placed people in the network and in turn properly authorize others to do or omit doing particular things. By the same token, legitimacy breaks down when a substantial part of this network of authorizations ceases to be properly connected to the rest of the network, that is, it ceases to accept assignments of authority or to properly authorize others to do or omit doing particular things.
Note that such a network, if we consider it to be law (or the result of law) strictu sensu, is coextensive with a political community, at least as long as legitimacy has not broken down. No one in the community is outside the law, that is, every one is a node in the network of authority and authorizations constituted by it. It is also only weakly tied to other such networks: these may be nested inside each other, but at the highest level they are only weakly laterally connected to other networks of authorization. There is thus always a plurality of such networks, though in principle a single one could eventually comprise the entire population of the planet. Hence the relative weakness of “international” law (whose strength nevertheless waxes and wanes), and the well-grounded idea of the legal sovereignty of distinct political communities: the laws of one place are not the laws of another, and those authorized to act in some ways in a given political community may not be so authorized to act in another. (Indeed, the distinctiveness of individual political communities is partly rooted in the finitude and relative isolation of “top-level” networks of authorization: this is what distinguishes one political community from another, irrespective of ethnicity, religion, or any other cultural markers that may also separate one community from another).
If the law is or constitutes such a network, then it may be characterized according to the kinds of connections among nodes it displays. From this point of view, we may say that customary law (at its most “customary”) is de-centered: there is no single point from which authority flows “downwards” or to which authorization flows “upwards,” but only changing “attractors” – sets of people that temporarily exercise authority or authorize others to act according to relatively stable linguistic conventions. The nearly stateless world of Western feudalism, in contrast, had some stable nodes of authority: church, cities, kings; and the modern state (with some qualifications) stands at the center of the particular network of authorization we now call the law. In this latter case, authorization, ideally, flows “upward” from individuals to the state and “downwards” from the state to them, and the state can be said to (almost) monopolize legitimacy. Such a state would thus be (in the ideal case) also fully “autonomous” from society as well as “strong” in that social life would be necessarily mediated through it but not vice-versa. Of course, the “state” here is just the particular node that stands at the center of this network: it is the center of gravity of the network, not a single, fixed place.
(I've omitted several footnotes). Any thoughts on this conception of law?
posted by Xavier Marquez @ 11:03 PM
3 comments
3 Comments:
Jeff, thanks for the questions.
Right now I'm operating at a purely descriptive level: legitimacy is contrasted with violence and the threat of violence. (This should be clearer, but I hope it is clearer in the actual paper). There are many kinds of legitimacy, but the essential point is that (with Weber) a state is legitimate when obedience is generally speaking not dependent on violence, that is, when you accept the authority of another (even if you'd prefer not to). (We can also speak of symbolic power, etc. with Bourdieu). So at this level of analysis there is really no way to evaluate one network as better than another: they are merely more or less decentralized, or more or less connected. And yes, a totalitarian state might count as legitimate on this account (this was Samuel Huntington's point in one of his books, though I can't remember the title) though this is strictly speaking an empirical matter.
A second point: right now I'm speaking of the legitimacy of the state qua state, not of the political leadership, the regime, or the specific policies pursued in and through the state. This is a kind of formal legitimacy based on the effectiveness of the state, that is, on purely technical criteria. So there is no appeal to such factors at this level. (They may enter into the analysis of specific cases, however, insofar as people do not evaluate the state simply in respect of its technical efficiency but also in terms of the common good and rights). I wanted to look at the state from a quite specific point of view, though, not to deny the necessity of thinking of such things as rights. As you note (and as I hint at elsewhere in the paper) in order to explain the genesis of laws you have to make reference to such things as the common good and representation or democracy. But my point is that the particular legal form of the modern state is in a sense the result not only of such considerations but of a certain kind of technological development (affecting not just law but other parts ofthe state): the law didn't have to take the form of a centralized network of authorization (in fact it doesn't in many pre-modern situations), and it doesn't necessarily need the kinds of legal speech acts that make it what it is today.
I guess I'm aiming right now for sociological conceptual clarification before proceeding to evaluate it. (Very Weberian, yes. But Weber wasn't always wrong about the methodological virtues of this procedure).
oh, and membership simply means that one accepts without explicit coercion the assignments of authority and authorization flowing through the network. Kind of like Bourdieu's notion of doxic submission; there may be some appeal to the common good, but there need not be. (E.g., getting a SSN for my daughter when she was born, or answering questions from a government official, or getting a permit to remodel your house; individually there are all sorts of motivations for these actions related to the state, but for the most part explicit coercion doesn't enter into consciousness)
Jeremy, I've think your first question can be seen from two different points of view.
a) The law, in prohibiting something, does not merely concern those who are likely to do the thing prohibited, but rather authorizes others (private individuals or state officials, according to the case) to do something in case someone actually does the prohibited thing (e.g., sue the killer of california condors in federal court, or freeze his assets, or whatever). Nearly all commands have an obverse authorization (to other people) to enforce the command. That said, I think I could have stated the point much more clearly, and I will do so in the next draft.
2) On the other hand, the command itself (especially a negative command) can be seen as a form of dis-authorization; you might think of it as a negative flow of authority. This is sort of the way I had it in an earlier draft, but not liking the word dis-authorization, I think it came out a bit muddled in the end. And at any rate, I'm not sure it will always work: some commands may not be interpretable as grants of authority or dis-authority. I'll have to think about the problem more closely.
YOur second question is simpler, I think. My point is that in the modern state, such "private" authorizations (e.g., for writing a will, etc.) have become mediated by the state (though this didn't use to be the case). Though one can make the distinction between private and public forms of authorization, the former (in the modern state, no always) are still tied to the broader network of authorizations centered in the state. (In the middle ages they might have been tied to other "nodes" - the church, for example, or the extended patriarchal family; and to some degree some forms of authorization are still purely private, as in some kinds of contract outside the enforcement of the state). In other words: today, private law is simply a nested netork of authorizations within the bigger "public" network of law, though in the past the private and public networks might have been connected laterally instead of nested. I hope this makes some sense.
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