3.2.4. New medievalism

The foregoing discussion of the contributions made not only by governments, but also by the private sector and civil society to the development of international law, are illustrative of the fact that the preeminence of the state’s authority has receded since the zenith of the Westphalian age, and is continuing to do so.

In fact, there are those who predict that the ongoing processes of cultural and economic globalisation, led by advances in information technology that erode the power of states (and equally indeed other territorially-based constructs such as national markets),[1] will lead to the increasing irrelevance of nation states.[2] The first signs of this can be seen in the development by non-state actors of their own regulatory arrangements, their own law-like standards, their own arbitration systems, and so on,[3] through supra-territorial networks of relations beyond the state’s control.[4]

Rosenau describes “a multi-centric world composed of diverse ‘sovereignty-free’ collectivities [which] has evolved apart from and in competition with the state-centric world of ‘sovereignty-bound’ actors,” and observes that the “authority of states is regarded as undergoing relocation to proliferating actors in the multi-centric world—either ‘outwards’ to supranational and transnational collectivities or ‘inwards’ to subnational actors.”[5]

Some have gone so far as to portend “the end of the nation state.”[6] Hedley Bull, as long ago as 1977, in describing what he called a “neomedieval system” of international relations in emergence stated

that the demise of the states system is taking place as a consequence of the technological unification of the world—of which the multinational corporations and the non-state groups which conduct international violence are only particular expressions, and which is bound to lead to the politics of “spaceship earth” or of the “global village” in which the states system is only a part.[7]

On this account, governance in the post-Westphalian world occurs through a system of networks between authorities with “overlapping and competing competencies”[8]—international bodies, governments, corporations, civil and political organisations and citizens, mediated by technology.

Like the Internet itself, such a system lacks a central point at which its lines of authority converge. The intersecting governance regimes are not naturally compatible, and there is great variation in their degrees of institutionalisation and legalisation. They have been described as “ungainly in the sense that they lack the hierarchical arrangements to which practitioners of politics have long been accustomed.”[9]

Ungainly the new medieval system may be, but it is clearly not anarchistic, contrary to the dreams of Internet pioneers such as John Perry Barlow.[10] In fact a citizen of the neo-medieval world is subjected to more law rather than less (depending on how broadly one defines “law”; a question to be revisited at Section 3.5). It is again truly an age of legal pluralism, as it was before the Treaties of Westphalia reduced the overlapping spheres of medieval authority to the opaque billiard balls of state sovereignty.

The unavoidable ungainliness of the new medieval system is not its only fault. Perhaps more importantly, it is intrinsically less transparent than the Westphalian states system, at least in liberal states, which provide such protections as regular democratic elections, the separation of powers, judicial review and freedom of information legislation. It may also be less representative overall—or at least, less easily shown to be representative. Who is to say that a new regime of Internet governance that takes shape under the authority of a network of state and non-state actors, really represents the will of those whom it governs—or indeed the will of anyone at all?

Whilst these questions will come to be addressed,[11] it should at least be mooted at this point that our preference for governance by networks over the hegemony of state power may have been premature. Perhaps it is to be be hoped after all that rumours of the death of the nation state have been greatly exaggerated.[12] After all, as we have seen it remains possible for governance to be exercised by rules, albeit with certain limitations and difficulties. As Rosenau puts it:

Because public order still needs to be maintained, because economies still need a modicum of management, because justice still needs to be dispensed, because systemwide laws still need to be framed and administered, because the resources necessary to carry out these tasks still need to be generated—because there is still a need, in other words, for polities that attend to the demands of societies—there is no reason to anticipate a diminution in the competence of states and their international system to the point where they are irrelevant actors on the world stage.[13]

On this more moderate view, it is not so much the death of states that is heralded by the new medieval age, but rather the fact that they will no longer be privileged over other actors in international fora. They are neither capable of being so privileged, as the governance of many transnational issues is literally outside their competence,[14] nor are they entitled to be so privileged, as their legitimate authority does not extend to those who have neither participated in nor consented to their lawmaking.[15] States are now required, not merely as a matter of courtesy or protocol, but as a linchpin of their legitimacy and therefore their authority, to cooperate with other international actors as equal partners.[16]

Notes

[1]

Guehenno, Jean-Marie, The End of the Nation-State (1993); Matthews, Jessica T, Power Shift (1997) ; Mowshowitz, Abbe, Virtual Feudalism (1997)

[2]

Kobrin, Stephen J, Economic Governance in Global Economy (2002), 62; but see Section 4.3.4.2.

[3]

Scholte, Jan A, Global Capitalism and the State (1997)

[4]

See Graham, Gordon, The Internet: A Philosophical Enquiry (1999), 87.

[5]

Rosenau, James N, Citizenship in a Changing Global Order (1992), 282

[6]

Slaughter, Annie-Marie, Government Networks: the Heart of the Liberal Democratic Order (2000), 199; van Dijk, Jan, Models of Democracy and Concepts of Communication (2000) , 33.

[7]

Bull, Hedley, The Anarchical Society (1977), 273.

[8]

Friedrichs, Jörg, The Neomedieval Renaissance: Global Governance and International Law in the New Middle Ages (2004), 3

[9]

Rosenau, James N, The Relocation of Authority in a Shrinking World (1992), 256

[10]

Jayakar, Roshni, What Stops Free Flow of Information is Dangerous (2000)

[11]

See Section 4.3.

[12]

Wu, Timothy S, Cyberspace Sovereignty?: The Internet And The International System (1997)

[13]

Rosenau, James N, The Relocation of Authority in a Shrinking World (1992), 256

[14]

See Section 3.4.2.

[15]

See Section 3.4.1.

[16]

Held, David, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (1995), 22–23