NN Ep:8 Functional Sovereignty: Can Network Nations Self-Govern Without Land?

Transcript

The very idea of functional sovereignty is a kind of oxymoron. It's a contradiction in terms right because >> if the governance infrastructure is running on a mixture of peer-to-peer network blockchain technology it's extremely difficult for any single territorial sovereign to intervene to modify to stop it. Jeremy Walden once argued he said look the point about proximity is that is twin is uh is affinity right you know where we find proximity we find affinity where we find affinity we find more proximity you know these two things go together >> to which extent do you believe that the creation of those functionally sovereign

political entity that are the network nation can actually coexist peacefully >> so today we tackling one of the most challenging ing concept in the context of political theory which is the question of sovereignty. And what we want to ask is whether it is perhaps time today to rethink what it means in aworked age. Because traditional sovereignty has always been regarded as all or nothing. Either a state has it or it doesn't have it. And in order to have it, the state needs to control a territory, make slow and enforce them with coercive force. But then what happen when communities exercise some

degree of self-governance without controlling land? And can sovereignty be unbundled where different entities are governing different functions even within the same space or the same territory. So for instance your identity or credentials can be governed by one entity and then your currency system by another and perhaps your welfare and your education yet by another entity and each of those entity they have relative autonomy over this particular domain.

This is what we call functional sovereignty which is the capacity to organize and govern specific functions like identity, finance or dispute resolution, you name it, with a certain degree of operational autonomy without needing to ask permission to any higher authority. And so to discuss these questions, we're joined today by two scholars who have been thinking and rethinking sovereignty uh from complimentary angles. So Marsh Manan is a researcher at the European University Institute and his work is exploring how cooperatives and commonbased

organizations achieve new forms of self-governance outside of traditional state structure and Marshall has been examining in particular how community can claim functional autonomy through legal and organizational design and then Neil Walker is a theorist of sovereignty. and constitutionalism. And he's also the author of the book Sovereignty in Transition. And his work interrogates how sovereignty is being transformed, potentially fragmented, and redistributed in a interconnected world.

And of course, what it means for political authority and legitimacy. And together we will explore functional sovereignty as a concept and how it can be leveraged by network nation in order to achieve self-governance. And what does it mean in fact for those community to govern themselves without any exclusive claim over a particular territorial domain? Thank you both uh for coming to this uh episode. Uh so what we want to discuss today is um the question of functional sovereignty. Uh and basically this starts from this uh basic premises that

traditionally when we think about sovereignty we're thinking about this kind of like all or nothing situation. Uh whether there is a sovereign or there is not a sovereign. uh because when we're thinking in like the more like national state framework then we have like exclusive sovereignty over a particular territory and then we have the government the state which is responsible for exercising this this sovereignty and so what we want to discuss is when we're shifting away from the national state framework and moving into the network national framework then what actually what does it um when we are talking about sovereignty

in a space which is not associated with a particular territorial geographical boundaries. And so essentially the the the wall framework around the concept of functional sovereignty is is uh how and whether uh we can unbundle sovereignty into different sticks um where we have different entities that are governing different functions even though these might be overlapping on the same territorial boundaries. And so essentially the main premises that uh the network nation uh conceptual framework is grounded upon is that we want to provide sovereignty to those uh emergent network communities. But this

is a sovereignty that is not territorial but functional. And so we want to also discuss like how we can actually achieve functional sovereignty, what are the implications of functional sovereignty and also the question of legitimacy and accountability uh in a context of functional sovereignty. Then what are the new premises and what are the new safety valve in order to ensure legitimacy for the people of course that are not so acquainted with the concept of functional sovereignty. The way in which we're using it is really like this uh the capacity to organize and uh somehow like govern or self-govern specific functions. So it's not about

like absolute and exclusive sovereignty but it's about for instance a community having its own identity system or a community running its own financial institutions uh are like dealing with like dispute resolution in a self-s sovereign manner which does not rely on the traditional systems and institution that are provided by existing nation states. um in a way therefore that has both the selfgoverning aspect but also the protection against interference meaning that these these self-governance functions are done in a way that it's difficult for an external party to influence or impinge or even stop the

the functioning of those uh of those operations. So this is kind of like the general uh the general gist uh where we're starting from and then uh what we want to discuss with both of you is basically uh digging into a few of those question. Uh the first one is basically unbundling. So what does it mean when we are unbundling sovereignty? When we are separating uh some of the function that usually are aggregated within one single entity which is the state which is for instance responsible for providing the security and the safety of the citizen providing an identity system providing a legal and normative system social

welfare and so forth. And what happen when we're actually breaking this apart and some of those function are managed by one entity and other functions are managed by another entity. And so the question that I have to you is basically um first and foremost like when we're talking about functional sovereignty it seems something kind of novel or special. So what is it from like an historical perspective, from like a legal perspective, like what is it that makes this uh this particular setting of territorial absolute sovereignty the dominant framework and uh what are the the examples that we have already in which we saw uh some degree of unbundling taking taking force taking

part? I think obviously there's a a deep historical framework you know which makes the state uh so central and of course before I mean it we move from the kind of donastic concept of the state you know to the to the more abstract concept of the state I mean earlier forms of sovereignty and uh you know sovereignity in 14th century France is is is is very very much you know particularized on the on the individual ruler, whatever it might be. And gradually what happens in late medieval ages, early modern ages is you move to what Quentin Skinner calls a double abstraction. You know, the abstraction

of rule, but also the abstraction of the people. You know, you move towards a sense of the you the unity of the manifold. You keep the sense of the unity and the comprehensiveness, but it's now within res. that's now within an abstract idea of what the the powerful party would be. So, so unity has many many iterations. It has iterations before the modern state then it has you know it has its more complex iterations in the context of the modern state. So I guess you know that's sort of where we we come from. But in terms of of uh you know the the the interesting question you ask is you know

to what extent is that already being chipped away is it already being eroded etc etc. When I first started writing about sovereignty in a more conventional legal context 20 25 years ago, I actually talked about the idea in the context of the European Union of uh I think I used the phrase autonomy without exclusivity which translates into what you're talking about because you had the the the the autonomous sense of self-s sovereignty you know to use one of the terms you talk about without it being exclusive. without it being comprehensive. So you already had that sense of a kind of you know partialing out disagregating maybe even siloing of

legal and political authority. Now interestingly at that point the great the great thrust in thinking beyond unitary sovereignty was either in terms of globalization transnationalism you know so that the challenge was how do we incorporate the fact that so much legal and political authority has escaped the state and we find it at the regional level of the EU or we find it at the global level wherever at the same time as this other older criticism of sovereignty where if you take one of the meanings of sovereignty, Steven Kraner had four or five different meanings and one was a purely empirical thing, it was about power rather than authority. And then you could always say, well, sovereignty

in terms of if you start talking about military power and economic power, it's not necessarily about the state anyway. But even if you think of it in terms of legal authority, you know, frameworks like the European Union and various others already were asking in their own way, you know, the same question as you were asking. Interestingly though, they were not necessarily de deterritorializing sovereignty. You know, they were basically pitching one kind of territorial extent against another. If I can mention one other just almost like a counter trend. One of the debates that I've been very involved in in recent years is with a lot of environmental scholars who almost criticize uh

sovereignty from the other direction right you know whereas one of your points is digitalization and infrastructure replaces physical space you know uh there's another view for someone like Daniel Matthews in his book on earthbound say no the problem is that chemistry is not material enough. We need to replace territory with terrain, right? And terrain then brings in the material world and it brings in animals, it brings in nature, it brings in the natural world, etc., etc. So, sovereignty's myopia there isn't that it doesn't take in the non-material, it's that it doesn't take in some aspects of the material at the same time. So I

think that's interesting that two of the most fundamental contemporary critiques of the old version of sovereignty kind of come from opposite directions. One from a dematerial direction and the one from a you know a a greater materialization direction. So I'll just put that out there just as a kind of point of departure and maybe something that we can we can we can take up. I've got various responses to these but let let's let's see how the conversation flows. Mhm. Yeah. I think it will be useful to get some examples of like both from the history and the present. Um what are examples of things that we might want to qualify as functional sovereign?

>> In that sense, the the European Union saw itself as a functional sovereign in terms of creating a free trade area. So it was a form of a limited form of economic sovereignty, right? you know and then of course within that >> you then get various other ideas which developed. So when the European Central Bank and the and the Euro as a currency came out people started talking about monetary sovereignty. So there was that further kind of silization of the uh to use the EU example was quite interesting because I think one of the one of the best insights into uh the legal and political history of the European Union is to say that whereas the state you

know embraced its sovereignty from the top down. It made a claim to you know down. It made a claim to the absolute sovereignty and the comprehensiveness of it. Then it gradually filled in the spaces. Uh the EU did it the other way around. You know it started with narrow economic sovereignty began to develop a degree of social sovereignty, a degree of security sovereignty etc etc. So it was more a kind of bottom up reagregation of some of the functions that you associate with sovereignty. Yeah. as opposed to start with the hole and then fill it in, you know, which was a kind of traditional way of thinking about it. For a long long time, you know, the European Union, you know, you know,

sovereignty was a swear word. you know, it would use terms like primacy or uh uh you know and and and or authority or supremacy even but actually avoided the sovereignty word because it realized that that was you know that was something which was symbolically so closely associated with the with the state you know and uh and that I think that's still the case. I mean, one of the things I see in in your own work is I know you have good theoretical reasons for uh avoiding the concept of digital sovereignty, but even if you didn't, you'd probably have practical reasons because digital sovereignty is a kind of kind of provocation, isn't it? You know,

it's uh once you start using the terminology like that, it feels as if it's be it's it's a competing claim rather than a complimentary claim, whatever it might be. Yeah. I want I wanted to jump in on this point um to to see if I could add uh a a few sort of reflections looking beyond examples of monetary sovereignty or even the type of federalism that we've been talking about so far. And if we look at and this is partly based on you know what I know about network nations already. If we look at the history of um ideas like guild socialism that going back over a century now we realize that there have

long been attempts at trying to understand political orders in which for example workers associations can be organized at the base level by uh let's say according to sector according to industry they can be democratically and then have a tiered structure where at the top you have something like a national guild congress that is seen as complimentary to the international parliament. These sorts of ideas have um you know been around for a while that explicitly use the language of both sovereignty but also the idea that there can be sovereignty claims about different functions in um an economy or

in a society. So if in this example it would be about having functional sovereignty over the domain of work and one of the interesting reasons why this topic of GDH Cole's guild socialism is coming back into you know the sort of forefront now is because of the fact that a lot of his ideas were animated by this fear that machines are going to dominate workers and we need um industrial democracy at a larger scale to be able to deal with the domination of workers by machines. And so here the fact that there was already an idea of how you would create a parallel structure um that can go beyond just the workplace into um the political domain

have its own sort of ways of dealing with legitimacy based on uh certain democratic practices and checks and balances is I think an important uh historical lesson. I want to then bring, you know, sort of bring into the conversation the fact that a aside from the European Union and not very far away either, you've had experiments at what you could describe as decentralized constitutionalism. And so in various constitutions of the urswwell federal republic of Yugoslavia, you have um you know this idea of not just decentralizing power from the federal structure to republics and autonomous provinces and so on but also

to local uh assemblies of people people's assemblies people's and structures that are are like this because of the fact that um you are able to imagine that sovereignty not only rests with peoples and communities but that they um shouldn't just be attached to particular territories. And what's I think interesting again from looking at what you could say some an idea that has an imprint of uh this decentralized socialist structure that I mentioned is that you have um both the language of constitutionalism there but also this idea that um sovereignty doesn't only reside in

territorial units but in people in nations and again a lot of these concepts that we're talking about today and is in the network nations piece. So I just wanted to throw that in. >> Yeah. And uh I want to I want to bring like the the way in which Fran Pasqual has actually been referring to the concept of functional sovereignty where he basically um identify ways in which existing large multi- multinational uh corporations are somehow acting as effective functional sovereign uh with example for instance of Amazon which somehow starts dictating ing the the

rules of uh international trade, Facebook which all of Sweden provides like identification system to log in into many other um like almost a passport system. So um to which extent do you actually agree that is is this some a form of functional sovereignty and uh and what are the um what are the implication in terms of uh uh law to this type of functional sovereignty? I think there are there are two there are two comebacks on that right and uh one is the crude one but the one which we still have to pay attention to which says that the the very idea of

functional sovereignty is a kind of oxymoron it's a contradiction in terms right because the whole idea of sovereignty is is comprehensive it covers everything etc etc so the point of that would either be there there's a kind of loaded version of that which is a statist version which says look you know what whatever you're doing you're just playing around at the margins it's still a state centered world there's a non-loaded version of it which is more intellectually respectable which says look you know the deep code of legality was always based upon you know the fact that in the final analysis it was a single source of authority. So if we're moving beyond that then maybe we should move beyond the language of sovereignty you know in order to capture whatever it

is that we're moving beyond. So I mean that would be one kind of criticism or one kind of challenge. I think another type of challenge is to say that and here I think you know also drawing on some of Moshed's earlier examples that and also my example of the European Union which is to say that that that there's a difference between you know forms of of uh of decentralization of authority which are still to some extent territorially coded and those which are not. You know that that uh you know if you have the notion of territory and then you say within the territory there are localities or beyond the territory there's a strip of national space then

it begins to sound at one level it might be a bit functional specificity but it also begins to sound like something which is to some extent still coded in terms of territory right and uh and that raises particular sorts of issues about finality of jurisdiction etc. I think when you move towards uh either economic power you know or digital power let's treat these as slightly different things then whatever they are they are not territorially coded in the same sort of way you know and the kind of challenge that they you know exert against territorially coded power is probably difference in kind I'm not making a normative point you just a conceptual point is different in different in kind than the ones which are about you know h

about you know the decentralized ization the radical decentralization of authority still within a form of of of a territorial coding and one point here I'd like to make because I think it's an important one and it's something that I was thinking of when I when I read your paper on on the network nation and the you know when you were talking about you know proximity uh as you know proximity within the territorial space as being a a key thing you know and I'm reminded of something that Jeremy Waldron once argued he Look the point about proximity is that is twin is uh is affinity right you know when we find proximity we find affinity when we find affinity we find

more proximity you know these two things go together you know the you know the countenance phrase you know we're unavoidably self side by side but once you're unavoidably side by side you develop affinities you develop greater proximities etc and I think the interesting question is to what extent that kind of dynamic IC I mean one of the interesting things I think about network nation is the way in which that dynamic develops in digital space you know or in digital nonspace as opposed to in other places you know so you know the these sorts of you know I think uh that's an important so we have to look at all the all the I mean I think it's in other words what

I'm saying is I think it's important to differentiate between different levels and different types of challenge you you know, to the the received concept of of state sovereignty, >> right? Um I I just want to um distinguish though because I think that um you say this thing that I think is important that um it must oximar to talk about functional sovereignty because sovereignty is absolute. But I think that's precisely the conversation that we want to have is like uh is this vision of sovereignty as something that needs to be absolute? Is it still realistic? Is it still the case practically? Can we and when we look especially to those corporation uh which are effectively achieving some degree of

sovereignty despite the despite the fact that the absolute territorial sovereign is the state. Um then what are we talking about? Are we are we talking about something else than sovereignty because sovereignty needs to be this territorial and exclusive thing or does it make sense to somehow qualify sovereignty in this functional manner in order to therefore accommodate the possibility of there being multiple layers of sovereignty and I will say that uh the concept of overlapping sovereignities is not novel. There has always been some sovereign uh like the European nation being an example right.

So uh sovereignty is never actually absolute. It's always some kind of like negotiated agreement. And then sometimes we have those emergent power or influence that might not have been like officially declared but somehow have constituted themsel in a manner that actually could take its own degree of sovereignty. And so I think there is this interesting statistic I will say in which like when we think of traditional sovereignty uh this is always something that has been declared uh either by a particular pretty by a constitution or by mutual recognition but then functional sovereign is not is hardly ever declared. It's usually it's

constituted because it's actually uh earn it's emerged because of practice. But there's a point in which looking at who actually has power and who has the power of intervention we might actually notice that there is overlapping sovereignty and there are those new emergent entity that actually benefit have managed to achieve uh constitutively some degree of sovereignty right >> sure yeah >> yeah I will just jump in on this particular point because I think it relates back to Pascal's chapter or his earlier um blog on this as Well, because when I read that particular uh text, what comes to mind is uh the use of the

term functional sovereignty in as a critique in a certain critical sense where it's describing um a phenomenon, you know, the Amazon example you mentioned, Facebook, etc. these types of examples as um something more than privatization. So you know you mentioned how there's you know perhaps other ideas that become relevant. So you have you know this wider discussion especially in the type of law and political economy space in which uh you know Pascal is situating himself. This discussion about the p you know privatization the greater control that private actors have in our lives

being extended to for example you know military domains being extended to other aspects that we usually associate with the state. Earlier in our conversation, we were talking about currency and and money. Um, that becomes another, you know, really relevant discussion as well once you start thinking about platforms trying to, you know, create digital assets even uh some of them having pretensions of potentially creating their own currencies as well. And so essentially going into um these types of um sectors and activities which we usually associate with the state. And so this type of intuition says that oh something more is happening than just the older privatization type of

discussion and that's where something like functional sovereignty and the term sovereignty becomes more important as something we're taking from what is uh usually state sovereignty and what I what I would like to add is that maybe in the network nations discussion because I know that the contrast with network states and these other sorts of you know movements that are happening is the fact that there's a claim towards statethood. Here we can look at other sort of positive examples in which um there have been bottom-up ways of trying to um assert what we're discussing as a more positive conception of functional sovereignty

without having to try to you know exit from state structures or without having to you know demand a a privatization of a lot of state functions. But I I will reserve those examples for a bit later and if Neil wants to jump in. >> Just a couple of things. I mean just maybe going back just one step. I think I think earlier I I mentioned Steven Kraner's work you know where he said there are four different forms of sovereignty and only three of them have a legal register. You know you have international legal sovereignty which is like external sovereignty. You have domestic sovereignty which is internal.

You have what he calls Westfailian sovereignty, which is one aspect of external sovereignty about non-inference. And then you have what he calls interdependent sovereignty. And when I first wrote about this 21 years ago, I said, look, there's a real descriptive fallacy there where what he's talking about is to use a potential rather than protest, he's talking about power rather than authority, right? And of course, if he's talking about power, then we're in a different ballgame, right? you know we might conclude that you know the world is run by 10 corporations you know if that's what we're see I'm not saying that but you know if it's just about so it has to be about at some level this has to be about the way in which you know the legal and political come together in a certain type of authority and my sense here

would be that that the uh you know the way that we frame the question you know we probably have to be quite careful because if I went back to say to take take a really famous legal figure like Panske Skelson right Hanske Kelson writing a century ago if you asked him about sovereignty he said look I can either think of the sovereign at the global level and that everything else is just a derivation from that or I can turn the world upside down and I can treat it at the state level and everything is a derivation from the state upwards. In other words, what he was saying is that the the legal and jeridical gymnastics by which we talk about the division of authority are themselves quite flexible, right? And

they always have been. And it doesn't stop it doesn't stop us finding a way of accommodating the differences and the overlaps between different types of authority in ways that work. In other words, just because we don't know who the ultimate sovereign is in our circumstances doesn't make the legal world fall apart. It might mean there some very very few hard cases, but down in the ditches for the most part things won't change because it won't necessarily depend upon that you know. So I guess my point is that to some extent we have to think about you know I've tried to do this mulling work we have to think about sovereignty as a it's a discursive category it's a claim which is being made right you know and

uh and certainly we can map it in terms of both the the both of the the volume with which that claim is made you know the assurance with which it's made and to some extent the effectiveness with which it's made but there's never been final answers to that questions there's never been you know it's always been you There's always been contentions. You know, if we think about it in terms of of a decolonization in the imperial world, you know, you know, sovereignty is not, you know, if you go to Canada and deal with First Nations, you know, they don't accept sovereignty as a concept. You know, they but they still find a way of getting along in terms of finding a legal order which is not necessarily inconsistent with the legal order of the of the colonial or

whatever, you know. So it's not that it's not that I don't think so matters but I think there's probably you know if we if we if we if we treat it in the phenomenal world as a claim which is being made then it takes on a somewhat different significance you know and uh you know and the the the the you know the counter claims which are being made to that you know they're all matters of degree you know uh it's it's uh you know we just have to watch out that we we don't fall into the trap of thinking there was a world you know this world where these things were somehow fully achieved and now we've moved away from that we're always moving away from it in interesting ways but equally interesting

is the way in which the language of s keeps it's like a boomerang it keeps coming back it keeps coming back at the same >> I hear what you're saying but I think I I just want to like double clip on this on this distinction between declarative and constitutive mostly because I think it's relevant for the network nation uh work in the sense that where the network nation distinguish itself from the network state is that it is it has an aspiration of functional sovereignty. Yeah.

>> Uh but it doesn't it doesn't have an aspiration of declarative sovereignty. doesn't expect to play the usual game um of like the the Westfallian system of sovereignty, but it's rather technically and functionally aspiring to achieve this type of sovereignty. Um and and the reason I think the distinction between declarative and constitutive is interesting is with regard to legitimacy because when something has been declared then there are specific frameworks and rules by which we can assess uh whether it's legitimate or not whether it's actually following up to what it has been declared. Whereas when we have a a particular type of sovereignty which is

constitutive which has just come into being then it's harder to assess the legitimacy and arguably we can say that the dysfunctional sovereignity described by Franch Frank Fran Pasquali about Amazon might not be regarded as legitimate because you have one corporation deciding the the rules of international trade whereas we would hope that the functional sovereignty that is um constitutive of the network nation will be regarded both internally by the community but also exogenously by other actors as a legitimate form of sovereignty. And so how do we actually play around the question of legitimacy in the context of a constitutive type of

sovereignty? Can I just say one thing that I would feel in some ways I'm not trying to be contrarian here but in some ways I would I would prefer if we every time you said sovereignty you said self-determination you know that because basically that's what you're talking about you're talking about a form >> can you can you actually just so just just for the sake of uh everyone in the audience uh how do you distinguish self-determination from sovereignty >> well self-determination I think uh would be self-determination makes no claim about the uh the breadth of the competence within which the self-determination takes place right you know it would be you know so the the the

self decides what is determining you know uh the collective self whereas I think sovereignty always assumes exclusivity comprehensiveness fullness etc you know >> that's why we're qualifying it with functional if you want to move away from this >> that's that's another way of dealing with it. Yeah, I get it. I understand that. You know, uh the they the uh when I look at the network nation stuff and and and and uh they the you know, at the end of the day, you know, there there are there are two massive sets of challenges, you know, which may or may not be met. you know one is clearly you know what it means internally because you know that sense of you know I mean I

think it's a good way to talk about it in terms of the constitutive dimension of it not just because it tells us that there is no there is no set of rules which already applies etc etc and we can see whether it conforms to it but because there is always something paradoxical about self- constitution you know there's always something there that you know so who started who decided where we started you know and uh you know when you when you think about you know the how you move from non-open source to open source and how you know how basically how often things you know there's an original sin and how things start often you know and how you move from the original sin to a legitimate form of self- constitution and

self-development etc is clearly a massive question you know and uh and I think it's a massive question in the digital world as Well, I think the second massive question though is the external question because again I mean I like the notion of network nation more than you know network state. I agree with you. I mean I think it's but one of the things it does is that it makes it clear that you're dealing with something functionally specific right you know I probably have to get more used to the notion of a nation as something which is functionally specific because it's you know again we're doing we're doing interesting you know ambitious things with language there you know and that's fine we could do that but I think certainly within the more certainly

within the legal world the world of people who are interested in these quest questions in terms of transational law. The question always comes back there is that you know uh as you purify in the internal right which might be extremely difficult anyway you then have you you export so many of the problems to the relationship between different silos and relationship between different nations. you know the more nations you have you know the question of the relationship between nations it stops being a marginal question it becomes a very very central question you know and uh and that that is an issue you know I think a lot of the some of the people I know some of the best people working in this field like Piers and Bansson Niko Kish etc these are the questions they're

asking you think yeah we get it you know and some of the examples they use are digital examples and it's almost like the bigger challenge is ensuring not just the not just the the intelligent and legitimate closure of the system but also the intelligent and legitimate ways in which it remains adequately open to other systems you know and that that I think is you know I don't see so much about that in your in your network nation paper it can't it can't >> actually I think this is like you're making a point and that is an important point because it's it's actually a point that we make uh when we are arguing of why we think that network connection is a better approach than network state because the network state is actually

the concept of creating a new state which require exiting from a previous state. Uh which means that it leads to fragmentation of jurisdictions and of course while everyone is very aligned internally to one single network state um you're creating conflict between different network state and state. So the fragmentation is actually a fragmentation that could generate conflict even though internally it's trying to be as cohesive as possible. So we don't we don't have this problem. We have another problem um which is the problem of polyentricity because instead of fragmenting >> jurisdictions and therefore creating like horizontal fragmentation we're

creating vertical fragmentation which is nothing is better or worse. It's just a different challenge to tackle. Um but all of a sudden we now have multiple entities that are self-determining or or exercising a degree of functional sovereignty over different domain which those domain are nonetheless overlapping in the territory and in the people in the population that are subject to those different sovereign. And so of course this is the usual polyentricity problem but like once we get not a fragmentation of jurisdiction horizontally but once we get overlapping jurisdiction on a vertical layer then new possible

conflict also emerge on this vertical manner and so then this is a question to both of you is like uh you know from like a polyentricity theory from like a legal theory etc. I was like how do we manage conflict when the conflict are on the vertical line when we actually have multiple sovereign over overlappinging because of either territory or membership and then what is the what is the way in which this type of conflict can be addressed >> you want to go first more shed while I think about it >> yes of course so I mean and we've talked a bit about this before in other contexts primava but I just wanted to before getting into that to say that I

really, you know, resonate with uh Neil's point because about self-determination being a very relevant concept here even if maybe um for various reasons that isn't used in the same way in the network nation context. I think it's very important primarily because we have this idea that you know the right of self-determination includes the right to have social, cultural and economic development in a broader sense than just a narrow set of functions which might be something that network nations strategically want. And relatedly there's um the possibility you don't have to claim a political entity like a state to be able to um achieve self-determination in some way.

That's just one particular type of goal. It doesn't have to be the only end goal. So I think in that sense looking at this sort of international theory legal law and theory on self-determination is useful. Coming to this particular point about polyentricity I think if we go back to you know um some of the classic work that's at the intersection of polyentricity and the law you end up coming to a lot of the discussion about well you need something that's like uh the US constitution essentially right so there is this whole discussion um several decades ago about the US constitution constituting a polyentric republic and so you end up having here depending on how you define it you would

then have to think of well you can create this as a type of not techn technological governance infrastructure but still you know uh something that I guess foreseeably now could be uh something that integrates technology but like a governance infrastructure in the form of a of a constitution that does you know has these checks and balances has these roles uh articulated that has an explicit identification of where these overlaps are emerging and how you would view with them. Uh, you know, we've talked about this before in in other contexts, but we know that there's also uh the this um need to be able to um preemptively deal with possible

disputes to deal with amendments. How would you know different overlapping structures within a polyentric system deal with um particular crises that emerge um that aren't foreseeable at the time of for example setting up this uh governance structure I feel that looking at a lot of these historical examples even beyond the US at trying to create basically polyentric legal orders where you have these overlapping centers of authority um at some stage a type of constitution was uh ultimately needed and of course we can think of um non-state examples of this as well but I think for now um I leave it at that and

let Neil jump in. I think yeah I mean look that I get where you're coming from and and I I get why you're coming from there but I mean there there's a kind of obvious objection to that which it sounds like a very unitary unitary solution to a polyentric problem you know that finally you go back to the constitution or something like the constitution and the and that's not just that's not just a clever point I think there's there's a genuine issue there about who decides who decides you know and uh the the you know and the kind of infinite regress problem there. So for example, I mean a lot of my work in recent years has been, you know, how the hell do we make the European Union with all of it is is many areas of functional

sovereignty want to use these terms. How do we make that legitimate? You know, and of course the question then is so some people would say, well, you can't it just has to be an aggregation of the national constitutions. Other people say no, there has to be a European constitution for the European people. Other people say no there has to be a closer to all mixed you know where you have the European people and the national peoples together. So the point being that people can't even decide or who decides who decides right that's one of the issues with with that that kind of that that kind of question it doesn't mean that what you're saying isn't the right answer but maybe there are other ways of thinking about this so for example if you work in the area of uh uh the conflict of laws so dream of I don't

know if this this is this is a more technical thing you know where it's not public international law it's not big treaties it's saying where national legal systems, you know, have different rules on say family or or tor or uh economic law, whatever it might be, that often the question is when you have a clash of jurisdictions is actually which law should prevail? Which of these laws should prevail? You know, it's a it's a choice of law questioning. Right now you can actually imagine having a whole bunch of choice of law questions resolved in that sort of way without having to call the thing at the center of that constitution. Right? What it is

actually is something it's doing it's doing a different kind of uh work which has something to do with mutual recognition. you know, it's uh uh what my underlying my my international law colleague calls a kind of architecture of credible activities, right? You know, and that doesn't necessarily have to take the form of a constitution at the center. So, I think I think we should we should be aware of that. I think we should also be aware however that there is a kind of there's a there's a there's another sort of old-fashioned response to this which says that that that that the reason why we have you know super national authority and international authority is that precisely in order to

deal with these sorts of questions including including digital nation questions what we have is is is just you know a bunch of different authorities at at different levels but in a kind of oldfashioned Hey, you know, there's still sort of territorial authorities and they have to work out the relationship between them. But, you know, of course, we need local data protection laws, but we also need a law of privacy, which is at an international level. You know, we need a law of freedom of expression, which is at the international level, etc., etc. And so maybe the the architecture or the uh the scaffolding, you know, the as you call it, maybe a lot of that scaffolding is still actually in the final analysis made up of legal norms which actually

come from old-fashioned editorial sources, but in a different combination than they once did, you know, and uh notice for example in the paper, I'm not trying to pick a part of the paper. I thought it was really interesting good paper but you talk about the general data protection legislation at the EU level at the same breath as you're talking about the state and I'm thinking but it's not a state the whole point about having the general data protection legislation is this something which is an umbrella over the states you know which somehow you know resolve some of the differences between the states I guess what I'm saying is that if you if you go through that old-fashioned language of multi-level governance within a territory torial idiom you can actually get you can still get quite a

long way to finding these sorts of regulatory solutions to the problems of network nations. Okay, amazing. Um yes, so we need to think about do we actually can we just apply existing international framework or do we need to somehow accommodate uh those new political entity with new international framework? Right. >> Yeah. Yeah. Yeah. Yeah. One of one of the great I mean one of the great thinkers here I think and I know Marsh also likes his work is good gutter toler his his his ideas where where when he talks about you know uh the regulation of different social spheres like art or science or

whatever it is and what one of one of one of his insights I think is also really important to data to the digital world is that what is constitutive of these different domains is different Right? >> You know, so it's usually a binary. You know, what is constitutive of the domain of art is beauty versus something else. You know, what is con of the data of sciences is based upon scientific rationality versus something else. And on the basis of that law, law, the law that we understand has a more or less central place, you know, within that kind of system. There something it's something to do with the the logic of the system itself. always has a place for law within it. But it's not always,

you know, the the political state law is at the center. The digital nation maybe not so much. You know, the world of scientific consensus maybe even less so, etc., etc. And I think that's interesting. You know, in other words, he's saying there's a every system needs to be its own forms of normative closure, but we should not assume that the form that that normative closure takes is necessarily a legal form or one that central to >> Yeah. Um I think that's a very interesting transition to our last section. Um which is actually like in practice, right? So we've been talking a lot about functional sovereignty in

theory. Uh in practice uh as as you seem to uh insinuate N there are different ways in which this functional sovereignty can be achieved. Uh the most obvious one is obviously the legal means. uh but there are many other ways and uh when we when we look at the modern type of um of functional sovereignty at least in the in the language of Frank Pasqual they are not relying on law in order to achieve functional sovereignty they are relying on other things which is basically commercial platforms technology and so forth. So uh one question for the for the last uh 10 minutes is like in your

view like what is the minimal viable things that needs to come into being in order for a particular entity to be able to claim functional sovereignty. >> Okay. May maybe I I can do the same and uh jump in a bit uh for just a few brief remarks. So one thing I'm not absolutely sure if Pascal is saying that law doesn't have a role in even his sort of articulation of functional sovereignty.

I think technology all of these things are an important aspect of this. Their business model how they operate in the economy are all important their power. But I think law does have a role in terms of private ordering in terms of the type of contracts they um impose on consumers and users in terms of how they even influence the making of law. Um so I think law does have an important as part of that story and I think that's relevant for thinking about this practical question too about the how we constitute rather than just declare network nations because if we look at um you know some of these let's say humbler ways in which um groups of people let's who are not even maybe you know some a

group that can be called a nation or anything of that sort but have um a strong affinity to towards each that whether that's because of location, whether that's because of interest, how they get to be recognized by uh the state in a way that you know we've been talking about in terms of functional sovereignty in some cases and I think a really important um observation from some of this early work on network nations. They've been able to do this by showing that they are able to be mutually responsible towards one another in dealing with um disputes in terms of ensuring that uh

they are responsible for one another what we've been talking about I think in some of this literature in term as uh interweaving because if you look at these humbler examples that I'm thinking of like cooper operatives and in the cooperative movement in some countries they've been able to get let's call it functional sovereignty in terms of um you know whether they're able to regulate their own formation their own governance um monitoring themselves auditing themselves um in this wide variety of functions in which they engage in because of the fact that they've been able to show that they have this mutual responsibility to one another and are able to act in this um

responsible manner. And so in Portugal for example, cooperatives are not regulated by a traditional public authority like a cooperative or a business registar but by a body called CASS which is itself a public interest cooperative comprising representation from both the public sector and the cooperative movement. And this has a this unique body has a really important function in both registering cooperatives and ensuring that they act in conformity with the law, ensuring that they're audited properly and so on. And so this only happened because there was this mutual responsibility within this third sector outside of the public and private sphere. So I think there are examples we can look at and how this constituting of this solidarity and

mutual responsibility was able to achieve this. I want to end by like a point that I think um Neil was just saying about law versus the type of constitutional example I mentioned which is that if um I completely agree with you know looking at private international law choice of law rules and so on but I think that there are situations in which um the recognition of entities especially across borders across these different domains necessitates thinking about something like treaty making or constitution ution making and so on and has had you know has happened in the past too. We end up having private international law conventions like the H convention on the enforcement of trusts because trusts are

not recognized in the same way across all all common law and civil law jurisdictions and there is a need then to start thinking about not just using courtbased interpretations but also looking at um law making or policym at a one level higher. >> Yeah. I mean, I I agree with with with with all of these things. May maybe just I could say a couple of things. I mean, I think I think what's fascinating about about about the digital world here is that, you know, you still need you still need some of the things that law provides, some of the other things you maybe don't need. and uh but also perhaps you need certain things that law

doesn't necessarily provide in in other contexts but where in other contexts there's something else that takes the place of it so that sounds a little bit like a riddle so let me try to explain so even like you know I I realize I'm sitting in the presence of people who are experts and you know in thinking and talking about blockchain and things like that which I'm not but something that's always fascinated me is the way in which blockchain replaces is the discipline of law in some situations. You know, a decentralized digital ledger that record transactions in a secure, transparent, unchangeable way. Okay. So, we don't need Fort Knox anymore. We don't need a central bank. You know, we can have a

digital currency, you know, which which where where people's trust in and confidence in the system and that if they comply with the system or our people will comply in a way which is self-reinforcing is provided digitally and technologically. It doesn't have to be provided by law. And not only is that the case but it's provided tech digitally and technologically in a way which you know is it could be at least through some kind of you know open coding you know so even at the origins of the system it could be it could be open so there's a kind of there's both a sort of democratic impulse there but there's also a disciplining impulse that provides its own discipline through technology what it doesn't provide is is

is the either the cultural dimension of affinity which we were talking about earlier or necessarily the the the innovative institutionally democratic means of bringing together people who are not physically co-present and what I notice actually in your paper is that there's a really strong emphasis on the fact that most of these connections will be corporeal as well as they're digital right they're not just going to be one or the other you know and especially the decentralization dimension of it I mean some of them are particularly about for example when you talk about this is about bringing keeping diaspora communities together etc. is precisely about resolving the problem of non-proximity. But even when it's not,

what you seem to be saying is that there there probably has to be a dimension of this that if it's all done in digital space, then it's not quite going to happen. You know, and the way that you think about a network nation, an aspect of the model would always be a hybrid. That's an imperfect word for what we're talking about, but it would be something which would be about physical connection and digital connection at the same time. And I actually think that's really important. You know, if you don't have that, then you know that that in other words, digitality can reproduce some of the goods and some of the bads of physical co-presence, but it can't reproduce them all. you know, so in that sense, you know, it replaces some of the

functions of law, but what it doesn't replace are some of the probably the aspects that law is usually complemented by in physical spaces. >> Yeah. Uh just just to clarify um when we talk about technology uh in the context of network uh it's not really a matter of like replacing or creating alternative system to the law. Um it's more about it's it's me mainly two things. One is theor communication which is in order for anything even slightly similar to a nation to emerge you need a cultural alignment. You need like shared culture,

shared shared systems uh shared value systems. And this is something that network communication can help and blockchain as such doesn't help at all with that. It's actually network communication in the more traditional sense. The other thing which is actually specifically relevant to this discussion on functional sovereignty. It's actually decentralized infrastructure blockchain peer-to-peer network and so forth. What they do is that they actually operate outside of any jurisdiction because they are distributed. They are a little bit everywhere but therefore they're also nowhere. Um and this is relevant when we talk about constitutive functional

sovereignty because all of a sudden if your governance infrastructure is running on a server located in a particular country or at any point in time the exclusive territorial sovereign of that country can come and shut down that server, you're shutting down the world governance infrastructure. Whereas if the governance infrastructure is running on a mixture of peer-to-peer network, blockchain technology, whatever you name it, then it's extremely difficult for any single territorial sovereign to intervene, to modify it, to stop it. And that's where this degree of self-determination and functional sovereigny kicks in because of the

distributed nature of the technology. And so when we're actually talking about the role of technology in a network nation, it's explicitly concerning one is the cultural building because of digital proximity and the other one is creating sovereign infrastructure in order to then be able somehow to achieve a particular degree of functional sovereignty within the scope of what that infrastructure can govern. Okay. Um we are pretty much at time but I want to ask the last uh question which can be very short in the answer but it's just like opinions. Um because as we discuss sovereignty and functional sovereignty

and overlapping layers of sovereignities um we we kind of like we we we also need to think about what's the relationship like as we as we advocate for network nation as a more friendly um alternative to the network state when it comes to the relationship with the with the nation states. To which extent do you believe that the creation of those functionally sovereign political entity that are the network nation can actually coexist peacefully? Meaning to which extent is the existing current absolute sovereign that is the state um willing to accept the emergence of new functionally sovereign entity which are not in direct conflict in the same way

as the network state is in direct conflict with sovereignty of the state. uh but is nonetheless somehow stepping on on its on its territory, stepping on its people and so forth. And so to which extent do you see this as a viable coexistence or to which extent do you think that the nation state will kick back and actually try to fight against the emergence of those network nation because of the functional sovereign overlap that that they have.

>> What's that thing when you get stone scissors and what's the third thing? I can't remember what it is but the things that have a different relationship to each other. But the point here is there's there's there's three players in this game. Yeah. There's the states, there's the platforms, and then there's the the the the online communities and the the the there's a democratic space that you're talking about. So it it I mean it seems to me that that that the So my my first point, my first my first reaction here is that, you know, in many ways the enemy here is not the enemy, but the the the adversary is is is the commercial platforms. you know, they're the ones, you know, that that uh uh are, you know, and and I guess that leads on to my second point, which is that, you

know, uh if states also, you know, are aware of this, then that might be one of the ways in which, you know, states are more open to the third element i.e. the the the democratic communities online. you know if the alternative is you know the world is run by Elon Musk or is run by other people who are not Elon Musk so I don't need to be flippant here but it does change the politics of it you know and uh the the you know state states are always concerned with what they might see as fugitive power you know power that they don't control I guess the point is what type what what are the forms I mean states and sovereign states always have a tendency to over control

but what are the types of future power that they're most scared of. I think it's the fugitive power of corporations. We are in the fugitive power of of democratic communities or at least that that that's the argument that has to be made. >> Thank you, Mosant. >> I mean, I just want to add a little bit to Neil's point where I think we're starting to see states becoming a bit anxious about the power of digital communities just because of all of these youth revolutions that have been happening over the past year. aside from you know the discussion that you know Neil just pointed out regarding corporations and fugitive power of corporations. So the use of digital platforms both centralized and also peer-to-peer to be able to forement um

social movements which in a way is now an extension and even going beyond some of the patterns we saw in the previous decade with you know starting with the Arab Spring and so on and so forth. And I think there we end up having this discussion where states might have a certain degree of anxiety of what this means for political stability for people to mobilize very quickly online obviously now being able to also raise capital not just discuss um using um these tools as well. So there is that part where there might be a bit of contention of course and concern. But I think another point that is relevant is about the

particular type of um claim that is actually made beyond you know these sorts of social movements. Um I think some of these digital communities as we know as Neil was also mentioning are are physical communities which are interacting in different ways with um states and if we take the politics point on again if they are within a territory which is having a rise of nivism um a rise of a sort of apathy towards minorities and so on this idea that you might have digital nomads who are regularly entering into your territory uh might be seen again uh

with a type of antipathy which doesn't necessarily mean that they don't like the technology. So it's you know almost like this dual phenomenon where a particular you know uh right-wingleaning state or polity um is very fond of a particular technology or set of technologies but then they don't like the fact that this entails uh a particular physical community or set of communities also entering into their territory as well and I see that as being an issue that's starting to emerge a little bit as well where people like a lot of these advances with new technologies but they don't necessarily like the people behind them and I think that's um a particular issue in which

you know when we start thinking of states as also collections of voters and so on then that we might um see a bit of push back to >> yeah but also just very quickly I mean I mean I was making that mistake as well but I mean states are not monist you know there are different sorts of states you know and there are different sorts of politics within states you know and I look at people like you know the new leader of the green party in UK, Zach Palansky or the the guy who's running for mayor in New York and he's a very very different sort of people you know that that uh you know you know and their sense I mean they're already you know they they already get it at some level yeah you know they already understand that you know that that political power

is only one form of power you know it has to find its accommodation with with these other forms of power you know so so some of this some of this is done through oldfashioned politics you know we can't just assume that old fashioned politics will always you know will always achieve the old fashioned solutions you know and uh because you'll need some you'll need some hope you need some help from old fashion politics for this to work >> great this is um this means that we might need new political entity to change the solutions >> um thanks a lot we're out of time um but uh super nice discussion thanks a lot for helping us uh dig into these uh complex questions of functional sovereignty Um,

>> thank you. >> Thank you.