Sorry for missing last week; life was crazy. New blog day will be Thursdays through early December.
It is becoming increasingly clear that the nation-state as a site of legal, economic, and diplomatic power has been (or is being) superseded by globalization/transnationalism/technological processes.
Tony Bennett (1995, p. 218) had begun to observe these processes as early as 1988; “Expo ’88” in Brisbane, Australia displayed a “tendency for the corporate pavilion, once a marginal feature of the exhibition form, to displace national pavilions as the organizing centres of expositional rhetorics of progress.”
Rather than the traditional exposition structure, then, in which the core was made up by nations showing off their innovation and modern-ness, there was a shift in the late twentieth century toward the corporation as the preeminent international entity.
This change, I’d like to argue, is not just a matter of exhibition layout, but rather is indicative of a shift in the worldwide balance of power; the de-centering of the nation, then, would seem to “pose fundamental questions to our neat categories of the liberal public sphere, where citizens interact through constitutionally guaranteed rights” (Liang, 2005, p. 16).
This is to say that the model of the citizen with legal rights—and particularly rights to private property, as has been codified by the conflation of political and economic liberalism (see Brown, 2003)—has become less compelling (and less accurate to the functioning of the world) in recent years.
Instead, as Lawrence Liang (2005, p. 16) argues, “globalization demands that we ask fundamentally different questions of the relationship between law, legality, property (tangible and intangible) and that which we call the public domain.”
On one hand, there are situations in which the power of capital is great enough to override the protections extended by the nation, such as when nations eliminate or relax or create exceptions to labor and environmental and tax regulations in order to draw business, though as Aneesh (2006, p. 22) notes this is “not an autonomous process that undermines the ability of nation-states to protect against the deregulation of their markets. In fact the nation-state—under contemporary neoliberal pressures—is the key actor in effecting deregulation.”
Through deregulation, then, nations are actively ceding their power to corporations, but there are also ways in which the nation-state is undermined through processes which, if not autonomous, are at least beyond its control. David Savran (1998, pp. 240-1) describes terrorism as “both a perversion and a parody” of “multinational capitalism”—each, he says, “threatens not just national security and national borders but the very idea of the nation as a sovereign political and economic entity.”
In the age of terrorism, one of the nation’s fundamental powers and responsibilities—to keep its citizens safe—has been to some degree stripped from it, and in this way the power of the nation has been diminished overall. Indeed, U.S. military intervention in Afghanistan can be seen as a last-ditch effort to keep that power in the hands of the nation using old-style military-power modes of maintaining safety in a world in which they no longer apply.
In these ways, then, the nation’s role is diminished from one direction through a reduction of the power of law, whether chosen or imposed.
On the other hand, though, the process works in more or less an opposite direction—the nation is obviated by means of a shift from place-based to international enforceability, or the extension of law.
This can be seen in the articulation of intellectual property piracy as requiring “universal jurisdiction” (Govil, 2004, p. 382). Typically, law operates with “national jurisdiction,” overridden only by “the moral heinousness of crimes against humanity,” and “for centuries prior to the post-World War II application of universal jurisdiction against genocide, apartheid and war crimes, maritime piracy was the only crime deemed heinous enough to warrant universal jurisdiction” (Govil, 2004, p. 382).
In this way, then, Govil demonstrates the ways in which the use of the term “piracy” for illicit copying of data is not coincidental, but instead quite explicitly bound up in moral judgement, as it frames the theft of intellectual property as on par with genocide, of such compelling interest to humanity that nations have no right to protect their citizens from prosecution.
In this way, then, though the world may seem to be becoming more lawless, it turns out that law is actually just becoming disarticulated from the nation-state, which suggests that, as an institution, it is perhaps being rendered obsolete by the tides of history.
References
Aneesh, A. (2006). Virtual Migration: The Programming of Globalization. Durham: Duke University Press.
Bennett, T. (1995). The Birth of the Museum: History, Theory, Politics. London: Routledge.
Brown, W. (2003). Neo-liberalism and the End of Liberal Democracy. Theory & Event, 7(1), n.p.
Govil, N. (2004). War in the Age of Pirate Reproduction. In R. Vasudevan, R. Sundaram, J. Bagchi, M. Narula, S. Sengupta, & G. Lovink (Eds.), Sarai Reader 04: Crisis/Media (pp. 378-383). Sarai/Center for the Study of Developing Societies/Society for New and Old Media.
Liang, L. (2005). Porous Legalities and Avenues of Participation. In Sarai Reader 05: Bare Acts (pp. 6-17). Retrieved from http://www.sarai.net/publications/readers/05-bare-acts/02_lawrence.pdf
Savran, D. (1998). Taking It Like a Man: White Masculinity, Masochism, and Contemporary American Culture. Princeton: Princeton University Press.