Cyberspace, Modernism, Jurisdiction and Sovereignty

Abstract

This essay considers the possible effects of the rise of cyberspace on sovereignty. It considers the rise of cyberspace as a technical change that modifies the transaction costs and benefits profile of various social and private arrangements. Once this shift is recognized, it is important to consider how these social and private arrangements might be changed, and whether some social arrangements should be made private, or vice-versa. The complex feedback between the technical production frontier and the structural production frontier makes prediction of outcomes daunting. Jurisdiction and sovereignty were always constructed; the rise of cyberspace is simply an occasion for their revision. This essay distinguishes two types of sovereignty: conclusory sovereignty and contingent sovereignty. The difference between the two is one of institutional imagination. Conclusory sovereignty, used as an epithet to claim powers for the state without analysis, denies the plasticity of the institution of the state, while contingent sovereignty accepts it. More importantly, contingent sovereignty accepts the power and authority of people to mold the powers of the state as they see fit from time to time: it is more democratically rooted than conclusory sovereignty. Fixed institutions like conclusory sovereignty may serve purposes in circumstances of network externalities, or may persist despite their inefficiencies due to path dependence. It is important to identify these types of causes of conclusory sovereignty, in order to determine the value of its retention in particular circumstances. In this sense, contingent sovereignty may absorb and approve certain forms of conclusory sovereignty.