Toward an Institutional Theory of Sovereignty
University of Texas School of Law
New York University School of Law
Stanford Law Review, Vol. 55, 2003
Scholarship in international law is preoccupied with the structural tension between state sovereignty and international obligation. This preoccupation presupposes that states incur sovereignty costs when entering binding international commitments. In our view, this presupposition requires substantial qualification. In this Article, we propose a sociological model of sovereignty that views states as organizational entities embedded in and reflecting a wider social environment. Such an approach, we maintain, illuminates the ways in which constraints empower actors (including states). Our claim is not simply that international law helps overcome collective action problems by facilitating cooperation and coordination. Rather, we maintain that the constitutive features of the contemporary nation-state - including its status as a legitimate, sovereign actor - derive from worldwide models constructed and propagated through global cultural and associational processes. In issue areas ranging from public education to environmental protection to the laws of war, these models: define and legitimate purposes of state action; and shape the organizational structure and policy choices of states. These processes (1) define the organizational form of the modern state; (2) delimit the legitimate purposes of the state; and (3) constitute states as the principal legitimate actors in the world polity. The institutionalization of world models also helps explain many characteristics of the contemporary state system, such as striking similarity in purposes and organizational structure despite diversity in local resources and cultural traditions, and structural decoupling between functional task demands and persistent state initiatives. We suggest that the insights generated by this approach recast debates about the utility and prospects of reconciling state sovereignty and international law.
Number of Pages in PDF File: 39
Keywords: International lawAccepted Paper Series
Date posted: April 3, 2003
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