The 'Unsettled Paradox': The Internet, the State, and the Consent of the Governed
David G. Post
Temple University School of Law
Indiana Journal of Global Legal Studies, Vol. 5, No. 2, p. 521, Spring 1998
Settlement of the New World called for a fundamental re-examination of the nature of sovereignty and statehood. Reconciling the paradoxical notion that the state is somehow both an agent of the people, and a sovereign possessing final and unappealable power, was a central pre-occupation of political thought of the 17th and 18th centuries. This paradox was resolved by the radical English Whig theorists (and their equally radical republican counterparts in the Americas) by the development of a new theory of sovereignty, one that relocated the locus of truly sovereign power away from the legislative assembly C away, indeed, from all governmental institutions C to the people. The state's power, in this view, is entirely derivative -- the very opposite of 'sovereign' -- flowing ultimately from the 'consent of the governed' who, possessing sovereign but delegable power, constitute the state as their agent for the purpose of engaging in collective action conducive to their pursuit of happiness.
This normative view of states as constituted agents whose power derives from the people's collective will and their ultimately indivisible sovereignty -- a view that has come to be labeled the 'Liberal' theory of statehood --is an a-territorial one insofar as it discards notions of physical territoriality and physical power as the bases for the exercise of sovereign power. And, as such, it appears well suited to an increasingly a-territorial, networked world. The settlement of the new domain of cyberspace may enable us to take more seriously than ever before the possibility that individuals in the ordinary course of their affairs can create governmental entities that lack territorial status, a-territorial consensual associations with no geographical referents whatsoever onto which a portion of their 'sovereignty' devolves. This paper explores some of the implications this may have for evolving normative theories of statehood and for related questions of the extraterritorial assertion of jurisdiction by existing territorial states.
Number of Pages in PDF File: 24
Keywords: internet, governance, sovereignty, jurisdiction
JEL Classification: K10, K42Accepted Paper Series
Date posted: November 9, 2006
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