One of the things I have been looking at recently is the concept of ‘non-territoriality’ in governance. The idea bears some relation to the political philosophy of panarchy:
PANARCHY (pan-archy: many chiefs; multi-government) is a system of competing, co-existing governments which conduct their operations within the same geographical territories without making any claims to those territories, and whose only powers derive from the consent of those they govern, i.e., those who voluntarily agree to submit to a particular government. These voluntary governments are constituted and operate on the basis of contractual personal law rather than the coercive territorial law of the Nation-State.
David Taylor (1989), For Panarchy
Non-territoriality also crops up in the (small) literatures on functional federalism (FOCJ) by Bruno Frey and multi-level governance by Liesbet Hooghe and Gary Marks. Not to mention to concept of extraterritorial jurisdiction that dates back to medieval merchants and modern(-ish) colonial practices.
Two questions stick out: (1) has non-territorial governance ever came to be?; and if so (2) when, where, and why?
It would seem that historical and contemporary examples of non-territorial governance can be categorised according to the following distinctions:
(1) historical cases tend to be about ‘natural’ groups that are pre-existing within a larger polity, that may have been marginalised or homogenised, and seek to establish some degree of autonomy or self-governance (i.e., re-emergence of extant groups);
(2) more contemporary cases tend to be about ‘artificial’ groups that have not yet coalesced within a larger polity, that is assumed to be homogeneous, and could be constructed or discovered with entrepreneurial action (i.e., emergence of latent groups).
These are not absolute or mutually exclusive categories, but there does seem to be something in the ‘natural-artificial’ and ‘extant-latent’ distinctions. The first category is about when pre-existing groups are ‘trapped’ within the larger polity and seek to re-establish autonomy. The second category, however, is about when there are mechanisms for new groups to emerge from within the larger polity and are then afforded some degree of autonomy.
Natural (extant) groups:
- heterogeneity is infused from without;
- homogeneity is imposed;
- heterogeneity is then demanded (and because of mixing, a non-territorial mechanism is used to re-enable heterogeneity).
The main point is that the extant groups are identified, so the solution can be targeted to give autonomy to specific groups (the target is visible, the opportunity is apparent, constituency is formed, etc.)
Artificial (latent) groups:
- heterogeneity is effused from within;
- homogeneity is assumed;
- heterogeneity is then supplied (and because of innate entanglement/overlap, a non-territorial mechanism is used to enable heterogeneity).
The key point is that latent groups are unknown, so the solution must be general to allow discovery of new groups (the target is not yet visible, the opportunity is uncertain, constituency must be constructed, etc.)
The first commonality between historical cases of non-territorial governance, e.g. Roman Empire, Icelandic Free Commonwealth, establishment of extra-territorial consular jurisdictions, Austro-Hungarian Empire, territorially-dispersed minorities (Maori in New Zealand, Sami in Norway), and Belgium; seems to be that they tend to occur when already-existing ‘group identities’ are incorporated, marginalised or homogenised by an encompassing state or dominant group.
- the Roman state drew together peoples from all reaches of the Empire (Romans, Lombards, Alemanns, Burgundians, Goths, Franks, and so on) and declared them all Romans, subject to the same law;
- the Icelandic Free Commonwealth is believed to have emerged from an assembly or court of arbitration between pre-established chieftainships;
- the origins of consular jurisdictions trace back to medieval practices of merchant self-governance in the Mediterranean region (e.g. the Ottoman Empire first granted extraterritorial rights to French merchants, and then all European merchants);
- the concept of non-territorial federalism was proposed by scholars to quell political disputes among the eleven principal national groups comprising the Austro-Hungarian Empire (e.g. Bosnian-Croatian, Czech, German, Hungarian, Italian, Polish, Romanian, Serbian, Slovak, Slovene, and Ukrainian);
- territorially-dispersed minorities such as Maori in New Zealand, Sami in Norway, and Muslims in India (and as has been suggested for Muslims and Hill country Tamils in Sri Lanka, and dispersed groups in Nepal) have been granted some measures of self-determination and self-governance or representation; and
- the Belgian composite constitutional architecture helps mediate disagreements between its three primary enthno-linguistic communities (e.g. the Dutch-speaking Flemish community, the French-speaking community in Wallonia, and the small German-speaking community in east Wallonia), and affords some measures of self-governance to both the French and (minority) Dutch communities of the Brussels-Capital region.
At a cursory glance it would seem that potential for non-territorial governance follows when distinct groups are formed or brought together. Moreover, I would suggest three ways that this might happen:
(1) genesis, e.g. following settlement in Iceland and establishment of the Commonwealth, and the case of Belgium as a nation formed at the intersection of Dutch, French, and German communities;
(2) empire, e.g. as was the case with the ancient Roman Empire and the modern Austro-Hungarian Empire; or
(3) exchange, as was the case with European merchant diaspora throughout the Mediterranean, later extraterritorial jurisdiction over merchants exercised by European trade companies in east Asia, and the emergence of the practice of consular jurisdictions.
The commonality between these three general cases is that a plurality of distinct groups are brought into contact with each other, and rather than (or perhaps as a reaction to) homogenisation of the groups under one identity and one law or form of governance, some sort of (non-territorial) compromise is sought. Once the distinct groups are brought into contact, some amount of mobility and mixing occurs; meaning that members of the groups may be distributed over the entire geography of the larger jurisdiction, while still holding onto their original group identity.
Group identities therefore acquire a non-territorial character: Burgundians live in Lombardy and Lombards live in Burgundy during the Roman Empire; thingmen of different Godhi live among each other in medieval Iceland; French and Dutch merchants live in the Constantinople of the Ottoman Empire; English functionaries of the East Asia Company live in Guangzhou, then the only Qing-Chinese port open for overseas trade; Germans, Poles, and Czechs migrate to Vienna, the main capital of the Austro-Hungarian Empire; Dutch-speaking and French-speaking Belgians (perhaps the decedents of the Constantinople merchants) live side-by-side in Brussels; and so on.
The acquired non-territorial aspect of group identity then agitates for a corresponding non-territorial political/legal jurisdiction. This can usually be justified by referring to an alleged incompatibility between customary cultural and legal systems. There may be a period of attempted homogenisation or marginalisation of distinct group identities under the banner of pragmatic nationalism (e.g. Austro-Hungary, Belgium), empire (e.g. Rome), or simple political hegemony/sovereignty (e.g. merchants in foreign trading ports), that reveals this incompatibility; or the new polity may have been formed with explicit recognition of pre-existing groups reflected in the political arrangement/constitutional structure (e.g. Iceland, consular jurisdictions/treaties, later federal state reform in Belgium).
But the main point is that the groups comprising the larger polity are pre-existing before the non-territorial solution is devised.
Contemporary cases of non-territorial governance can be found in cryptoanarchist experiments with bitcoin and other blockchain based technologies. This will be the subject of future posts from me.