Comment on Diane Ring’s Article

[Professor Allison Christians is Assistant Professor of Law at the University of Wisconsin Law School]

Professor Ring frames sovereignty as responsive to the basic relationship between people and government and thereby attempts to redeem the concept from its current status as “rhetorical camouflage” in tax policy debate.   Her analysis presents a timely and important contribution and reflects the growing attention among tax scholars to the reality that, as in other regulatory areas, decision making power in taxation is no longer lodged in the sovereign state but is increasingly shifting to national and transnational legal and epistemic networks.   Prof. Ring concludes that sovereignty provides some unique and vital connection between the governors and the governed, but I am more convinced by her analysis that sovereignty serves mostly as a reflexive shield against global legal pluralism.   Before we can determine the degree to which this shield is necessary or useful, we need to enhance our understanding about how much of what we consider to be domestic tax law derives in fact from national and transnational legal and non-legal regimes.

In globalized society, overlapping, simultaneous, and entangled authority over the individual is the standard; autonomous jurisdiction the exception.  As a result, it is difficult if not impossible to determine just when sovereignty is “transferred,” “surrendered,” or “lost” to global institutions.   We may well ask, as Prof. Ring does, what sovereignty implies in terms of a state’s claim over or responsibility toward a people.  But the answer to that question does not impact the reality of shared (pluralistic) rights and responsibilities.  In this context, sovereignty is a euphemism for one person’s (or group’s, or state’s) claim of exclusivity over the claims of others.  Instead of asking what sovereignty allows or requires, it may simply be more productive to ask how and how much governments are in fact agreeing to share authority over particular individuals, groups, industries, practices, etc., and what happens when some people think others aren’t sharing very well.

These determinations, regardless of any person or state’s particular tendency to equate sovereignty with autonomy, will necessarily be worked out not in democratic debate within nations but in dialogue among individuals grouped according to shared areas of expertise and generally aligned interests and norms, who identify and solve problems based on internally defined criteria for evaluation, and who operate according to established power relationships—what some IR theorists would call epistemic communities.  In this context, Prof. Ring’s exploration of the rhetorical coherence of the concept of sovereignty particularly challenges us to confront the development of norms and laws by and between individuals linked to each other according to various national traditions and conventions on the one hand, and these (increasingly transnational) epistemic communities on the other.

The OECD’s confrontation with sovereignty through its harmful tax practices initiative—one of Prof. Ring’s case studies—offers a relatively clear example of the tension between the idea of sovereignty and the reality of global recursivity in tax lawmaking.   In that project, experts and country representatives used the OECD, a transnational network, as a forum to develop global norms sanctioning certain kinds of tax competition.  Alliances and contestations arose and were worked out within the OECD until a set of norms were encoded into scripts—“guidelines” for best practices in national taxation.  Alliances and contestations then arose within national political systems, with prominent challenges taking place within the United States.  Prof. Ring cites the use of sovereignty to frame national policy in this case as “a fascinating journey through politics, rhetoric, and interest groups.”  But it is important to note that although sovereignty uniformly arose in the United States as a shield against pluralism in general and transnationalism in particular, this did not disengage the U.S. from these settings.  Instead, the journey continued: national policy returned to the global polity for continued renegotiation within the OECD.  Actors at all stages in this recursive national/transnational cycling worked constantly with the idea of sovereignty as an apparently important limit, yet the process of negotiation and consensus-seeking continued toward the goal of creating transnational standards.

The rise of norms and their dissemination through these kinds of recursive cycles evidence the underlying theme of Prof. Ring’s article: rhetoric about sovereignty is really about how decision making power is going to be shared in a financially, socially, and legally interdependent world.  Any claimed juridical exclusivity over a particular individual, group, industry, practice, etc., potentially presents a very difficult, maybe impossible exercise in line drawing.  Concepts like sovereignty are not likely to find definitional consensus, yet we have come to expect specific regulatory norms to emerge and harden into law across nations in various forms and to various degrees.  What is critical, as Prof. Ring demonstrates here, is that we pay attention to the processes—who is involved, and where and how influence and power play out.  That’s true whether we are talking about decisions at the local, national or international level.