How a Subject of Law Comes into Being

Why has international law, possessing developed doctrines on the existence of collective subjects, scarcely worked out the question of their voluntary emergence?

This is not a defence of the project. It is an attempt to name a gap precisely. The intent is easy to verify: if the word "Earthlings" is removed from this text, not one thesis loses its force. Earthlings appears here only as the first observable instance of a process whose general theory does not yet exist.

All the theses are deliberately cautious. Not one asserts that the law has become obsolete or was mistaken. Each asserts something more modest and more precise: for the first time, the law faces a question that previously scarcely existed.

It is precisely this domain - the voluntary self-constitution of collective subjecthood - that any seriously posed contemporary case reveals to be unoccupied. What follows are seven theses on why this domain has remained empty and what filling it would mean.

Every scientific theory passes through a moment when it is hard to distinguish the essence of a phenomenon from the historical form in which it has manifested itself. For centuries the material carrier seemed the essence of money - coins, banknotes, metal - until banking and digital settlement showed that this had been merely a convenient historical form. The first automobiles were called "horseless carriages"; the first websites reproduced the paper page. The new almost always reproduces the old form at first, and only later does it become clear which marks were necessary and which were a consequence of former constraints.

The same situation is possible with the concept of a people. Throughout almost all of history, enduring communities possessed a common territory, language, origin, and economic life. But a question rarely put directly remains: were these marks the essence of a people - or a consequence of the only previously available way of uniting large human collectives?

The difference is fundamental. If territory is the essence of a people, its absence excludes the very possibility of a new form of peoplehood. If, however, territory was merely a historical condition, then the emergence of new ways of human coordination calls not for the abolition of the law, but for a reconsideration of how the question is framed. International law, tellingly, contains no exhaustive definition of a people - and this leaves the question open, rather than settled in favour of territory.

The influence of modern communications is usually reduced to the speed of information exchange. This is true, but superficial. Something deeper has changed - the very mechanism by which large groups of people are held together.

Throughout history there were few such mechanisms: the vertical hierarchy (the tribe, the army, the state, the church) and the organisation within a single jurisdiction (the company, the university, the party, the foundation). All of them required either a common territory or a single organisational vertical. For the first time a third possibility has appeared - the stable horizontal coordination of millions of people without a common territory and without a single hierarchy.

This abolishes no norms of law and proves nothing about peoplehood in itself. But it changes the factual conditions under which people are able to form enduring communities. And when the conditions for the emergence of stable collectives change, the law sooner or later faces the necessity of determining the place of the new form within the system of its concepts.

International law took shape not amid a multitude of competing models, but in an era when the state was the most developed and institutionally complete form of political organisation. This is why the state became the original model of legal personality. This was not a theoretical error, but a reflection of historical reality.

From here two extremes are possible - and both are false. Either the state is declared a unique and wholly special subject, or all subjects are levelled. More precisely, a third holds: the state is neither an exception nor a universal model, but the historically first fully developed instance of a more general process of institutional formation. Like the vertebrates in biology: not the universal model of life, yet not ceasing to be its most important example - simply having taken its place within a more general theory. On this view the "exceptions" of doctrine (international organisations, movements, peoples, the individual, the Holy See) cease to be annexes to a building and become different historical forms of a single process.

What, then, distinguishes the state most deeply? Not territory and not sovereignty, but the monopoly on coercion (the classic Weberian formula). Yet on a close reading it describes not subjecthood, but a means of securing normative order. And here arises what is perhaps the strongest question of the whole subject - posed with the utmost caution:

The thesis does not assert that coercion is unnecessary. It merely declines to treat as proven that no other mechanisms of stable order exist.

The modern doctrine of self-determination took shape not as an abstract theory of the emergence of peoples, but as a response to concrete processes: the collapse of empires, decolonisation, liberation movements, the struggle against external domination. Hence its language - colony, dependent territory, occupation, territorial integrity, independence. These concepts explained their era admirably.

The doctrine therefore answered one question: how an already existing people realises its right to self-determination under conditions of external subjection. And it scarcely answered another: how the subject itself comes into being - the subject that then becomes the bearer of this right.

The conclusion here is not that "the theory is incomplete," but, more precisely, that it is specialised. Every developed theory has a domain of applicability; the subject matter of the theory of self-determination historically lay in a different plane. The absence of a developed answer to the question of the emergence of a people testifies not to the impossibility of such an answer, but to the previous absence of a historical demand for it.

There is a difference between two formulations, and it determines the whole tone of the inquiry.

To say "the law failed to develop a theory" is to level a reproach at the law. To say "the law had not yet been confronted with the necessity of developing one" is to describe a historical fact. The first position is accusatory, the second historical; the second is the one that is scientifically honest.

The law examines first of all what becomes the object of a dispute. Until a phenomenon gives rise to persistent conflicts, enters judicial practice, or provokes international disagreements, it rarely becomes an autonomous object of theory. This is no defect of the law - it is how most legal institutions develop. What changed was neither the legal order itself nor its principles - what changed was the object of observation: for the first time the law faces a question that previously could not be posed in earnest.

The principal change is not the internet and not any particular technology; these are merely instruments. The essential thing is that collective self-constitution has, for the first time, become observable.

Historical peoples we studied retrospectively - by the traces left over centuries: language, legend, institutions formed before any observer. The existence of a people was established indirectly and always after the fact. A contemporary voluntary community can, for the first time, be studied in the process of its formation: the moment of accession, the expression of consent, the taking-shape of institutions, the continuation or cessation of participation - all of this is accessible to direct and verifiable observation.

The analogy is imperfect, but it helps convey the scale: where before only a fossilised trace was available, one can for the first time observe the development of a living organism. For the law this is a qualitatively new type of material - and it is precisely this that makes conceivable a question that could not be posed on historical material: not "what is a people," but "what stages does its formation pass through."

Until now, international law has operated predominantly with static categories: the state, the people, the international organisation, the legal entity. All of them are regarded as already existing subjects, which it remains only to classify.

But if the subject matter becomes the very process of emergence, the law is compelled to think dynamically - to describe not only what is, but how it comes to be. A new task arises: not to classify subjects that have already emerged, but to reconstruct the stages of the passage from the voluntary association of individuals to collective subjecthood.

It is precisely here that lies what international law today genuinely lacks. Not a new definition of a people and not a new theory of self-determination, but a general theory of legally significant collective becoming. It has yet to be built - rigorously, on the basis of the logic of law, institutional theory, and the norms already in force. This document does not propose it; it merely shows that the place for it is empty and that the demand for it has, for the first time, become real.

These theses are no academic exercise. Behind them stands an entirely practical question, which divides into two:

To the first question the Legal Justification already answers in the affirmative, relying on two operative norms - freedom of association and the right of peoples to self-determination. This document adds a second layer: it shows that behind the particular case stands a general gap in doctrine, and that this gap is not the weakness of anyone's position, but a natural consequence of the history of the law itself.

Hence the questions we openly put before the legal community, laying no claim to a ready answer:

• Is a territorial connection an essential mark of a people - or a historically dominant condition of its formation?
• Is the capacity for coercion a necessary condition of a stable normative order - or one of the technologies for maintaining it?
• Are there general legal criteria for the passage from the voluntary association of individuals to collective subjecthood?
• If the emergence of a collective subject has for the first time become observable, must the theory of a people remain exclusively retrospective?

We do not assert that the answers are obvious, or that they will necessarily favour new forms of peoplehood. We assert only that the questions are correctly posed, that existing international law offers no ready answer to them - and that they deserve serious professional discussion rather than dismissal as utopia.