Empire (3 page)

in the supreme juridical source, and under these conditions Kelsen’s

notion ofa fundamental norm could finally be realized.

Kelsen conceived the formal construction and validity of the

system as independent from the material structure that organizes it,

but in reality the structure must somehow exist and be organized

materially. How can the system actually be constructed? This is the

point at which Kelsen’s thought ceases to be ofany use to us: it

remains merely a fantastic utopia. The transition we wish to study

consists precisely in this gap between the formal conception that

grounds the validity ofthe juridical process in a supranational source

and the material realization ofthis conception. The lif

e ofthe

United Nations, from its foundation to the end of the cold war, has

been a long history ofideas, compromises, and limited experiences

oriented more or less toward the construction ofsuch a supranational

ordering. The aporias ofthis process are obvious, and there is no

need for us to describe them in detail here. Certainly the United

Nations’ domination ofthe general framework ofthe supranational

project between 1945 and 1989 led to some ofthe most perverse

theoretical and practical consequences. And yet, all this was not

enough to block the constitutionalization ofa supranational power.7

In the ambiguous experiences ofthe United Nations, the juridical

concept ofEmpire began to take shape.

The theoretical responses to this constitutionalization ofa

supranational world power, however, have been entirely inade-

quate. Instead ofrecognizing what was really new about these

supranational processes, the vast majority ofjuridical theorists merely

tried to resurrect anachronistic models to apply to the new problems.

To a large extent, in fact, the models that had presided over the

W O R L D O R D E R

7

birth ofthe nation-state were simply dusted offand reproposed as

interpretive schema for reading the construction of a supranational

power. The ‘‘domestic analogy’’ thus became the fundamental meth-

odological tool in the analysis ofinternational and supranational

forms of order.8 Two lines ofthought have been particularly active

during this transition, and as a kind ofshorthand we can conceive

ofthem as resurrections ofthe Hobbesian and the Lockean ideolo-

gies that in another era dominated the European conceptions of

the sovereign state.

The Hobbesian variant focuses primarily on the transfer of the

title ofsovereignty and conceives the constitution ofthe supra-

national sovereign entity as a contractual agreement grounded on

the convergence ofpreexisting state subjects.9 A new transcendent

power, ‘‘tertium super partes,’’ primarily concentrated in the hands

ofthe military (the one that rules over life and death, the Hobbesian

‘‘God on earth’’), is, according to this school, the only means capable

ofconstituting a secure international system and thus ofovercoming

the anarchy that sovereign states necessarily produce.10 By contrast,

according to the Lockean variant, the same process is projected in

more decentralized, pluralistic terms. In this framework, just when

the transfer toward a supranational center is accomplished, networks

of local and constitutionally effective counterpowers rise up to

contest and/or support the new figure ofpower. Rather than global

security, then, what is proposed here is a global constitutionalism,

or really this amounts to a project ofovercoming state imperatives

by constituting a
global civil society.
These slogans are meant to evoke the values ofglobalism that would infuse the new international

order, or really the new transnational democracy.11 Whereas the

Hobbesian hypothesis emphasizes the contractual process that gives

rise to a new unitary and transcendental supranational power, the

Lockean hypothesis focuses on the counterpowers that animate the

constitutive process and support the supranational power. In both

cases, however, the new global power is presented merely in analogy

with the classical conception ofthe national sovereign power of

states. Rather than recognizing the new nature ofimperial power,

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T H E P O L I T I C A L C O N S T I T U T I O N O F T H E P R E S E N T

the two hypotheses simply insist on the old inherited forms of state

constitution: a monarchic form in the Hobbesian case, a liberal

form in the Lockean.

Although, given the conditions in which these theories were

formulated (during the cold war, when the United Nations only

limped forward in the best of times), we must recognize the great

foresight of these theorists, we also have to point out that they

cannot account for the real novelty of the historical processes we

are witnessing today.12 In this regard these theories can and do

become harmful, because they do not recognize the accelerated

rhythm, the violence, and the necessity with which the new imperial

paradigm operates.
What they do not understand is that imperial sover-

eignty marks a paradigm shift.
Paradoxically (but it is really not that paradoxical), only Kelsen’s conception poses the real problem, even

ifhis conception is limited to a strictly formalist point ofview.

What political power already exists or can be created, he asks, that

is adequate to a globalization ofeconomic and social relations?

What juridical source, what fundamental norm, and what command

can support a new order and avoid the impending descent into

global disorder?

TheConstitution of Empire

Many contemporary theorists are reluctant to recognize the global-

ization ofcapitalist production and its world market as a fundamen-

tally new situation and a significant historical shift. The theorists

associated with the world-systems perspective, for example, argue

that from its inception, capitalism has always functioned as a world

economy, and therefore those who clamor about the novelty of its

globalization today have only misunderstood its history.13 Certainly,

it is important to emphasize both capitalism’s continuous founda-

tional relationship to (or at least a tendency toward) the world

market and capitalism’s expanding cycles ofdevelopment; but

proper attention to the
ab origine
universal or universalizing dimensions ofcapitalist development should not blind us to the rupture

or shift in contemporary capitalist production and global relations

W O R L D O R D E R

9

of power. We believe that this shift makes perfectly clear and possible

today the capitalist project to bring together economic power and

political power, to realize, in other words, a properly capitalist

order. In constitutional terms, the processes ofglobalization are no

longer merely a fact but also a source of juridical definitions that

tends to project a single supranational figure ofpolitical power.

Other theorists are reluctant to recognize a major shift in global

power relations because they see that the dominant capitalist nation-

states have continued to exercise imperialist domination over the

other nations and regions ofthe globe. From this perspective, the

contemporary tendencies toward Empire would represent not a

fundamentally new phenomenon but simply a perfecting of imperi-

alism.14 Without underestimating these real and important lines of

continuity, however, we think it is important to note that what

used to be conflict or competition among several imperialist powers

has in important respects been replaced by the idea ofa single power

that overdetermines them all, structures them in a unitary way, and

treats them under one common notion ofright that is decidedly

postcolonial and postimperialist. This is really the point ofdeparture

for our study of Empire: a new notion of right, or rather, a new

inscription ofauthority and a new design ofthe production of

norms and legal instruments ofcoercion that guarantee contracts

and resolve conflicts.

We should point out here that we accord special attention to

the juridical figures ofthe constitution ofEmpire at the beginning

ofour study not out ofany specialized disciplinary interest—as if

right or law in itself, as an agent of regulation, were capable of

representing the social world in its totality—but rather because they

provide a good index ofthe processes ofimperial constitution. New

juridical figures reveal a first view ofthe tendency toward the

centralized and unitary regulation ofboth the world market and

global power relations, with all the difficulties presented by such a

project. Juridical transformations effectively point toward changes

in the material constitution ofworld power and order. The transition

we are witnessing today from traditional international law, which

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T H E P O L I T I C A L C O N S T I T U T I O N O F T H E P R E S E N T

was defined by contracts and treaties, to the definition and constitu-

tion ofa new sovereign, supranational world power (and thus

to an imperial notion ofright), however incomplete, gives us a

framework in which to read the totalizing social processes of Empire.

In effect, the juridical transformation functions as a symptom of

the modifications ofthe material biopolitical constitution ofour

societies. These changes regard not only international law and inter-

national relations but also the internal power relations ofeach

country. While studying and critiquing the new forms of interna-

tional and supranational law, then, we will at the same time be

pushed to the heart ofthe political theory ofEmpire, where the

problem ofsupranational sovereignty, its source oflegitimacy, and

its exercise bring into focus political, cultural, and finally ontologi-

cal problems.

To approach the juridical concept ofEmpire, we might look

first at the genealogy ofthe concept, which will give us some

preliminary terms for our investigation. The concept comes down

to us through a long, primarily European tradition, which goes

back at least to ancient Rome, whereby the juridico-political figure

ofEmpire was closely linked to the Christian origins ofEuropean

civilizations. There the concept ofEmpire united juridical categories

and universal ethical values, making them work together as an

organic whole. This union has continuously functioned within the

concept, whatever the vicissitudes ofthe history ofEmpire. Every

juridical system is in some way a crystallization ofa specific set of

values, because ethics is part ofthe materiality ofevery juridical

foundation, but Empire—and in particular the Roman tradition of

imperial right—is peculiar in that it pushes the coincidence and

universality ofthe ethical and the juridical to the extreme: in Empire

there is peace, in Empire there is the guarantee ofjustice for all

peoples. The concept ofEmpire is presented as a global concert

under the direction ofa single conductor, a unitary power that

maintains the social peace and produces its ethical truths. And in

order to achieve these ends, the single power is given the necessary

force to conduct, when necessary, ‘‘just wars’’ at the borders against

the barbarians and internally against the rebellious.15

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11

From the beginning, then, Empire sets in motion an ethico-

political dynamic that lies at the heart ofits juridical concept. This

juridical concept involves two fundamental tendencies: first, the

notion ofa right that is affirmed in the construction ofa new order

that envelops the entire space ofwhat it considers civilization,

a boundless, universal space; and second, a notion ofright that

encompasses all time within its ethical foundation. Empire exhausts

historical time, suspends history, and summons the past and future

within its own ethical order. In other words, Empire presents its

order as permanent, eternal, and necessary.

In the Germanic-Roman tradition that thrived throughout

the Middle Ages, these two notions ofright went hand in hand.16

Beginning in the Renaissance, however, with the triumph ofsecu-

larism, these two notions were separated and each developed inde-

pendently. On the one hand, there emerged in modern European

political thought a conception ofinternational right, and on the

other, there developed utopias of‘‘perpetual peace.’’ In the first

case, the order that the Roman Empire had promised was sought,

long after its fall, through a treaty mechanism that would construct

an international order among sovereign states by operating analo-

gously to the contractual mechanisms that guaranteed order within

the nation-state and its civil society. Thinkers from Grotius to

Puffendorf theorized this process in formal terms. In the second case,

the idea of‘‘perpetual peace’’ continually reappeared throughout

modern Europe, from Bernadin de Saint Pierre to Immanuel Kant.

This idea was presented as an ideal ofreason, a ‘‘light’’ that had to

criticize and also unite right and ethicality, a presupposed transcen-