"When philosophy paints its grey in grey then has a shape of life grown old. By philosophy's grey in grey it cannot be rejuvenated but only understood. The owl of Minerva spreads its wings only with the falling of dusk." -- G.W.F. Hegel, 'Preface', Philosophy of Right.
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'Constant revolutionizing of production, uninterrupted disturbance of all social conditions, everlasting uncertainity and agitation distinquish the bourgeois epoch from all earlier ones ... All that is solid melts into air, all that is holy is profaned.' Marx
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Empire: Chapter 1
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April 25, 2004
Back to Empire.
When we move to the first chapter of the text we find Hardt and Negri clearing the ground very quickly. They say:
"The problematic of Empire is determined in the first place by one simple fact: that there is world order. This order is expressed as a juridical formation. Our initial task, then, is to grasp the constitution of the order being formed today."
That is pretty clear. So how do we do that? By clearing away two conceptions of the constitution of world order.
"We should rule out from the outset, however, two common conceptions of this order that reside on opposing limits of the spectrum: first, the notion that the present order somehow rises up spontaneously out of the interactions of radically heterogeneous global forces, as if this order were a harmonious concert orchestrated by the natural and neutral hidden hand of the world market; and second, the idea that order is dictated by a single power and a single center of rationality transcendent to global forces, guiding the various phases of historical development according to its conscious and all-seeing plan, something like a conspiracy theory of globalization."
That clears away both the neo-classical conception of the world market and the US as a hegemonic power.
That makes a space for us to investigating the constitution of Empire in juridical terms. This is looked at in terms of the:
"... process of the long transition from the sovereign right of nation-states (and the international right that followed from it) to the first postmodern global figures of imperial right. As a first approximation one can think of this as the genealogy of juridical forms that led to, and now leads beyond, the supranational role of the United Nations and its various affiliated institutions.....The U.N. functions as a hinge in the genealogy from international to global juridical structures. On the one hand, the entire U.N. conceptual structure is predicated on the recognition and legitimation of the sovereignty of individual states, and it is thus planted squarely within the old framework of international right defined by pacts and treaties. On the other hand, however, this process of legitimation is effective only insofar as it transfers sovereign right to a real supranational center."
Then there is a suprise. They propose to look more closely at this transition in juridical terms, by reading the work of Hans Kelsen, the old legal positivist whom Carl Schmitt confronted in terms of legal postivism (juridicial formalism) as a governing technology in modernity. For Schmitt the consequences of Kelsen's legal positivism is that law becomes a mere operation of a state bureaucracy.
Hardt and Negri interpret Kelsen along neo-Kantian lines:
'Kelsen proposed that the international juridical system be conceived as the supreme source of every national juridical formation and constitution. Kelsen arrived at this proposal through his analyses of the formal dynamics of the particular orderings of states. The limits of the nation-state, he claimed, posed an insurmountable obstacle to the realization of the idea of right. For Kelsen, the partial ordering of the domestic law of nation-states led back necessarily to the universality and objectivity of the international ordering. The latter is not only logical but also ethical, for it would put an end to conflicts between states of unequal power and affirm instead an equality that is the principle of real international community. Behind the formal sequence that Kelsen described, then, there was a real and substantial drive of Enlightenment modernization. Kelsen sought, in Kantian fashion, a notion of right that could become an "organization of humanity and [would] therefore be one with the supreme ethical idea."<4> He wanted to get beyond the logic of power in international relations so that "the particular states could be regarded juridically as entities of equal rank" and thus a "world and universal state" could be formed, organized as a "universal community superior to the particular states, enveloping them all within itself."'
Consequently, Kelsen conceptualized the United Nations as the organization of a rational idea. It gave legs to an idea of the spirit; it proposed a real base of effectiveness for a transcendental schema of the validity of right situated above the nation-state. The validity and efficacy of right could now be united in the supreme juridical source, and under these conditions Kelsen's notion of a fundamental norm could finally be realized.
Kelsen is quickly shunted to one side due to the divorce between his formal construction and validity of the system and the material structure that organizes it. Kelsen's remains a fantastic utopia. They locate themselves in:
"... the gap between the formal conception that grounds the validity of the juridical process in a supranational source and the material realization of this conception. The life of the United Nations, from its foundation to the end of the cold war, has been a long history of ideas, compromises, and limited experiences oriented more or less toward the construction of such a supranational ordering. The aporias of this process are obvious, and there is no need for us to describe them in detail here. In the ambiguous experiences of the United Nations, the juridical concept of Empire began to take shape."
What then, is the juridical concept of Empire?
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