Capitalism only triumphs when it becomes identified with the state, when it is the state.
They make slaughter and they call it peace.
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. 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.1
Before investigating the constitution of Empire in juridical terms, we must analyze in some detail the constitutional processes that have come to define the central juridical categories, and in particular
give careful attention to 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.
It is widely recognized that the notion of international order that European modernity continually proposed and reproposed, at least since the Peace of Westphalia, is now in crisis.2
It has in fact always been in crisis, and this crisis has been one of the motors that has continuously pushed toward Empire. Perhaps this notion of international order and its crisis should be dated from the time of the Napoleonic Wars, as some scholars claim, or perhaps the origin should be located in the Congress of Vienna and the establishment of the Holy Alliance.3
In any case, there can be no doubt that by the time of the First World War and the birth of the League of Nations, a notion of international order along with its crisis had been definitively established. The birth of the United Nations at the end of the Second World War merely reinitiated, consolidated, and extended this developing international juridical order that was first European but progressively became completely global. The United Nations, in effect, can be regarded as the culmination of this entire constitutive process, a culmination that both reveals the limitations of the notion of international
order and points beyond it toward a new notion of global
order. One could certainly analyze the U.N. juridical structure in purely negative terms and dwell on the declining power of nation-states in the international context, but one should also recognize that the notion of right defined by the U.N. Charter also points toward a new positive source of juridical production, effective on a global scale—a new center of normative production that can play a sovereign juridical role. 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. It is not our intention here to criticize or lament the serious (and at times tragic) inadequacies of this process; indeed, we are interested in the United Nations and the project of international order not as an end in itself, but rather as a real historical lever that pushed forward the transition toward a properly global system. It is precisely the inadequacies of the process, then, that make it effective.
To look more closely at this transition in juridical terms, it is useful to read the work of Hans Kelsen, one of the central intellectual figures behind the formation of the United Nations. As early as the 1910s and 1920s, 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.”5
It was only fitting, then, that Kelsen would later have the privilege of attending the meetings in San Francisco that founded the United Nations and seeing his theoretical hypothesis realized. For him the United Nations organized a rational idea.6
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 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 of any 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 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. Certainly the United Nations’ domination of the general framework of the supranational project between 1945 and 1989 led to some of the most perverse theoretical and practical consequences. And yet, all this was not enough to block the constitutionalization of a supranational power.7
In the ambiguous experiences of the United Nations, the juridical concept of Empire began to take shape.
The theoretical responses to this constitutionalization of a supranational world power, however, have been entirely inadequate. Instead of recognizing what was really new about these supranational processes, the vast majority of juridical 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
birth of the nation-state were simply dusted off and reproposed as interpretive schema for reading the construction of a supranational power. The “domestic analogy” thus became the fundamental methodological tool in the analysis of international and supranational forms of order.8
Two lines of thought have been particularly active during this transition, and as a kind of shorthand we can conceive of them as resurrections of the Hobbesian and the Lockean ideologies that in another era dominated the European conceptions of the sovereign state.
The Hobbesian variant focuses primarily on the transfer of the title of sovereignty and conceives the constitution of the supranational sovereign entity as a contractual agreement grounded on the convergence of preexisting state subjects.9
A new transcendent power, “tertium super partes,” primarily concentrated in the hands of the military (the one that rules over life and death, the Hobbesian God on earth”), is, according to this school, the only means capable of constituting a secure international system and thus of overcoming 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 of power. Rather than global security, then, what is proposed here is a global constitutionalism, or really this amounts to a project of overcoming state imperatives by constituting a global civil society
. These slogans are meant to evoke the values of globalism 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 of the national sovereign power of states. Rather than recognizing the new nature of imperial power,
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 sovereignty marks a paradigm shift.
Paradoxically (but it is really not that paradoxical), only Kelsen’s conception poses the real problem, even if his conception is limited to a strictly formalist point of view. What political power already exists or can be created, he asks, that is adequate to a globalization of economic 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?
The Constitution of Empire
Many contemporary theorists are reluctant to recognize the globalization of capitalist production and its world market as a fundamentally 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 foundational relationship to (or at least a tendency toward) the world market and capitalism’s expanding cycles of development; but proper attention to the ab origine
universal or universalizing dimensions of capitalist development should not blind us to the rupture or shift in contemporary capitalist production and global relations
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 of globalization are no longer merely a fact but also a source of juridical definitions that tends to project a single supranational figure of political 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 of the globe. From this perspective, the contemporary tendencies toward Empire would represent not a fundamentally new phenomenon but simply a perfecting of imperialism.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 of a single power that overdetermines them all, structures them in a unitary way, and treats them under one common notion of right that is decidedly postcolonial and postimperialist. This is really the point of departure for our study of Empire: a new notion of right, or rather, a new inscription of authority and a new design of the production of norms and legal instruments of coercion that guarantee contracts and resolve conflicts.
We should point out here that we accord special attention to the juridical figures of the constitution of Empire at the beginning of our study not out of any 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 of the processes of imperial constitution. New juridical figures reveal a first view of the tendency toward the centralized and unitary regulation of both 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 of world power and order. The transition we are witnessing today from traditional international law, which
was defined by contracts and treaties, to the definition and constitution of a new sovereign, supranational world power (and thus to an imperial notion of right), 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 of the material biopolitical constitution of our societies. These changes regard not only international law and international relations but also the internal power relations of each country. While studying and critiquing the new forms of international and supranational law, then, we will at the same time be pushed to the heart of the political theory of Empire, where the problem of supranational sovereignty, its source of legitimacy, and its exercise bring into focus political, cultural, and finally ontological problems.
To approach the juridical concept of Empire, we might look first at the genealogy of the 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 of Empire was closely linked to the Christian origins of European civilizations. There the concept of Empire 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 of the history of Empire. Every juridical system is in some way a crystallization of a specific set of values, because ethics is part of the materiality of every juridical foundation, but Empire—and in particular the Roman tradition of imperial right—is peculiar in that it pushes the coincidence and universality of the ethical and the juridical to the extreme: in Empire there is peace, in Empire there is the guarantee of justice for all peoples. The concept of Empire is presented as a global concert under the direction of a 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
From the beginning, then, Empire sets in motion an ethicopolitical dynamic that lies at the heart of its juridical concept. This juridical concept involves two fundamental tendencies: first, the notion of a right that is affirmed in the construction of a new order that envelops the entire space of what it considers civilization, a boundless, universal space; and second, a notion of right 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 of right went hand in hand.16
Beginning in the Renaissance, however, with the triumph of secularism, these two notions we...