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Sovereignty and Imperial Law
Richard Joyce Law, Culture and the Humanities published online 20 December 2011 DOI: 10.1177/1743872111420982 The online version of this article can be found at: http://lch.sagepub.com/content/early/2011/12/20/1743872111420982
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authority over it. sovereign claims. law.sagepub. the “people” subject to this imposition would not. but one which actively creates the “people” over which this authority is claimed.Victoria. 2013 . In many cases of colonization. co. the purpose of this commentary is to reflect. on the imperial qualities of modern sovereignty and law. through the lens of Jacques Derrida’s notion of sovereign “autopositioning. or conceived of itself. Monash University Abstract This commentary reflects on the imperial qualities of modern sovereignty and law.1177/1743872111420982JoyceLaw. one of the more common and enduring would be as the expansionary and appropriative imposition of law on a people by a “foreign” power which claims. in both a general and pointed way. Faculty of Law.420982 2011 LCHXXX10. community. Derrida. autopositioning I.com at UNIV OF SOUTHERN CALIFORNIA on January 21. The commentary argues that this relationship between force and contingency creates a need for vigilant critique of and a space for resistance to. CULTURE AND THE HUMANITIES Sovereignty and Imperial Law Richard Joyce Law.edu Downloaded from lch. the claim to colonial authority is one not only which claims authority over a people or community. Australia. have been conceived. but in all claims to sovereignty in modernity.com Faculty of Law. With that notion of imperialism serving as a backdrop.” It argues that modern sovereignty is essentially imperial and yet carries an inextinguishable anti-imperial thrust. Introduction Of the many ways in which imperialism may be understood. These characteristics highlight the self-grounded force of sovereign claims and at the same time expose the contingency of those claims.uk/journalsPermissions. As such.1177/1743872111420982 lch.sagepub. prior to the colonization itself. Culture and the Humanities 1–13 © The Author(s) 2011 Reprints and permission: sagepub. without the consent of the people. Melbourne. Keywords Sovereignty. Monash University. Email: richard.nav DOI: 10. as a singular entity. imperialism. I will seek to show that the features of imperialism sketched above (the expansionary and appropriative imposition of law on a people and the active creation of that “people”) can be seen not only in colonial encounters. That is not to say that these features are the only features of Corresponding author: Richard Joyce.joyce@monash. Culture and the Humanities 0(0) Commentary LAW.
this commentary will consider the implications of Derrida’s concept of sovereign autopositioning for understanding the relationship between modern law and imperialism.sagepub. cit. 2. serves mainly to provide a context for Derrida’s theoretical analysis. 3. more precisely. 102.. this commentary does not seek to establish a straightforward equivalence between imperialism and modern sovereignty which might imply. Derrida writes that “[a]s soon as there is sovereignty. most violent. precarious. and unstable fashion. Nor are 1. cit. for a limited time. tr. It can only tend towards imperial hegemony. 102. At first glance. Instead. to reign without sharing. it might appear that Derrida has left the present author with little to do. As such. pp. Pascale-Anne Brault and Michael Nass (Stanford. Geoffrey Bennington (Chicago.com at UNIV OF SOUTHERN CALIFORNIA on January 21. No simple conclusions flow from that disruption.1 In arguing that states which claim authority to “make war on Rogue states” are also roguish themselves. Rogues. that a particular moral or ethical stance should be taken against the latter.”5 But in some ways this language can work to distract from the theoretical issues at stake. 2009). p. in Rogues. 2005). CA: Stanford University Press. Culture and the Humanities imperialism. Jacques Derrida.”4 The language of abuse of power. and even imperialism. It also provides the terms for his critique of recent interventions by “[t]he first” and “most perverse. tr. p. Derrida. of rogue states. The imperial qualities of sovereignty do not lie simply in states’ violent excesses beyond their borders. Perhaps characteristically for an argument based on the work of Derrida. there is abuse of power and a rogue state. it serves to remind us that in each instantiation of sovereignty there is a need for vigilant critique and a space for resistance. Rogues: Two Essays on Reason. 5. in particular the intensity of violence associated with the worst. The generality of the brief outlined above will be attenuated by its particular focus on the work of Jacques Derrida and his concept of sovereign “autopositioning. perhaps. Op. the imperial qualities of modern sovereignty (especially state sovereignty) and their limits are explicit themes. Instead. it will be found to be essentially imperial and yet carry within it an inextinguishable antiimperial thrust. 102. Op. IL: University of Chicago Press. p. In Rogues.”2 This abuse is “the ‘logic’ of a sovereignty that can reign only by not sharing. most destructive of rogue states … the United States. Op. It appears in the English translation as Jacques Derrida.” More precisely. his most sustained exposition on sovereignty. Or.”3 But this imperial logic can only carry things so far: “since it never succeeds in doing this except in a critical. 96–7. Nor that all claims to sovereignty share all the features of all colonial encounters (even if it was thought that these could easily be grouped).2 Law. The seminar series in which Derrida developed and refined many of the arguments pursued in Rogues has been published posthumously. 4. the aim here is to disrupt the notion that there exists a clear distinction between imperialism and the sovereignty of the modern nation-state. sovereignty can only tend.. cit. The Beast and the Sovereign (Volume 1). Downloaded from lch. 2013 . at whose heart it lies) will be found to be both more and less imperial than would commonly be thought.. sovereignty (and by extension modern law.
the death of God.6 It is. Background (or the void) Before setting out what Derrida means by sovereign “autopositioning” it is necessary first to set out the theoretical framework in which this kind of thinking on sovereignty takes place. Acts of Religion. I would argue. military or technological limitations of one state or another. II. in Jacques Derrida. by a shorthand Derrida would avoid. Indeed. the heirs of divine authority – “nation” and “people” – are required to take on and effect qualities which.sagepub.” with a view to showing that imperialism is an essential. tend to be made in passing and not developed in detail. the Enlightenment and its revolutions would leave us without both the divine and the king.7 6.” then at least put incredible strain on the secularity of modern authority. ed. p. 7. if pre-modern sovereignty in Europe could be accounted for by the concept of the divine right of kings. This commentary will attempt to render more explicit the connections between autopositioned sovereignty.” Theoretical Inquiries in Law 8 (2007).” though central to his work on sovereignty. See Peter Fitzpatrick. Downloaded from lch.” What God used to do for sovereign authority was to provide a settled point of transcendent reference guaranteeing the authority of those who had the strength to claim it in his name. 2013 . axiomatic that modernity marks the end of man’s reliance on God for legal and political authority on earth. They are revealed in this sense by thinking through Derrida’s concept of sovereign “autopositioning” rather than through his explicit references to imperialism. as has been pointedly observed.” tr.com at UNIV OF SOUTHERN CALIFORNIA on January 21. George Schwab (Chicago: University of Chicago Press. economic. 65. Carl Schmitt. and the community whose law it “is. tr. Without such transcendent reference. In the third part I will examine those aspects of it which give modern sovereignty its imperial force or trajectory. essential to the form that modern sovereignty takes. In the fourth part I will argue that the same characteristics which give modern sovereignty its imperial force or trajectory also expose its contingency and thus contain the seeds of its undoing. 2002). In the next part of this commentary I will give a short account of Derrida’s conception of sovereign autopositioning. 2005). Sovereign autopositioning 1. feature of modern sovereignty.Joyce 3 the limitations of that imperial thrust to be revealed simply in the practical. 161–90. if not easily characterized as “sacred. yet complex and contradictory. “What are the Gods to Us Now?: Secular Theology and the Modernity of Law. Samuel Weber. Gil Anidjar (New York: Routledge. pp. In its place we have authority grounded in the “nation” and its “people. and perhaps most obvious feature of this framework is what we might call. Derrida’s references to “autopositioning. The first. the law over which it claims authority. Modern sovereignty’s imperial qualities and their limitations are. Jacques Derrida. of course. “Faith and Knowledge: The Two Sources of ‘Religion’ at the Limits of Reason Alone. Political Theology: Four Chapters on the Concept of Sovereignty.
Deconstruction operates in view of this lack. 12. Simon Critchley. For Derrida. after God. cit. the sovereign is simply an entity which recognizes no authority greater than itself. Julian Franklin (Cambridge: Cambridge University Press. See Immanuel Kant. in it and beyond it. 13. It “tries to show … that convention. p. cit.”14 The second crucial feature of this framework is that it takes place in a context not only in which social formations such as state sovereignty are called into question. Op. sometimes micro-stabilisations) … of something essentially chaotic. Derrida. Deconstruction and Pragmatism (London: Routledge. p.” tr. or more precisely “[t]he ‘deaths of God. the individual. 4. 157. 11. 95. Much of Rogues is concerned with the conditions of possibility for the presence of the “self. in Simon Critchley. On Sovereignty: Four Chapters from the Six Books of the Commonwealth. 84. Op. Op. the death of God. then it has only itself to justify its authority. What does this mean for modern sovereignty..sagepub. p. founding and irreducible. that is greater than himself”?13 Would we not find that in the absence of divine authority. while awareness of the death of God might be commonplace in thought on modern sovereignty. cit. which has taken the contours of its form from Bodin’s definition of the sovereign as a person recognizing “nothing. “Faith and Knowledge. Kant’s acute awareness of the difficulties in grounding legal authority without God was accompanied by a stern warning against questioning the origins of an existing legal authority.9 “Everything begins with the presence of that absence. and most broadly the “self” is fundamentally challenged. in his precise term. its consequences are usually overlooked or suppressed. 1996). nation. with respect to that over which it claims authority? If the sovereign recognizes no authority greater than itself. 2013 . 142.”10 The absence of a settled and settling transcendent reference to guarantee our social formations. The Metaphysics of Morals. 14. For while Derrida would find state sovereignty to be a suitable target of deconstruction. Mary Gregor (Cambridge: Cambridge University Press. 83.8 What distinguishes the line of thinking which takes us to Derrida’s conception of “autopositioning” is its rigorous insistence on the void which God’s death announces. 15. the concept of “ipseity” – more on this shortly) but also the consequences of their critique. including sovereignty. It is this line of thought that takes us to Derrida’s notion of sovereignty as self-authorizing and self-justifying – or. ed. 1996).com at UNIV OF SOUTHERN CALIFORNIA on January 21.”11 This “chaos and instability” is “fundamental. Rogues. p. p. For example. 10. and tr. Downloaded from lch. but also in which Enlightenment thinking on the subject. 1992). Jacques Derrida. “Remarks on Deconstruction and Pragmatism. Culture and the Humanities Indeed.” The link between the self and sovereignty is found not only in the substance of what unites them (for Derrida. and tr..15 he is quick to point out that such critique would also fundamentally call into question much 8. are only figures and episodes” of a fundamental absence. 9.. “autopositioned.’ before Christianity.. 65 (his emphasis). Jean Bodin. people etc. Derrida. ed.”12 Derrida’s analysis and critique of sovereignty takes place against the background of this void. institutions and consensus are stabilisations (sometimes stabilisations of great duration.” p. p. p. means that it is left up to us to bear witness to their validity. Ernesto Laclau and Richard Rorty. 65. Jacques Derrida.4 Law.
selfhood. … That is what is implied. 142. Oxford English Dictionary (Oxford: Oxford University Press. can be understood to refer to the conditions of selfhood – both what makes selfhood possible and what makes it what it is. that is the relation between a self’s self-designation (what it is) and the authority it claims over and for itself (what it can authorize itself to do). sovereignty in general.25 16. 20.” then. Without Alibi.Joyce 5 more besides. of the monarch.’ … [which refers] always … to possession. Derrida.’ as we say. Derrida. Op. 24. without threatening at the same time. the sovereign and reappropriating gathering of the self in the simultaneity of an assemblage or assembly. potency. 12 (his emphasis). its self-representation. 10–18.. online edition.” It is also applicable to the constitution of a collective political subject. 25. or. 21. ipseity names a principle of legitimate sovereignty. 2000)..” by which he means.”20 The phrase “ipseity itself. Rogues. p. being together.21 For Derrida. the classical principles of freedom and self-determination.”16 He argued that sovereignty’s deconstruction must occur while “recognising that all the fundamental axiomatics of responsibility or decision … are grounded on the sovereignty of the subject. cit. 158 (his emphasis). “[o]ne cannot combat. cit. p. cit. 11. p.”23 For Derrida. For Derrida.”24 Derrida is careful to point out that the concept of ipseity is not restricted to (nor indeed founded on) the concept of a “person. that is. The particular sense in which Derrida uses “ipseity” in Rogues can only be understood within the context of his discussion of the relation between selfhood and autonomy. in the very self. pp. to the authority of the lord or seignor. p. the intentional auto-determination of the conscious self. 11. but also imposed in the very position. xix. Rogues. of the self-same of the one-self. Rogues. 19. p. of ipseity itself. p. “the power that gives itself its own law. the two words “I can …”22 Derrida puts this in terms of “ipseity.. This relation can be reduced to what is at stake whenever someone says.”18 This “autopositioning” is defined (in parentheses of course) as “nothing less than that of ipseity itself.”17 2. sovereignty or possibility implied in every ‘I can. 17.. Downloaded from lch. presupposed. or sovereign. of the people. p. Derrida writes: Before any sovereignty of the state.. there is a “power. Op. p. cit. all sovereignty. p. head-on. 142. 2013 .”19 The Oxford English Dictionary defines ipseity as “personal identity and individuality. but also to political autonomy and authority. or ‘living together. Op. Derrida. in democracy. Op. Thus the principle of ipseity is not simply related to questions of personal freedom and autonomy. Derrida refers to the “autopositioning of sovereignty” as a feature of “sovereignty in general” and also of “indivisible nation-state sovereignty. 22. 23. the accredited or recognized supremacy of a power or a force. beyond the nation-state figure of sovereignty. Without Alibi. Op. 11.or autopositioning.sagepub. Sovereign autopositioning – ipseity incarnate In Rogues. cit. 18. of the nation-state. for themselves. See also Derrida. property and power.com at UNIV OF SOUTHERN CALIFORNIA on January 21. Derrida. 275. posed.
together with the quality of autopositioning itself. taking into account a selection of his works in which one or more of these themes is developed (which are cited in this commentary).. Appropriation and re-appropriation – the imperial dynamics of sovereign autopositioning If. are crucial in tracing modern sovereignty’s imperial and anti-imperial qualities. But nowhere in Derrida’s work are they connected and developed in the explicit terms which this commentary adopts. in the sovereign’s claim to speak for a community. consistent with Derrida’s analysis of sovereignty. 27. sovereignty does not involve a simple application of power. That something more. by autopositioning – a positioning not simply presupposed but also imposed. Culture and the Humanities Thus. a “people” calls it into being for their own ends. These can be observed in the following overlapping ways. third. This applies as much to the nation-state as to any other possible form of sovereignty. the foundation provided by the social contract. In so doing.”26 And yet. it is sovereign for the community for which it claims authority to speak. I argue. 28. in the attempt to exclude and maintain position against what is outside. and bearing in mind Derrida’s reluctance to rely on “community” as a conceptual category (see below the text accompanying footnotes 37 and 38). As I will attempt to show. in the sovereign’s claim to ultimate authority over law.com at UNIV OF SOUTHERN CALIFORNIA on January 21.sagepub. nor to defend it against possible counter-arguments. second. III. cit. Kant. as we tend or like to think. Its legitimacy flows from strength. but rather is dependent on law for its mode of rule. Op. The aim of the brief outline provided above is to set the scene for an analysis which aims to consider the implications of this thought for understanding the relationship between modern law and imperialism. and finally. This is also.28 It causes us to consider the paradoxes or aporias which lie at the heart of the modern attempt to ground sovereign authority in the people. That is. is a relation to community and law. these connections. 2013 . 95. We can see them firstly in the attempt to determine what is inside the scope of the sovereign claim. Instead. pp. from having one’s reason “win out. Rather. 12–13. I would tentatively suggest. It is therefore dependent on a relation to community. Moreover. Metaphysics of Morals. then the exercise of that sovereignty is not imperial in the sense that it is not imposed. from being “the strongest. Downloaded from lch. causes us to question. we are confronted by the imperial qualities of modern sovereignty.27 A sovereign is not a sovereign simply for itself. for Derrida. p. 26. There is not space here to elaborate on the nuances of Derrida’s thought on sovereignty. The focus on sovereignty’s autopositioning. the distinguishing feature of modern sovereignty (especially in its “national” form) is its grounding in the consent of the governed.6 Law.” from having the ability to decide. the concept of ipseity grounds all claims to sovereignty. legitimate sovereignty is grounded by self-authorization. however. there seems to be something more required. in a manner Kant would forbid.
the self-grounded claim to sovereign position involves. 83–4. But the form of the claim belies the fact that the community depends on the sovereign for its identity. For Derrida. “The Laws of Reflection: Nelson Mandela. for Derrida. claiming.”33 which is crucial to its success. the form of the claim is invariably one in which the community for which the sovereign claims to speak is said to exist prior to that claim in order to ground it.” New Political Science 7(1) (1986). 1987).” trs. This is not to say that the community is entirely subservient and passive. “Declarations of Independence. cit. Derrida. It is always the words of a representative. 2013 . See Jacques Derrida. This self-authorization or “autopositioning” brings to the fore the imposition of law and identity on a people which modern sovereignty shares with imperialism.. 33. It is the sovereign claim itself which cuts through the founding “chaos and instability” so as to create a “stabilization” of relations which are not. In Admiration. the product of a natural order. p.” p. Derrida. It is an ongoing process. Downloaded from lch. Op. M. pp. p. “Deconstruction and Pragmatism. 32.. a “gathering of the self.”29 The sovereign’s “gathering of the self” is the process by which it determines who it speaks for. and have never been. the declaration is never said first. “Declarations. Loenz in Jacques Derrida and Mustapha Tlili eds. by the people. cit. Hence Derrida’s choice of the word 29. pp. Jacques Derrida. who and what is subject to its authority.30 Taking as exemplary the instance of the Declaration of Independence. in a sovereign fashion.Joyce 7 1. before this declaration. 10 (his emphasis).” pp. 10.com at UNIV OF SOUTHERN CALIFORNIA on January 21. In terms of political (rather than personal) sovereignty. in unison. the sovereign’s attempt to erase its arbitrary origins by this process of “fabulous retroactivity. As such. 34. 31. it does not exist. 7–15. p.” does “not exist as an entity. 11. not as such. Caws and I. at least in part.”31 The people is declared into being by a signature which authorizes itself “in a sort of fabulous retroactivity. aside from explicit colonial encounters (and even some of those). the right to speak and act for the community. Derrida. Indeed. the sovereign claim to speak for a community is always one which relies on the self-authorization of the sovereign. in the past. Op. a collective political subject is always called into being by a self-authorized decision by an entity which both produces and presupposes the existence of the subject for which it claims authority to speak. Rogues.34 This suggests that the nationstate’s purported position as the exclusive site of sovereignty in modernity should not be taken for granted and allowed to operate as a limit on what it is possible to think and do.”32 That is. the imposition of law and identity is not something that happens once. in the same breath. For Nelson Mandela (New York: Seaver Books. Derrida would find that “the people” invoked by the instituting declaration “We the people. 10. and. 13–42. at the origin. And. this claim is invariably one to speak for a community.sagepub. The sovereign claim is always an imposition of authority and identity on a community which has not authorized that claim in advance.. 30. Importantly. Determining what is “inside” As we have just seen. depends in large part on how effectively it is able to reflect (as well as shape) the aspirations of the community for which it claims to speak.
. cit. 4. ed. p. p. This exposure not only invites the self-grounded assertion and re-assertion of modern sovereignty but also gives it an expansionary tendency. 4. Peter Connor (Minneapolis. 37. And to exclude requires constant exposure and responsiveness to the challenges of what lies beyond. cannot be made in a purely self-referential way. The challenge of what is “outside” The imperial qualities of modern sovereignty do not lie simply in the fact that its claims cannot be authorized in advance.8 Law. In the next section. This presupposes not only a boundary between it and another entity. Op. the absolute must be the absolute of its own absoluteness.37 For Nancy. MN: University of Minnesota Press. a being “perfectly detached. p. Op.” an “absolute being” is impossible. 38. Jean-Luc Nancy. It must be combined with a claim to exclusion. or not be at all. detached. it would also be necessary for this entity to fully control the circumstances of that separation.” The claim to include. In other words: to be absolutely alone. 4. however. Once we concede that claiming a sovereign position involves an imperial “gathering of the self. we will see that this appropriation and re-appropriation occurs in the course of an exposure to the infinity of what lies outside the scope of the claim.” a “being without relation.. cit.. Downloaded from lch.com at UNIV OF SOUTHERN CALIFORNIA on January 21. constitutive of its very being and identity. 4. Because of this challenge and the need to respond to it.38 35. 2013 . 2. sovereign self-hood is perhaps best analyzed by Jean-Luc Nancy. it is not enough that I be so.)36 The impossibility is revealed in the fact that in order for the purportedly absolute entity to be separated from other entities. This orients the sovereign claim beyond itself and forces it to go out in search of its limits. cit. And because the question of inclusion and exclusion is. Each iteration of this assertion is a “founding” imposition because the chaos and instability which the sovereign claim seeks to overcome presents a constant and continuing challenge. and tr. As Nancy writes. such that it was not in contact with any other entity. This dimension flows from the fact that its claim to ultimate authority to determine its law and identity must necessarily be set against all that might impose or impinge upon it – that is – everything that is outside. but an enclosure of that very boundary itself. 1991). p. The impossibility of complete. 36. Op. Culture and the Humanities “reappropriating” to describe the “gathering of the self” through which the sovereign asserts its authority and identity (and the identity of that which it rules).” one has to ask whether there is a limit to the claim which might at least confine its imperial qualities to a realm which might customarily be described as “domestic.35 (Nancy notes that it is common to conceive of the individual and the state in these impossible terms.sagepub. the challenge from the outside forms an essential part of its constitution. distinct and closed. I must also be alone in being alone – and this of course is contradictory. The Inoperative Community. for a sovereign. the sovereign cannot grant itself complete detachment. There is also an expansionary dimension to modern sovereignty’s appropriative character. The logic of the absolute violates the absolute.
42.40 But looking at Derrida’s sovereign autopositioning through the lens of Nancy’s work on community illuminates much about it. being together or ‘living together. CA: Stanford University Press. tr. The restlessness of community The combination of the sovereign’s need to determine what is inside and its inevitable exposure (and need to re-position itself in response) to what is outside. p. This must be done with some care. Politics of Friendship. with all its attractions. particularly if one focuses on the restlessness of community which Nancy exposes in his earlier work.39 For Derrida.sagepub. 1–42. could not avoid certain problematic links between “masculine authority. 1993). for Derrida. pp.”’42 These concepts fit well with those which underlie Nancy’s conception of community. 11 (see above note 22). The Inoperative Community. Rogues. pp. 56–61. 2013 . Nancy’s conception of community emphasizes both its inability to be present to itself (a trait which gives rise to the necessity of a self-grounded sovereign claim to determine what the community is for the time being) and the impossibility of containing 39. Jacques Derrida. Rogues. in their exposure to (and hence opening out infinitely towards) what is beyond them – not by virtue of self-imposed limits.” especially in so far as Derrida felt it was connected to Nancy’s use of “fraternity” in The Experience of Freedom. See also. They meet their limit in the course of this relation. Once combined with the self-grounded and absolute nature of the sovereign claim (that is to be able to determine – in any situation – what is inside and outside absolutely). Derrida. pp. Bridget McDonald (Stanford. Derrida describes the autopositioning of sovereignty as occurring in the “simultaneity of an assemblage or assembly. 40. 56–61. tr. See Jean-Luc Nancy. 41. as Derrida expressed reservations about Nancy’s use of the term “community. Downloaded from lch. Derrida. 81–107. 1997). 3.41 As we saw above. Inoperative Community.Joyce 9 Hence claims to sovereignty thus depend essentially on their relation to what is outside them. Nancy. a collective political subject or (as I put it) a political “community” does not pre-exist the sovereign’s claim to speak for it. In this section. I also intimated that this imposition required reiteration. this orientation towards the infinite gives modern sovereignty an imperial trajectory. can be usefully discerned by returning to the concept of “community.” nature and birth which may lead (but certainly not straightforwardly) back to the received privileging of national sovereignty.” We saw above that. we will see more closely how community’s restlessness necessitates this reiteration of sovereign determination while also glimpsing how the attempt to hold “community” within itself pushes the sovereign ever beyond its current limitations. the use of fraternity. This was used to make the point that sovereign claims always involve an imposition. The Experience of Freedom.com at UNIV OF SOUTHERN CALIFORNIA on January 21. Derrida. The concept of community I will use to illustrate this point comes from Nancy. George Collins (London: Verso. pp. Rogues.
cit. 15.45 It is something which works towards the unravelling of fixed positions and identities. 2013 . 49. Mary Quaintance. community exists simply because of the fact that we are inescapably with each other in the world. p. in Jacques Derrida.48 Rendering this in Fitzpatrick’s terms. the attempt to contain the restlessness of community also orients the sovereign beyond itself and towards the infinite. or decide anew what it is that does not belong within it. désouvrement.43 Rather. if not everything. as opposed to being a “work. 44. 47. Modernism. 2002). 28. the unconditional dimension of justice which cannot be dissociated from the calculation and force demanded by law and the legal decision. Jacques Derrida. As such. pp. 2001). “Force of Law: The Mystical Foundation of Authority. 45.com at UNIV OF SOUTHERN CALIFORNIA on January 21. Op. in the midst of this infinite flux.”49 It must encompass the infinity of our 43.10 Law. 244. 71. 3.44 It is that which is constituted by our relations with each other as singular beings. see Peter Fitzpatrick. the character and boundaries of the community for which it speaks. community “assumes the impossibility of its own immanence. In order to attempt to encompass and speak for a community. Nancy. p. p. This encounter with the infinite is necessarily imperial – since the sovereign must claim the ability and authority to decide. 46.” for Nancy. “a title ought not to inflict upon the reader an ‘unrecognisable’ word”: Nancy. The infinity of law The final aspect of sovereignty’s imperial trajectory comes from its relation to law. 3–35. 257. then the communities that exist because of the fact of our relations with each other must also constantly be changing. nor the collective work of individual subjects. the law over which sovereignty claims authority must “be able to do anything. 48. Nancy. ch. the French word used in the original text. the sovereign must be able to respond to and bring within itself the changing characteristics of that community.47 Indeed it is perhaps the claim to ultimate authority over law which most explicitly announces that trajectory. 252–3. For more on the conception of law relied on here.”46 Like the sovereign’s need to exclude itself from (and hence its necessary relation with) what is outside it. 156 (translator’s note). Downloaded from lch. pp. Inoperative Community. nor the distillation or representation of a common essence. In Derrida’s terms.” tr. 4. Fitzpatrick. Inoperative Community. As Nancy’s translator explains. for Nancy. Gil Anidjar (New York: Routledge. ed. Culture and the Humanities it (a trait which makes the sovereign claim necessarily temporary and contingent – and simultaneously calls for its repeated reassertion). Acts of Religion.sagepub. is always beyond the existent reach of what we might call the sovereign. p. Modernism and the Grounds of Law (Cambridge: Cambridge University Press. has no adequate translation in English. Community. but “inoperative” is used in the title because it too captures something of the original and further. And if “we” are always changing. “Unworking” is used by the translators in the text itself. is not a thing in itself. Indeed. Inoperative Community.. community is an “unworking” – inoperative and uncontainable.
p. p. “Maurice Blanchot: The Thought from the Outside. This orientation towards the infinite gives modern sovereignty another dimension of its imperial trajectory and means once again that the limits of sovereign authority are only met through challenge and conflict with other rival sovereign claims. 54. Rogues. cit. p. without pursuing it into its recesses. to render palpable the infinity of law in the application and enforcement of a decision. without resolutely going ever farther into the outside into which it is always receding?53 Law draws the sovereign out beyond itself and calls on it to decide on whatever might come to it.51 In the moment of decision law’s infinite possibility is momentarily denied. Force of Law. Derrida. See op.52 The same infinity which calls for sovereign power to give it effect also leaves no “outside” to law which the sovereign could occupy so as to determine. without provoking it. 53. As Fitzpatrick writes “[m]odern law’s pre-eminent pervasion … lies not in any fixity of attachment but in its hovering ubiquitously over and incipiently occupying all finitudes. jurisdictional divisions. how could one force it to come into view. and unstable fashion”?54 The answer suggested here is that the very things which give autopositioned sovereignty its imperial dimensions – the things which give rise to the dependence of community and law on a power whose legitimacy cannot be granted in advance of its 50.. Sovereign autopositioning and the “unworking” of imperial law The picture sketched so far is of a self-grounded sovereign whose imperial nature is effected through its claim to determine the identity and law of its community and through its orientation to what is beyond it. see Derrida. 252–7. in advance. On the need for the determining cut. 1987).com at UNIV OF SOUTHERN CALIFORNIA on January 21. 2013 . in its being ever able to ‘cut’ into. How then. cit. might this sovereignty be resisted? If no grounds exist which could legitimate sovereign claims and keep them within certain bounds. and to affirm law’s ability to adapt to match the infinitely changing circumstances of life. precarious. to speak. pp. both to haunt the decision itself with the specter of what else it could have been. 51. p. That infinite possibility returns. to exercise its powers clearly. This infinity cannot give way to pre-ordered.. 52.” tr Brian Massumi. however. in Maurice Blanchot and Michel Foucault. 133. As Foucault writes: [h]ow could one know the law and truly experience it. are we not abandoned to sovereign power? What gives Derrida the confidence that sovereignty can only “tend towards imperial hegemony” and isn’t actually able to achieve it except “in a critical.”50 Modern law depends on the sovereign to make this determining cut. 102 (see above note 3). IV. Foucault/Blanchot (New York: Zone Books.Joyce 11 being with each other. Op. its own infinite possibility. 252. neat. 34. Downloaded from lch. Michel Foucault. and render palpable.sagepub. the limits of its authority.
that national legal systems seek to regulate things which exceed their borders or enter from outside. It is beyond trite to observe. 104–5. it also constantly exposes the contingency of those claims and the possibility of the situation being otherwise. But that same quality would render impossible a claim to define and encompass a community. however. 56. the infinity of law also impelled sovereign assertion beyond itself. But an existent and effective assertion can never truly match the illimitable. Downloaded from lch. Culture and the Humanities claim to authority – are the same things which undermine imperial claims. claim to encompass that infinity was evidence of an essentially imperial dimension. the former and often arbitrary colonial borders). As we saw above. Returning to Nancy’s conception of community as an “unworking. It opens the possibility for claims to ultimate legal authority other than the ones which presently dominate. But it does suggest that these concepts are conducive to. Modernism. interactions and effects of these myriad extraversions (either 55. 57. Modernism. for example. Community as “resistance itself: resistance to immanence”56 defies claims to containment and invites challenge. It would also enable a more fundamental challenge to the notion that “nation” is the only form of community capable of grounding law and sovereignty in modernity. Fitzpatrick. It exposes the contingency of our present condition and puts in view the possibility of things being otherwise – that law could be. 104. But we should not forget that in so doing it also invites their (ever contingent) reassertion. p. or the notion of community itself. Conclusion The analysis above is not intended to suggest that modern law and sovereignty are concepts whose deployment inevitably results in the kind of imperialism practiced by European powers in the modern era. concerns the question of imperialism in a purportedly post-colonial world. in relation to law. in a fixed and enduring fashion. such endeavors. This would enable not only the challenges which characterized decolonization – the overthrow of a foreign power by a proto-national force which would then assume national status (and whose character and borders would fit. strange to ears attuned to the siren call of the nation. and could be grounded in ways and places that would be. though always incipient. Law thus constantly works to undo settled sovereign claims and against imperial assertion. p. pp. The more telling suggestion that the analysis gives rise to. for the time being. or be made to fit. See. See Fitzpatrick.57 Any claim or decision requires an essential reduction of possibility in favor of determination. 2013 . And the gap which opens up between the infinity of law and its determinate application is one which invites challenges. 35. Inoperative Community. V. The vacuity of law and community can only be contained by sovereign claims to a certain extent and only ever for the time being.12 Law. and may facilitate (or have facilitated).” we saw above that this orientation towards the infinite drew the sovereign claim out beyond itself and that its resulting.sagepub.com at UNIV OF SOUTHERN CALIFORNIA on January 21. But the precise grounds. Nancy.55 While their vacuity creates the conditions for (even demands) self-grounded sovereign claims.
to an openness to new and different possibilities of community.com at UNIV OF SOUTHERN CALIFORNIA on January 21. Queensland (No. “Force of Law. on my analysis. recognises or allows. Derrida. see Richard Joyce. the “chaos and instability” which we saw above was “fundamental. is necessarily uncertain. Perhaps even more telling. “Deconstruction and Pragmatism. the completeness of the modern state’s sovereign claim leaves nothing beyond the range of its power to determine. 61. While we should seek to guard against perverse exploitations of contingency and openness. founding and irreducible” involves not only “risk. Downloaded from lch.” Once the self-grounded and contingent nature of national sovereign claims is exposed. “can only saturate or suture the opening of the call to justice” and seek to limit the illimitable. to certainty of grounds and fixity of forms.” but also “chance. 58. 257.” p. the possibility is raised that fundamental challenges to sovereign assertion can come from anywhere. to accept claims to such assurance. or what their effect might be. 2013 .sagepub. and of life. 59. a focus on the autopositioned sovereign assertion at the heart of modern law reveals not only its imperial force but also its contingency. 84. a chance to change. 60.”61 If despite modern sovereignty’s imperial tendencies we can find within it a continuing invitation to resistance.60 In the terms of this commentary. Competing Sovereignties (Abingdon: Routledge. of law. 2) (1992) 175 CLR 1. we must live with the fact that this risk and chance come together. As such.59 Where such challenges might go. and in the context of the complex relationship between the authority of the World Trade Organisation and the sovereignty of its member states. forthcoming). imperial) dimensions of sovereignty and law. For a detailed examination of this possibility in the context of local and indigenous claims to sovereignty.” p. In its own terms. Mabo v. Here lies the seeds of its “unworking.58 And yet. See. an appreciation of the appropriative and imperial dimensions of modern law and sovereignty helps to understand the difficulty faced by indigenous communities (and local communities of other forms) in challenging state authority in continuing colonial or post-colonial settings. “absolute assurance against this risk. eg. would be to surrender to the imperial qualities of sovereignty and leave us bereft of conceptual tools of resistance.” in Derrida’s terms. For Derrida.Joyce 13 directly or in some form of concert) are difficult to grasp without an appreciation for the inherently appropriative (and. Derrida. even “successful” indigenous challenges are rendered in terms of what the state grants.
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