Beyond the People: Social Imaginary

and Constituent Imagination Zoran

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OXFORD CONSTITUTIONAL THEORY

Series editors:
Martin Loughlin, John P McCormick, and Neil Walker

Beyond the People

ii

OXFORD CONSTITUTIONAL THEORY

Series editors:
Martin Loughlin, John P McCormick, and Neil Walker

Oxford Constitutional Theory has rapidly established itself as the primary point
of reference for theoretical reflections on the growing interest in constitu-
tions and constitutional law in domestic, regional and global contexts. The
majority of the works published in the series are monographs that advance
new understandings of their subject. But the series aims to provide a forum
for further innovation in the field by also including well-conceived edited
collections that bring a variety of perspectives and disciplinary approaches to
bear on specific themes in constitutional thought and by publishing English
translations of leading monographs in constitutional theory that have ori-
ginally been written in languages other than English.

ALSO AVAILABLE IN THE SERIES

Europe’s Functional Constitution The Cosmopolitan State

A Theory of Constitutionalism Beyond
the State
Turkuler Isiksel
Post Sovereign Constitution Making
Learning and Legitimacy
Andrew Arato
Popular Sovereignty in Early Modern
Constitutional Thought
Daniel Lee
The Cultural Defense of Nations
A Liberal Theory of Majority Rights
Liav Orgad
The Cosmopolitan Constitution
Alexander Somek
The Structure of Pluralism
Victor M. Muniz-​Fraticelli
Constitutional Courts and
Deliberative Democracy
Conrado Hübner Mendes
Fault Lines of Globalization
Legal Order and the Politics of
A-​Legality
Hans Lindahl
H Patrick Glenn
After Public Law
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The Three Branches
A Comparative Model of Separation
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Christoph Möllers
The Global Model of
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Kai Möller
The Twilight of Constitutionalism?
Edited by Petra Dobner and
Martin Loughlin
Beyond Constitutionalism
The Pluralist Structure of
Postnational Law
Nico Krisch
Constituting Economic and Social Rights
Katharine G Young
Constitutional Referendums
The Theory and Practice of Republican
Deliberation
Stephen Tierney
iii

Beyond the People

Social Imaginary and Constituent Imagination

Zoran Oklopcic

••

1
iv

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v

Acknowledgements

This book is about the importance of not closing our eyes before the situations and
environments in which we struggle to achieve something that we hope will withstand
the test of time. Completed almost fifteen years after I moved to an environment that
made the pursuit of that aspiration possible, this book is also a polemic against what
seems to be the dominant tendency in contemporary constitutional thought: to lend
dignity to such aspirations through sympathetic theoretical conceptualizations of con-
stituent power, self-​determination, identity, and autonomy—​collective, or personal.
Captivating, pleasurable, and comforting (especially after the fact), these idea(l)s are
also passivizing, distracting, and infantilizing. By providing ‘us’ with a virtual pat on the
shoulder, they fail to remind us that whoever we think we are, what we really need is a
helping hand. It is only because such a hand was extended by so many generous friends
and colleagues that am I enjoying the privilege, and pleasure, of writing these lines.
Though an unrefined sense of what is ‘wrong’ with the way in which contemporary
theoretical debates approach various aspects of the vocabulary of sovereign people-
hood could already be detected in my doctoral dissertation, which I defended at the
University of Toronto Faculty of Law in 2008, it took me nearly a decade to render
that initial set of convictions, assertions, and irritations more visible—​and, as a result,
intelligible and sensible. It is only natural that my greatest debt of gratitude goes to the
person whose wisdom, friendship, encouragement, and gentle, but persistent probing,
gave these initial, rudimentary intuitions a chance to survive and develop—​my doctoral
supervisor, Patrick Macklem. In addition to Patrick, I also wish to extend my heartfelt
gratitude to the members of my dissertation committee, Simone Chambers and Sujit
Choudhry, as well as to my internal and external examiners, Karen Knop and Stephen
Tierney, who each in their own way helped set the stage for the development of the
ideas that went into this book.
Over the last decade and a half, I have also been very fortunate to profit from con-
versations with a number of admirable colleagues. At the risk of omitting many of
those to whom I remain indebted, my thanks goes to Adrian Smith, András Jakab, Alex
Schwartz, Amy Bartholomew, Avigail Eisenberg, Benedict Kingsbury, Charles-​Maxime
Pannacio, Christine Bell, Cormac Mac Amlaigh, David Dyzenhaus, Dejan Stjepanović,
Fleur Johns, Ida Koivisto, James Tully, Joel Colón-​Ríos, Jarmila Lajčakova, Karlo Basta,
Kristen Rundle, Luigi Nuzzo, Luis Eslava, Maddy Chiam, Margaret Moore, Martín
Hevia, Matthew Lewans, Michael Fakhri, Miodrag Jovanović, Muhammad Shaha­
buddin, Nehal Bhuta, Neil Sargent, Neil Walker, Nikolas M Rajkovic, Paul Blokker,
Peter Swan, Rayner Thwaites, Remo Caponi, Richard Albert, Rita Lynn Panizza, Ron
Saunders, Rose Parfitt, Rueban Balasubramaniam, Stacy Douglas, Stephen Holmes, Tom
Campbell, Umut Özsu, Vicky Kuek, Vidya Kumar, Vincent Kazmierski, Vito Breda, and
Yaniv Roznai. In different ways and at different places—​from the University of Toronto
vi

vi • Acknowledgements
and the Department of Law and Legal Studies at Carleton University (my home insti-
tution), to Edinburgh Law School, Victoria University Department of Political Studies,
NYU Law School, and Harvard Law School’s Institute of Global Law and Policy—​they
have each made the years of work that went into this book personally edifying, so-
cially enjoyable, and intellectually enriching. In particular, I wish to thank András, Fleur,
Maddy, Margaret, Nehal, and Umut, who read and commented on the portions of an
early version of the manuscript; Nikolas, for his path-​breaking reading suggestions; Ida,
for our ongoing parodic re-​conceptualizations of serious theoretical concepts; Adrian,
for confronting my half-​developed thoughts attentively, enthusiastically, and critically;
and finally—​for all of the above—​K arlo, my childhood friend, comrade émigré, and
intellectual fellow traveler.
For her patience, generosity, and love—​as well as for our innumerable conversations
about the substance, style, and composition of this book—​I thank above all my wife
Helena Kolozetti. I also thank my parents-​in-​law, Nada and Vlado Kolozetti, whose
selfless hospitality I continued to enjoy throughout this process, and which I will always
cherish. Finally, the courage I felt I needed to summon in order to write this book didn’t
come from nowhere. For that I thank my parents, Slobodanka and Zdravko Oklopčić.
In nurturing my early inclinations towards the world of visual arts on the one hand, and
towards the world of politics and ideas on the other, they set the foundations for my
more recent adventures in diagrammatic writing and visual political theorizing. This
book is dedicated to my son Danilo—​in hope it makes him as proud as his father is
proud of him.
Zoran Oklopcic
Toronto, January 2018
vi

Contents

List of Figures xi
A Note on the Cover xiii
A note on Usage xv
Chapter 1 A Different Beginning: Theory as Imagination 1
1. A sovereign people and its two realms 1
2. Videre aude: theory as imagination 5
3. Twining’s Palomar and his ‘cosmic wisdom’ 8
4. Imaginative theory as constituent imagination 12
5. Purposeful imagination: polemical, practical, productive 15
6. Visual imagination: figures, stages, gazes 19
7. Quasi-​narrative imagination: crypto and proto 22
8. Affective imagination: affected and affecting 26
9. Ambiental imagination: prognostic, disciplinary, rhetorical 30
10. Conceptual imagination and the paper tools of theory 37
Chapter 2 Constituent Imagination: Behind Popular Expectations 43
1. The twilight (zones) of sovereign peoplehood 43
2. The people: from ridiculous (1956) to ridiculous (2016) 46
3. Popular expectations: back to the future past 51
4. Jeopardy, futility, perversity: learning from reaction 55
5. The people: an anatomy of a polemical concept 60
6. Creator vs Framework: one binary to rule them all 64
7. Beyond perspectives: the work of figuration 67
8. Emblems, ensembles, polymorphs, isomorphs 70
9. Image schemata and the laws of contrast 73
10. The anxious loop of popular sovereignty 75
11. Kelsenian ‘tendency’ and the imaginative spectroscopy 79
Chapter 3 Many, Other, Place, Frame: Beyond a Sovereign People 83
1. A sovereign: staged and dramatized 83
2. The dramatistic quartet: Many, Other, Place, Frame 85
3. Behind the stage: ex nihilo and its creatio 89
4. Behind the stage: dramatizing constituent power 94
5. Behind the people: friends, enemies, and their thirds 100
6. From Schmitt’s anxiety to Kelsen’s ‘tendency’ 105
7. Hollow topologies: constituent dramatism today 109
8. The people, (semiotically) squared 115
vi

viii • Contents
Chapter 4 Hope, Telos, Xenos: Beyond Constituent Power 121
1. Constituting: what is it good for? 121
2. Constituent power and its prompters 124
3. Constituting: founding and withstanding 127
4. Constituent power as the prognostic inscription 129
5. Theorizing: moral hazards and polemical gambles 134
6. Reconceptualizing: polemical clarifications 139
7. Scripting: Schmittian contamination 141
8. Scripting: Lockean exhaustion 144
9. Imagining (others): beyond reified stratagems 149
10. Bloch’s Vorgriff: a way of seeing 152
Chapter 5 Nephos, Scopos, Algorithm: Beyond Self-​Determination (I) 157
1. Self-​determination: five ways beyond 157
2. From emblematic holders to fuzzy ensembles 161
3. Nephos: Kelsen’s ‘ocean’ as a political aerosol 163
4. Granular attitudes: Kelsen’s ‘torment’ as
Bloch’s ‘contradictions’ 167
5. Scopos: polemical space beyond the Place 171
6. Self-​determination: the geography of failure (I) 176
7. Self-​determination: the geography of failure (II) 179
8. Imagining denominators: beyond transubstantiation 182
9. Imagining denominators: beyond circularity 184
10. Normative theory and its ‘red-​haired man’ 188
Chapter 6 The Nomos and the Gaze: Beyond Self-​Determination (II) 193
1. International jurists and their mental maps 193
2. Self-​determination: beyond the jigsaw puzzle 196
3. Self-​determination: beyond the hovering gaze 201
4. Kelsenian symptoms: statism and cosmopolitanism 205
5. Oscillating gaze and the structure of legal argument 209
6. A quiet calculus: Others in other universes 213
7. Legal interpretation as anxiety management 216
8. Legal interpretation as hope management 220
9. Beyond (the jurists’) self-​determination? 223
10. Tipping the scales: from Apology to Utopia(s) 227
Chapter 7 Territorial Isomorphs: Beyond Foundational Authority 231
1. Territorial isomorphs and Sierpinski recursion 231
2. ‘A measure of my own Gestalt’: four laws of grouping 234
3. Beneath the source of ultimate authority 237
4. The final say: Münchausen and his trilemma 242
5. The varieties of (un)responsive foundationalism 245
6. Para-​constitutionalism: between vague and strange 251
7. Constitutional pluralism: hermeneutics as
anxiety management 253
8. Radical pluralism: (why not) beyond constitutionalism 257
ix

Contents • ix
9. Abstract theories as problem-​solving templates 259
10. Sierpinski recursion and symbolic reflection 262
Chapter 8 Constitutional Isomorphs: Beyond Collective Self-​Government 267
1. Popular self-​government: space, time, and spacetime 267
2. Cicero’s Ulysses: behind pre-​commitment 273
3. Taking Kelsen literally (beyond Kelsen) 277
4. Self-​government as a constitutional isomorph 281
5. Constitutional isomorphs and the pursuit of purpose 287
6. By the people? Imaginative plurality and its dignity 291
7. For the people? Shameful geography of liberal oligarchy 293
8. Of the people? Narrative identity, de-​dramatized 295
9. Chained to the rhythm: beyond identity and hybridity 299
10. Seeing through: beyond the light and shadow 302
Chapter 9 An Isomorphic Pluriverse: Beyond Sovereign Peoples 305
1. Beyond people-​Giants and people-​Dwarfs 305
2. The vengeful Grossraum: Schmitt’s dark materials 308
3. The figure of Schmitt: the irritant and the reminder 313
4. The American sovereign: an amnesiac Narcissus 317
5. Multitude: the emblem of failure 321
6. The pretender Demos and the disciplinary pretensions 323
7. Cosmopolis: between Nomos and Telos 328
8. Beyond Cosmopolis: Nehru’s (isomorphic) world 333
9. For love of the purpose: Das telos der Erde 337
Chapter 10 A New Hope: Image Wars and Eutopian Imagination 343
1. The Square, the Triangle, and the Circle 343
2. Beyond circularity: transparency and its ironies 347
3. Theory, iconoclash, and the games of make-​believe 351
4. Beyond image wars? ad bellum purificandum 354
5. Breaking the siege: the liberation of eutopian imagination 361
6. Striking back: the Anathema, the Nebula, and the Utopia 363
7. And again: the Aporia and the Tabula 368
8. Wishful images and partisan onlookers 372
9. Diagrams of hope and purpose 375

Index 381
x
xi

List of Figures

1.1 Sovereign people—​the diagram of a conceptual ‘molecule’ 39

2.1 The people: from ridiculous to ridiculous 47
2.2 Four sources of legitimacy 53
2.3 Image schemata and the construction of ‘ridiculous’ 73
2.4 The anxious loop of popular sovereignty 78
2.5 Beyond the people–​–​the steps ahead 81
3.1 Lefort’s vase 114
3.2 Semiotic square of peoplehood—​the regularities of dramatism 116
4.1 Constitution as foundation and constitution as making-​withstand 129
4.2 Deictic cube 138
4.3 Constituent power in space and time 154
5.1 The matrix of moders’ political attitudes 170
5.2 Kelsenian algorithm 186
6.1 The global histogram of self-​determination 198
6.2 The right to self-​determination, top-​down and sideways 200
6.3 Self-​determination as refracted through the stages of determination 202
6.4 Top-​down-​bottom-​up legal argument visualized 211
6.5 Polemical balance of apology and utopias 229
7.1 Sierpinski gasket 232
7.2 The matrix of authority-​challenges 239
7.3 Constitutional theories as problem-​solving templates 261
8.1 The image schemata of constitutional temporalities 270
8.2 The alternative messages of the Ulysses and the sirens allegory 276
8.3 Imperatives of government and the dimensions of responsiveness 281
8.4 The Kelsenian ‘cone’ and the Kelsenian algorithm 283
8.5 Kelsenian algorithm beyond the layered constitutional hierarchy 286
9.1 Isomorphic pluriverse—​a cross-​section 331
10.1 Figure-​g round, hierarchy-​circularity 347
10.2 Constituent imagination—​a Twining’s map 355
10.3 The emblem of an emancipated eutopian imagination 378
xi
xi

A Note on the Cover

Ulysses and the sirens. When students of popular self-​government wish to make their
case for liberal-​democratic constitutionalism as vivid as possible, that’s the allegory they
turn to. In popular imagination, a sovereign people looks nothing like a partially self-​
incapacitated ancient warlord, however. In fact, some who invoke the people’s name
on the ground would be more likely to associate it with the downtrodden, exhausted
masses represented in Ilya Repin’s The Barge Haulers on the Volga (1874), one of the
masterpieces of nineteenth century Russian realism.
A ‘typical’ reader of the monographs published in this series—​in my imagination,
someone theoretically sophisticated, socially responsible, and politically cautious—​will
most likely remain unimpressed by either melodramatic representation of popular sov-
ereignty. Instead, the reader I’ve just conjured is quick to agree that a sovereign people
can only ever exist as a more or less useful fiction, a figure of speech, a metaphor we
live by: the constitutionalist representation of a national community that is imagined,
a name for a collective sovereign that is invented; a political concept whose purpose
was, is, and will continue to be polemical. While this book has no quarrel with these,
more theoretically self-​aware, understandings of sovereign peoplehood, it nonetheless
dares to ask: What does this figure look like? If it’s imagined, what exactly does its
image evoke? If it’s invented, where are its blueprints? If it’s polemical, where are its
battle plans? Sensible and intriguing they may be, but these questions are inadvisable, if
not unmentionable, from most contemporary disciplinary perspectives on the vocabu-
lary of sovereign peoplehood. Among other things, this book is an attempt to answer
them. The name for that effort is constituent imagination: a practice which, even when
approached seriously, is always one step away from parody, or a step away from being
parodied, itself. Repin’s Barge Haulers is the emblem of that predicament: an illustration
intended to poke fun at the solemn nautical metaphors of contemporary constitution-
alism, but which, very quickly, under the inspection of my more sharp-​eyed colleagues
became the object of ridicule itself.1
Though partly satirical in its aesthetic and rhetorical aspirations, this book rests on an
unironic conviction—​an earnestly held belief that many, potentially useful, analytical
insights lie in an insufficiently explored strip of intellectual landscape delineated by the
tolerably indecorous and the disciplinarily undisciplined—​two invisible boundaries of our
theoretical imaginations. To explore this zone is to find new ways of moving beyond
the traditional styles of practicing theory, and, with it, beyond the enduring represen-
tations of popular sovereignty in a wider social imaginary. While this book is not an
attempt to convince its readers that they ought to make that move, it intends to provoke

1
Yaniv Roznai, true to his humorous habitus, was quick to point to the cell phone in the hands of an ex-
hausted elderly employee in the middle of the painting.
xvi

xiv • A Note on the Cover

a particular theoretical and practical attitude towards the constitutive acts usually attrib-
uted to the figure of a sovereign people.
One figure from Repin’s Barge Haulers seems to be particularly evocative in that re-
gard. Here I have in mind not the exhausted muzhik in the centre of the painting, but
rather the man to his right; the one with his head held high. Is he hearing voices? Or is
he seeing strange new figures in the clouds? Is he indignant, with his chin slightly down-
cast? Or is he just incredulous? It’s hard to say. In painting him, Repin may have wished
to evoke a madman, a prophet, a rebel with(out) a cause, some combination thereof,
someone else altogether, or nothing in particular. One thing is certain, though. Repin’s
barge hauler is no Ulysses. Unlike Homer’s hero, he has no choice but to remain attuned
to his environment. In dragging the ship (of state) through the mud, he manages to
keep his ears clean and his eyes wide open. In contrast to prevailing conceptualizations
in contemporary political and legal thought, the self-​determination, constituent power,
and political autonomy of Repin’s everyman remains inseparable from the peculiarities
of his situation, from the expectant emotions that overwhelm him; from his aspirational
orientations, and his prognostic calculations. It is these, imagined differently, that are be-
yond a variety of disciplinarily disciplined figurations of sovereign peoplehood. It is the
wager of this book that these situations, emotions, orientations, and calculations may
be talked about explicitly, purposefully, imaginatively, and productively—​more playfully
with respect to prevailing terminological mediations, and yet equally ‘theoretically’,
dialogically, and seriously. What follows is the record of my attempt to show how.
xv

A Note on Usage

This book departs from prevailing ways of writing about social imaginary and theor-
etical imaginations of popular sovereignty both in substance and in style. As will soon
become fully obvious, my style is thoroughly visual, manifest not only in my ample use
of images—​diagrams, tables, and graphs—​but also in my frequent reliance on visual ac-
cents, such as small caps, which appear throughout the book in the body of the text it-
self. Mildly anxious about the prospects of being accused of not practising what I preach
(imagination), I have resorted to their use for three reasons: (1) in order to generate (in
my mind, as effortlessly as possible) the effect of estrangement from dominant theor-
etical preoccupations with the figure of a sovereign people and its attributes—​with the
aim of drawing attention to the conceptual, visual, rhetorical, semiotic, and other con-
cealed implements of theoretical imagination used to stage the manifestations of that
people and its attributes, instead; (2) in order to underscore the imagined and imagina-
tive character of allegedly superior theoretical alternatives to specific figurations of a
sovereign people, or to the vocabulary of sovereign peoplehood in general; and, finally,
(3) in order to make further distinctions among the diversity of background imagina-
tive choices and half-​thought considerations that inadvertently shape the way in which
the figure of a sovereign people appears on the pages of a theoretical monograph. In
opting for this approach, I was aware of the risk of alienating readers who expect to
confront discrete chunks of unadorned text, and not lines of text interspersed with pic-
torial emphases, visual restatements, and diagrammatic summations. If I have failed in
my ambition to deploy these visuals illuminatingly, I still hope that there will be those
who will consider it as an experiment well worth the effort—​an attempt to theorize fast
and slow; to communicate mutually-​related ideas at different levels of compression, in
the hope that doing so might make them easier to disassemble, reassemble, compare,
combine, adapt, discard, or deploy—​and overall, situate and evaluate.
xvi
1

  1 
A Different Beginning
Theory as Imagination

1. A sovereign people and its two realms

A sovereign people has many bodies. However it incarnates itself, it does so
in two places at the same time: in the realm of theoretical inquiry and in the
realm of social imaginary. In the first, it appears in two guises: either as the
subject or, more rarely, as the predicate in a particular proposition of people-
hood. There, a sovereign people is a concept which is always an abstract someone
to something: the bearer of constituent power, the holder of the right to self-​
determination, the subject of constitutional self-​government, the source of ul-
timate authority, or a sovereign among other sovereign peoples. In the second
realm, in contrast, its guise is fourfold. There, a sovereign people exists as a
shorthand for a particular aspect of the doctrine of popular sovereignty; as a
figure, set against a background that renders that doctrine meaningful; and—​as
a consequence of both—​the catalyst of political antagonism, on the one hand,
and the mediator of the popular expectations of those who invoke its name, on
the other. To invoke its name, in this realm, is not only to refer to ‘deep norma-
tive notions’ about the ways in which we fit together,1 but also to imagine a god-​
like sovereign actor whose ambivalent image has historically proven capable
of amplifying an enduring, large-​scale political animosity—​initially towards un-
accountable monarchies, parasitic aristocracies, and exploitative empires, and
over time towards ethnic majorities and great-​power hegemonies.
In allowing those who invoke its name to harness its catalytic power, how-
ever, a sovereign people has always been a Janus-​faced rhetorical device: not
only a figure to be used, but also a figure that uses; not only a rhetorical weapon
and a problem-​solving device, but also the mediator of expectations among
those who reach for them. As an actor in an imaginary scene of constitution-​
making, this sovereign people also acts on the plane of our anticipatory con-
sciousness, prefiguring how we may communicate our expectations of others,
for ourselves, and for the world, both in principle and specifically: here and
now, not then and there; with respect to you, not to them; and vice versa. In
other words: as the arbiter of the intelligibility, legality, and legitimacy of our

1
Charles Taylor, Modern Social Imaginaries (Duke University Press 2003) 23.
2

2 • A Different Beginning
expectations and as the warden of the spatiotemporal boundaries of their mor-
ality and sensibility. In these roles, a sovereign people also acts as the manager
of mental phenomena—​emotions, attitudes, and affects—​which these expect-
ations provoke, sustain, amplify, or diminish in the context of a particular pol-
itical struggle.
Among a variety of different affective attitudes that come in tandem with
the vocabulary of sovereign peoplehood, one has been particularly important.
Ignored by the theorists, the attitude in question—​perhaps best referred to
as hopeful self-​confidence, or self-​confident hopefulness—​has allowed those
who rally around the name of the people to act on the basis of a belief that
has no correlate in the historical eras prior to the one defined by the social
imaginary of popular sovereignty; a belief that ‘we, the people, have the right
to voice on our own initiative; worthy, united, numerous, and committed,
we have the capacity to change things’,2 trustful that doing so will not be in
vain and that establishing a new order of, for, and by the people can only be
for the better. Those who approach this figure theoretically, however, rarely
pause to ask, is this still what we expect today? Is it really true, as Ernst Bloch
declared in 1959—​the year which, in retrospect, may be seen as the beginning
of the soon to be eclipsed zenith of that imaginary—​that ‘we never tire of
wanting things to improve’?3 Or has the ‘continual propensity towards the
better’, which Bloch detected more than half a century ago, been nothing
but his own groundless projection, the result of his own overactive imagin-
ation: ‘part socialist propagandizing’, ‘part German metaphysics’,4 part echo
of the mid-​twentieth century anti-​colonial Zeitgeist?
As they seek to interpret the meaning of specific propositions of peoplehood,
theorists, for the most part, do not confront these questions, nor do they, in con-
sequence, have an opportunity to ask themselves those that would otherwise
logically follow: What is it that we expect from the figures that inhabit the realm
of theoretical inquiry once we broadcast them—​in the world, and for those who
rely on them within the realm of social imaginary, in the field of struggle? How
do we want our figurations of sovereign peoples and their predicates to arbiter,
police, and mediate their own expectations? Which among their innumerable
struggles do we wish to catalyse, and on the basis of what? What is it that we,
the inhabitants of the realm of theoretical inquiry, envision as we assume, diag-
nose, prognosticate, hope, worry, regret, and yearn?
To ask these questions is to ask what is theory as a practice, and what is that
practice for. To aspire to answer them is to reimagine theory as the practice
of imagination, and then to practice it differently: purposefully, deliberately,
actively, and interactively. To practice theory as imagination in the realm of the-
oretical inquiry is to violate the norms of communal decorum, which stipulate

2
Charles Tilly, Regimes and Repertoires (University of Chicago Press 2006) 56.
3
Ernst Bloch, The Principle of Hope, vol 1 (Neville Plaice, Stephen Plaice, and Paul Knight trs, first published
1959, MIT 1995) 77.
4
Alan Mittleman, Hope in a Democratic Age: Philosophy, Religion and Political Theory (OUP 2009) 182.
3

A Sovereign People • 3
how to treat interlocutors’ images: always as props, always invisible, and always
unmentionable—​either because they successfully prop up the propositions of
those who imagined them, or because the consequences of their failure to do
so must be indicated differently, without pointing a finger at a picture, which,
by definition, may always be pictured differently. Finger pointing, as in every
other polite conversation, is strongly discouraged. To ask: What is the point of
imagining a scene in which a sovereign people appears like that, like that?—​is
to introduce irrelevant and tone-​deaf considerations, more becoming of a ‘man
of business’5 than of someone appreciative of the ‘unusually conversant’ voice
of theory.
Notice, however, that the same theory-​as-​imagination, which commits its
practitioner to laugh away the reproachful gazes of those who claim that ‘bar-
barism may be observed to have supervened’6 whenever ‘so that what?’ and
‘on the basis of what?’ questions disrupt the flow of mellifluous theoretical
conversation, also seems to commit that same practitioner to fight the ‘critical
barbarism’ of those who participate in the scholarly games of make-​believe for
the opportunities they provide to demolish someone else’s stage props.7 While
fighting critical barbarism in this arena ultimately doesn’t commit a theorist-​
imaginer to refrain from exposing, ridiculing, or unmasking sacred cows, ta-
boos, and fetishes, it does commit her to keep reminding herself and others
that those who approach these entities purposefully are not idiots; that is, that
they are not constitutively incapable of detecting a conceptual shell game, a
manoeuvre of hiding the theoretical ball, or an attempt to smuggle an imper-
missible assumption when they see one. In the context of this book, it is to ask
not only what is the point of imagining the figures of sovereign peoplehood in
a certain disciplinarily disciplined way, but also what is the point of problem-
atizing or critiquing those imaginations—​specifically.
Provisionally situated between these two styles of theoretical thought, then,
theory-​as-​
imagination is neither a dispassionate conversation sustained by
a system of winks and nods, nor an intramural sport of theoretical criticism
whose audience is known in advance, but rather one of many possible instanti-
ations of ‘symbolic action’. Always haunted by the oscillations between a vague
and concrete sense of purposefulness, the dilettantism of its diagnostic and
prognostic judgements, and the irresistible allure of the ‘adventures of thought
in writing’—​its aim is always to move: someone, somewhere, and for the better.8
Those who practise it are imaginers and practically minded rhetoricians,
the ‘priests of the profane’,9 as Nicholas Onuf called them, and the veritable

5
Michael Oakeshott, Rationalism in Politics and Other Essays (Methuen 1962) 201. 6
ibid 212.
7
Bruno Latour, ‘Why Has Critique Run out of Steam? From Matters of Fact to Matters of Concern’ (2004)
30 Critical Inquiry 225.
8
Kenneth Burke, A Rhetoric of Motives (University of California Press 1969) 42.
9
Nicholas Onuf, World of Our Making: Rules and Rule in Social Theory and International Relations (Routledge
2012) 106.
4

4 • A Different Beginning
conjurors of peoplehood. It is only by serving in those roles that their theor-
etical arguments may hope to make sense—​both in relation to the partisans,
and in relation to their fellow theoretical imaginers of sovereign peoplehood.
To act in those roles—​this book wagers—​is to increase the chance of finding
what Roberto Unger called the ‘lost and repressed sense of transformative op-
portunity’, which still continues to hide within the galaxy of either/​or binaries,
caricaturized figures, and devalued distinctions, and which revolves around its
gravity centre: the cluster of the most important propositions of peoplehood.
Not to act in those roles, as this book also wagers, would be to miss out on a
theoretical opportunity, a professional adventure, and an increasingly urgent
moment of political reckoning.
Irrespective of whether we live in an era of a new dawn, a final sunset, or
an ambiguous twilight of sovereign peoplehood, we have been confronted
with a sufficient amount of scenes of popular decision-​making that ought to
compel us to step back and reimagine the toxic, bizarre, counter-​productive,
and otherwise dysfunctional relationship between our popular expectations
and the traditional vocabularies we use to mediate them. So far, theorists
have done so either by refining their understandings of sovereignty, con-
stituent power, or self-​determination, ultimate authority, and popular self-​
government, or by simply inventing a new agent—​multitude, a transnational
demos, a multipolar world—​intended to fill the shoes of a sovereign people. In
contrast, this book aims to move behind this figure not by setting it aside and
leaving it behind, nor by going around the functions it still continues to serve
in the world today, but rather through it, after having found new imaginative
opportunities within the scenes in which it is staged, after having explored the
work of imagination that went into staging them, behind the curtain, by the
conjurors of peoplehood.
Doing so will broaden the imaginative space for new expectations, while
at the same time offering new ways of articulating, arguing, and negotiating
existing ones. Rather than insisting on how much is too much, how little is
too little, and how good is good enough in different arenas of struggle, this
book aims to raise the profile of the question. In other words, if you took
a better look at the imaginative choices behind the figures and the scenes
that quietly prop up the propositions of peoplehood, what stops you from
stepping back and looking at them as tokens in somebody else’s game of
make-​believe that have no power to prevent you from asking: Are there new
ways to mediate them while acting purposefully, worrying consciously, and
hoping for more? All of that is at the very least imaginable: beyond friends
and enemies, revolutions and amendments, the norm and the exception,
demos and ethnos, inside and outside, constituent and constituted power,
the nation and the national minority, and other false binaries perpetuated by
self-​disciplined theoretical imaginations, practised in silence across the realm
of theoretical inquiry.
5

Videre Aude • 5

2. videre aude
theory as imagination
Focused on understanding the meaning of the scenes of creation, founda-
tion, institution, constitution, self-​constitution, irruption, and other manifold
stylizations of joint action, theorists of peoplehood think of the concept of
imagination in terms of a formula Jean-​Paul Sartre reserved for the concept of
hell: imagination—​it’s other people. It is those other people, not the theorist
in question, who have established a constitutional imagination as a repository
of established narratives, symbols, rituals, and myths, which stand ready to be
‘harnessed’ by contemporary constitutions.10 It is also these others—​exercising
their ‘universal human capacity’—​who took part in ‘creative collective imagin-
ation’ by constructing powerful narratives of constitutional foundations and
political beginnings.11 Finally, it is these others whose ‘communicative and
performative work’ of imagination constitutes, as we speak, the world itself—​
together with its manifold ‘global problems’.12 In case there was any doubt,
today imagination is:
No longer mere fantasy (opium for the masses whose real work is elsewhere),
no longer simple escape (from a world defined principally by more concrete pur-
poses and structures), no longer elite pastime (thus not relevant to the lives of
ordinary people), and no longer mere contemplation (irrelevant for new forms
of desire and subjectivity), [but] an organized field of social practices, a form of
work (in the sense of both labor and culturally organized practice), and a form
of negotiation between sites of agency (individuals) and globally defined fields
of possibility.13
But what does it mean to participate in that practice? What are the modes and
tasks of imaginative ‘labour’ more specifically? How is it that even those who
openly recognize the importance of imagination still find it easier to describe it
than to exercise it?14 If it is true that imagination is, indeed, no longer a ‘mere
fantasy’ but a ‘form of work’, how is it that in the deluge of various academic
‘Handbooks on . . .’, there hasn’t been a single manual that would offer practical

10
Martin Loughlin, ‘The Constitutional Imagination’ (2015) 78[1] MLR 1, 3.
11
Yaron Ezrahi, Imagined Democracies: Necessary Political Fictions (CUP 2012).
12
David Kennedy, A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy (Princeton
University Press 2014) 98.
13
Arjun Appadurai, Modernity at Large: Cultural Dimensions of Globalization (University of Minnesota Press
1996) 156.
14
See, for example, Dilip Gaonkar, ‘Social Imaginaries: A Conversation’ (2015) 1[1] Social Imaginaries 195;
John Grant, ‘On the Critique of Political Imaginaries’ (2014) 13[4] EJPT 408. For a similar complaint against
the legal scholars who have embraced the ‘critical turn’ only to shy away from it ‘on the scene of their own
writing’, see Pierre Schlag, ‘Normativity and the Politics of Form’ (2015) 139[4] University of Pennsylvania
Law Review 801, 890.
6

6 • A Different Beginning
guidance to the multitude of its global practitioners?15 How have those who
take their ‘Promethean powers’ as a given, so far had so little confidence in their
ability to ‘consciously harness them’?16 Isn’t it somewhat strange that while the
texts of contemporary Prometheans rarely feature argumentatively consequen-
tial images (and almost never their own), the medieval anti-​Prometheans had
no qualms about authoring religious texts that were not only visually rich, but
also replete with tables, diagrams, emblems, and other images, tasked with as-
sisting memory, fostering meditation, and serving as the engines of ‘creative
thought’?17 In contrast to medieval monks—​who at least had a fairly good sense
of what they wanted to achieve by embedding a variety of epistemic images
at different places in their texts—​their contemporary colleagues almost seem
to be embarrassed when it comes to the individual dimension of their work as
imaginers. Why is that so? Is the individual work of theoretical imagination so
complex, elusive, and fleeting that it makes it, to those who perform it, literally
unimaginable? Or is imagination one of those practices that are very easy to
discuss enthusiastically, but which, at the same time, no one would be glad to
be caught doing publicly?
The imagination of those who focus on the figures of popular sovereignty
remains in a kind of a twilight zone, unable to identify with either of the two
ideal-​typical imaginative attitudes. It is neither what Charles Pierce called ‘poet-​
imagination’; a type that ‘bodies forth the forms of things unknowne’, and
which ‘riots in ornaments and accessories’, nor is it the ‘devil’s imagination’ of
the scientist, ‘quick to take Dame Nature’s hints’, and ‘[make] the clothing and
the flesh drop off ’ so that ‘the apparition of the naked skeleton of truth . . . [is]
revealed before him’.18 Between the two poles, the practitioners of imagination
that this book focuses on have generally veered towards the first—​imagining
their role to be either that of a connoisseur, a curator, or an artist. As a connois-
seur, the task of a theorist is to learn to ‘appreciate the way in which certain
ideas and beliefs gain acceptance as the “dominant sentiments” or “collective

15
Contrast this with the proliferation of scholarly monographs about some aspect of political imagination,
including a number of recent critical approaches to politically relevant concepts, understood as the products
or objects of imagination. ‘Sovereignty’ alone has managed to entice two eponymous titles: Kevin Olson,
Imagined Sovereignties: The Power of the People and Other Myths of the Modern Age (CUP 2016); Kir Kuiken,
Imagined Sovereignties: Toward a New Political Romanticism Age (Fordham University Press 2014). See also, Gönül
Pultar, Imagined Identities: Identity Formation in the Age of Globalization (Syracuse University Press 2014); and,
Willem Schinkel, Imagined Societies: A Critique of Immigrant Integration in Western Europe (CUP 2017). While
Olson rightly emphasizes the constitutive power of imagination, Schinkel goes a step further and explicitly
envisions ‘social theory and/​as social imagination’(35).
16
James D Ingram, ‘Introduction’ in SD Chrostowska and James D Ingram (eds), Political Uses of Utopia: New
Marxist, Anarchist, and Radical Democratic Perspectives (Columbia University Press 2016) xxii.
17
Mary Carruthers, The Craft of Thought: Meditation, Rhetoric and the Making of Images 400–​1200 (CUP 1998) 11.
For the discussions of similar aspirations in other eras, see Lina Bolzoni, The Gallery of Memory: Literary and
Iconographic Models in the Age of the Printing Press (University of Toronto Press 2001).
18
Charles Pierce, Selected Writings (Dover 1966) 255, quoted from Richard Swedberg, ‘Can You Visualize
Theory? On the Use of Visual Thinking in Theory Pictures, Theorizing Diagrams, and Visual Sketches’ (2016)
34[3] Sociological Theory 250.
7

Videre Aude • 7
dreams” of a society’.19 More ambitiously, they see themselves as curators skilled
enough to ‘guide public ethical and pragmatic considerations for choosing from
among such competing imaginaries of order’.20 Most ambitiously, Roberto
Unger suggests that theorists should imitate artists, and ‘[make] the familiar
strange’, for the sake of redeeming ‘the lost and repressed sense of transforma-
tive opportunity’, occluded from sight by a plethora of false necessities, manu-
factured by those who practise their imaginations furtively, as the partisans of a
‘necessitarian’ social and political thought.21 How can we combat this false ne-
cessitarianism as ‘artists’? Unger doesn’t say. In fact, it turns out that he doesn’t
really want us to take this proposal too seriously, since on closer inspection the
vital work of demolishing necessitarian assumptions consists in map-​making,
which would make a theorist more suited for the role of a cartographer.
In any event, we need both a clearer sense of how we might actually practise
our theoretical imagination differently (since we already do so anyway) once
we actually choose to do so deliberately, and a clearer sense of what has kept
theorists of peoplehood from attempting to do so thus far. In that respect, the
question is not ‘how?’ but ‘why not?’. Whence such ‘imaginative resistance’
to theorizing more imaginatively, among the theorist-​imaginers of popular
sovereignty?22
Having never been stated explicitly, let alone discussed openly, we can only
speculate as to whether this resistance emerges from a deflated sense of the
capacity of theory to influence the social imaginary; from a conviction that the
practice of constitutional theory is mostly a matter of language and grammar;23
from a belief that the role of theory ought to be to listen, not to lecture those who
invoke the name of the people in the field of struggle;24 from having submitted
to moral and emotional blackmail broadcast by the empty circles of liberal jus-
tification;25 or from enduring anti-​totalitarian anxieties of former socialists and
communists who instead of empty circles of justification, see empty places of
power and other phantasms of anti-​Stalinist radical democratic imagination.26
Or, more generally: Is the imaginative resistance to a less disciplinarily discip-
lined style of imagining attributable to a deeper affective disorder of theoretical
imagination—​one that causes ‘a state of interested dreamlessness’ in liberal-​
democrats, the ‘nihilism of theoretical hopelessness’ in radical democrats, and

19
Martin Loughlin, Swords and Scales (Hart 2000) 32. 20
Ezrahi (n 11).
21
Roberto Unger, ‘Legal Analysis as Institutional Imagination’ (1996) 59[1] Modern L Rev 1, 22.
22
Originally, the term ‘imaginative resistance’ denoted the ‘comparative difficulty in imagining fictional
worlds that we take to be morally deviant’. Tamar Szabó Gendler, (2000) 97[2] ‘The Puzzle of Imaginative
Resistance’ 55, 56. In this book, I am using it to denote the comparative difficulty of imagining the practice of
theory as: (a) the scholarly game of theoretical make-​believe, and (b) the scholarly game of make-​believe that
may be ‘played’ as the practice of theoretical imagination.
23
See András Jakab, European Constitutional Language (CUP 2016).
24
James Tully, Political Philosophy in a New Key (CUP 2008).
25
Pierre Schlag, ‘The Empty Circles of Liberal Justification’ (1996) 96[1] Michigan Law Review 1, 47.
26
Andrew Jainchill and Samuel Moyn, ‘See French Democracy between Totalitarianism and Solidarity: Pierre
Rosanvallon and Revisionist Historiography’ (2004) 76 Journal of Modern History 107.
8

8 • A Different Beginning
an ‘aversion to forwards and to the penetrating glance forwards’ in them both?27
The answers to these questions can only be speculative. But even as speculative,
they will depend on our understanding of the ways in which it is possible to
do the work of theoretical imagination more imaginatively. A first step in that
direction is to offer a provisional answer to the question: What is imagination as
an embodied, personal and interactive ‘form of work’—​performed not in isola-
tion, but within the ‘organized field of social practice’? Notice that the answer
to this question in the following section cannot take exception from the general
vision of imagination that this book committed to from the outset. Call it the
paradox of imagination: irrespective of the extent of scholarly research, intel-
lectual rigour, or empirical evidence, a theoretical account of imagination can
only be provided by practising theory, imaginatively.

3. Twining’s Palomar and his ‘cosmic wisdom’

What is imagination? Most simplistically, imagination is the name for exercising
the ‘faculty for having . . . or making images’,28 which causes ‘a number of ab-
stracted ideas . . . [to be] compounded into one image’.29 At a somewhat more
refined level, imagination is an activity that consists in the mental acts of im-
aging, imagining-​that, and imagining-​how.30 The same elephant which is the ob-
ject of each will in the first appear simply as an elephant (blue, pink, yellow);
in the second as an elephant that grazes the lawn of my neighbour, and in the
third as an elephant that was stressed out once the neighbour called the police.
Though debates among cognitive scientists make it both impossible and un-
necessary to settle on a comprehensive definition of imagination and mental
imagery,31 this book cannot escape taking a stance on its character as a mental
faculty, an individual activity, and a social phenomenon. In this book, imagin-
ation is understood as
central to human meaning and rationality for the simple reason that what we
can experience and cognize as meaningful, and how we can reason about it,
are both dependent upon structures of imagination that make our experience
what it is. On this view, meaning is not situated solely in propositions; instead, it

27
Ernst Bloch, The Principle of Hope, vol 3 (Neville Plaice, Stephen Plaice, and Paul Knight trs, first published
in German 1959, MIT 1986) 1199.
28
Eva Brann, The World of the Imagination: Sum and Substance (Rowman & Littlefield 1992) 18.
29
ibid 23.
30
Edward S Casey, Imagining: A Phenomenological Study (2nd edn, Indiana University Press 2000) 41 passim.
For Casey, imaging, imagining-​that, and imagining-​how belong to the ‘act phase’ of imagining, which he distin-
guishes from the ‘object phase’, which is equivalent with the totality of ‘imaginative experience’, ‘of what we
imagine in a specific act of imagining’ (10).
31
Cognitive scientists continue to debate the nature of these images. For the most influential critique of
the pictorial character of mental imagery, see ZW Pylyshyn, ‘What the Mind’s Eye Tells the Mind’s Brain: A
Critique of Mental Imagery’ (1978) 80 Psychological Bulletin 1. For an influential account of the quasi-​pictorial
character of imagery see SM Kosslyn, Image and Mind (Harvard University Press 1980). For a more recent sum-
mary of this position, see SM Kosslyn, WL Thompson, and G Ganis, The Case for Mental Imagery (OUP 2006).
9

Twining’s Palomar • 9
permeates our embodied, spatial, temporal, culturally formed, and value-​laden
understanding.32
Imagination, then, is inescapable. Yet, we still do not seem to know enough
about its character at work, in action, and in the process of theorizing. Among
contemporary legal theorists, William Twining probably came closest to
describing theoretical imagination in practice. By way of an illustration, con-
sider the factors that shaped Twining’s theoretical gaze as he approached the
problem of globalization:
As I pondered the point of the enterprise in various places—​including Oxford,
Nairobi, Hong Kong, Kampala, Wasenaar (near Leiden), Bangalore, Miami, and
Boston—​three points became crystallised. First, my primary concern was with the
health of my discipline at a particular time—​that is the institutionalized study of
law—​from the point of view of a scholar, educator, occasional activist, and mild
agent provocateur. Secondly, although I jet-​setted and networked in a number of
countries, my home and my main professional base are in England, my working
language—​even in Kampala, Beijing, Miami, and the Netherlands–​–i​s English,
and my expertise is largely Anglo-​American. Thirdly, words like ‘global’, ‘global-
isation’, and ‘globalism’ were a growing part of the barrage of messages from
the media and they had begun to become part of the daily vocabulary of neigh-
bouring disciplines.33
Twining’s gaze cannot be reduced to what is usually referred to as an ‘approach’.
Beyond them—​or beneath them—​there are myriad factors, some of which
Twining allows us to catch a glimpse of: geographical vantage points (Oxford,
Nairobi, Hong Kong); the imagination of ‘disciplines’ and of what it means
to be a good disciplinary ‘citizen’ (someone who contributes to disciplinary
‘health’); puzzlement over the meaning of increasingly influential concepts
(‘globalization’); or temperamental predilections (‘mild agent provocateur’). In
playing that role, Twining often feels like Mr Palomar—​the protagonist of Italo
Calvino’s eponymous novel.
Though very well aware of Mr Palomar’s travails, Twining nonetheless em-
braces him as an emblem of his own amor fati as a theorist-​imaginer; someone
who in an ‘increasingly interdependent’ and ‘more or less cosmopolitan’
world has no choice but to oscillate his gaze, in the pursuit of a project whose
‘achievement may be as elusive’, as Mr Palomar’s attempts at ‘describing a wave
or mastering a piece of lawn en route to understanding universe’.34 Though
fully aware of the bitter disappointments Palomar is forced to endure as he
keeps confronting the demoralizing complexity of the images of the world
that he constructs in his mind as he idly walks along the beach, what Twining
omits from the portrayal of this emblematic figure is the moment at which Mr
Palomar faces the consequences of imagining publicly. That is the moment, as

32
Mark Johnson, The Body in the Mind: The Bodily Basis of Meaning, Imagination, and Reason (University of
Chicago Press 1987) 165.
33
William Twining, Globalization and Legal Theory (Butterworths 2000) 247. 34
ibid 175.
10

10 • A Different Beginning
Calvino narrates, when Palomar—​finally ‘convinced that he has precisely out-
lined his own place in the midst of the silent expanse of things floating in the
void, amid the dust cloud of present or possible events’—​‘decides the moment
has come to apply this cosmic wisdom to relations with his fellows’. The key
question is whether Palomar succeeds in persuading his fellows that his morph-
ology of ‘a human landscape’ is truly ‘distinct, clear’, and ‘without mists’.
Not at all. He starts by becoming embroiled in a muddle of misunderstandings,
hesitations, compromises, blunders; the most futile matters stir up anguish, the
most serious lose their point; everything he says or does proves clumsy, jarring,
irresolute.35
‘What is it that does not work?’, Calvino asks. His answer: Palomar lacks
requisite self-​knowledge, ‘knowledge of one’s fellow’, that ‘has this special as-
pect: it passes necessarily through knowledge of oneself . . . precisely what Mr
Palomar is lacking [being] accustomed to considering himself an anonymous
and incorporeal dot’. Perhaps. But an alternative interpretation of what makes
his attempt to communicate his imagination ‘so clumsy, jarring, irresolute’,
would blame Mr Palomar not for the failure to know himself in the broadest
sense of the ancient gnothi seauthon, but in a more narrow sense. In that sense,
Palomar’s ‘fault’ lies in his inability to articulate the tension in his attitude to-
wards communicating his ‘cosmic wisdom’; his inability to recognize it not as
his own, but as a constitutive feature of all imagination-​in-​communication; and
finally, his failure to anticipate what it is about imagining that is likely to lead
to outcomes that are ‘jarring’ or ‘irresolute’. Palomar’s fault, in other words, is
that he fails to recognize that the failure to communicate his vision effectively is
not entirely his own fault.
Why this may be the case quickly becomes more apparent once we notice
that though we generally have no qualms about narrating the content of our
dreams as dreams, we seem to be far more apprehensive about reporting the
content of our imagination as imaginations. In other words, what makes the
reports of imaginative imaginings different from non-​imaginative imaginings
is not the difference in the level of their idiosyncrasy or departure from reality,
but rather that we broadcast the former with a conviction about their wider, ob-
jective importance. In that sense, Palomar’s ‘cosmic wisdom’ ought to be taken
less as a humorous description of his delusions than an indicator of an attitude
that constitutes public acts of imagining as the practice of imagination.
That attitude is ‘highly ambivalent’: ‘we want to show or tell because we
have discovered something important, yet we don’t want to show or tell be-
cause we “know” that other people will or may fail to appreciate what we have
seen . . . or even criticize us as “just imagining,” having “let our imagination run
away with us” ’.36 This may also explain the remarkable reception of Twining’s

35
Italo Calvino, Mr Palomar (William Weaver tr, Harcourt Brace 1985) 94.
36
Paul B Lieberman, ‘Imagination: Looking in the Right Place and (in the Right Way)’ in James Phillips and
James Morley (eds), Imagination and Its Pathologies (MIT 2003) 27–​28.
1

Twining’s Palomar • 11
own work: though widely admired, discussed, and recommended, it nonethe-
less did not prove inspirational in the way in which its author had intended. And
why would it? Practising imagination in public is difficult. Twining is the excep-
tion that proves the rule. What makes it hard, however, is not only the prospects
of being dismissed as having an overactive imagination, but also for having an
insincere mind. Martin Jay captured it best when he said: ‘ocular desire, ever
since at least the time of Augustine, has troubled those who want to privilege
sight as the noblest of the senses, for it seems to undermine the disinterested-
ness of pure contemplation.’37
Jay’s insight deserves to be pushed further, and radicalized in two ways. First,
‘ocular desire’—​a desire to see something as something else, in a different light,
as transparent, as opaque, from afar or from close up—​is evidence of the im-
possibility of the disinterestedness of pure contemplation. Contemplation, the-
oretical or otherwise, may be many steps removed from a tangible interest,
but can never be divorced from it.38 Second, once communicated—​for example,
as ‘Why don’t you look at it this way? From this perspective, you would better
see that . . . if you noticed your blind spot, you would have . . .’—​ocular desire
will be destined to provoke suspicions about the sincerity of an imaginer’s in-
sistence on the disinterestedness (or uninterestedness) of contemplations that
inform her ocular urgings, the scale of which would be proportionate to their
intensity. Practically speaking, this puts the imaginer between a rock and a
hard place. Were he to admit the interestedness of his contemplations his vi-
sions might lose whatever compelling force they might have had before that
admission. Were he to hide that interest he risks his conversations becoming—​
rightly—​‘jarring’ and ‘irresolute’. Is there any other way to practice imagination
publicly? Or must theorist-​imaginers submit to one answer in this either/​or di-
lemma? A second look at Twining’s work gives us an indication that they do
not. On closer inspection, Palomar-​inspired Twining has achieved something
that has thus far been reserved only for dance instructors: showing and telling at
the same time—​showing what kinds of considerations may affect the exercise
of theoretical imagination without, however, losing the substantive plot of his
concrete theoretical ‘argument’.
Set against the backdrop of Twining’s work, this book aspires to develop this
style of theoretical imagination. It does so, however, in the context of debates
that are focused on a polemical concept so consequential that any attempt to
portray ocular prompts as disinterested would very soon become suspect, and
rightly so. In such an environment, practising theoretical imagination must en-
tail a readiness to go deeper, wider, and to a more granular level in the ex-
ploration of the wanderings of the mind’s eye of the emblematic Mr Palomar,
and to accept that in doing so we are destined to expose not only the concrete
scopic choices of individual imaginers, but also the things that they managed to

37
Martin Jay, Refractions of Violence (Routledge 2003) 139.
38
That intuitive conclusion is perhaps best illustrated by the decidedly un-​purposive theoretical accounts of
imagination, such as that by Paul Ricœur.
12

12 • A Different Beginning
smuggle in as objectively valid. To practise theory as imagination, however, is
not to disqualify these smuggled artefacts—​such as Twining’s claims of an ‘in-
creasingly interdependent world’ in which legal knowledge becomes ‘inevitably’
cosmopolitan, for example—​as imagined, imaginary, or overly imaginative.
Rather, it is to carry the conversation further, and ask what else must have been
imagined, and why, every time we are confronted with a theoretical proposition
of peoplehood.

4. Imaginative theory as constituent imagination

In confronting this question, the best place to start are not theoretical abstrac-
tions, but rather the concrete scenes from the daily life of popular sovereignty;
not the occasions in which the ‘will’ of a righteous people ended up being
crushed by a wicked regime, but rather those in which its unobstructed exercise
proved to be dangerous, vain, futile, or counter-productive, nevertheless. Such
situations put in doubt not just the wisdom of our leaders, but also the wisdom
of having our aspirations mediated by the vocabulary of peoplehood, more
generally. They are also the situations that are relatively harder to digest the-
oretically. Perhaps surprisingly, the most ‘digestible’ ones are those that are the
most, not the least, stomach-churning: revolutions, coups, secessions, foreign
interventions, referendums, constitutional transformations, and other dramas
of sovereign peoplehood. In order to outline the contours of the imaginative
background of the theories of popular sovereignty, however, we should not
only focus on its dramas, but also on the situations in which those dramas turn
out to be farces and tragicomedies. While the former call for theoretical adapta-
tions, clarifications, and substitutions (all of which may be achieved from within
existing disciplinary perspectives), it is the latter that are capable of creating the
kind of estrangement that will provoke us to start looking beyond the people
and its sovereignty.
What we need, in other words, is to redirect our gaze away from the scenes
in which the people appears as an abstract propositional subject or predicate
and towards the real-​life scenes that disclose it, against both the theorists and
the partisans of peoplehood, in an unflattering light: as a revolutionary agent
that restored liberal democracy only soon to abandon its liberal part; as the
holder of the right to self-​determination, unable to answer, ‘Why should I be a
minority in your country, when you can be a minority in mine?’; as the author
of a socially emancipatory constitution whose constituent power quickly be-
comes mercurial without the constituent power of a charismatic leader; as the
electorate which vehemently rejects the financial ultimatum of supranational
financial institutions, only to impassively watch as its hopes are crushed by
those who have cynically incited it to demonstrate its sovereign ‘will’; as a de-
luded member-​demos in the same supranational organization, which decided
to terminate its membership, only to experience a drastic change of heart two
days later; as the bearer of constituent power that deposed a corrupt oligarch
only to see the success of its revolution in the capital turn to civil war in the
13

Imaginative Theory • 13
countryside; or as an assembled mass that forced one ageing dictator to step
down only to end up being ruled by another, sprightlier one.
To look at the people as it appears in these scenes is to move beyond the
standard forms of theoretical inquiry, organized around ever-​recurring defin-
itional questions. To look at the people as it appears in those scenes, in other
words, is to perform a particularly scandalous ‘symbolic aggression against
reality’, not simply by doubting the magic that inheres in the ‘magical epithet
“popular” ’,39 but by asking the questions that will end up revealing—​and as
a result, inadvertently satirizing—​the ways in which the figure of a sovereign
people continues to be reproduced visually.
So instead of continuing to be preoccupied with age-​ old, perennial
questions—​‘Who is the people?’, ‘What is the meaning of its sovereignty?’,
‘How can it exercise its constituent power?’, ‘Did the meaning of its right to
self-​determination evolve over time?’, ‘What counts as a clear manifestation of
its will?’—​a less disciplined and more purposeful theoretical imagination calls
for confrontation with new questions: ‘What is the point of dignifying the in-
surrectionary potential of the figure of a sovereign people if it is increasingly
obvious that its potential exhausts itself in the theatrical simulations of popular
sovereignty?’, ‘What is it that we hope may yet happen if even those who invoke
the will of the people in those theatrical displays seem not to believe in its sov-
ereignty or its right to self-​determination?’, ‘Why continue to dignify the figure
of a sovereign people if it raises unrealistic or unfair expectations in the context
of democratic revolutions in multinational states, especially if its symbolical
efficacy in the context of social revolutions has long since dwindled in most of
the world?’, ‘Why continue excluding from the scene all those who, in typical
situations, effectively exercise constituent power, whether or not they end up
being governed by the constituted powers they helped to establish?’
The imagination capable of asking these questions is both constitutional
and constituent. What makes it constitutional is its gaze—​directed towards
the scenes in which peoples present themselves as the authors of constitu-
tions, the sources of ultimate constitutional authority, and as the subjects of
constitutional government; oriented towards the concept that presents itself
in a variety of figurations that hinge on manifold acts of zooming in, focusing,
oscillating, staging, scripting, recording, and dramatizing. By generating ‘narra-
tives’ of varying complexity, detectability, and scale, this imagination is a prac-
tice that is not only potentially practical in its effects, but also purposeful in its
intentions: polemical and problem-​solving at the same time. What makes this
purposeful constitutional imagination constituent is its potential: its marginal
capacity to affect, together with other imaginations, the social imaginary of
popular sovereignty, and indirectly, the morphology of the anticipatory con-
sciousness of those who mediate their struggles with the help of its vocabulary.

39
Pierre Bourdieu, ‘You Said “Popular”?’ in Alain Badiou, Pierre Bourdieu, Judith Butler, Georges Didi-​
Huberman, Sadri Khiari, and Jacques Rancière (eds), What Is a People? (Columbia University Press 2016) 33.
14

14 • A Different Beginning
However it is exercised, the image of constituent imagination as practice is
itself imagined.40 As a work of a theoretical imagination, its portrait in this book
cannot escape its ambivalent duality: consciously idiosyncratic, yet somehow
still convinced that it is not. In offering a record of the journey beyond the
people, this book must inevitably be seen as an unreliable indicator of its essen-
tial characteristics. If so, one might rightly wonder if—​irrespective of its am-
bition to be as exhaustive and comprehensive as possible—​this book ends up
portraying imagination as a far too earnest and public-​minded, while at the
same time insufficiently random, opportunistic, or compulsive activity . In fact,
it is quite possible that what determines its operation in practice—​in addition,
or even instead of a desire to contribute to the success of some struggle, or to
contribute to the resolution of a perennial problem—​are concerns that have
nothing to do with those that are most intimately linked with our attitudes
towards popular sovereignty: the imaginer’s worry about undermining the pro-
spect of healthy reputational returns on past intellectual investment (which
might be undermined if one were suddenly to start treating the imaginative
constants as the imaginative variables), or her ‘anxiety of influence’ that com-
pels her to imagine only that which seems to promise to distinguish her from
others. Indeed, as Dominick LaCapra has argued,
It is significant that an intention is often formulated retrospectively when the ut-
terance or text has been subjected to interpretation with which the author does
not agree. The first time around one may feel no need to make one’s intentions
altogether explicit or one may feel that this is impossible, perhaps because one is
writing or saying something whose multiple meanings would be excessively re-
duced in the articulation of explicit intentions.41
Therefore it may be misleading to refer to the account of constituent imagin-
ation that emerges in this book as its theory, or to refer to the engagements with
concrete theoretical imaginings as a meta-​theory of sovereign peoplehood.
Instead, speculative morphology would seem to be a more appropriate way to
describe the nature of both, especially given the suspicions they are likely to
arouse—​as too unwieldy to be analysable, too personal to be reliable, too allu-
sive to be respected, or too casuistic to be useful.
Though these suspicions rightly warn the reader to maintain a critical
stance—​especially towards the diagnoses, prognoses, proposals, and other asso-
ciated assumptions that accompany the portrait of constituent imagination in
this book—​they should not be taken too seriously if understood as the claims
about the impossibility of providing an interesting or useful account of theory
as the practice of imagination. Though this account may indeed involve mo-
ments of a ‘free play of possibilities in a state of un-​involvement’, it is eminently

40
Daniel Reisberg, David G Pearson, and Stephen M Kosslyn, ‘Intuitions and Introspections about
Imagery: The Role of Imagery Experience in Shaping an Investigator’s Theoretical Views’ (2003) 17 Appl
Cognit Psychol 147.
41
Dominick Lacapra, ‘Rethinking Intellectual History and Reading Texts’ (1980) 19[3] History and Theory
245, 255.
15

Purposeful Imagination • 15
controllable. Likewise, even if a concrete attempt to provide a morphology of
such imagination speculatively fails to do justice to the complex interplay of the
factors that shape its exercise—​from polemical motives, problem-​solving pro-
jects, visual choices, subterranean emotions, unsystematic diagnoses, to un-
founded prognostications, professional self-​images, half-​considered rhetorical
effects, and presumed conceptual anatomies—​it still does it more justice than
to describe it, misleadingly, as ‘adventures of thought in writing’.42
What follows in the rest of this chapter is an attempt to impose some order
on to these adventures, not with the aim of making those who would contem-
plate them less adventurous, but to encourage them to consider what might
be gained by thinking ofthemselves not only as adventurers, but also as land-
scape painters, choreographers, stage-​directors, screenwriters, videographers,
light technicians, radiologists, civil engineers, make-​up or, on occasion, con
artists. The imagination that allows them to act in those roles is indissociable
from the configuration of choices that exist across six overlapping and mutually
interacting registers: practical, visual, quasi-​narrative, affective, ambiental, concep-
tual. Their overview in the rest of the chapter will lay down the groundwork for
moving beyond the people in the chapters that follow.

5. Purposeful imagination
polemical, practical, productive
Every act of constituent imagination is an act of polemical imagination. How
could it be any different? If, as Schmitt suggested, ‘all political concepts, im-
ages, and terms have a polemical meaning’,43 to theorize them is to theorize
them polemically, for the purpose of ‘out-​witting or cajoling . . . one another’—​
whether ‘consciously or unconsciously’.44 As it sets out to move beyond the
figures, scenes, maps, and landscapes of sovereign peoplehood, this book is nei-
ther interested in defending Schmitt’s claim, nor does it aim to persuade the
reader to accept it as true. Instead, it moves forward in the hope that the reader
will be sufficiently intrigued by this intuitively plausible claim; sufficiently at
least, to consider experimenting with more imaginative and less disciplined
ways of exercising the choices that inhere in the six registers of her constituent
imagination.
Though outlining the task of this book relieves it of the impossible task of
proving the polemical character of all theoretical imaginations, it nonetheless
cannot escape confronting another uncomfortable question: Can polemical
imaginations be practiced polemically, publicly, and productively at the same
time? Put differently, is it possible to practise polemical imagination explicitly in
a way that wouldn’t make that endeavour presumptively self-​defeating? Given

42
Claude Lefort, Writing: The Political Test (David Ames Curtis tr, Duke University Press 2005) 245.
43
Carl Schmitt, The Concept of the Political (Georg Schwab tr, first published 1932, University of Chicago
Press 2007) 30.
44
Kenneth Burke, A Grammar of Motives (first published 1945, University of California Press 1969).
16

16 • A Different Beginning
that polemical imaginations are generally practised furtively, this question has
rarely had a chance to be confronted directly. A fitting place to do so is Leo
Strauss’s well-​known observation about the self-​defeating nature of Schmitt’s
claim about the inherently polemical character of all political concepts.
Despite bordering on the self-​evident, Strauss’s critical remark is devastating:
Schmitt’s definition ‘results in the unpolemical description of the political’45 that
‘in concreto violates this principle’.46 What generates the conceptual incoherence
in Schmitt’s claim, Strauss speculates, is Schmitt’s poetic vision of the world;
his contempt for ‘a world of amusement, a world without seriousness’. It is this
contempt for liberalism’s frivolity—​not an ontological insight about the order
of things—​that prefigures Schmitt’s concept of the political and his insistence
on the polemical character of all political concepts. ‘Schmitt’s basic thesis’, con-
cludes Strauss, ‘is entirely dependent upon the polemic against liberalism; it
is to be understood only qua polemical’.47 At this point, however, one might
rightly ask: Why did Strauss’s engagement with Schmitt not end right there?
What else is left to talk about once it becomes apparent that Schmitt’s claim
hinges on his vision of ‘a threat to the seriousness of human life’?48 What is to
be ‘learned’from Schmitt—​as Strauss eventually suggested—​if Schmitt’s entire
argument boils down to what is either his authentic spiritual, poetic, tempera-
mental contempt for a world of entertainment; or his opportunistic attempt to
craft a theory, which—​as I will suggest later—​may also plausibly be read as part
of his ongoing attempt to find the most effective means of undermining the
Versailles peace settlement, from his perspective of a scholar of constitutional
and international law? Why did Strauss continue the conversation?
If Heinrich Meier is correct, the answer to the question is simple. The reason
Strauss proved willing to downplay the polemical failure of Schmitt’s polemical
imagination of polemical concepts—​the failure manifest in the fact that his at-
tribution of ontological status to the ‘friend–​enemy grouping’ ends up violating
his own definition of all political concepts as ‘polemical’, ‘in concreto’—​is that
he sympathized with Schmitt’s vision of the world.49 As Meier argued, ‘Leo
Strauss knows himself to be in agreement with Carl Schmitt in disapproving
of a world-​state’, ‘in holding in low esteem a world of mere entertainment
and the mere capacity to be interesting’;50 they ‘in fact agree in their political
critique of a common opponent’.51 If Meier is right, we must rephrase our ini-
tial question: Can polemical imagination be practised publicly and productively
before an unsympathetic audience? In order to answer affirmatively, however, we
must imagine the protagonist differently: neither as a purposeless exhibitionist,
a self-​unaware idiot, nor simply—​as Schmitt famously put it, in response to the
American officer who interrogated him in his brief post-​war captivity—​an ‘in-
tellectual adventurer’.

45
Schmitt (n 43) 109. 46
ibid 122. 47
ibid 100. 48
ibid 117.
49
Heinrich Meier, Carl Schmitt and Leo Strauss: The Hidden Dialogue; Including Strauss’s Notes on Schmitt’s
Concept of the Political and Three Letters from Strauss to Schmitt (University of Chicago Press 1995) 41.
50
ibid. 51
ibid 43.
17

Purposeful Imagination • 17
Instead, we must envision the theorist-​adventurer more precisely—​as a
gambler-​conjuror, someone willing to place three bets. The first concerns the
cognitive capacity of the audience that does not share his polemical intent. The
wager here is simple, as the gambler-​conjuror prognosticates that it will be fu-
tile to try to con-​vince that audience in one of the usual ways (eg by making his
normative argument hinge on a problematic factual assumption, by portraying
it as ‘ontological’ in order to protect its intended generality from challenge, or
by concealing the fact that an allegedly inevitable ‘paradox’ in his argument
emerges as the result of evitable choices made in other registers of constituent
imagination). While our gambler-​conjuror trusts that presumptively unsym-
pathetic audiences will be intelligent enough to unmask, deconstruct, and dis-
miss his polemical tricks quickly, he must also assume—​and this is his second
wager—​that more sympathetic audiences will not profit from the arguments
that otherwise rely on them. Finally, in assuming that an explicitly polemical
practice of constituent imagination is a necessary condition of finding new
institutional and rhetorical templates beyond the people, he invests his hope
in the possibility that some of these templates may end up proving attractive
enough even to initially unsympathetic audiences, despite their full awareness
of the polemical motivation behind them. That is the third and the most im-
portant wager he will need to make.
In placing these bets, the gambler-​conjuror acts as a partisan of some
political cause—​a remote participant in a struggle for something better. The
practical imagination he practises, however, is not only polemical. It is also
and always problem-​solving.52 These two registers of practical imagination
are inextricably interwoven: no problem-​solving proposal can exist without an
evaluation of the ideals, principles, and objectives worth fighting for, just as no
polemical contribution could ever exist without the identification of problems
that call for a solution. Though rarely addressed theoretically, the legitimacy of
exercising theoretical imaginations in either of these registers will often be prob-
lematized politically: someone’s struggle for something may always be reframed
as a conflict over something, or as the problem of something, and, then—​in a
fresh round of polemical reframing—​as the problem of someone else.53
One polemical benefit of being aware of the essentially Janus-​faced character
of practical imagination—​always both polemical and problem-​solving—​is an
increased chance to develop an attitude of polemical unimpressionability—​a
particular kind of scepticism less interested in declaring the epistemic impos-
sibility of meaningful deliberation about solutions to global problems and
challenges, and more determined to remain attentive to the polemical valence
of those who identify them. As David Kennedy argued, ‘identifying a global
52
See Raymond Geuss for an argument about problem-​solving as one of the most important tasks of polit-
ical philosophy (and ceteris paribus, any theory of peoplehood). Raymond Geuss, Philosophy and Real Politics
(Princeton University Press 2008) 42.
53
For example, ‘terrorism’, in the claim ‘terrorism is a nuclear bomb of the weak,’ has undergone a twofold
reframing: from a global problem that calls for a practical solution to a weapon in a local struggle, which a theorist
may or may not relativize for polemical purposes.
18

18 • A Different Beginning
problem is rulership,’ as it ‘distributes authority and legitimacy among actors
and sets priorities for action, distinguishing what must be accepted from what
must be addressed’.54 Staying polemically unimpressionable when confronted
with strategically crafted identifications of problems, challenges, and solutions
proffered by powerful international actors may diminish the gullibility of epi-
stemically disadvantaged local partisans.
While stimulating the attitude of polemical unimpressionability the Janus-​
faced image of practical imagination also discourages that attitude’s patholo-
gies, naively arrogant beliefs of having one’s opponent ‘all figured out’. What
it encourages is something else: finding new ways of nudging our opponents
to reconsider the objectives and methods of their struggles anew. What this
might mean becomes more apparent once we further complicate Strauss’s
diagnosis of Schmitt’s polemical failure. While Strauss suggested that Schmitt
imagined ‘the political’ as a conceptual remedy to what he saw as a global spir-
itual problem—​not the problem in the world, but the problem with the world as
Schmitt saw it—​it is also possible that the ontological pretensions of Schmitt’s
arguments were also the polemical reverberations of his prior attempts to con-
tribute to the success of the political struggle that he cared about theoretically.
That struggle, as I will suggest later in the book, was the defeat of the Versailles
peace settlement—​the product of what Schmitt considered to be the brazen
hypocrisy of the United States and other victorious allied powers that prevailed
in the First World War.
Staying attentive to the ways in which polemical and problem-​solving im-
aginations interact to produce polemical and problem-​solving concepts sets the
stage for an alternative style of polemical confrontation. Unlike styles of po-
lemical confrontation that aim to refute the arguments of one’s opponent, the
aim of the alternative is to provoke the antagonist to think harder about what
she considers to be a problem and what she considers to be worth fighting for.
In Schmitt’s case, this would mean confronting him not with his argumentative
failure in concreto, but with non-​judgemental, non-​theoretical questions specif-
ically designed to provoke him to abandon the pose of a rigorous scholar qua
intellectual adventurer and reconsider the relationship between his political re-
sentments, his poetic vision of the world, and the manner in which he exercised
his practical imagination.
The fact that the productivity of such attempts will always be contestable
is no reason to keep them beyond the reach of theoretical imagination. What
keeps them unimaginable are what Pierre Schlag calls ‘unmentionables’: the as-
sumptions, visions, hopes, and anxieties that prefigure what can be said, asked,
contested, or denounced in the context of a particular theoretical discourse.55

54
David Kennedy, A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy (Princeton
University Press 2014) 98.
55
Pierre Schlag, Laying Down the Law: Mysticism, Fetishism, and the American Legal Mind (New York University
Press 1996) 87–​88.
19

Visual Imagination • 19
Leaving those unmentionables unmentioned has two noxious effects. On the
one hand, it allows disciplinarily disciplined constitutional imaginations to es-
cape reckoning with the extent of their capacity to accommodate imaginative
deviations, which may be greater than they are otherwise willing to admit. On
the other hand, it encourages them not to question what many of them seem
to take quietly for granted: that the productivity of practical imagination vitally
depends on conformity with an undeclared but effective ultimatum: Choose!
While you may radically re-​envision the figures that define the morphology of
a wider social imaginary as well as propose an exhaustive normative prescrip-
tion (or a new institutional proposal) in response to a concrete problem—​you
cannot do both simultaneously and productively.

6. Visual imagination
figures, stages, gazes
A practical imagination of peoplehood produces rhetorical weapons and tem-
plates for conflict-​resolution. A visual imagination of peoplehood produces
pictures. Those pictures exist at different levels of abstractness, from more ab-
stract ‘image schemata’ to what Mark Johnson refers to as ‘rich images’:56 jigsaw
puzzles, ancient cities, seraglios, enchanted castles, labyrinths and monsters,
swarms, motors, boats, filters, flows, irrigation networks, hearts, and imperial
machines. Most often, the practitioners of theoretical imaginations of people-
hood do not advertise the pictures they have produced, which makes it difficult,
in turn, to determine whether they intended them to be ornamental or struc-
turally indispensable, or to evoke some ‘deeper wisdom’ that can only be con-
veyed through ‘visual images’.57
For the most part, such imagination is figurative. Its products are not simply
images, but the images of figures. But what is a figure? In simplest terms, a figure
is the part of the picture which we identify as being set against a background.
More specifically, a figure is the part of the picture we think of as somehow
‘detachable’, against a background that has ‘no form, nature or substance’, and
that is generally understood as ‘loose, empty, filmy, less articulated, more uni-
form’, or ‘unaffected by figure contour’.58 However, detachability is a highly
problematic criterion especially when a picture allows us to see figures as back-
grounds, or different figures or different backgrounds within the same picture.
Figures and backgrounds are ‘the names for sites of attention and inattention’.59
On this understanding, a figure is the part of the image that holds our atten-
tion long enough to become a privileged module of expectation-​management,
which if committed to memory, may be used elsewhere, with or without its

56
Johnson (n 32) 24.
57
Friedrich Nietzsche, cited from Walter Benjamin, The Origin of German Tragic Drama ( John Osborne tr,
Verso 1977) 108.
58
James Elkins, On Pictures and the Words That Fail Them (CUP, reissued 2011). 59
ibid.
20

20 • A Different Beginning
original ‘background’. This rudimentary figure of figure will be further refined
in the chapters that follow.
At this point we must confront a more pressing question: How do theorists exer-
cise their figurative imagination? Though theorists habitually generate new figures
and regenerate existing ones they mostly ignore this question. Schmitt’s enigmatic
remarks from Political Theology II offer a rare set of clues as to how that question
might be answered. Therein he points to the phenomenon of ‘continuous and recip-
rocal’ ‘meta-​ana-​katamorphosis’, which on the basis of the material available in an
‘immensely polymorphous realm’—​comprised of ‘naïve projections’, ‘numinous
fantasies’, ‘reflective reductions’, and various ‘socio, bio-​, or technomorphic’
analogies—​may result in a variety of new figurations. In this realm,
The king [may] appear as God, and God as a king [and where] God can also
be imagined as the world’s electric motor, and the electric motor as a kind of
machine that moves the world . . . as if through a kind of space-​shuttle [where]
all of this can be expressed in polymorphic metaphors . . . [so that] the huge
Leviathan, Thomas Hobbes’ state [appears] tetramorphic: as well as being the
great but mortal god, he is a huge animal, and, furthermore, a large man and a
big machine.60
Though Schmitt doesn’t explicitly counsel against attempts to exercise fig-
urative imagination deliberately and purposefully, he does make sure to
emphasize that meta-​ana-​katamorphosis—​perhaps best translated as complex-​
distort-​simplification—​occurs in a highly unpredictable environment. Since it
occurs in a ‘hall of mirrors’ it would be ‘pretentious’ to expect that it might
end up producing anything but perverse consequences, especially if oriented
towards the production of secular, and not the reproduction of ‘secularized
theological’ political figures. From the way Schmitt describes them, the fig-
ures that emerge from the hall of mirrors are best understood as formations—​
created by no individual person in particular. It is society itself—​as Claude
Lefort might have interjected at this point—​that in an attempt to ‘arrive at
a quasi-​representation of itself ’, uses these polymorphs to give itself a shape
(mise en forme) as it puts itself on the scene (mise en scène). Doing so, according
to Lefort, is the only way in which society will ever be able to make sense (mise
en sens) to others and to itself.61
This of course is a metaphor—​the product of Lefort’s vivid constituent im-
agination. Even if the hall of mirrors prevents us from attributing the outcomes
of meta-​ana-​katamorphosis to anyone in particular, and even if mise en scène is
an act of a ‘creative collective imagination’,62 it is still concrete individuals who
take part in society’s formation by exercising their imaginative powers in a cer-
tain way. The image of a society staging itself is itself an act of staging. In this
case, it is performed by Lefort, just as the promenade of polymorphic figures

60
Carl Schmitt, Political Theology II: The Myth of the Closure of any Political Theology (Michael Hoetzl and
Graham Ward tr, first published 1970, Polity 2008) 57.
61
Claude Lefort, Democracy and Political Theory (Polity 1988) 219. 62
Ezrahi (n 11) 38.
21

Visual Imagination • 21
seen from a ‘space-​shuttle’ is an act of meta-​ana-​katamorphosis performed by
Schmitt. Rather than mere figures, set against some background, Schmitt’s fig-
urative ‘polymorphs’ are exhibits intended to demonstrate a broader point he
wanted us to appreciate. They are not simply put on a stage—​they are staged
against a background capable of serving as a stage.
Moreover, what makes the promenade of Schmitt’s figurative sovereigns vis-
ible is not a particular combination of intrinsically evocative assemblages of
elementary ‘socio-​, bio-​, and technomorphs’, but the fact that we gaze at them
in a particular way: ‘as if through a kind of space-​shuttle’.63
Though simple and obvious, this point should not be forgotten: to produce
figures of sovereign peoplehood, staging must be the outcome of a sequence
of more elementary visual choices, which together constitute an underlying
‘scopic regime’.64 To appreciate their importance, we need not go further than
one of the most influential images in the prehistory of the social imaginary of
popular sovereignty—​the frontispiece of Hobbes’s Leviathan. Seen from a dis-
tance, the features of Leviathan’s face are not particularly evocative. On closer
inspection, they reveal the likeness of Charles II. After having adjusted the
angle of our zoom and sharpened our focus, Leviathan’s body appears not as
a uniform mass, but as a densely packed multitude of individual subjects, most
of which devoutly gaze towards the head of the body. Designed deliberately
to achieve an ‘impossible task’ of evoking two attitudes at the same time—​
‘rational obedience, by those who understand the logic of their situation’ as
well as ‘passionate obedience . . . by those who are in “awe” or “terror” of the
sovereign’s power’65—the frontispiece of Leviathan reveals what Lefort’s alle-
gory of societal self-staging hides: the mise en scène is the work of individual
stage-setters, costume designers, choreographers, light technicians, make-up
artists, and playwrights. They are the ones who make it possible to imagine
a society anthropomorphically, as an agent that strives to ‘arrive at a quasi-
representation of itself ’.
Sometimes this quasi-​representation results in a scene in which nothing hap-
pens, as is the case with Hobbes Leviathan. Composed out of manifold tiny indi-
viduals, Leviathan just stands there, behind the hill, holding sceptre and sword,
and looking out over the town at its feet. Though the frontispiece is recogniz-
ably emblematic of a need to establish sovereign power, the scene still tells us
little about how that sovereign power came about. For that, we need to turn our
gaze towards scenes where something happens, in which ‘Leviathan’ exists not

63
Schmitt (n 60) 53.
64
My use of the term ‘scopic regime’ is inspired by Martin Jay’s ‘Scopic Regimes of Modernity’ in Hal Foster
(ed), Vision and Visuality (Bay 1988). For Jay’s objections about the use of the term in contemporary human-
ities and social sciences, see Martin Jay, Essays from the Edge: Parerga and Paralipomena (University of Virginia
Press 2011).
65
Noel Malcolm, ‘The Titlepage of Leviathan, Seen in a Curious Perspective’ (1998) 13[2] The Seventeenth
Century 124, 143–​45. For the discussion of Hobbes’s active participation in the design of Leviathan’s fron-
tispiece, see Horst Bredekamp, ‘Thomas Hobbes’ Visual Strategies’ in Patricia Springborg (ed), Cambridge
Companion to Hobbes’s Leviathan (CUP 2007) 29.
2

22 • A Different Beginning
as an immovable illustration of a broader point, but rather as the work of the
actors who are put on the stage, and are visualized in a way that allows them to
be seen as participants in the act of institution that gives birth to the figure of a
sovereign.66 Having emerged from a distinct way of seeing, the images of such
acts are not just works of visual imagination, but chronological arrangements
that are emplotted in a rudimentary, narrative-​like sequence. The meta-​ana-​
katamorphosis that produces them is not simply an act of staging, but also an
act of dramatization—​the site where the visual meets the narrative register of
constituent imagination.

7. Quasi-​narrative imagination
crypto and proto
What kind of narrative imagination is constituent imagination? The answer
depends on what is meant by ‘narrative’. If Andrew Abbott is right, those
who create narratives often focus on ‘three things at once; following stories,
investigating cultural symbols, and attending closely to language’.67 In the dis-
ciplines focused on the figure of a sovereign people, or on some aspect of its
vocabulary, narrative is mostly left undefined. Explicitly or implicitly, theor-
ists equate narratives with stories of constitutional development,68 of ‘people-
hood’ in general,69 or of ‘We the people’ in particular.70 Such stories are told at
different levels of complexity: as relatively simple ‘accounts of an imaginary
past’,71 as more elaborate narratives about the ‘struggle[s]‌to achieve unity’
that ‘[provide] coherence and integrity to the constitutional project’,72 or as
‘descriptive-​explanatory’ theoretical accounts which from another level at-
tempt to provide a compelling story of the ‘dominant constitutional narra-
tives’ on the ground.73 In each case, story-​like narratives ‘recount happenings’
in a way that endows them with a ‘a point’, ‘import’, and ‘results’.74 While not
all who are attuned to the importance of narrative understand it in a story-​
like fashion, even those who hold a more ecumenical vision of narrative—​as
a ‘[code] that [relates] our normative system to our social constructions of
reality and to our visions of what the world might be’—​cannot resist collapsing

66
Burke (n 44).
67
Andrew Abbott, ‘Against Narrative: A Preface to Lyrical Sociology’ (2007) 25[1] Sociological Theory 67.
68
Lawrence B Solum, ‘Narrative, Normativity, and Causation’ (2010) Mich St L Rev 597.
69
Rogers Smith, Stories of Peoplehood: The Politics and Morals of Political Membership (CUP 2003).
70
Gerald Torres and Lani Guinier, ‘The Constitutional Imaginary: Just Stories about We the People’ (2011)
71 Md L Rev 1052.
71
Loughlin (n 10) 9.
72
Gary Jeffrey Jacobsohn, Constitutional Identity (Harvard University Press 2010) 90.
73
Neil Walker, ‘Constitutional Pluralism Revisited’ (2016) 22[3] European Law Journal 333, 339.
74
Peter Brooks, ‘Narrative Transactions: Does the Law Need a Narratology?’ (2006) 18 Yale JL & the
Humanities 1, 24.
23

Quasi-Narrative Imagination • 23
it into a ‘literary genre for the objectification of value’, such as ‘history, fiction,
tragedy, [or] comedy’.75
The problem with a pervasively story-​centric understanding of narrative is
that it offers a distorted and partial—​and hence misleading—​understanding
of the kind of imagination that is involved in the production of narrative-​like
structures. On the one hand, a story-​centric vision of narrative fails to alert us
to the intrinsically non-​narrative character of imagining—​and, as a result, to the
intrinsic difficulty of practising narrative imagination. In contrast with fantasy,
whose ‘most stirring feature’ is its narrativizing ‘tendency to tell a story’, the
products of imagination are extremely fleeting. According to Edward Casey76
The entire fantasy sequence settle[s] into a fairly circumscribed pattern . . . [but]
[n]‌o such ‘circumscribed pattern’ characterizes imaginative experiences, [which
makes it] very difficult to superimpose a narrative form on what we imagine. For
such a form to ‘take,’ a certain continuity in content and manner of presentation
is required. In the absence of such continuity, isolated episodes may appear, but
they will not fit together to constitute anything like a story. 77
On the other hand, the story-​centric vision of narrative also desensitizes us to
the importance of these ‘isolated episodes’—​which together with other, more
primitive quasi-​narrative devices—​define the way in which we engage in the
work of imaginative ‘meta-​ana-​katamorphosis’. Though Paul Ricœur was right
to claim that ‘ancient tragedy, modern drama, novels, fables, or legends’ supply
requisite material for the narrative emplotment of the acts of political founda-
tion, social revolution, national liberation, and other ‘moments’ of constitutional
transformation. It is these, more rudimentary crypto-​, proto-​, and meta-​narra-
tive–​like structures that allow them to remain encoded in theoretical texts in the
way that they are.78 Because of their character, it is more fitting to speak not of
narrative, but rather of quasi-​narrative imagination.79 In the toolkit of plotting
devices, the ones in the following list are the most important:

75
Robert Cover, ‘The Supreme Court 1982 Term. Foreword: Nomos and Narrative’ (1983) 97 Harv L Rev 4, 10.
76
Edward Casey, ‘Imagination, Fantasy, Hallucination, and Memory’ in James Phillips and James Morley
(eds), Imagination and Its Pathologies (MIT 2003) 80. For more on the differences between narrative imagin-
ation and the kind of imagining involved in ‘presuming’ and ‘supposing’ see Gregory Currie, ‘A Claim on the
Reader’ in Ilona Roth (ed), Imaginative Minds (OUP 2007) 169. But cf. Mark Turner, The Literary Mind (OUP
1996) for an account of ‘narrative imagining’, as well as Hayden White, The Content of the Form: Narrative
Discourse and Historical Representation (The Johns Hopkins University Press 1987) 157. (‘Among the various
form-​g iving devices available to the imagination . . . narrative enjoys a privileged position. It is privileged
because it permits the representation of both synchrony and diachrony, of structural continuities and of
processes by which those continuities are dissolved and reconstituted in the kind of meaning production met
with in such forms of narrative as the novel. Narrative not only presents but justifies, by virtue of its univer-
sality, a dream of how ideal community might be achieved.’)
77
Casey (n 76) 81.    78
Paul Ricœur, Time and Narrative, vol 1 (University of Chicago Press 1984) ix.
79
This is not meant to suggest that constitutional discourse doesn’t include story-​like narratives. See Maurice
Charland, ‘Constitutive Rhetoric: The Case of the Peuple Québécois’ (1987) 73[2] Quarterly Journal of Speech 133.
24

24 • A Different Beginning
Among the six devices, anecdotes are the most story-​like. They are intended to
evoke a desirable way of founding a polity, or a superior way of constituting a
new political order. These mini-​stories seem to be a thing of the past, yet, as we
will discover soon enough, they are a feature of the present. Although contem-
porary theorists do not stage the scenes of the social contract in the same ways
that Hobbes, Locke, and Rousseau did, they continue to do the work of staging
nonetheless. Whatever contemporary theorists end up evoking theoretically
may always be seen as a scene—​a rudimentary, partial, or hidden anecdote.
In this book, such scenes are the occasions to exercise theoretical imagination
differently: explicitly, systematically, and without trying to conceal or downplay
the constituent power of the ‘aesthetic prefiguration’, present behind, or under-
neath, all acts of ‘evaluative prescription’.80
Treating those anecdotes as one of the six devices of semantic innovation
and not necessarily as part of an overarching story-​like theoretical narrative will
allow us to ask the following five, otherwise theoretically unmentionable ques-
tions: What was (actually) done? (What is the character of the act?) When or
where was it done? (What are the features of the scenic environment in which
the act occurred?) Who did it? (Who are the agents who brought it about?)
How did they do it? And for what purpose? Once approached diagnostically,
anecdotes will reveal themselves not simply as the mini-​records of dramatic
acts of foundation, institution, or self-​constitution, but rather as the concrete
instantiations of proto-​plots—​deeper quasi-​narrative templates without which
the acts would not make sense. While some theorists speak of these acts as
transformational events, or constitutional moments, this does not capture what
makes them precious from the perspective of the social imaginary of popular
sovereignty, and interesting from the perspective of theoretical imagination. As
I will argue later in the book, in order to make sense—​for those who find them
sensible, that is—​these acts must quietly, if rudimentarily, be emplotted in a
master-​narrative turn: before-​trajectory—​turning point—​after-​trajectory.81
In the works of contemporary theorists of constituent power this quasi-​
narrative template would not often be narrativized any further. Historically,
however, the legitimacy and sensibility of a specific turn—​the name for a de-
vice that sutures a turning point with the before-​ and after-​trajectories—​has
often depended on the implicit or explicit schematic narration of the events
that either established their number, character, and relevance as part of the
before-​trajectory, or established their spatiotemporal relationship during the
turn itself.82 Two narrative devices are particularly important: the first, which
tacitly seeks to assure us that what started off looking like a turning point won’t
turn for the worse; and the second, which more or less explicitly offers the cri-
teria for identifying the moment at which the before-​bad trajectory becomes

80
Pierre Schlag, ‘Prefiguration and Evaluation’ (1992) 80[4] Calif L Rev 965, 970.
81
Andrew Abbott, Time Matters: On Theory and Method (University of Chicago Press 2001) 25.
82
Cf Jack M Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press
2011) 4.
25

Quasi-Narrative Imagination • 25
legitimately unbearable, so that every turning point—​if it were to occur after
that point—​gives birth to a trajectory, which may presumptively be con-
sidered after-​better. Here, the criteria in question do not offer a yardstick for
identifying the moment itself—​after which it would become legitimate to at-
tempt to effect a turning point—​but a quasi-​narrative template of abominable
escalation, which when inscribed in a text must take the form of a litany, a list
of grievances, often found in the declaration of independence of new states, or
in the preambles of new constitutions adopted after major political crises.
Litanies are best understood as the quasi-​narrative forms whereby quantity
turns into quality, where individually irrelevant episodes acquire the status of
indicia, which–​–​when woven into the list of escalating grievances–​–​transform
themselves into conclusive evidence of the character of a constituent turn as
understandably inevitable. Likewise, in providing these individual incidents with
a rudimentary narrative template, litanies also legitimize the attitudes of a
projected constitutional ‘self ’, which–​–​having been confronted with the re-
proachable behaviour of its other–​–​acted admirably: patiently, reasonably, and
constructively. In order to work as intended, however, such litanies must never
evoke anything that would violate the implicit script: ups and downs; moments
where the other appears in a better light; unattributable contingencies; or sus-
penseful mysteries. Neither are such litanies intended to be read as stories. Due
to their impoverished causality, any attempt to do so would sound like the al-
most plot-​free narrations of small children: mostly devoid of ‘because’, and al-
most exclusively reliant on ‘and then . . . and then . . . and then . . . and then . . .’.
Whatever their content, no anecdote, turn, script, or list can ever exist
without relying on some underlying image schemata, which ‘play a crucial role
in our ability to comprehend anything meaningfully’—​including narratives.
As ‘small spatial stories’,83 which are ‘semantically very rudimentary’, image
schemata ‘operate at one level of generality and abstraction above concrete,
rich images’. As the vehicles of imagination, they perform two roles: (1) they
render a particular anecdote, proto-​plot, script, or list intelligible; and (2) they
render some of them more, and some of them less, conceivable. To operate
on the basis of the image schema path, for example, is to be able to imagine,
at a higher level of abstractness, popular self-​government as a journey and, at
a lower level of abstractness, the same journey as the one in which the people
acts like Ulysses, who, in order not to be killed by the sirens, orders his crew to
tie him to the mast of the ship. To substitute the image schema path with the
image schema scale, however, would make this powerful allegory of liberal-​
democratic constitutionalism not simply less credible, but inconceivable. To op-
erate on the basis of the scale schema is to encounter a situation, which, due to
the nature of our schematized spatiotemporal expectations, calls for measuring,
not travelling. It is to be confronted, to put it differently, with a scenic environ-
ment that is constitutively incapable of evoking more complex allegorical im-
ages of progressively unfolding collective self-​government. Instead, what were

83
Turner (n 76) 15.
26

26 • A Different Beginning
once progressive unfoldings, developments, and evolutions, would in a new
scene appear as oscillations between more and less, faster and slower, bigger
and smaller, and sooner or later.
While image schemata may be chosen deliberately, most often they come en-
coded in the anecdotes that theorists inherit within texts, which are considered
canonical in their respective disciplines. What they also inherit with those texts are
the scopic regimes that make image schemata imaginable. Through a telescope, as
Pierre Rossanvallon remarked, the body of the people will appear as a distant, uni-
form planet, but through a microscope that same body would reveal the morph-
ology of its cross-​sections, and a ‘series of paths’ running through it.84 Likewise, it
is only on the basis of a particular gaze–​–t​ he one relying neither on telescopes nor
on microscopes–​–​that we may envision the people as Ulysses, the imaginary sub-
ject of constitutional pre-​commitment. Paying attention to the way in which me-
diums of visual imagination—​be they theatrical stages, canvases, jigsaw puzzles,
stained glass, translucent holograms, or the screens of CAT scanners—​interact
with the devices of quasi-​narrative imagination, will also allow us to detect the
final quasi-​narrative on our list. Dwelling in the twilight zone between the nomos
and the narrative, this ‘imagined instant of unified meaning’, as Robert Cover called
it, mostly passes unnoticed. To be alert to the quasi-​narrative character of con-
stituent imagination is to recognize its importance, as the most primitive if-​then
storyline: ‘a legal DNA, a genetic code by which the imagined integration is the
template for a thousand real integrations of corpus, discourse, and commitment’,85
which is at work whenever we speak of constituent power, self-​determination, or
constitutional self-​government—​an algorithm.

8. Affective Imagination
affected and affecting
To see ‘legal DNA’ at work, one must confront a scene ‘in which the nomos
is transparent’—​a scene of ‘exoteric universalizability’, in which constitution-​
making appears not as mystery but as ‘theophany’.86 To be able to see it, our
gaze must remain transfixed on its object, and not recoil from what is being
seen: quasi-narrative imagination is visual imagination, which, just as every
other aspect of constituent imagination, cannot escape the sway of its affective
register.87 Those who today practise it professionally as the conjuror-​theorists
of peoplehood follow in the footsteps of ancient homines magi, helping transmit,
with their conjurations what was once a ‘new and strange art: the art of ex-
pressing’ and ‘organizing, his most deeply rooted instincts, his hopes and
fears’.88 As the practitioners of a quasi-​narrative, they are also, at the same time,

84
See Pierre Rosanvallon, Democratic Legitimacy: Impartiality, Reflexivity, Proximity (Princeton University Press
2009) 7.
85
Cover (n 75). 86
ibid.
87
For the ‘affective logic’ of imagination see Kathleen Lennon, Imagination and the Imaginary (Routledge 2015).
88
Ernest Cassirer, The Myth of the State (Yale University Press 1949) 47.
27

Affective Imagination • 27
the practitioners and the captives of an affective imagination. Like practical
imagination—​which is both polemical and problem-​solving—​affective imagin-
ation is Janus-​faced: both affected and affecting, influenced by the emotions that
accompany the expectations of theorists and partisans, and, at least in principle,
capable of influencing them in turn.89
But what does it mean more specifically? Or, as Richard Sherwin put it, ‘what
state of being, what mood, affect, beliefs, memories, and values [do such im-
ages] invoke, and how? How do we think and feel through image[s]‌?’90 While
the answers to these questions may be given with a greater or lesser degree of
nuance and analytical precision, the purposes of this book will be sufficiently
served by two distinctions. The first concerns the temporal orientation of emo-
tional states provoked by the imaginations of sovereign peoplehood. Here, we
distinguish between the reminiscent or the backward-​looking emotions (such
as resentment, regret, and shame), and the expectant, or the forward-​looking
emotions (such as hope, desire, and anxiety). The second distinction concerns
the imaginative character of these emotions.
Here, following Kendall Walton, we may also distinguish between two types
of recollective and expectant emotions—​both of which may be fictional and
actual. The former are roused in an audience which is ‘participating psycho-
logically’ in what Walton called the ‘game of make-​believe’.91 Given that the
entire universe of sovereign peoplehood is the world of make-​believe, fictional
emotions are best understood as those that are provoked among participants de-
liberately. Though fictional, the emotions they will feel are nonetheless real—​in
the context of the game. For example, when one feels scandalized by the fact
that the results of a sovereignty referendum have not been verified by the parlia-
ment in accordance with the constitution, one is not simply imagining that one
is being scandalized, one imagines being scandalized, ‘and imagines this from
the inside’.92 ‘Imagining in this manner is prescribed’, as Walton argues, ‘given
the nature of his game and his actual experience.’93 On the other hand, actual
emotions are provoked in those who have become carried away, and have for-
gotten that they are participating in a game of make-​believe. Instead of being
scandalized (fictionally) by violations of the rules of the game, which demand
that one shows requisite piety towards the idea of constitutional supremacy,

89
For affective imagination in legal theory, see Maksymilian Del Mar, ‘Legal Understanding and the Affective
Imagination’ in Paul Maharg and Caroline Maughan (eds), Affect and Legal Education: Emotion in Learning
and Teaching the Law (Ashgate 2011) and Maksymilian Del Mar, ‘Thinking in Images in Legal Theory’ in
Maksymilian Del Mar and Claudio Michelon (eds), The Anxiety of the Jurist: Legality, Exchange and Judgment
(Ashgate 2013).
90
Richard K Sherwin, Visualizing Law in the Age of the Digital Baroque: Arabesques & Entanglements (Routledge
2011) 174.
91
Kendall L Walton, Mimesis as Make-​Believe: On the Foundations of the Representational Arts (Harvard
University Press 1990). For the application of Walton’s framework to constitutional theory, see Olaf Tans,
‘Imagined Constitutionality: Rethinking Democratic Citizenship with the Aid of Fiction Theory’ (2015) Law,
Culture and the Humanities 1.
92
Walton (n 91) 247. 93
ibid.
28

28 • A Different Beginning
one might instead feel genuine hatred towards those who dared to violate the
will of a living sovereign people. Though their chances are better when it comes
to provoking the first kind of emotion, theorists of peoplehood also generate
a variety of conjurations that fortify extant visions of a sovereign people, and
which likely have a cumulative effect on the emotions of those who invoke its
name on the ground. How they do so is in the eye of the theoretical beholder.
Consider, again, Hobbes’s Leviathan. According to Schmitt, Leviathan is a
figure of anxiety-​management, intended to quell the fears of ‘anguished indi-
viduals’ at the moment their anxieties about life in the state of nature ‘rise to
an extreme’.94 For Mark Reinhart, however, the figure of Leviathan was not in-
tended to diminish the anxiety of the governed, but rather to amplify these anx-
ieties in such a way that it would provoke in them ‘passionate obedience’ to an
existing sovereign.95 In contrast to both Schmitt’s and Reinhart’s Leviathan, the
Leviathan of Michel Foucault is a figure tasked with managing a different kind
of emotion, one that is not forward-​looking, expectant anxiety, but backward-​
looking, recollective resentment. The problem that Hobbes was ‘trying to
eliminate’, as Foucault put it, was not anarchy-​breeding religious fanaticism,
but rather a very different kind of social antagonism that had its roots in the
memory of a distant traumatic event—​the Norman conquest imagined as the
cause of the social dispossession of native Anglo-​Saxons.96 What Hobbes sought
to achieve—​if Foucault is right—​by implicating the generation of Leviathan in
two mutually incompatible anecdotes about the creation of sovereignty, was
not to stoke the imagination of diffuse but existential future threats, but rather
to offer a pacifying rationalization to deflate the intensity of social resentment
stoked by the imagining of an illegitimate Norman conquest.
Though it may be tempting to try to determine whose Leviathan—​Schmitt’s,
Foucault’s, or Reinhart’s—​offers the most accurate description of Hobbes’s af-
fecting imagination, the purpose of doing so will appear dubious once we focus
on the affected (ie impacted) side of affective imaginations. Approached in that
light, there are no illuminating answers to the questions: Was Schmitt’s descrip-
tion of ‘anguished’ individuals whose rising terror culminates in an image of a
powerful Leviathan the work of his own anxieties, which he then imputed to
others? Was Schmitt’s anxiety uniquely his own, or was it just the manifestation
of a more generic, pervasive ‘Cartesian’ anxiety, which—​as Richard Bernstein
famously argued—​‘lie[s]‌at the very center of our being in the world’,97 and
which leads us to compulsively search for ‘some fixed, permanent constraints
to which we can appeal and which are secure and stable’?98
94
Carl Schmitt, Leviathan in the State Theory of Thomas Hobbes: Meaning and Failure of Political Symbol (George
Schwab and Ema Hilfstein trs, first published 1938, Greenwood 1996) xx.
95
Mark Reinhardt, ‘Vision’s Unseen: On Sovereignty, Race, and the Optical Unconscious’ (2015) 18[4] Theory
& Event.
96
Michel Foucault, Society Must be Defended: Lectures at the Collège de France 1975–​76 (Picador 2003) 89–​112.
97
Richard Bernstein, Beyond Objectivism and Relativism: Science, Hermeneutics and Praxis (University of
Pennsylvania Press 1983) 19.
98
ibid.
Another random document with
no related content on Scribd:
Henry Hotspur, in whose behalfe this may be sayd as followeth.”]
[556]
 How Henry Percy Earle of
Northumberland, was for his couetous
and trayterous attempt put to death at
Yorke, Anno 1407.[557]
1.

O morall Senec, true finde I thy saying,

That neither kinne,[558] riches, strength, or fauour,
Are free from fortune, but are aye decaying:
No worldly welth is ought saue doubtfull labour,
Man’s life in earth is like vnto a tabour,
Which nowe to myrth doth mildly men prouoke
And straight to warre, with a more sturdy stroke.

2.

All this full true I Percy finde by proofe,

Which whilom was earle of Northumberland:
And therefore, Baldwine, for my pier’s[559] behoofe,
To note men’s falles sith thou hast tane in hand,
I would thou should my state well vnderstand:
For fewe kinges were more than I redouted,[560]
Whom double fortune lifted vp and louted.

3.

As for my kinne their noblenesse is knowen,

My valiaunt acts were[561] folly for to prayse,
Where through the Scots[562] so oft were ouerthrowen,
That who but I was doubted in my dayes:
And that king Richarde found at all assayes,
For neuer Scots[563] rebelled in his raigne,
But through my force were eyther caught or slayne.

4.

A brother I had was earle of Worcester,

Alwayes in office and fauour[564] with the king,
And by my wife dame Elinor Mortimer,
A sonne I had[565] which so the Scots[566] did sting,
That being yong, and but a very spring,
Henry Hotspur they gaue him vnto name,[567]
And though I say it, hee did deserue the same.

5.

Wee three triumphed in king Richard’s time,

Till fortune ought both him and vs a spite:
But chiefly mee, whome clerely from[568] any crime,
My king did banishe from his fauour quite,
Proclayming mee a trayterous knight:[569]
Where through false slaunder forced mee to bee,
That which before I did most deadly flee.

6.

Let men beware how they true folke defame,

Or threaten on them the blame of vices nought,
For infamy breedeth wrath, wreke followeth shame:
Eke open slannder often times hath brought
That to effect, that erst was neuer thought:
To bee misdeemed men suffer in a sort,
But none can beare the griefe of misreport.

7.
Because my king did shame mee wrongfully,
I hated him and in deede[570] became his foe:
And while hee did at warre in Ireland lye,
I did conspire to turne his weale to woe:
And through the duke of Yorke and other moe,
All royall power from him wee quickely tooke,
And gaue the same to Henry Bolenbroke.

8.

Neither did wee this onely[571] for this cause,

But to say truth, force draue vs to the same:
For hee despising God and all his lawes,
Slewe whome hee would, made sinne a very game:
And seeing neyther age[572] nor counsaile could him
tame,
Wee thought it well done for the kingdome’s sake,
To leaue his rule, that did all rule forsake.

9.

But when sir Henry had attaynde his place,

Hee strayght became in all poynts worse then hee,
Destroyed the peeres, and slewe king Richard’s grace,
Against his othe made to the lordes and mee:
And seeking quarels how to disagree,
Hee shamelesly required mee and my sonne,
To yeelde hym Scots[573] which wee in fielde had
wonne.

10.

My nephue also Edmund Mortimer,

The very heyre apparant to the crowne,
Whome Owen Glendour held as prisoner,
Vilely bound[574] in dungeon deepe cast downe,
Hee would not raunsome, but did felly frowne
 Against my brother and mee,[575] which[576] for him
spake,
And him proclaymed traytour for our sake.

11.

This foule despite did cause vs to conspire,

To put him downe as wee did Richard erst,
And that wee might this matter set on fire,
From Owen’s jaile, our coosin wee remerst,
And vnto Glendour all our griefes reherst,
Who made a bond with Mortimer and mee,
To priue the king and part the realme in three.

12.

But when king Henry heard of this deuise,

Toward[577] Owen Glendour hee sped him very quicke,
Mynding by force to stop hur[578] enterprise:
And as the deuill would, than fell I sicke,
Howbeit my brother, and sonne, more polliticke
Than prosperous, with an hoast from Scotland brought,
Encountred him at Shrewesbury, where they fought.

13.

The one was tane and kild, the other slayne,

And shortly after was Owen put to flight,
By meanes whereof I forced was to fayne,
That I knewe nothing of the former fight:
Fraude oft auayles more then doth sturdy might,
For by my faining I brought him in beliefe,
I knewe not that wherein my part was chiefe.

14.

And while the king thus tooke mee for his frend,
I sought all meane my former wrong to wreake,
Which that I might bring to the sooner end,
To the bishop of Yorke I did the matter breake,
And to th’earle marshall likewise did I speake,
Whose father was through Henrie’s cause exiled,
The bishop’s brother with trayterous death defiled.

15.

These strayt assented to doe what they could,

So did the lord Hastings and lord Fauconbridge:
Which altogether promised they would
Set all their power the king’s dayes to abridge:
But see the spite, before the byrdes were flydge
The king had word and seasoned[579] on the nest,
Whereby, alas, my freendes were all opprest.

16.

The bloudy tyrant brought them all to end

Excepted mee, which into Scotland scapt,[580]
To George of Dunbar th’earle of March, my frend,
Who in my cause all that hee could ey scrapt:
And when I had for greater succour gapt,[581]
Both at the Frenchmen and the Fleming’s hand,
And could get none, I tooke such as I fand.

17.

And with the helpe of George my very frend,

I did enuade Northumberland full bolde,
Whereas the folke drewe to mee still on end,[582]
Bent to death my party to vpholde:
Through helpe of these, full many a fort and holde,
The which the king right manfully had mand,
I easely wonne, and seised in my hand.

18.
Not so content (for vengeaunce draue mee on)
I entred Yorkeshire, there to wast and spoile:
But ere I had far in the countrye gone,
The shiriffe thereof, Rafe Rokesby did assoyle
My trobled hoast of much part of our toyle:
For hee assaulting freshly tooke through power,
Mee and lord Bardolph both, at Bramham More.

19.

And thence conueyed vs to the towne of Yorke,

Untill hee knewe what was the kinge’s entent:[583]
There loe lord Bardolph kinder than the storke,
Did lose his head, which was to London sent,
With whome for friendship mine in like case went,
This was my hap my fortune or my faute,
This life I led and thus I came to naught.

20.

Wherefore, good Baldwine, will the peeres take heede,

Of slaunder, malice, and conspiracy,
Of couetise, whence all the rest proceede,
For couetise ioynt with contumacy,
Doth cause all mischiefe in men’s hartes to breede:
And therefore this to esperance my word,
Who causeth bloudshed shall not escape[584] the
sword.[585]
 [By that this was ended, I had found out the story of Richard earle
of Cambridge: and because it contained matter in it, though not very
notable, yet for the better vnderstanding of the rest, I thought it
meete to touch it, and therefore saide as followeth: “You haue saide
well of the Percies and fauourably; for in deede, as it should
appeare, the chiefe cause of their conspiracy against king Henry,
was for Edmund Mortimer their cousin’s sake, whome the king very
maliciously proclaymed to haue yeelded him selfe to Owen
coulourably, when, as in deede, hee was taken forcibly against his
will and very cruelly ordered in prison. And seeing wee are in hand
with Mortimer’s matter, I will take vpon mee the person of Richard
Plantagenet, earle of Cambridge, who for his sake likewise died. And
therefore I let passe Edmund Holland, earle of Kent, whome Henry
the fourth made admirall to scoure the seas, because the Britayns
were abroad. Which earle (as many thinges happen in war) was
slaine with an arrowe at the assaulte of Briacke:[586] shortly after
whose death this king died, and his sonne Henry the fift of that
name, succeded in his place. In the beginning of this Henry the fifte’s
raigne, died this Richard, and with him Henry the lord Scrope and
other, in whose behalfe this may bee saide.”]
How Richard Plantagenet[587] Earle of
Cambridge entending the king’s
destruction, was put to death at
Southamton, Anno Dom. 1415.[588]
1.

Haste maketh waste, hath commonly ben sayd,

And secrete mischiefe seelde hath lucky speede:
A murdering minde with proper poyze is wayd,
All this is[589] true, I finde it in[590] my creede:
And therefore, Baldwine, warne all states take heede,
How they conspire any other to betrappe,
Least mischiefe ment, light in the miner’s lappe.[591]

2.

For I lord Richard, heyre Plantagenet,

Was earle of Cambridge and right fortunate,
If I had had the grace my wit to set,
To haue content mee with mine owne estate:
But, O, false honours, breeders of debate,
The loue of you our lewde hartes doth[592] allure,
To leese our selues by seeking you vnsure.

3.

Because my brother Edmund Mortimer,

Whose eldest sister was my wedded wife,
I meane that Edmund that was prisoner
In Walles so long, through Owen’s busie strife,
Because I say that after Edmunde’s life,
His rightes and titles must by lawe bee mine,
For hee ne had, nor could encrease his line.

4.

Because the right of realme and crowne was ours,

I searched meanes to helpe him thereunto:
And where the Henries held it by theyr powres,
I sought a shift their tenures to vndoe,
Which being force, sith force or sleight must doe,
I voide of might, because their powre was strong,
Set priuy sleight against their open wrong.

5.

But sith the death of most part of my kin

Did dashe my hope, through out the father’s dayes
I let it slip, and thought it best begin,
Whan as the sonne should dred least such assaies:
For force through spede, sleight speedeth through
delayes,
And seeld doth treason time so fitly finde,
As whan all daungers most bee out of minde.

6.

Wherefore while Henry, of that name the fifte,

Prepard his army to goe conquere Fraunce,
Lord Scroope and I thought to attempt a drift
To put him downe, my brother to auaunce:
But were it[593] God’s will, my lucke, or his good chaunce
The king wist wholly where about wee went
The night before to shipward hee him bent.

7.

Then were wee straight as traytours apprehended,

Our purpose spied, the cause thereof was hid,
And therefore, loe a false cause wee pretended,
Where through my brother was fro daunger rid:
Wee sayd, for hire of[594] French kinge’s coyne wee did
Behight to kill the king: and thus with shame
Wee staind our selues, to saue our frend fro blame.
[595]

8.

When wee had thus confest so foule a treason,

That wee deserued, wee suffered by the lawe:
See, Baldwine, see, and note (as it is reason)
How wicked deedes to woefull endes doe drawe:
All force doth faile, no craft is worth a strawe
To attayne thinges lost, and therefore let them goe,
For might ruleth[596] right, and will though truth[597] say
no.[598]
 [Whan stout Richarde had stoutely sayd his minde: “Belike,”
sayd[599] one, “this Richard was but a litle man, or els litle fauoured
of the[600] writers, for our cronicles speake very litle of him. But
seeing wee be come nowe to king Henrie’s voyage into Fraunce, we
cannot lacke valiaunt men to speake of, for among so many as were
led and sent by the king out of this realme thyther, it cannot be
chosen but some, and that a great somme were slayne among them:
wherefore to speake of them all, I thinke not needefull. And therefore
to let passe Edwarde duke of Yorke, and the earle of Suffolke,
slayne both at the battayl of Agïncourt, as were also many other, let
vs end the time of Henry the fift, and come to his sonne Henry the
sixt: whose nonage brought Fraunce and Normandy out of bondage,
and was cause that so[601] few of our noble men died aged: of
whome to let passe the nombre, I will take vpon mee the person of
Thomas Montague, earle of Salisbury, whose name was not so good
at home (and yet hee was called the good earle) as it was dreadful
abroade: who exclayming vpon the mutability of fortune may iustly
say[602] in maner as followeth.”]
 How Thomas Montague Earle[603] of
Salisbury in the middest of his glory,
was chaunceably slayne at
Orleaunce[604] with a piece of
ordinaunce, the 3. of Nouember, Anno
1428.[605]
1.

What fooles bee we to trust vnto our strength,

Our wit, our courage, or our noble fame,
Which time it selfe must nedes deuour at length,
Though froward fortune could not foile the same:
But seeing this goddesse guideth all the game,
Which still to chaunge doth set her onely lust,
Why toyle wee so for thinges so harde to trust?

2.

A goodly thing it is, surely, good report,[606]

Which noble hartes doe seeke by course of kinde:
But seeing[607] the date so doubtfull and so short,
The way so rough whereby wee doe it finde,
I cannot choose but prayse the princely minde
That preaseth for it, though wee finde opprest,
By foule defame, those that deserue it best.

3.
Concerning whome, marke, Baldwine, what I say,
I meane the vertuous, hindred of their brute,
Among which nombre reckon well I may
My valiaunt father Iohn lord Montacute,
Who lost his life I iudge through[608] iust pursute:
I say the cause and not the casuall speede
Is to be wayed, in euery kinde of deede.

4.

This rule obserued, how many shall wee finde

For vertue’s sake with infamy opprest?
How many[609] againe, through helpe of fortune blinde,
For ill attemptes atchieued, with honour blest?
Successe is worst oftimes whan cause is best:
Therefore, say I, God send them sory haps,
That iudge the causes by their afterclaps.

5.

The end in deede is iudge of euery thing,

Which is the cause or latter poynt of time:
The first true verdict at the first may bring,
The last is slow, or slipper as the slime,
Oft chaunging names of innocence and crime:
Duke Thomas’ death was justice two yeares long,
And euer since, sore tyranny and wrong.

6.

Wherefore, I pray thee, Baldwine, way the cause,

And prayse my father as hee doth deserue?
Because earle Henry, king agaynst all lawes,
Endeuoured king Richard for to starue
In iayle, whereby the regall crowne might swarue
Out of the line to which it than was due,
(Whereby God knowes what euill might ensue.)
 7.

My lord Iohn Holland, duke of Excester,

Which was deare cosin to this wretched king,
Did moue my father, and the earle[610] of Glocester,
With other lordes to ponder well the thing:
Who seeing the mischiefe that began to spring,
Did all consent this Henry to depose,
And to restore king Richard to the rose.

8.

And while they did deuise a prety trayne,

Whereby to bring their purpose better[611] about,
Which was in maske this Henry to haue slaine,
The duke of Aumerle blew their counsaile out:
Yet was their purpose good there is no doubt:
What cause can bee more worthy for a knight,
Than saue his king, and helpe true heyres to right?

9.

For this with them my father was destroyde,

And buried in the dunghill of defame:
Thus euill chaunce their glory did auoide,
Whereas theyr cause doth claime eternall fame:
Whan deedes therefore vnluckely doe frame,
Men ought not iudge the aucthors to bee naught,
For right through might is often oueraught.

10.

And God doth suffer that it should bee so,

But why, my wit is feeble to decise,
Except it bee to heape vp wrath[612] and wo
On wicked heades that iniuries deuise:
The cause why mischiefes many times arise,
 And light on them that would men’s wronges redresse,
Is for the rancour that they beare, I gesse.

11.

God hates[613] rigour though it furder right,

For sinne is sinne, how euer it bee vsed:
And therefore suffereth shame and death to light,
To punishe vice, though it bee well abused:
Who furdereth right is not thereby excused,
If through the same hee doe some other wrong:
To euery vice due guerdon doth belong.

12.

What preach I now, I am a man of warre,

And that my body[614] I dare say doth professe,
Of cured woundes beset with many a skarre,
My broken jaw vnheald can say no lesse:
O fortune, fortune, cause of all distresse,
My father had great cause thy fraud to curse
But much more I, abused ten times worse.

13.

Thou neuer flatteredst him in all thy[615] life,

But mee thou dandledst like thy[616] darling deare:
Thy giftes I found in euery corner rife,
Where euer[617] I went I met thy smiling cheare:
Which was not for a day or for a yeare,
But through the raygne of three right worthy kinges,
I found thee forward in all kinde of thinges.

14.

The while king Henry conquered in Fraunce

I sued the warres and still found victory,
In all assaultes, so happy was my chaunce,
Holdes yeelde or won did make my enemies sory:
Dame Prudence eke augmented so my glory,
That in all treaties euer I was one,
Whan weyghty matters were agreed vpon.

15.

But when this king this mighty conquerour,

Through death vnripe was both his realmes bereft,
His seely infant did receiue his power,
Poore litle babe full yong in cradell left,
Where crowne and scepter hurt him with the heft,
Whose worthy vncles had the gouernaunce,
The one at home, the other abroad in Fraunce.

16.

And I which was in peace and warre well skilled,[618]

With both these rulers greately was esteemed:
Bare rule at home as often as they willed,
And fought in Fraunce whan they it needefull deemed,
And euery where so good my seruice seemed,
That English men to mee great loue did beare,
Our foes the French, my force fulfilled with feare.

17.

I alwayes thought it fitly for a prince,

And such as haue the regiment of realmes,
His subiecte’s hartes with mildnes to conuince,
With justice mixt, auoyding all extreames:
For like as Phœbus with his cherefull beames,
Doth freshly force the fragrant flowres to florish,
So ruler’s mildnes subiect’s loue doth norish.[619]

18.
This found I true: for through my milde behauiour,
Their hartes I had with mee to liue and die,
And in their speach bewrayer of[620] theyr fauour,
They cald mee still good earle of Salisbury,[621]
The lordes confest the[622] commons did not lye:
For vertuous life, free hart, and lowly minde,
With high and lowe shall alwayes fauour finde.

19.

Which vertues chiefe become a man of warre,

Whereof in Fraunce I found experience:
For in assautes due mildnes passeth farre
All rigour, force, and sturdy violence:
For men will stoutly sticke to their defence,
When cruell captaines couet after spoile,[623]
And so enforst, oft geue theyr foes the foile.

20.

But when they knowe they shal be frendly vsed,

They hazard not their heades but rather yeelde:
For this my offers neuer were refused
Of any towne, or surely very seelde:
But force and furies fyt bee for the fielde,
And there in deede I vsed so the same,
My foes would flye if they but[624] heard my name.

21.

For whan lord Steward and earle Vantadore

Had cruelly besieged Crauant towne,
Which we[625] had wonne, and kept long time before
Which lieth in Awxer on the riuer Youne,
To raise the siege the regent sent mee downe:[626]
Where, as I vsed all rigour that I might,
I killed all that were not saued by flight.
 22.

When th’erle of Bedford, then in Fraunce lord regent,

Knewe in what sort I had remoued the siege,[627]
In Brye and Champayne hee made mee vicegerent,
And lieutenaunt for him and for my liege:
Which caused mee to goe[628] to Brye, and there besiege
Mountaguillon with twenty weekes assaut,
Which at the last was yeelded mee for naught.[629]

23.

And for the duke of Britayne’s brother, Arthur,

Both earle of Richmond and of Yuery,
Against his oth from vs had made departure,
To Charles the Dolphin our chiefe enemy,
I with the regent went to Normandy,
To take his towne of Yuery which of spight,
Did to vs daily all the harme they might.

24.

They at the first compounded by a day

To yeelde, if rescues did not come before,
And while in hope to fight, wee at it lay,
The dolphin gathered men two thousand score,
With earles, lordes,[630] and captaynes ioly store:
Of which the duke of Alanson was guide,
And sent them downe to see if wee would bide.

25.

But they left vs, and downe to Vernoyle went,

And made their vaunt they had our army slayne,
And through that lye, that towne from vs they hent,
Which shortly after turned to their payne:
For there both armies met vpon the plaine:
 And wee eight thousand, whom they [flew, not] slew
before,
Did kill of them, ten thousand men and more.

26.

When wee had taken Vernoyle thus againe,

To driue the Dolphin vtterly out of Fraunce,[631]
The regent sent mee to Aniovy[632] and to Mayne,
Where I besieged the warlike towne of Mawns:
There lord of Toyser’s, Baldwin’s valiaunce
Did well appeare, which would not yeelde the towne,
Till all the towres and walles were battered downe.

27.

But here now, Baldwine, take it in good part,

Though that I brought this Baldwine there to yeelde,
The lyon fearce for all his noble hart,
Being ouer matched, is forst to flye the fielde:[633]
If Mars himselfe there had ben with his shielde,
And in my stormes had stoutly mee withstood,
Hee should haue yeeld, or els haue shed my bloud.

28.

This worthy knight both hardy, stout, and wise,

Wrought well his feat: as time and place require,
When fortune failes, it is the best aduise
To strike the sayle, least all lye in the mire:
This haue I sayd to th’end thou take no ire,
For though no cause bee found, so nature frames,
Men haue a zeale to such as beare theyr names.

29.

But to retourne, in Mayne wan I at length,