Empire (4 page)

dental ofthe juridical system and ideal schema ofreason and eth-

ics. The fundamental alternative between these two notions ran

throughout all ofEuropean modernity, including the two great

ideologies that defined its mature phase: the liberal ideology that

rests on the peaceful concert of juridical forces and its supersession

in the market; and the socialist ideology that focuses on international

unity through the organization ofstruggles and the supersession

ofright.

Would it be correct to claim, then, that these two different

developments ofthe notion ofright that persisted side by side

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through the centuries ofmodernity tend today toward being united

and presented as a single category? We suspect that this is indeed

the case, and that in postmodernity the notion ofright should be

understood again in terms ofthe concept ofEmpire. And yet, since

a large part ofour investigation will turn around this question,

leading us toward doubts and perplexities, it does not seem a good

idea to jump so quickly to a definitive conclusion, even ifhere we

are limiting ourselves only to the analysis ofthe notion ofright.

We can already recognize, however, some important symptoms of

the rebirth ofthe concept ofEmpire—symptoms that function like

logical provocations arising on the terrain ofhistory that theory

cannot ignore.

One symptom, for example, is the renewed interest in and

effectiveness of the concept of
bellum justum,
or ‘‘just war.’’ This concept, which was organically linked to the ancient imperial orders

and whose rich and complex genealogy goes back to the biblical

tradition, has begun to reappear recently as a central narrative of

political discussions, particularly in the wake ofthe GulfWar.17

Traditionally the concept rests primarily on the idea that when a

state finds itselfconfronted with a threat ofaggression that can

endanger its territorial integrity or political independence, it has a

jus ad bellum
(right to make war).18 There is certainly something

troubling in this renewed focus on the concept of
bellum justum,

which modernity, or rather modern secularism, had worked so hard

to expunge from the medieval tradition. The traditional concept

ofjust war involves the banalization ofwar and the celebration of

it as an ethical instrument, both ofwhich were ideas that modern

political thought and the international community ofnation-states

had resolutely refused. These two traditional characteristics have

reappeared in our postmodern world: on the one hand, war is

reduced to the status ofpolice action, and on the other, the new

power that can legitimately exercise ethical functions through war

is sacralized.

Far from merely repeating ancient or medieval notions, how-

ever, today’s concept presents some truly fundamental innovations.

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Just war is no longer in any sense an activity ofdefense or resistance,

as it was, for example, in the Christian tradition from Saint Augustine

to the scholastics ofthe Counter-Reformation, as a necessity ofthe

‘‘worldly city’’ to guarantee its own survival. It has become rather

an activity that is justified in itself. Two distinct elements are com-

bined in this concept ofjust war: first, the legitimacy ofthe military

apparatus insofar as it is ethically grounded, and second, the effec-

tiveness ofmilitary action to achieve the desired order and peace.

The synthesis ofthese two elements may indeed be a key factor

determining the foundation and the new tradition of Empire. Today

the enemy, just like the war itself, comes to be at once banalized

(reduced to an object ofroutine police repression) and absolutized

(as the Enemy, an absolute threat to the ethical order). The Gulf

War gave us perhaps the first fully articulated example of this new

epistemology ofthe concept.19 The resurrection ofthe concept of

just war may be only a symptom ofthe emergence ofEmpire, but

what a suggestive and powerful one!

The Model of Imperial Authority

We must avoid defining the passage to Empire in purely negative

terms, in terms ofwhat it is not, as for example is done when one

says: the new paradigm is defined by the definitive decline ofthe

sovereign nation-states, by the deregulation ofinternational markets,

by the end ofantagonistic conflict among state subjects, and so

forth. If the new paradigm were to consist simply in this, then

its consequences would be truly anarchic. Power, however—and

Michel Foucault was not the only one to teach us this—fears

and despises a vacuum. The new paradigm functions already in

completely positive terms—and it could not be otherwise.

The new paradigm is both system and hierarchy, centralized

construction ofnorms and far-reaching production oflegitimacy,

spread out over world space. It is configured
ab initio
as a dynamic and flexible systemic structure that is articulated horizontally. We

conceive the structure in a kind ofintellectual shorthand as a hybrid

ofNiklas Luhmann’s systems theory and John Rawls’s theory of

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justice.20 Some call this situation ‘‘governance without government’’

to indicate the structural logic, at times imperceptible but always

and increasingly effective, that sweeps all actors within the order

ofthe whole.21 The systemic totality has a dominant position in

the global order, breaking resolutely with every previous dialectic

and developing an integration ofactors that seems linear and sponta-

neous. At the same time, however, the effectiveness of the consensus

under a supreme authority ofthe ordering appears ever more clearly.

All conflicts, all crises, and all dissensions effectively push forward

the process ofintegration and by the same measure call for more

central authority. Peace, equilibrium, and the cessation ofconflict

are the values toward which everything is directed. The develop-

ment ofthe global system (and ofimperial right in the first place)

seems to be the development ofa machine that imposes procedures

ofcontinual contractualization that lead to systemic equilibria—a

machine that creates a continuous call for authority. The machine

seems to predetermine the exercise ofauthority and action across

the entire social space. Every movement is fixed and can seek its

own designated place only within the system itself, in the hierarchical

relationship accorded to it. This preconstituted movement defines

the reality ofthe process ofthe imperial constitutionalization of

world order—the new paradigm.

This imperial paradigm is qualitatively different from the vari-

ous attempts in the period oftransition to define a project of

international order.22 Whereas the previous, transitional perspectives

focused attention on the legitimating dynamics that would lead

toward the new order, in the new paradigm it is as ifthe new order

were already constituted. The conceptual inseparability ofthe title

and exercise of power is affirmed from the outset, as the effective

a priori ofthe system. The imperfect coincidence, or better the

ever-present temporal and spatial disjunctions between the new

central power and the field ofapplication ofits regulation, do not

lead to crises or paralysis but merely force the system to minimize

and overcome them. In short, the paradigm shift is defined, at

least initially, by the recognition that only an established power,

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overdetermined with respect to and relatively autonomous from

the sovereign nation-states, is capable offunctioning as the center

of the new world order, exercising over it an effective regulation

and, when necessary, coercion.

It follows that, as Kelsen wanted, but only as a paradoxical

effect of his utopia, a sort of juridical positivism also dominates the

formation of a new juridical ordering.23 The capacity to form a

system is, in effect, presupposed by the real process of its formation.

Moreover, the process offormation, and the subjects that act in it,

are attracted in advance toward the positively defined vortex ofthe

center, and this attraction becomes irresistible, not only in the name

ofthe capacity ofthe center to exercise force, but also in the name

of the formal power, which resides in the center, to frame and

systematize the totality. Once again we find a hybrid ofLuhmann

and Rawls, but even before them we have Kelsen, that utopian

and thus involuntary and contradictory discoverer ofthe soul of

imperial right!

Once again, the ancient notions ofEmpire help us articulate

better the nature ofthis world order in formation. As Thucydides,

Livy, and Tacitus all teach us (along with Machiavelli commenting

on their work), Empire is formed not on the basis of force itself

but on the basis ofthe capacity to present force as being in the

service ofright and peace. All interventions ofthe imperial armies

are solicited by one or more ofthe parties involved in an already

existing conflict. Empire is not born ofits own will but rather it

is
called
into being and constituted on the basis ofits capacity to resolve conflicts. Empire is formed and its intervention becomes

juridically legitimate only when it is already inserted into the chain

ofinternational consensuses aimed at resolving existing conflicts.

To return to Machiavelli, the expansion ofEmpire is rooted in the

internal trajectory ofthe conflicts it is meant to resolve.24 The first

task ofEmpire, then, is to enlarge the realm ofthe consensuses that

support its own power.

The ancient model gives us a first approximation, but we need

to go well beyond it to articulate the terms ofthe global model of

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authority operating today. Juridical positivism and natural right

theories, contractualism and institutional realism, formalism and

systematism can each describe some aspect ofit. Juridical positivism

can emphasize the necessity for a strong power to exist at the center

ofthe normative process; natural right theories can highlight the

values of peace and equilibrium that the imperial process offers;

contractualism can foreground the formation of consensus; realism

can bring to light the formative processes of the institutions adequate

to the new dimensions ofconsensus and authority; and formalism

can give logical support to what systematism justifies and organizes

functionally, emphasizing the totalizing character of the process.

What juridical model, however, grasps all these characteristics of

the new supranational order?

In first attempting a definition, we would do well to recognize

that the dynamics and articulations ofthe new supranational juridical

order correspond strongly to the new characteristics that have come

to define internal orderings in the passage from modernity to post-

modernity.25 We should recognize this correspondence (perhaps in

Kelsen’s manner, and certainly in a realistic mode) not so much as

a ‘‘domestic analogy’’ for the international system, but rather as a

‘‘supranational analogy’’ for the domestic legal system. The primary

characteristics ofboth systems involve hegemony over juridical

practices, such as procedure, prevention, and address. Normativity,

sanction, and repression follow from these and are formed within the

procedural developments. The reason for the relative (but effective)

coincidence ofthe new functioning ofdomestic law and suprana-

tional law derives first of all from the fact that they operate on the

same terrain, namely, the terrain ofcrisis. As Carl Schmitt has taught

us, however, crisis on the terrain ofthe application oflaw should

focus our attention on the ‘‘exception’’ operative in the moment

ofits production.26 Domestic and supranational law are both defined

by their exceptionality.

The function of exception here is very important. In order

to take control ofand dominate such a completely fluid situation,

it is necessary to grant the intervening authority (1) the capacity to

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define, every time in an exceptional way, the demands ofinterven-

tion; and (2) the capacity to set in motion the forces and instruments

that in various ways can be applied to the diversity and the plurality

ofthe arrangements in crisis. Here, therefore, is born, in the name

ofthe exceptionality ofthe intervention, a form ofright that is

really a
right of the police.
The formation of a new right is inscribed in the deployment ofprevention, repression, and rhetorical force

aimed at the reconstruction ofsocial equilibrium: all this is proper

to the activity ofthe police. We can thus recognize the initial and

implicit source ofimperial right in terms ofpolice action and the

capacity ofthe police to create and maintain order. The legitimacy