Law, Social Justice & Global Development
(An Electronic Law Journal)
Irresolutions of Modernity, Law, Nation and Empire: A Reading of Fiztpatrick’s Modernism and the Grounds of Law in Conjunction with Hardt and Negri’s Empire
Professor of Law,
School of Law, University of Warwick
This is a commentary published on: 30 April 2003
Citation: Paliwala, A ‘Irresolutions of Modernity, Law, Nation and Empire: A Reading of Fitzpatrick’s Modernism and the Grounds of Law in Conjunction with Hardt and Negri’s Empire’, 2003 (1) Law, Social Justice & Global Development Journal (LGD).
This commentary is being published as part of the open forum on ‘Theory and Struggles for Social Justice’ on the Law, Social Justice and Global Development (LGD) Journal. Readers are welcome to contribute to the forum which will be updated regularly to incorporate submissions. Please email your comments to: Celine.Tan@warwick.ac.uk
The world wide demonstrations on 15 February 2003 against war in Iraq could convince disciples of Hardt and Negri’s Empire (2001) that here was the elusive global multitude acting together – a multitude initself and foritself – a subversive counter to the forces of Empire. Certainly the demonstrators were multitudinous in their depth and variety. The subsequent attack on Iraq and its continuing fallout has put in question whether one is dealing with the new Empire a la Hardt and Negri or a hybrid of old-fashioned imperialism. The former perpective is in tangential concert with a tide of thinking both among left and right which invents globalisation as a new paradigm and international human rights law as a central part of the new global order.
Fitzpatrick’s remarkable adventure is in arguing the Other side in Modernism and the Grounds of Law (2001). While his project is to do with law and Hardt and Negri’s a wider political economy, both authors published in the same year, cover surprisingly similar terrain, ask fundamentally similar questions, but provide apparently different answers. It is useful that Fitzpatrick has already done a critique of some key ideas in Empire in a previous issue of this journal (Fitzpatrick, 2002). I therefore do not intend to go into as great detail on Hardt and Negri as I do in analysing Fitzpatrick. My concern in this paper is to locate the margin of difference between the two authors in ways which can inform struggles for social justice. The paper is thus both less and more than a book review and is a particular reading of the two works in relation to each other. It is also a continuation of the forum commenced by Baxi (2002) and Fitzpatrick (2002) and an invitation for further contributions.
What follows therefore is an explanatory analysis of Fitzpatrick followed by a comparison with Hardt and Negri.
2. Fiztpatrick’s Modernism and the Grounds of Law
Fitzpatrick’s intention is to explore the foundations of modern law. What he discovers at the bottom is modern myths – myths that to some extent he has familiarised us with in his Mythology of Modern Law (Fitzpatrick, 1992), but which are now explored wider and higher, revealing broader connectivities and layers which might be both older and newer. In the process he suggests that in the development of the modern nation, in the building of the old imperialism of the colonial nation and the new imperialism of the apparently headless global empire, the same modern myths of origin are evolved to fit new environments.
Two crucial myths in his scheme are Freud’s myth of the killing of the father (Freud 1960) by his sons and Rousseau’s social contract (Rousseau, 1968). Freud suggests that, prior to the parricide, there was a primordial savage horde controlled by the overbearing father who maintained a sexual monopoly over all the women. The sons combined to kill and eat the father but having done the deed, they were afraid of the consequences of chaos in the competition for females. Therefore they created a sacred totem animal and the incest taboo to protect themselves from sexual competition. Thus the dead ingested father rose from the grave in the form of the totem which became more powerful than the live father. It became the new authority figure and ultimately the conceptual basis of the ‘sovereign’ of the nation state. Law in this schema is grounded in the agreement to create a totem and to have the social taboo.
There are great similarities, and significant differences, between Freud and Rousseau’s myths (pp 83, 221 f7). Instead of Freud’s primal horde and patriarchal father, Rousseau’s myth is based on the uniformity and simplicity of savage life in which solitary savages lived on instinct and had minimal communication. Subsequently, there was either the development of language which led to sociability or vice versa. During this period of free agency, every member bound himself to observe a few general conventions that were enforceable by the populace as a whole. However, passions, dissensions, avoidance of laws, conflicts resulting in violence and war impelled submission to the rigour of law and to a supreme power governing through law.
It is not difficult to prove that these are modern myths. The point Fitzpatrick makes is that in each case at the core of the myth is an irresolution about what happened and that it is this irresolution which is a fundamental aspect of the myth and impacts on contemporary issues. He suggests that myths are a way in which society attempts to live with or to come to terms with irresoluble problems. However, in contrast to pre-modern myths, which allow for a ‘transcendent figure’ or ‘trickster’ such as a god or magician to mediate the resolution, modernity, with its claim to the reality of scientific truth, does not allow for such tricks. It does not permit an explanation for existence of society beyond itself (p 20). Instead, it resorts to the ‘savage’ as its ‘other’, the opposite of modernity. Yet the savage is as mythical as the god or trickster. However, both Freud and Rousseau adapt the savage to their own needs – Freud’s authoritarian father is replaced by Rousseau’s more solitary figure. Yet, neither myth satisfactorily explains the transition from savagery to modernity. Instead we have circular arguments. In the Freudian myth the sons must have had desire for their mother and thus must have had conscious individual personality before being expelled by the father; and this must have happened before the act of parricide, which is supposed to have given birth to that very same personality with its sense of guilt and repentance. In the case of Rousseau, there is great equivocation about how the savage moved from uncommunicating unsocial being to being social and communicating. Yet, the savage is essential to the myth in two ways. Not only does he (it is always a he) constitute the pre-civilizational origin, but is also from with-in society ‘constantly challenging and constituting it’ (p 44).
The savage customs of mythological times are too easily reincarnated in contemporary custom to affirm both determinacy and responsiveness of modern law (pp 67-68). Thus, unlike the fixed authority of modern law, savage ‘custom’ is seen as both so habitual that it can change from day to day according to people’s habits, and at the same time, having apparently existed from time immemorial, it provides a contrast to the responsiveness of modern law. The savagery of custom is contrasted with modern law in it being classified as being ‘a matter of nature, instinct, tradition’ virtues reminiscent of Freud’s and Rousseau’s primordial savages.
Other grandmasters of modernism such as Hobbes and Hegel are similarly deconstructed by Fitzpatrick to reveal the irresolution of modern myths, irresolutions which seep into conceptions of law, nation, imperialism and globalism.
Law’s irresolution lies in both its origin and its nature. Ultimately, Fitzpatrick suggests that modernity’s supreme authority of law is undiscoverable either in the form of Freud’s totem or Rousseau’s agreeing savages. Even Hart (1961) founds his rule of recognition, the foundational support for law, on vague and unspecified notions of empirical fact and yet his concept of law is based on the premise that factual observation from outside law cannot account for the existence of a rule (p 45).
Ultimately, in suggesting that law’s emperor has no clothes, Fitzpatrick (80) cites Kant:
‘The origin of the supreme power, for all practical purposes, is not discoverable by the people who are subject to it. In other words, the subject ought not to indulge in speculations about its origin with a view to acting upon them, as if its right to be obeyed were open to doubt…Whether in fact an actual contract originally preceded their submission to the state’s authority … whether the power came first and the law only appeared after it, or whether they ought to have followed this order – these are completely futile arguments for a people which is already subject to civil law, and they constitute a menace to the state’ (Kant, 1970, p 143 – Kant’s emphasis).
However, what is more interesting for Fitzpatrick in these myths about the founding of law is the particular combination of determinacy and immanence they provide for law. On the one hand, Freud’s totem provides the determinant fixed authority for law, yet in regular totemic rituals there is a constant responsiveness, as the repeated rituals not only reaffirm the original founding act of the totem but also accommodates it to the changing conditions of life (p 78). Furthermore, it is in the nation state that the law finds its determinant authority. The law is fixed as in the Constitution, the Code or the Common Law, yet it is applied to the circumstances of the case by judges in every case or by legislation (p 76). (However, Fitzpatrick does not really discuss legislation.) And yet the judges maintain that they are only applying the law, not changing it. This is the trick of the law. It is timeless and yet changes, every change being consolidated in a mythical timelessness.
Fitzpatrick relies on Derrida (1992) to elaborate this point, but a Derrida who himself seems to be captured by the rhetoric of the determinacy and responsiveness of law (p 75). Derrida separates Law (droit) from Justice. In almost a positivistic fashion, law provides determinacy, with the judge as a ‘calculating machine’ who ‘placidly appl(ies) a good rule to a particular case’. Yet, contradictorily, justice also provides a sense of indeterminacy and responsiveness to law and legal decision which ‘has constantly to destroy itself to stay itself…to decompose in order to be composed. There is always something rotten in the law’ (Derrida, 1992, p 39). In a similar vein, justice itself has to define itself in terms of law otherwise it cannot operate as justice.
The irresolution of the law is reflected in the irresolution of the nation state. On the one hand, the nation state provides modern law with that authority and determinacy, which Kant and others warn us against questioning. On the other hand, the nation state itself is founded on the law. Fitzpatrick suggests however that neither law nor nation can resolve the irresolution of the other. Law’s irresolution in its origin and its oscillation between determinacy and responsiveness finds in nation an irresolution between particularism and universalism. Fitzpatrick (p 115) critiques particularist notions of nation founded on the notion of historic ethnic communities (Smith, 1986) by suggesting that ethnic notions are ideological concoctions of elites. He similarly criticises Gellner’s (1983) notion of modern universalist nationalism in which the nation state is a functional by-product of modern industrial society, suggesting that he merely grounds this notion in opposition to the status-ridden and pathetically particular world that preceded it. Anderson criticises both notions in suggesting that the nation is not found in the truth or falsity of specific attributes but rather exists as an ‘imagined community’ (Anderson, 1991). Fitzpatrick suggests that even this notion lacks fixity as the imagination is ultimately a particularistic imagination of dominant sections of the bourgeoisie. For Fitzpatrick, nation exists in the very irresolution between particularism and universalism. Nationalism arose with universalistic claims, for example of the French Revolutionary Rights of Man and the US Constitution, which fused the sovereignty of a particular people with transcendent human rights. This underlying universalism is internationalised through the principle of comity of nations which becomes the foundation of international law. But such ‘comity’ and universalism is the preserve of Western notions and was founded in opposition to the invented particularity of the ‘uncivilised’. The same savage which is the other of modern legality is also the other of the universalist nation. For Hegel the nation was the actual realisation of the universal conceived as Spirit. Unfortunately the Negro could not acquire the Spirit as ‘in Negro life the characteristic point is the fact that Consciousness has not yet attained to the realization of any substantial objective of existence – as for example God, or Law – in which the interest of man’s volition is involved and in which he realizes his own being.’ (Hegel, 1956, p 93)
The location of the ‘civilised’ universalist nation in opposition to the equally invented savage ‘other’ played a key role in the development of European colonial empires. On the one hand, it justified colonialism as the civilising mission. But through a diverse analysis of colonialism from the Spanish to British to the US colonisation of the Indian, Fitzpatrick maintains that imperial law which was the supposed ‘gift of civilisation’ in fact became a grim present for the colonised. The colonial powers depended on the savage ‘other’ to support their own ‘civilised’ identity. As a result, ‘the imperial project was decidedly less about a bringing (of the savage) into the fold of civilization and definitively more about a creation and containment as different’ (p 180).
Those who applaud Vitoria’s humanistic invention of international law as applying to all men in fact ignore his giving of second class status to Indians and thus justification of colonial dominium. Hegel, Vattel, Westlake and Mill all offered similar justifications for colonial domination. In the US, with their fine sounding universal rights, the judiciary led by Chief Justice Marshall used the ‘barbarism’ of the Indians to justify their subordination and deprivation of rights, defaming the native Americans by calling them fierce savages, degraded and recalcitrant (pp 164-170). In Johnson v McIntosh (1823) Marshall suggested that ‘to leave them in possession of their country, was to leave the country a wilderness’ ‘however extravagant the pretension of converting the discovery of an inhabited country into conquest may appear’ (Marshall CJ at p 590-591). The denial of Constitutional rights and safeguards was similarly justified in the subsequent US colonisation into the Philippines, Puerto Rico and Hawaii (p 176).
This state of affairs was apparently transformed in the era of national liberation, but only at the price of the savage nation acquiring the attributes of the western ‘civilised’ nation. Fitzpatrick demonstrates how in South Asia Indian elites constructed a notion of India which was undivided, unitary and capable of autonomy and sovereignty. However, this was no mere post-colonial con trick; the concept of nationhood was the price to be paid for entry into the Western constructed world of nations (p 127).
The point of the book appears to be to provide clues to current debates about globalisation, global law and human rights in an analysis of the irresolutions of modernism. Fitzpatrick distinguishes between globalisation, which is a highly contested term about the state of the world, and the ideology of globalism which promotes the notion of globalisation. For him globalism of Giddens (1990) and Robertson (1992) is a universalising tendency which transcends from the nation to the global. Even when they recognise the local, they see the local as integrated into the universal in the same way as earlier arguments about the advance of capitalism saw capitalism as ‘reliant on ‘traditional’ pockets of production and culture (p 187). On the other hand, the main oppositional current, such as Hirst and Thompson (1996) see in supposed globalisation an ‘extraversion’ of nation, ie the further development of existing inter-national relations with all their power implications. Fitzpatrick finds the same irresolution in globalisation theory between the particular and the universal as that in the theory of the nation. Globalisation constitutes itself in the name of the universal by excluding or subsuming the particular. Attempts by those such as Appadurai (1990, p 7) and Santos (1995, p 337; cf 2002, pp 165-182) to develop notions of globalisation from perspectives of cultural relativism in which the universal is constituted solely in the perspective of each culture, merely reinforce this irresolution. He cites (p 198) Sakai (1988, p 487):
‘Contrary to what has been advertised by both sides, universalism and particularism reinforce and supplement each other; they are never in real conflict; they need each other and have to seek to form a symmetrical, mutually supporting relationship by every means in order to avoid a dialogic encounter which would necessarily jeopardize their reputedly secure and harmonized monologic worlds’.
Ultimately, while Fitzpatrick’s big point on globalisation is its irresolution between the universal and the particular, his general approach sees globalization as less of a break from the past and more of a continuity of the same contradictions which affect the notions of the nation and colonial empires.
‘There is a striking unoriginality to globalism…Theorists of globalization first located it as emerging from prior universalising grand theory. It intensifies, increases, develops, accelerates what has already assumed an homogenizing force. No discernable break…is advanced endowing globalism with an exclusive origin or with any fresh content’ (p 200).
The notion of ‘global’ law whether as ‘regional’ global such as European or universal global founds itself in differentiation, ‘a mark of exclusion and marginalisation’, in the negation of the non-global, in very opposition to the claims that in global ‘there are no Others’ (p 200). Instead, the same ‘others’ are to be found as ‘barely reworked variants’ of the savage, the barbarian, the underdeveloped and the backward. Applying this to Teubner’s argument of the existence of a global ‘lex mercatoria’ Fitzpatrick finds that the global according to Teubner seems to be constituted by a variety of autopoietic plural discourses of commercial ‘economic organisations’ such as the International Chamber of Commerce. To provide pluralisms with some coherence, Teubner suggests that this is provided by a ‘system’ which is constructed out of ‘general principles of law recognised by commercial nations’ or ‘civilised nations’ or customs and practices of ‘dominant actors’ or in the principle of ‘contract’.
This irresolution can be seen in an analysis of human rights discourses. On the one hand, globalisation proponents see in international human rights ‘the world’s first universal ideology’. However, now Fitzpatrick both uses Santos (1995) as an aid to his critique of this universalism and criticises Santos’ own concept of a utopian human rights to reinforce his argument. Santos’ critique of globalisation and human rights as an expression of particular western interests (globalisation of a given localism), and the power imbalances which promote their opportunistic use are approved. On the other hand, Fitzpatrick suggests. ‘there seems to be nothing in Santos’s universalist utopian conception of human rights to distinguish it essentially from the divisive human rights which he describes as actually in operation’ (p 191). He suggests that while claiming to base his utopian agenda on four ‘regional subregimes’, Santos gives little weight to regimes other than the ‘European’. National interests prevail to make the UN Convention on the Rights of Migrants ineffective. Santos finds it equally difficult to rationalise the claim to right of indigenous peoples with issues of territorial sovereignty. For Fitzpatrick, the real difficulty is ‘the profound dissonance between human rights as a new standard of civilization and the inclusion within them of ‘uncivilised’ peoples definitively excluded in the very constitution of that standard’ (p 192). He uses Rhoda Howard’s diatribe against ‘cultural absolutism’ in human rights law to illustrate this. For Howard, cultural absolutism is particularist, culture-bound, closed, exclusionary, traditional, authoritarian, status-ridden, static, pure and inviolable community (Howard, 1993, p 325). In contrast, international human rights are universalist, liberal and individualist. That is, apart from being a ‘globalized localism’ in Santos’ terms, the universalism exists purely because it is in opposition to a mythical ‘cultural absolutism’. Thus, for Fitzpatrick, Howard’s suggestion that communitarian ideology can be reintegrated with liberal individualism is incoherent because it is opposed to the very principles of ‘civilised’ modernity on which human rights ideology is founded (p 210). Her alternative suggestion that in fact people in the backward countries are not so backward after all and would want to join in the advance of Westernisation seems to deny the very basis of her argument.
For Fitzpatrick, these globalising discourses are part of a new imperialism which is distinct from post-colonialism in which new national elites tried to replicate colonial rule. In the new imperialism, the nation does not disappear. Instead, particular dominant nations such as the US together with institutions such as the IMF and the World Bank impose a new environment in which the market is to be supreme both internationally and within the nation. The subordinate nation state subjected to this does not disappear, instead it becomes ‘abject, part of the problem, to be held in check and re-formed’ (p 212). The formal equality of nations cloaks ‘informal’ inequalities. There is always a glimmer of hope of escape from the abject state to the elect state. In this new environment law becomes much more central, more ‘colonial’ in its demands, and much better resourced and enforced than in the old era of law and development. The aim is to ‘reform the legal system to make it more like those in the core countries’ (Trubek et al, 1994, pp 481-2).
While he accepts that globalisation constitutes an extraversion of ‘nation’, and particularly of the old imperialism, he also suggests a difference between old imperialism and globalism. In the old imperialism, the exemplar was the imperial power as representative of civilising force; in globalism the exemplar is theoretically subsumed within the global, but in practice resides in one nation or a core group of nations. Fitzpatrick, citing Agamben and Foucault, also seems to suggest that another feature of globalism is the ‘increasingly tentacular extension of the disciplining power of the market’ (p 218). Those subject to it participate actively in their own disciplining.
Fitzpatrick sees a paradox in this imposed self-disciplining process (p 218). To be able to self-discipline, one needs to have a certain freedom of action. Those who struggle for human rights may be well aware of how human rights are appropriated to their detriment. For him this paradox is part of the paradox of law, which is forever located in between the determinate particularity and responsive universality. This duality and irresolution, combined with the apparent freedom of action, provide the basis for both the promise of transformation and ‘seductive oppressions’. In this respect, the central paradox of Fitzpatrick’s work is that he sees irresolutions as sometimes the ying and the yang, sometimes the circular worm Ouroboros, and always both social driving motors and the font of all social injustices. At the centre of these irresolutions is the absent Other, the savage. The recounting of the Others’ myths do not have a place in Fitzpatrick’s work because his concern is the critique of modernity and modern law – and perhaps Fitzpatrick does not make any attempt to resolve the irresolvable, because such attempts would have to begin and end with the Others’ own mythologies and irresolutions.
3. Comparing Empire
I now relate Fitzpatrick to Hardt and Negri’s Empire (2001) as a way of asking some questions of both works. I would like to suggest that while there are clear differences in conceptual framework and political project, the similarities are in themselves very interesting.
Hardt and Negri’s key claim (2001, p 8) is that ‘imperial sovereignty marks a paradigm shift’, the development of a world order:
‘that supports the globalisation of productive networks and casts its widely inclusive net to try to envelop all power relations within its world order – and yet at the same time it deploys a powerful police function against the new barbarians and the rebellious slaves who threaten its order’ (2001, p 20).
Fitzpatrick, as we have seen, rejects the notion of paradigm shift, seeing in the new developments a ‘variation of nation’, or more significantly the transference onto a new plane of the irresolution between particularism and universalism. The universalism was one in which issues such as rights of man and legality were perceived as universal principles. Nevertheless, at the operational level, he does accept that there is a difference between ‘modern imperialism’ (old colonialism) on the one hand and ‘globalism’ or ‘new imperialism’ on the other (the latter concepts being the nearest he gets to ‘Empire’). In imperialism, the imperial nation and the comity of nations is at the forefront, with globalism, the dominant nation or nations find themselves subsumed in a uniform factuality of the global (p 216). Nevertheless, the exemplar groups of nations, however veiled, manifest the most blatant discriminations and sustain an operative imperium (p 217). Globalism or new imperialism depends upon contractual modes of domination, it is closer to colonialism in that the subordinate nation states become abject (p 212). It operates through institutions which purport to embody the community of nations such as the IMF and World Bank; and these enforce new contractual conditionalities to produce a remarkably consistent overall impact – the supremacy of the market, with the nation state being confined to the managerial or supplementary role of enforcing the imposed rule of market law.
There are also similarities between Hardt and Negri’s almost pyramidal structure of governance institutions of the Empire (with US and dominant group of nations at the top assisted by global institutions and NGOs) and Fitzpatrick’s acceptance of the role of institutions such as the IMF and World Bank.
Hardt and Negri ground their Empire as the very extension of universalist ideas in the US Constitution, a Constitution which was forever overreaching its borders. Fitzpatrick also sees the development and justification of colonial imperial projects in the universalism of nation. However, where the two works differ is in the ideological rationalisation of the universalism. Hardt and Negri’s concept of paradigm shift is based on the American principle of sovereignty being radically different from the European one as ‘liberty is made sovereign and sovereignty is defined as radically democratic within an open and continuous process of expansion’ (Hardt and Negri, 2001, p 169). Fitzpatrick sees more of a continuity between the European and US Constitutions and has amply illustrated this in his article in this journal (Fitzpatrick, 2002).
The underlying difference between the two visions of global change lies in the political significance of the subordinated or subaltern peoples and nations. Hardt and Negri see the barbarism of European and American nations towards the subordinated as being an unfortunate aspect in the extension of a new paradigmatic liberty; a liberty that nevertheless produces, just as national capitalism did, its own oppressions and the seeds for its own demise. This results from the contradiction between the normal state of liberty and the exceptional states which are forever required to suppress the new barbarians and slaves. The vision is one of a modernist notion of progress, a rewriting in these postmodernist times of the Marxist version of ‘grand theory’ of progressive change. Just as the working class saw itself liberated from feudalism by capitalism, so the new multitude is liberated from nationalist territorialist constraints by Empire and from Empire by becoming a new basis for biopolitical production:
‘This ‘collective biopolitical body, becomes structure not by negating the originary productive force that animates it but by recognizing it’ (Hardt and Negri, 2001, p 30).
From one perspective Empire stands clearly over the multitude and subjects it to the rule of its overarching machine, as a new Leviathan. At the same time, however, from the perspective of social productivity and creativity, from what we have been calling the ontological perspective, the hierarchy is reversed. The multitude is the real productive force of our social world, whereas Empire is a mere apparatus of capture that lives only off the vitality of the multitude – as Marx would say, a vampire regime of accumulated dead labor that survives only by sucking off the blood of the living’ (Hardt and Negri, 2001, p 62)
The concept of multitude is derived anciently from Machiavelli (1988) and postmodernly from Deleuze and Guattari (1987). In this respect, the multitude is the alter/ego of the same civil society that is subsumed by the biopolitical ‘power which reaches down to the ganglia of the social structure and its processes of development…(and) extends throughout the depths of the consciousness and bodies of the population’ (Hardt and Negri, 2001, p 24). Yet, this very extension of biopower liberates ‘resistances which are no longer marginal but active in the center of a society that opens up in networks’ (Hardt and Negri, 2001, p 25). Unlike the proletariat, the multitude does not bear the same relationship to modes of production but has different singularities: ‘a multitude of singular and determinate bodies that seek a relation’ (Hardt and Negri, 2001, p 30). This is why Hardt and Negri find it difficult to define the multitude, it defines itself through its bioaction. It has to thus both embrace the global concept of Empire as its liberation in opposition to territorial nationalism and be against the Empire to seek the same liberation. However, the concept of the nature of struggle, and the exemplars provided of the struggles of the new multitude, from Tiananmen to Nablus to Chiapas, are very particularistic and local. In some ways the very type of struggles which are condemned earlier as being ‘territorialistic’. However, they suggest that from the territorialist level these very different struggles quickly develop a global perspective. Thus, global struggles in Empire are not necessarily global but new forms of interaction between local and global.
In my view, however badly defined it may be, there is a precarious excitement in the concept of the multitude as an attempt at a redefinition of the proletariat. In particular, it attempts to overcome the historical problems in Marxist theory of the nature of labour in encompassing material and immaterial work, personal and domestic work as well as posthuman issues. Hardt and Negri transcend cybernetics, which recognised no boundaries between man and machine, to redefine the entire relationship between nature and culture. There is a recognition ‘that nature itself is an artificial terrain open to ever new mutations, mixtures, and hybridizations’ (p 215). Ultimately the multitude becomes an all-inclusive abstraction of singularities which only have to lose their singular chains to seek relation. The problem lies in the difficulty of giving sufficient weight to local particularisms in the attempt to build up the theoretical relevance of the global. That is, one has to buy into the new mythic faith of the global before engaging in any local struggle.
For Fitzpatrick, the ying/yang irresolutions between modernism and savagery, between the fixed determinacy and responsiveness of law and between particularism and universalism, local and global are crucial. Fitzpatrick locates the contemporary justification for new global lex mercatoria and human rights law precisely in their opposition to the uncivilised, culture-bound, closed, particularistic etc. In the circumstances, I would presume (and Fitzpatrick makes no prognostications about struggles) local and global struggles and their interconnections are steeped in irresolution, and the path to integration is not the subsumption of the local by the global. No mythical purchase is required.
If Hardt and Negri sound more apparently optimistic in their promotion of the global multitude than Fitzpatrick, there is in each work an acknowledgement that the struggle for ‘human rights’, for Fitzpatrick, and for the overcoming of Empire, for Hardt and Negri, are full of contradictions. Each work acknowledges a complex situation in which relations of domination in the new global environment are intricately involved with powers of action and struggles which might further those very relations of domination (Fitzpatrick, 2001, pp 217-8, Hardt and Negri, 2001, p 59). Just as Fitzpatrick suggests that duality and irresolution, combined with the apparent freedom of action provide the basis for both the promise of transformation and ‘seductive oppressions’ (218), Hardt and Negri suggest:
‘Imperial power whispers the names of the struggles in order to charm them into passivity, to construct a mystified image of them, but most important to discover which processes of globalization are possible and which are not. In this contradictory and paradoxical way the imperial processes of globalization assume these events, recognizing them as both limits and opportunities to recalibrate Empire’s own instruments. The processes of globalisation would not exist or would come to a halt if they were not continually both frustrated and driven by these explosions of the multitude that touch immediately on the highest levels of imperial power’ (2001, p 59).
So what lessons for those engaged in struggles for social justice? Firstly, theoreticians will never provide nuts and bolts of struggle or even detailed explanations of the links and relationships which make up our universe. In this respect Hardt and Negri’s valiant attempt at a manifesto (Hardt and Negri, 2002, pp 63-66) falls well short of Marx and Engel’s monumental attempt. There is an obvious virtue in the health warnings provided by both works against easy promises of transformation and the charming of struggles into passivity. However, at the end there is a difference. Fitzpatrick warns against global mythmaking, whereas for Hardt and Negri, the global embrace is essential for liberation. Only then can the libidinal struggle between Eros and Thanatos take place and, there is to be a happy ending, Eros has to win! We noticed earlier that perhaps Fitzpatrick does not offer any solutions to the irresolutions because he himself cannot and does not tackle the central figure of the Other, the Savage of the Global South. Social movements in Chiapas, Nablus or Tian-an-Men do not arise in global abstraction but concrete local situations with their own histories and, shall we say, Southern mythic irresolutions. Obviously, global issues do become relevant but such movements are safest when firmly grounded in the local environment. Unfortunately, the staggering abstraction of the Hardt and Negri vision hides the chaotic universe inhabited by social movements.
Anderson, B (1991) Imagined Communities: Reflections on the Origin and Spread of Nationalism (2nd ed) (London: Verso).
Appadurai, A (1990) ‘Disjuncture and Difference in Global Cultural Economy’ Public Culture 2(2), pp 1-24.
Derrida, J (1992) ‘Force of Law: The ‘Mystical Foundations of Authority’’ trans. Mary Quittance In Cornell, Drucilla et al. (eds) Deconstruction and the Possibility of Justice (New York: Routledge)
Fitzpatrick, P (1992) The Mythology of Modern Law (London: Routledge).
Fitzpatrick, P (2001) Modernism and the Grounds of Law. (Cambridge: Cambridge University Press).
Freud, S (1960) Totem and Taboo trans. James Strachey (London: Routledge).
Gellner, E (1983) Nations and Nationalism (Oxford: Blackwell).
Giddens, A (1990) The Consequences of Modernity (Cambridge: Polity Press).
Hardt, M and Negri, A (2001) Empire (Cambridge MA and London: Harvard University Press).
Hart, HLA (1961) The Concept of Law. (London: Oxford University Press).
Hegel, GFW (1956) The Philosophy of History trans. J Sibree (New York: Dover).
Hirst, P and Thompson, G (1996) Globalization in Question (Cambridge: Polity Press).
Howard, R (1993) ‘Cultural Absolutism and the Nostalgia for Community’ Human Rights Quarterly 15, pp 315-38.
Johnson v McIntosh (1823) 21 U. S. (8 Wheat.) at 543.
Kant, I (1970) Kant’s Political Writings (The Metaphysics and Morals) trans. HB.Nisbet (Cambridge: Cambridge University Press).
Robertson, R (1992) Globalization: Social Theory and Global Culture (London: Sage).
Rousseau, J-J (1968) The Social Contract trans. Maurice Cranston (London, Penguin).
Sakai, N (1988) ‘Modernity and its Critique: The Problem of Universalism and Particularism The South Atlantic Quarterly 87(3), pp 475-504.
Santos, B (1995) Towards a New Common Sense: Law, Globalization and Emancipation, 2nd Edition (London: Butterworths).
Santos, B (1995) Towards a New Common Sense: Law, Science and Politics in Paradigmatic Transition (New York and London: Routledge).
Smith, AD (1986) The Ethnic Origins of Nations (Oxford: Blackwell).
Trubek, D et al (1994) ‘Global Restructuring and the Law: Studies of the Internationalisation of Legal Fields and the Creation of Transnational Arenas’ Case Western Reserve Law Review 44(2), pp 407- 98.
Vitoria, F de (1934) ‘De Indis’ in Scott, JB The Spanish Origin of International Law: Francisco de Vitoria and His Law of Nations (Oxford: Clarendon Press).