Law, Culture and the Humanities http://lch.sagepub.

com/

Sovereignty and Imperial Law

Richard Joyce Law, Culture and the Humanities published online 20 December 2011 DOI: 10.1177/1743872111420982 The online version of this article can be found at: http://lch.sagepub.com/content/early/2011/12/20/1743872111420982

Published by:
http://www.sagepublications.com

On behalf of:
Association for the Study of Law, Culture and the Humanities

Additional services and information for Law, Culture and the Humanities can be found at: Email Alerts: http://lch.sagepub.com/cgi/alerts Subscriptions: http://lch.sagepub.com/subscriptions Reprints: http://www.sagepub.com/journalsReprints.nav Permissions: http://www.sagepub.com/journalsPermissions.nav

>> OnlineFirst Version of Record - Dec 20, 2011 What is This?

Downloaded from lch.sagepub.com at UNIV OF SOUTHERN CALIFORNIA on January 21, 2013

420982
2011

LCHXXX10.1177/1743872111420982JoyceLaw, Culture and the Humanities 0(0)

Commentary

LAW, CULTURE AND THE HUMANITIES

Sovereignty and Imperial Law

Richard Joyce

Law, Culture and the Humanities 113 The Author(s) 2011 Reprints and permission: sagepub. co.uk/journalsPermissions.nav DOI: 10.1177/1743872111420982 lch.sagepub.com

Faculty of Law, Monash University

Abstract
This commentary reflects on the imperial qualities of modern sovereignty and law, through the lens of Jacques Derridas notion of sovereign autopositioning. It argues that modern sovereignty is essentially imperial and yet carries an inextinguishable anti-imperial thrust. These characteristics highlight the self-grounded force of sovereign claims and at the same time expose the contingency of those claims. The commentary argues that this relationship between force and contingency creates a need for vigilant critique of and a space for resistance to, sovereign claims.

Keywords
Sovereignty, imperialism, law, community, Derrida, autopositioning

I. Introduction
Of the many ways in which imperialism may be understood, one of the more common and enduring would be as the expansionary and appropriative imposition of law on a people by a foreign power which claims, without the consent of the people, authority over it. In many cases of colonization, the people subject to this imposition would not, prior to the colonization itself, have been conceived, or conceived of itself, as a singular entity. As such, the claim to colonial authority is one not only which claims authority over a people or community, but one which actively creates the people over which this authority is claimed. With that notion of imperialism serving as a backdrop, the purpose of this commentary is to reflect, in both a general and pointed way, on the imperial qualities of modern sovereignty and law. I will seek to show that the features of imperialism sketched above (the expansionary and appropriative imposition of law on a people and the active creation of that people) can be seen not only in colonial encounters, but in all claims to sovereignty in modernity. That is not to say that these features are the only features of
Corresponding author: Richard Joyce, Faculty of Law, Monash University, Melbourne,Victoria, Australia. Email: richard.joyce@monash.edu

Downloaded from lch.sagepub.com at UNIV OF SOUTHERN CALIFORNIA on January 21, 2013

Law, Culture and the Humanities

imperialism. Nor that all claims to sovereignty share all the features of all colonial encounters (even if it was thought that these could easily be grouped), in particular the intensity of violence associated with the worst. As such, this commentary does not seek to establish a straightforward equivalence between imperialism and modern sovereignty which might imply, perhaps, that a particular moral or ethical stance should be taken against the latter. Instead, the aim here is to disrupt the notion that there exists a clear distinction between imperialism and the sovereignty of the modern nation-state. No simple conclusions flow from that disruption. Instead, it serves to remind us that in each instantiation of sovereignty there is a need for vigilant critique and a space for resistance. The generality of the brief outlined above will be attenuated by its particular focus on the work of Jacques Derrida and his concept of sovereign autopositioning. More precisely, this commentary will consider the implications of Derridas concept of sovereign autopositioning for understanding the relationship between modern law and imperialism. Perhaps characteristically for an argument based on the work of Derrida, sovereignty (and by extension modern law, at whose heart it lies) will be found to be both more and less imperial than would commonly be thought. Or, more precisely, it will be found to be essentially imperial and yet carry within it an inextinguishable antiimperial thrust. At first glance, it might appear that Derrida has left the present author with little to do. In Rogues, his most sustained exposition on sovereignty, the imperial qualities of modern sovereignty (especially state sovereignty) and their limits are explicit themes.1 In arguing that states which claim authority to make war on Rogue states are also roguish themselves, Derrida writes that [a]s soon as there is sovereignty, there is abuse of power and a rogue state.2 This abuse is the logic of a sovereignty that can reign only by not sharing.3 But this imperial logic can only carry things so far: since it never succeeds in doing this except in a critical, precarious, and unstable fashion, sovereignty can only tend, for a limited time, to reign without sharing. It can only tend towards imperial hegemony.4 The language of abuse of power, of rogue states, and even imperialism, in Rogues, serves mainly to provide a context for Derridas theoretical analysis. It also provides the terms for his critique of recent interventions by [t]he first and most perverse, most violent, most destructive of rogue states the United States.5 But in some ways this language can work to distract from the theoretical issues at stake. The imperial qualities of sovereignty do not lie simply in states violent excesses beyond their borders. Nor are
1. Jacques Derrida, Rogues: Two Essays on Reason, tr. Pascale-Anne Brault and Michael Nass (Stanford, CA: Stanford University Press, 2005). The seminar series in which Derrida developed and refined many of the arguments pursued in Rogues has been published posthumously. It appears in the English translation as Jacques Derrida, The Beast and the Sovereign (Volume 1), tr. Geoffrey Bennington (Chicago, IL: University of Chicago Press, 2009). 2. Derrida, Rogues, p. 102. 3. Op. cit., p. 102. 4. Op. cit., p. 102. 5. Op. cit., pp. 967.

Downloaded from lch.sagepub.com at UNIV OF SOUTHERN CALIFORNIA on January 21, 2013

Joyce

the limitations of that imperial thrust to be revealed simply in the practical, economic, military or technological limitations of one state or another. Modern sovereigntys imperial qualities and their limitations are, I would argue, essential to the form that modern sovereignty takes. They are revealed in this sense by thinking through Derridas concept of sovereign autopositioning rather than through his explicit references to imperialism. Derridas references to autopositioning, though central to his work on sovereignty, tend to be made in passing and not developed in detail. This commentary will attempt to render more explicit the connections between autopositioned sovereignty, the law over which it claims authority, and the community whose law it is, with a view to showing that imperialism is an essential, yet complex and contradictory, feature of modern sovereignty. In the next part of this commentary I will give a short account of Derridas conception of sovereign autopositioning. In the third part I will examine those aspects of it which give modern sovereignty its imperial force or trajectory. In the fourth part I will argue that the same characteristics which give modern sovereignty its imperial force or trajectory also expose its contingency and thus contain the seeds of its undoing.

II. Sovereign autopositioning 1. Background (or the void)

Before setting out what Derrida means by sovereign autopositioning it is necessary first to set out the theoretical framework in which this kind of thinking on sovereignty takes place. The first, and perhaps most obvious feature of this framework is what we might call, by a shorthand Derrida would avoid, the death of God.6 It is, of course, axiomatic that modernity marks the end of mans reliance on God for legal and political authority on earth. Indeed, if pre-modern sovereignty in Europe could be accounted for by the concept of the divine right of kings, the Enlightenment and its revolutions would leave us without both the divine and the king. In its place we have authority grounded in the nation and its people. What God used to do for sovereign authority was to provide a settled point of transcendent reference guaranteeing the authority of those who had the strength to claim it in his name. Without such transcendent reference, as has been pointedly observed, the heirs of divine authority nation and people are required to take on and effect qualities which, if not easily characterized as sacred, then at least put incredible strain on the secularity of modern authority.7
6. Jacques Derrida, Faith and Knowledge: The Two Sources of Religion at the Limits of Reason Alone, tr. Samuel Weber, in Jacques Derrida, Acts of Religion, ed. Gil Anidjar (New York: Routledge, 2002), p. 65. 7. See Peter Fitzpatrick, What are the Gods to Us Now?: Secular Theology and the Modernity of Law, Theoretical Inquiries in Law 8 (2007), pp. 16190; Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, tr. George Schwab (Chicago: University of Chicago Press, 2005).

Downloaded from lch.sagepub.com at UNIV OF SOUTHERN CALIFORNIA on January 21, 2013

Law, Culture and the Humanities

Indeed, while awareness of the death of God might be commonplace in thought on modern sovereignty, its consequences are usually overlooked or suppressed.8 What distinguishes the line of thinking which takes us to Derridas conception of autopositioning is its rigorous insistence on the void which Gods death announces. For Derrida, the death of God, or more precisely [t]he deaths of God, before Christianity, in it and beyond it, are only figures and episodes of a fundamental absence.9 Everything begins with the presence of that absence.10 The absence of a settled and settling transcendent reference to guarantee our social formations, including sovereignty, nation, people etc., means that it is left up to us to bear witness to their validity. Deconstruction operates in view of this lack. It tries to show that convention, institutions and consensus are stabilisations (sometimes stabilisations of great duration, sometimes micro-stabilisations) of something essentially chaotic.11 This chaos and instability is fundamental, founding and irreducible.12 Derridas analysis and critique of sovereignty takes place against the background of this void. What does this mean for modern sovereignty, which has taken the contours of its form from Bodins definition of the sovereign as a person recognizing nothing, after God, that is greater than himself?13 Would we not find that in the absence of divine authority, the sovereign is simply an entity which recognizes no authority greater than itself, with respect to that over which it claims authority? If the sovereign recognizes no authority greater than itself, then it has only itself to justify its authority. It is this line of thought that takes us to Derridas notion of sovereignty as self-authorizing and self-justifying or, in his precise term, autopositioned.14 The second crucial feature of this framework is that it takes place in a context not only in which social formations such as state sovereignty are called into question, but also in which Enlightenment thinking on the subject, the individual, and most broadly the self is fundamentally challenged. Much of Rogues is concerned with the conditions of possibility for the presence of the self. The link between the self and sovereignty is found not only in the substance of what unites them (for Derrida, the concept of ipseity more on this shortly) but also the consequences of their critique. For while Derrida would find state sovereignty to be a suitable target of deconstruction,15 he is quick to point out that such critique would also fundamentally call into question much

8. For example, Kants acute awareness of the difficulties in grounding legal authority without God was accompanied by a stern warning against questioning the origins of an existing legal authority. See Immanuel Kant, The Metaphysics of Morals, ed. and tr. Mary Gregor (Cambridge: Cambridge University Press, 1996), p. 95. 9. Derrida, Faith and Knowledge, p. 65. 10. Op. cit., p. 65 (his emphasis). 11. Jacques Derrida, Remarks on Deconstruction and Pragmatism, tr. Simon Critchley, in Simon Critchley, Jacques Derrida, Ernesto Laclau and Richard Rorty, Deconstruction and Pragmatism (London: Routledge, 1996), p. 83. 12. Op. cit., p. 84. 13. Jean Bodin, On Sovereignty: Four Chapters from the Six Books of the Commonwealth, ed. and tr. Julian Franklin (Cambridge: Cambridge University Press, 1992), p. 4. 14. Derrida, Rogues, p. 142. 15. Op. cit., p. 157.
Downloaded from lch.sagepub.com at UNIV OF SOUTHERN CALIFORNIA on January 21, 2013

Joyce

more besides. For Derrida, [o]ne cannot combat, head-on, all sovereignty, sovereignty in general, without threatening at the same time, beyond the nation-state figure of sovereignty, the classical principles of freedom and self-determination.16 He argued that sovereigntys deconstruction must occur while recognising that all the fundamental axiomatics of responsibility or decision are grounded on the sovereignty of the subject, that is, the intentional auto-determination of the conscious self.17

2. Sovereign autopositioning ipseity incarnate

In Rogues, Derrida refers to the autopositioning of sovereignty as a feature of sovereignty in general and also of indivisible nation-state sovereignty.18 This autopositioning is defined (in parentheses of course) as nothing less than that of ipseity itself, of the self-same of the one-self.19 The Oxford English Dictionary defines ipseity as personal identity and individuality; selfhood.20 The phrase ipseity itself, then, can be understood to refer to the conditions of selfhood both what makes selfhood possible and what makes it what it is. The particular sense in which Derrida uses ipseity in Rogues can only be understood within the context of his discussion of the relation between selfhood and autonomy.21 For Derrida, that is the relation between a selfs self-designation (what it is) and the authority it claims over and for itself (what it can authorize itself to do). This relation can be reduced to what is at stake whenever someone says, for themselves, the two words I can 22 Derrida puts this in terms of ipseity, by which he means, the power that gives itself its own law, its self-representation, the sovereign and reappropriating gathering of the self in the simultaneity of an assemblage or assembly, being together, or living together, as we say.23 For Derrida, there is a power, potency, sovereignty or possibility implied in every I can, [which refers] always to possession, property and power, to the authority of the lord or seignor, or sovereign.24 Derrida is careful to point out that the concept of ipseity is not restricted to (nor indeed founded on) the concept of a person. It is also applicable to the constitution of a collective political subject. Thus the principle of ipseity is not simply related to questions of personal freedom and autonomy, but also to political autonomy and authority. Derrida writes:
Before any sovereignty of the state, of the nation-state, of the monarch, or, in democracy, of the people, ipseity names a principle of legitimate sovereignty, the accredited or recognized supremacy of a power or a force. That is what is implied, posed, presupposed, but also imposed in the very position, in the very self- or autopositioning, of ipseity itself.25 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. Op. cit., p. 158 (his emphasis). Derrida, Without Alibi, p. xix. Derrida, Rogues, p. 142. Op. cit., p. 142. Oxford English Dictionary (Oxford: Oxford University Press, 2000), online edition. Derrida, Rogues, pp. 1018. Op. cit., p. 11. See also Derrida, Without Alibi, p. 275. Derrida, Rogues, p. 11. Op. cit., p. 11. Op. cit., p. 12 (his emphasis).
Downloaded from lch.sagepub.com at UNIV OF SOUTHERN CALIFORNIA on January 21, 2013

Law, Culture and the Humanities

Thus, for Derrida, the concept of ipseity grounds all claims to sovereignty. That is, legitimate sovereignty is grounded by self-authorization, by autopositioning a positioning not simply presupposed but also imposed. This applies as much to the nation-state as to any other possible form of sovereignty. Its legitimacy flows from strength, from being the strongest, from having the ability to decide, from having ones reason win out.26 And yet, there seems to be something more required. That something more, I argue, is a relation to community and law.27 A sovereign is not a sovereign simply for itself. Rather, it is sovereign for the community for which it claims authority to speak. It is therefore dependent on a relation to community. Moreover, sovereignty does not involve a simple application of power, but rather is dependent on law for its mode of rule. As I will attempt to show, these connections, together with the quality of autopositioning itself, are crucial in tracing modern sovereigntys imperial and anti-imperial qualities. There is not space here to elaborate on the nuances of Derridas thought on sovereignty; nor to defend it against possible counter-arguments. The aim of the brief outline provided above is to set the scene for an analysis which aims to consider the implications of this thought for understanding the relationship between modern law and imperialism.

III. Appropriation and re-appropriation the imperial dynamics of sovereign autopositioning

If, as we tend or like to think, the distinguishing feature of modern sovereignty (especially in its national form) is its grounding in the consent of the governed, then the exercise of that sovereignty is not imperial in the sense that it is not imposed. Instead, a people calls it into being for their own ends. The focus on sovereigntys autopositioning, however, causes us to question, in a manner Kant would forbid, the foundation provided by the social contract.28 It causes us to consider the paradoxes or aporias which lie at the heart of the modern attempt to ground sovereign authority in the people. In so doing, we are confronted by the imperial qualities of modern sovereignty. These can be observed in the following overlapping ways. We can see them firstly in the attempt to determine what is inside the scope of the sovereign claim; second, in the attempt to exclude and maintain position against what is outside; third, in the sovereigns claim to speak for a community; and finally, in the sovereigns claim to ultimate authority over law.

26. Op. cit., pp. 1213. 27. This is also, I would tentatively suggest, consistent with Derridas analysis of sovereignty, taking into account a selection of his works in which one or more of these themes is developed (which are cited in this commentary), and bearing in mind Derridas reluctance to rely on community as a conceptual category (see below the text accompanying footnotes 37 and 38). But nowhere in Derridas work are they connected and developed in the explicit terms which this commentary adopts. 28. Kant, Metaphysics of Morals, p. 95.

Downloaded from lch.sagepub.com at UNIV OF SOUTHERN CALIFORNIA on January 21, 2013

Joyce

1. Determining what is inside

As we have just seen, for Derrida, the self-grounded claim to sovereign position involves, at least in part, a gathering of the self.29 The sovereigns gathering of the self is the process by which it determines who it speaks for, and, in the same breath, who and what is subject to its authority. In terms of political (rather than personal) sovereignty, this claim is invariably one to speak for a community. And, aside from explicit colonial encounters (and even some of those), the form of the claim is invariably one in which the community for which the sovereign claims to speak is said to exist prior to that claim in order to ground it. But the form of the claim belies the fact that the community depends on the sovereign for its identity. For Derrida, a collective political subject is always called into being by a self-authorized decision by an entity which both produces and presupposes the existence of the subject for which it claims authority to speak.30 Taking as exemplary the instance of the Declaration of Independence, Derrida would find that the people invoked by the instituting declaration We the people, does not exist as an entity, it does not exist, before this declaration, not as such.31 The people is declared into being by a signature which authorizes itself in a sort of fabulous retroactivity.32 That is, the declaration is never said first, in unison, by the people. It is always the words of a representative, claiming, in a sovereign fashion, the right to speak and act for the community. As such, the sovereign claim to speak for a community is always one which relies on the self-authorization of the sovereign. This is not to say that the community is entirely subservient and passive. Indeed, the sovereigns attempt to erase its arbitrary origins by this process of fabulous retroactivity,33 which is crucial to its success, depends in large part on how effectively it is able to reflect (as well as shape) the aspirations of the community for which it claims to speak. This self-authorization or autopositioning brings to the fore the imposition of law and identity on a people which modern sovereignty shares with imperialism. The sovereign claim is always an imposition of authority and identity on a community which has not authorized that claim in advance. It is the sovereign claim itself which cuts through the founding chaos and instability so as to create a stabilization of relations which are not, and have never been, the product of a natural order.34 This suggests that the nationstates purported position as the exclusive site of sovereignty in modernity should not be taken for granted and allowed to operate as a limit on what it is possible to think and do. Importantly, the imposition of law and identity is not something that happens once, in the past, at the origin. It is an ongoing process. Hence Derridas choice of the word

29. Derrida, Rogues, p. 11. 30. See Jacques Derrida, Declarations of Independence, New Political Science 7(1) (1986), pp. 715; Jacques Derrida, The Laws of Reflection: Nelson Mandela, In Admiration, trs. M. Caws and I. Loenz in Jacques Derrida and Mustapha Tlili eds., For Nelson Mandela (New York: Seaver Books, 1987), pp. 1342. 31. Derrida, Declarations, p. 10 (his emphasis). 32. Op. cit., p. 10. 33. Op. cit., p. 10. 34. Derrida, Deconstruction and Pragmatism, pp. 834.

Downloaded from lch.sagepub.com at UNIV OF SOUTHERN CALIFORNIA on January 21, 2013

Law, Culture and the Humanities

reappropriating to describe the gathering of the self through which the sovereign asserts its authority and identity (and the identity of that which it rules). Each iteration of this assertion is a founding imposition because the chaos and instability which the sovereign claim seeks to overcome presents a constant and continuing challenge. In the next section, we will see that this appropriation and re-appropriation occurs in the course of an exposure to the infinity of what lies outside the scope of the claim. This exposure not only invites the self-grounded assertion and re-assertion of modern sovereignty but also gives it an expansionary tendency.

2. The challenge of what is outside

The imperial qualities of modern sovereignty do not lie simply in the fact that its claims cannot be authorized in advance. There is also an expansionary dimension to modern sovereigntys appropriative character. This dimension flows from the fact that its claim to ultimate authority to determine its law and identity must necessarily be set against all that might impose or impinge upon it that is everything that is outside. This orients the sovereign claim beyond itself and forces it to go out in search of its limits. Once we concede that claiming a sovereign position involves an imperial gathering of the self, one has to ask whether there is a limit to the claim which might at least confine its imperial qualities to a realm which might customarily be described as domestic. The claim to include, however, cannot be made in a purely self-referential way. It must be combined with a claim to exclusion. And to exclude requires constant exposure and responsiveness to the challenges of what lies beyond. Because of this challenge and the need to respond to it, the sovereign cannot grant itself complete detachment. And because the question of inclusion and exclusion is, for a sovereign, constitutive of its very being and identity, the challenge from the outside forms an essential part of its constitution. The impossibility of complete, detached, sovereign self-hood is perhaps best analyzed by Jean-Luc Nancy. As Nancy writes, a being perfectly detached, distinct and closed, a being without relation, an absolute being is impossible.35 (Nancy notes that it is common to conceive of the individual and the state in these impossible terms.)36 The impossibility is revealed in the fact that in order for the purportedly absolute entity to be separated from other entities, it would also be necessary for this entity to fully control the circumstances of that separation. This presupposes not only a boundary between it and another entity, but an enclosure of that very boundary itself, such that it was not in contact with any other entity.37 For Nancy, the
absolute must be the absolute of its own absoluteness, or not be at all. In other words: to be absolutely alone, it is not enough that I be so; I must also be alone in being alone and this of course is contradictory. The logic of the absolute violates the absolute.38 35. Jean-Luc Nancy, The Inoperative Community, ed. and tr. Peter Connor (Minneapolis, MN: University of Minnesota Press, 1991), p. 4. 36. Op. cit., p. 4. 37. Op. cit., p. 4. 38. Op. cit., p. 4.

Downloaded from lch.sagepub.com at UNIV OF SOUTHERN CALIFORNIA on January 21, 2013

Joyce

Hence claims to sovereignty thus depend essentially on their relation to what is outside them. They meet their limit in the course of this relation; in their exposure to (and hence opening out infinitely towards) what is beyond them not by virtue of self-imposed limits. Once combined with the self-grounded and absolute nature of the sovereign claim (that is to be able to determine in any situation what is inside and outside absolutely), this orientation towards the infinite gives modern sovereignty an imperial trajectory.

3. The restlessness of community

The combination of the sovereigns need to determine what is inside and its inevitable exposure (and need to re-position itself in response) to what is outside, can be usefully discerned by returning to the concept of community. We saw above that, for Derrida, a collective political subject or (as I put it) a political community does not pre-exist the sovereigns claim to speak for it. This was used to make the point that sovereign claims always involve an imposition. I also intimated that this imposition required reiteration. In this section, we will see more closely how communitys restlessness necessitates this reiteration of sovereign determination while also glimpsing how the attempt to hold community within itself pushes the sovereign ever beyond its current limitations. The concept of community I will use to illustrate this point comes from Nancy. This must be done with some care, as Derrida expressed reservations about Nancys use of the term community, especially in so far as Derrida felt it was connected to Nancys use of fraternity in The Experience of Freedom.39 For Derrida, the use of fraternity, with all its attractions, could not avoid certain problematic links between masculine authority, nature and birth which may lead (but certainly not straightforwardly) back to the received privileging of national sovereignty.40 But looking at Derridas sovereign autopositioning through the lens of Nancys work on community illuminates much about it, particularly if one focuses on the restlessness of community which Nancy exposes in his earlier work, The Inoperative Community.41 As we saw above, Derrida describes the autopositioning of sovereignty as occurring in the simultaneity of an assemblage or assembly, being together or living together.42 These concepts fit well with those which underlie Nancys conception of community. Nancys conception of community emphasizes both its inability to be present to itself (a trait which gives rise to the necessity of a self-grounded sovereign claim to determine what the community is for the time being) and the impossibility of containing

39. Derrida, Rogues, pp. 5661. See Jean-Luc Nancy, The Experience of Freedom, tr. Bridget McDonald (Stanford, CA: Stanford University Press, 1993). 40. Derrida, Rogues, pp. 5661. See also, Jacques Derrida, Politics of Friendship, tr. George Collins (London: Verso, 1997), pp. 81107. 41. Nancy, Inoperative Community, pp. 142. 42. Derrida, Rogues, p. 11 (see above note 22).

Downloaded from lch.sagepub.com at UNIV OF SOUTHERN CALIFORNIA on January 21, 2013

10

Law, Culture and the Humanities

it (a trait which makes the sovereign claim necessarily temporary and contingent and simultaneously calls for its repeated reassertion). Community, for Nancy, is not a thing in itself, nor the distillation or representation of a common essence, nor the collective work of individual subjects.43 Rather, community exists simply because of the fact that we are inescapably with each other in the world.44 It is that which is constituted by our relations with each other as singular beings. And if we are always changing, then the communities that exist because of the fact of our relations with each other must also constantly be changing. Indeed, as opposed to being a work, for Nancy, community is an unworking inoperative and uncontainable.45 It is something which works towards the unravelling of fixed positions and identities. As such, community assumes the impossibility of its own immanence.46 Like the sovereigns need to exclude itself from (and hence its necessary relation with) what is outside it, the attempt to contain the restlessness of community also orients the sovereign beyond itself and towards the infinite. In order to attempt to encompass and speak for a community, the sovereign must be able to respond to and bring within itself the changing characteristics of that community, or decide anew what it is that does not belong within it. This encounter with the infinite is necessarily imperial since the sovereign must claim the ability and authority to decide, in the midst of this infinite flux, the character and boundaries of the community for which it speaks.

4. The infinity of law

The final aspect of sovereigntys imperial trajectory comes from its relation to law.47 Indeed it is perhaps the claim to ultimate authority over law which most explicitly announces that trajectory. In Derridas terms, the unconditional dimension of justice which cannot be dissociated from the calculation and force demanded by law and the legal decision, is always beyond the existent reach of what we might call the sovereign.48 Rendering this in Fitzpatricks terms, the law over which sovereignty claims authority must be able to do anything, if not everything.49 It must encompass the infinity of our

43. Nancy, Inoperative Community, pp. 335. 44. Op. cit., p. 28. 45. As Nancys translator explains, the French word used in the original text, dsouvrement, has no adequate translation in English. Unworking is used by the translators in the text itself, but inoperative is used in the title because it too captures something of the original and further, a title ought not to inflict upon the reader an unrecognisable word: Nancy, Inoperative Community, p. 156 (translators note). 46. Nancy, Inoperative Community, p. 15. 47. For more on the conception of law relied on here, see Peter Fitzpatrick, Modernism and the Grounds of Law (Cambridge: Cambridge University Press, 2001), ch. 3. 48. Jacques Derrida, Force of Law: The Mystical Foundation of Authority, tr. Mary Quaintance, in Jacques Derrida, Acts of Religion, ed. Gil Anidjar (New York: Routledge, 2002), pp. 244, 2523, 257. 49. Fitzpatrick, Modernism, p. 71.

Downloaded from lch.sagepub.com at UNIV OF SOUTHERN CALIFORNIA on January 21, 2013

Joyce

11

being with each other. This infinity cannot give way to pre-ordered, neat, jurisdictional divisions. As Fitzpatrick writes [m]odern laws pre-eminent pervasion lies not in any fixity of attachment but in its hovering ubiquitously over and incipiently occupying all finitudes, in its being ever able to cut into, and render palpable, its own infinite possibility.50 Modern law depends on the sovereign to make this determining cut; to render palpable the infinity of law in the application and enforcement of a decision.51 In the moment of decision laws infinite possibility is momentarily denied. That infinite possibility returns, however, both to haunt the decision itself with the specter of what else it could have been, and to affirm laws ability to adapt to match the infinitely changing circumstances of life.52 The same infinity which calls for sovereign power to give it effect also leaves no outside to law which the sovereign could occupy so as to determine, in advance, the limits of its authority. As Foucault writes:
[h]ow could one know the law and truly experience it, how could one force it to come into view, to exercise its powers clearly, to speak, without provoking it, without pursuing it into its recesses, without resolutely going ever farther into the outside into which it is always receding?53

Law draws the sovereign out beyond itself and calls on it to decide on whatever might come to it. This orientation towards the infinite gives modern sovereignty another dimension of its imperial trajectory and means once again that the limits of sovereign authority are only met through challenge and conflict with other rival sovereign claims.

IV. Sovereign autopositioning and the unworking of imperial law

The picture sketched so far is of a self-grounded sovereign whose imperial nature is effected through its claim to determine the identity and law of its community and through its orientation to what is beyond it. How then, might this sovereignty be resisted? If no grounds exist which could legitimate sovereign claims and keep them within certain bounds, are we not abandoned to sovereign power? What gives Derrida the confidence that sovereignty can only tend towards imperial hegemony and isnt actually able to achieve it except in a critical, precarious, and unstable fashion?54 The answer suggested here is that the very things which give autopositioned sovereignty its imperial dimensions the things which give rise to the dependence of community and law on a power whose legitimacy cannot be granted in advance of its

50. 51. 52. 53.

Op. cit., p. 133. On the need for the determining cut, see Derrida, Force of Law, p. 252. See op. cit., pp. 2527. Michel Foucault, Maurice Blanchot: The Thought from the Outside, tr Brian Massumi, in Maurice Blanchot and Michel Foucault, Foucault/Blanchot (New York: Zone Books, 1987), p. 34. 54. Derrida, Rogues, p. 102 (see above note 3).

Downloaded from lch.sagepub.com at UNIV OF SOUTHERN CALIFORNIA on January 21, 2013

12

Law, Culture and the Humanities

claim to authority are the same things which undermine imperial claims. The vacuity of law and community can only be contained by sovereign claims to a certain extent and only ever for the time being.55 While their vacuity creates the conditions for (even demands) self-grounded sovereign claims, it also constantly exposes the contingency of those claims and the possibility of the situation being otherwise. Returning to Nancys conception of community as an unworking, we saw above that this orientation towards the infinite drew the sovereign claim out beyond itself and that its resulting, though always incipient, claim to encompass that infinity was evidence of an essentially imperial dimension. But that same quality would render impossible a claim to define and encompass a community, or the notion of community itself, in a fixed and enduring fashion. Community as resistance itself: resistance to immanence56 defies claims to containment and invites challenge. It opens the possibility for claims to ultimate legal authority other than the ones which presently dominate. This would enable not only the challenges which characterized decolonization the overthrow of a foreign power by a proto-national force which would then assume national status (and whose character and borders would fit, or be made to fit, the former and often arbitrary colonial borders). It would also enable a more fundamental challenge to the notion that nation is the only form of community capable of grounding law and sovereignty in modernity. As we saw above, the infinity of law also impelled sovereign assertion beyond itself. But an existent and effective assertion can never truly match the illimitable.57 Any claim or decision requires an essential reduction of possibility in favor of determination, for the time being. And the gap which opens up between the infinity of law and its determinate application is one which invites challenges. It exposes the contingency of our present condition and puts in view the possibility of things being otherwise that law could be, and could be grounded in ways and places that would be, strange to ears attuned to the siren call of the nation. Law thus constantly works to undo settled sovereign claims and against imperial assertion. But we should not forget that in so doing it also invites their (ever contingent) reassertion.

V. Conclusion
The analysis above is not intended to suggest that modern law and sovereignty are concepts whose deployment inevitably results in the kind of imperialism practiced by European powers in the modern era. But it does suggest that these concepts are conducive to, and may facilitate (or have facilitated), such endeavors. The more telling suggestion that the analysis gives rise to, however, concerns the question of imperialism in a purportedly post-colonial world. It is beyond trite to observe, for example, that national legal systems seek to regulate things which exceed their borders or enter from outside. But the precise grounds, interactions and effects of these myriad extraversions (either

55. See, in relation to law, Fitzpatrick, Modernism, p. 104. 56. Nancy, Inoperative Community, p. 35. 57. See Fitzpatrick, Modernism, pp. 1045.

Downloaded from lch.sagepub.com at UNIV OF SOUTHERN CALIFORNIA on January 21, 2013

Joyce

13

directly or in some form of concert) are difficult to grasp without an appreciation for the inherently appropriative (and, on my analysis, imperial) dimensions of sovereignty and law. Perhaps even more telling, an appreciation of the appropriative and imperial dimensions of modern law and sovereignty helps to understand the difficulty faced by indigenous communities (and local communities of other forms) in challenging state authority in continuing colonial or post-colonial settings. In its own terms, the completeness of the modern states sovereign claim leaves nothing beyond the range of its power to determine. As such, even successful indigenous challenges are rendered in terms of what the state grants, recognises or allows.58 And yet, a focus on the autopositioned sovereign assertion at the heart of modern law reveals not only its imperial force but also its contingency. Here lies the seeds of its unworking. Once the self-grounded and contingent nature of national sovereign claims is exposed, the possibility is raised that fundamental challenges to sovereign assertion can come from anywhere.59 Where such challenges might go, or what their effect might be, is necessarily uncertain. While we should seek to guard against perverse exploitations of contingency and openness, absolute assurance against this risk, in Derridas terms, can only saturate or suture the opening of the call to justice and seek to limit the illimitable.60 In the terms of this commentary, to accept claims to such assurance, to certainty of grounds and fixity of forms, would be to surrender to the imperial qualities of sovereignty and leave us bereft of conceptual tools of resistance. For Derrida, the chaos and instability which we saw above was fundamental, founding and irreducible involves not only risk, but also chance, a chance to change.61 If despite modern sovereigntys imperial tendencies we can find within it a continuing invitation to resistance, to an openness to new and different possibilities of community, of law, and of life, we must live with the fact that this risk and chance come together.

58. See, eg, Mabo v. Queensland (No. 2) (1992) 175 CLR 1. 59. For a detailed examination of this possibility in the context of local and indigenous claims to sovereignty, and in the context of the complex relationship between the authority of the World Trade Organisation and the sovereignty of its member states, see Richard Joyce, Competing Sovereignties (Abingdon: Routledge, forthcoming). 60. Derrida, Force of Law, p. 257. 61. Derrida, Deconstruction and Pragmatism, p. 84.

Downloaded from lch.sagepub.com at UNIV OF SOUTHERN CALIFORNIA on January 21, 2013