Although, given the conditions in which these theories were formulated (during the cold war, when the United Nations only limped forward in the best of times), we must recognize the great foresight of these theorists, we also have to point out that they cannot account for the real novelty of the historical processes we are witnessing today. In this regard these theories can and do become harmful, because they do not recognize the accelerated rhythm, the violence, and the necessity with which the new imperial paradigm operates. What they do not understand is that imperial sovereignty marks a paradigm shift. Paradoxically (but it is really not that paradoxical), only Kelsen's conception poses the real problem, even if his conception is limited to a strictly formalist point of view. What political power already exists or can be created, he asks, that is adequate to a globalization of economic and social relations? What juridical source, what fundamental norm, and what command can support a new order and avoid the impending descent into global disorder?
The Constitution of Empire
Many contemporary theorists are reluctant to recognize the globalization of capitalist production and its world market as a fundamentally new situation and a significant historical shift. The theorists associated with the world-systems perspective, for example, argue that from its inception, capitalism has always functioned as a world economy, and therefore those who clamor about the novelty of its globalization today have only misunderstood its history. Certainly, it is important to emphasize both capitalism's continuous foundational relationship to (or at least a tendency toward) the world market and capitalism's expanding cycles of development; but proper attention to the ab origine universal or universalizing dimensions of capitalist development should not blind us to the rupture or shift in contemporary capitalist production and global relations of power. We believe that this shift makes perfectly clear and possible today the capitalist project to bring together economic power and political power, to realize, in other words, a properly capitalist order. In constitutional terms, the processes of globalization are no longer merely a fact but also a source of juridical definitions that tends to project a single supranational figure of political power.
Other theorists are reluctant to recognize a major shift in global power relations because they see that the dominant capitalist nationstates have continued to exercise imperialist domination over the other nations and regions of the globe. From this perspective, the contemporary tendencies toward Empire would represent not a fundamentally new phenomenon but simply a perfecting of imperialism. Without underestimating these real and important lines of continuity, however, we think it is important to note that what used to be conflict or competition among several imperialist powers has in important respects been replaced by the idea of a single power that overdetermines them all, structures them in a unitary way, and treats them under one common notion of right that is decidedly postcolonial and postimperialist. This is really the point of departure for our study of Empire: a new notion of right, or rather, a new inscription of authority and a new design of the production of norms and legal instruments of coercion that guarantee contracts and resolve conflicts.
We should point out here that we accord special attention to the juridical figures of the constitution of Empire at the beginning of our study not out of any specialized disciplinary interest-as if right or law in itself, as an agent of regulation, were capable of representing the social world in its totality-but rather because they provide a good index of the processes of imperial constitution. New juridical figures reveal a first view of the tendency toward the centralized and unitary regulation of both the world market and global power relations, with all the difficulties presented by such a project. Juridical transformations effectively point toward changes in the material constitution of world power and order. The transition we are witnessing today from traditional international law, which was defined by contracts and treaties, to the definition and constitution of a new sovereign, supranational world power (and thus to an imperial notion of right), however incomplete, gives us a framework in which to read the totalizing social processes of Empire. In effect, the juridical transformation functions as a symptom of the modifications of the material biopolitical constitution of our societies. These changes regard not only international law and international relations but also the internal power relations of each country. While studying and critiquing the new forms of international and supranational law, then, we will at the same time be pushed to the heart of the political theory of Empire, where the problem of supranational sovereignty, its source of legitimacy, and its exercise bring into focus political, cultural, and finally ontological problems.
To approach the juridical concept of Empire, we might look first at the genealogy of the concept, which will give us some preliminary terms for our investigation. The concept comes down to us through a long, primarily European tradition, which goes back at least to ancient Rome, whereby the juridico-political figure of Empire was closely linked to the Christian origins of European civilizations. There the concept of Empire united juridical categories and universal ethical values, making them work together as an organic whole. This union has continuously functioned within the concept, whatever the vicissitudes of the history of Empire. Every juridical system is in some way a crystallization of a specific set of values, because ethics is part of the materiality of every juridical foundation, but Empire-and in particular the Roman tradition of imperial right-is peculiar in that it pushes the coincidence and universality of the ethical and the juridical to the extreme: in Empire there is peace, in Empire there is the guarantee of justice for all peoples. The concept of Empire is presented as a global concert under the direction of a single conductor, a unitary power that maintains the social peace and produces its ethical truths. And in order to achieve these ends, the single power is given the necessary force to conduct, when necessary, "just wars" at the borders against the barbarians and internally against the rebellious.
From the beginning, then, Empire sets in motion an ethicopolitical dynamic that lies at the heart of its juridical concept. This juridical concept involves two fundamental tendencies: first, the notion of a right that is affirmed in the construction of a new order that envelops the entire space of what it considers civilization, a boundless, universal space; and second, a notion of right that encompasses all time within its ethical foundation. Empire exhausts historical time, suspends history, and summons the past and future within its own ethical order. In other words, Empire presents its order as permanent, eternal, and necessary.
In the Germanic-Roman tradition that thrived throughout the Middle Ages, these two notions of right went hand in hand. Beginning in the Renaissance, however, with the triumph of secularism, these two notions were separated and each developed independently. On the one hand, there emerged in modern European political thought a conception of international right, and on the other, there developed utopias of "perpetual peace." In the first case, the order that the Roman Empire had promised was sought, long after its fall, through a treaty mechanism that would construct an international order among sovereign states by operating analogously to the contractual mechanisms that guaranteed order within the nation-state and its civil society. Thinkers from Grotius to Puffendorf theorized this process in formal terms. In the second case, the idea of "perpetual peace" continually reappeared throughout modern Europe, from Bernadin de Saint Pierre to Immanuel Kant. This idea was presented as an ideal of reason, a "light" that had to criticize and also unite right and ethicality, a presupposed transcendental of the juridical system and ideal schema of reason and ethics. The fundamental alternative between these two notions ran throughout all of European 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 of struggles and the supersession of right.
Would it be correct to claim, then, that these two different developments of the notion of right that persisted side by side through the centuries of modernity 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 of right should be understood again in terms of the concept of Empire. And yet, since a large part of our 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 if here we are limiting ourselves only to the analysis of the notion of right. We can already recognize, however, some important symptoms of the rebirth of the concept of Empire-symptoms that function like logical provocations arising on the terrain of history 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 of the Gulf War. Traditionally the concept rests primarily on the idea that when a state finds itself confronted with a threat of aggression that can endanger its territorial integrity or political independence, it has a jus ad bellum (right to make war). 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 of just war involves the banalization of war and the celebration of it as an ethical instrument, both of which were ideas that modern political thought and the international community of nation-states had resolutely refused. These two traditional characteristics have reappeared in our postmodern world: on the one hand, war is reduced to the status of police 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, however, today's concept presents some truly fundamental innovations. Just war is no longer in any sense an activity of defense or resistance, as it was, for example, in the Christian tradition from Saint Augustine to the scholastics of the Counter-Reformation, as a necessity of the "worldly city" to guarantee its own survival. It has become rather an activity that is justified in itself. Two distinct elements are combined in this concept of just war: first, the legitimacy of the military apparatus insofar as it is ethically grounded, and second, the effectiveness of military action to achieve the desired order and peace.
The synthesis of these 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 of routine 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 of the concept. The resurrection of the concept of just war may be only a symptom of the emergence of Empire, 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 of what it is not, as for example is done when one says: the new paradigm is defined by the definitive decline of the sovereign nation-states, by the deregulation of international markets, by the end of antagonistic 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 of norms and far-reaching production of legitimacy, 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 of intellectual shorthand as a hybrid of Niklas Luhmann's systems theory and John Rawls's theory of justice. 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 of the whole. The systemic totality has a dominant position in the global order, breaking resolutely with every previous dialectic and developing an integration of actors that seems linear and spontaneous. At the same time, however, the effectiveness of the consensus under a supreme authority of the ordering appears ever more clearly. All conflicts, all crises, and all dissensions effectively push forward the process of integration and by the same measure call for more central authority. Peace, equilibrium, and the cessation of conflict are the values toward which everything is directed. The development of the global system (and of imperial right in the first place) seems to be the development of a machine that imposes procedures of continual contractualization that lead to systemic equilibria-a machine that creates a continuous call for authority. The machine seems to predetermine the exercise of authority 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 of the process of the imperial constitutionalization of world order-the new paradigm.
This imperial paradigm is qualitatively different from the various attempts in the period of transition to define a project of international order. 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 if the new order were already constituted. The conceptual inseparability of the title and exercise of power is affirmed from the outset, as the effective a priori of the system. The imperfect coincidence, or better the ever-present temporal and spatial disjunctions between the new central power and the field of application of its 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, overdetermined with respect to and relatively autonomous from the sovereign nation-states, is capable of functioning 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. The capacity to form a system is, in effect, presupposed by the real process of its formation. Moreover, the process of formation, and the subjects that act in it, are attracted in advance toward the positively defined vortex of the center, and this attraction becomes irresistible, not only in the name of the capacity of the 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 of Luhmann and Rawls, but even before them we have Kelsen, that utopian and thus involuntary and contradictory discoverer of the soul of imperial right!
Once again, the ancient notions of Empire help us articulate better the nature of this 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 of the capacity to present force as being in the service of right and peace. All interventions of the imperial armies are solicited by one or more of the parties involved in an already existing conflict. Empire is not born of its own will but rather it is called into being and constituted on the basis of its capacity to resolve conflicts. Empire is formed and its intervention becomes juridically legitimate only when it is already inserted into the chain of international consensuses aimed at resolving existing conflicts. To return to Machiavelli, the expansion of Empire is rooted in the internal trajectory of the conflicts it is meant to resolve. The first task of Empire, then, is to enlarge the realm of the 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 of the global model of authority operating today. Juridical positivism and natural right theories, contractualism and institutional realism, formalism and systematism can each describe some aspect of it. Juridical positivism can emphasize the necessity for a strong power to exist at the center of the 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 of consensus 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 of the new supranational juridical order correspond strongly to the new characteristics that have come to define internal orderings in the passage from modernity to postmodernity. 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 of both 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 of the new functioning of domestic law and supranational law derives first of all from the fact that they operate on the same terrain, namely, the terrain of crisis. As Carl Schmitt has taught us, however, crisis on the terrain of the application of law should focus our attention on the "exception" operative in the moment of its production. Domestic and supranational law are both defined by their exceptionality.
The function of exception here is very important. In order to take control of and dominate such a completely fluid situation, it is necessary to grant the intervening authority (1) the capacity to define, every time in an exceptional way, the demands of intervention; 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 of the arrangements in crisis. Here, therefore, is born, in the name of the exceptionality of the intervention, a form of right that is really a right of the police. The formation of a new right is inscribed in the deployment of prevention, repression, and rhetorical force aimed at the reconstruction of social equilibrium: all this is proper to the activity of the police. We can thus recognize the initial and implicit source of imperial right in terms of police action and the capacity of the police to create and maintain order. The legitimacy of the imperial ordering supports the exercise of police power, while at the same time the activity of global police force demonstrates the real effectiveness of the imperial ordering. The juridical power to rule over the exception and the capacity to deploy police force are thus two initial coordinates that define the imperial model of authority.
We might well ask at this point, however, should we still use the juridical term "right" in this context? How can we call right (and specifically imperial right) a series of techniques that, founded on a state of permanent exception and the power of the police, reduces right and law to a question of pure effectiveness? In order to address these questions, we should first look more closely at the process of imperial constitution that we are witnessing today. We should emphasize from the start that its reality is demonstrated not only by the transformations of international law it brings about, but also by the changes it effects in the administrative law of individual societies and nation-states, or really in the administrative law of cosmopolitical society. Through its contemporary transformation of supranational law, the imperial process of constitution tends either directly or indirectly to penetrate and reconfigure the domestic law of the nation-states, and thus supranational law powerfully overdetermines domestic law.
Perhaps the most significant symptom of this transformation is the development of the so-called right of intervention. This is commonly conceived as the right or duty of the dominant subjects of the world order to intervene in the territories of other subjects in the interest of preventing or resolving humanitarian problems, guaranteeing accords, and imposing peace. The right of intervention figured prominently among the panoply of instruments accorded the United Nations by its Charter for maintaining international order, but the contemporary reconfiguration of this right represents a qualitative leap. No longer, as under the old international ordering, do individual sovereign states or the supranational (U.N.) power intervene only to ensure or impose the application of voluntarily engaged international accords. Now supranational subjects that are legitimated not by right but by consensus intervene in the name of any type of emergency and superior ethical principles. What stands behind this intervention is not just a permanent state of emergency and exception, but a permanent state of emergency and exception justified by the appeal to essential values of justice. In other words, the right of the police is legitimated by universal values. Should we assume that since this new right of intervention functions primarily toward the goal of resolving urgent human problems, its legitimacy is therefore founded on universal values? Should we read this movement as a process that, on the basis of the fluctuating elements of the historical framework, sets in motion a constitutive machine driven by universal forces of justice and peace? Are we thus in a situation very close to the traditional definition of Empire, the one promulgated in the ancient Roman-Christian imaginary?
It would be going too far to respond affirmatively to these questions at this early stage in our investigation. The definition of the developing imperial power as a science of the police that is founded on a practice of just war to address continually arising emergencies is probably correct but still completely insufficient. As we have seen, the phenomenological determinations of the new global order exist in a profoundly fluctuating situation that could also be characterized correctly in terms of crisis and war. How can we reconcile the legitimation of this order through prevention and policing with the fact that crisis and war themselves demonstrate the very questionable genesis and legitimacy of this concept of justice? As we have already noted, these techniques and others like them indicate that what we are witnessing is a process of the material constitution of the new planetary order, the consolidation of its administrative machine, and the production of new hierarchies of command over global space. Who will decide on the definitions of justice and order across the expanse of this totality in the course of its process of constitution? Who will be able to define the concept of peace? Who will be able to unify the process of suspending history and call this suspension just? Around these questions the problematic of Empire is completely open, not closed.