Abstract
Contemporary interpretations of Spinozan political theory and metaphysics (Negri, Balibar, Deleuze) suggest a parallel critique of constitutionalism and imperialism. Spinoza’s suspicion (in the Ethics) of every attempt to divide constituting power (potentia) from constituted power (potestas), and his simultaneous concern with the structure of constitutional frameworks (in the Political Treatise) and with their symbolic or passional significance (in the Theologico-Political Treatise) reveal the double-edged property of constitutionalism: its capacity both to constrain and to facilitate the dynamics of potentia, of the power of bodies. Imperialism operates in a similar fashion, on larger scales. European colonial empires were constituted as complexes of juridical-institutional forms, aggregating colonial subjects as new multitudes. They created new, hybrid worlds (however repressive and limited) with the bricks and mortar of institutions and conditioned the emergence of new political subjectivities, both releasing and channelling the flow of potentia. From a Spinozan perspective, the operations of constitutionalism and imperialism can be seen as analogous, and uncritical celebration of the one and condemnation of the other both become problematic.
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Notes
‘Not to deride, bewail, or execrate, but to understand.’ TPI4. References to Spinoza’s works are as follows: E Ethics (followed by Part in roman numerals, P for proposition, C for corollary, S for scholium), TTP Tractatus-Theologico-Politicus (followed by chapter and paragraph in Arabic numerals), TP Tractatus Politicus (followed by chapter and paragraph in Arabic numerals). English translations are those of Samuel Shirley (Spinoza: Complete Works, Hackett, Indianapolis, 2002).
See in particular, Deleuze, G., Expressionism and Philosophy: Spinoza (Zone Books, New York, 1992); Negri, A., The Savage Anomaly: The Power of Spinoza’s Metaphysics and Politics (University of Minnesota, Minneapolis, 1991); Balibar, E., Spinoza and Politics (Verso, London, 1998); Balibar, E., ‘Jus-Pactum-Lex: On the Constitution of the Subject in the Theologico-Political Treatise,’ in Montag, W. and Stolze, T., eds., The New Spinoza (Minnesota, Minneapolis, 1997), pp. 171–205; Negri, A., ‘Reliqua Desiderantur: A Conjecture for the Definition of Democracy in the Final Spinoza,’ in Montag and Stolze, eds, The New Spinoza, pp. 206–246; Deleuze, G., ‘Spinoza and the Three Ethics,’ in Montag and Stolze, eds, The New Spinoza, pp. 21–34; Matheron, A., ‘The Theoretical Function of Democracy in Spinoza and Hobbes,’ in Montag and Stolze, eds, The New Spinoza, pp. 207–216.
Elsewhere ‘constitutio’ is used in the corporeal sense (the body’s constitution or state) or the physical sense (the state of things or circumstances).
For example, TP8:25, 9:41, 10:2.
TTP3:37.
TP2:3.
Balibar, Spinoza and Politics, supra n. 2, pp. 16–24.
Negri insists on the positivity of power in Spinoza as opposed to the positivism of the law. “Legal positivism does not appear in Spinoza...” Savage Anomaly (SA), fn 2, 196. “In Spinoza there is a profound refusal of formal considerations of the constitutional process. The limits are forces; the bounds of Power (potestas) are defined by powers (potentiae).” SA 206.
EIIP18S.
Balibar, ‘Ius-Pactum-Lex’ supra n. 2, p. 20.
For Spinoza, rulers necessarily live in fear of their subjects, precisely because the alienated potentia by virtue of which rulers rule is subject to reconversion or reclamation by the multitude. “[F]or men have never transferred their right and surrendered their power to another so completely that they were not feared by those persons who received their right and power, and that the government has not been in greater danger from its citizens, though deprived of their right, than from its external enemies.” TTP17.
Deleuze, G., Les Cours de Gilles Deleuze, ‘Cours Vincennes : power (puissance), classical natural right – 09/12/1980’, http://www.webdeleuze.com/php/texte.php?cle=20&groupe=Spinoza&langue=2 , Spionza: Practical Philosophy, supra n. 2, p. 25. Deleuze groups them with a third figure, the slave, as a Spinozan triad of sadness and negative emotion.
In the TTP, Spinoza describes the dialectic that a theocratic organisation of political society necessarily sets in play. The Law, once handed down on Sinai, is no longer exclusively within the province of State authorities (priests) to interpret; it is always susceptible of being marshalled against the State by the politically dissident or the divinely inspired: prophets pre-eminently, who turn the Law back against its authorised interpreters. This instability must persist in any constitutional arrangement (an institutional charter for the future), since constitutional provisions (as any authorising injunctions or commands, even the Decalogue) are never univocal and control over their meaning is never successfully monopolised by designated interpreters. “The [US] Constitution should also be understood as a material regime of juridical interpretation and practice that is exercised not only by jurists and judges but also by subjects throughout society.” Hardt, M. and Negri, A., Empire (Harvard University Press, Cambridge, 2000), p. 168.
TTP17 ‘[Q]ui terras jure possidebant, leges statuere jure non poterant.’
TP8:11ff.
TP8:44.
EIII preface.
Balibar, E., ‘Jus-Pactum-Lex’, supra n. 2, p. 204.
Fine, R. and Smith, W., ‘Jürgen Habermas’s Theory of Cosmopolitanism,’ Constellations, v.10, n. 4, pp. 469–487, Dec. 2003.
Habermas, J, The Inclusion of the Other: Studies in Political Theory (MIT Press, Cambridge, Mass., 1998), p. 118, quoted in Fine and Smith, ‘Jürgen Habermas’s Theory of Cosmopolitanism,’ Ibid.
Negri, A., The Savage Anomaly, supra n. 2, pp. 3–21.
TP10:9.
TP5:7.
TP8:4.
Anghie, A. Imperlialism, Sovereignty, and the Making of International Law (Cambridge University Press, Cambridge, 2005), pp. 28–31.
EIVP41.
Anghie, loc. cit., supra n 25.
In the earlier phase of mercantile, rather than state or crown, colonialism, it was the companies (VOC for the Netherlands East Indies, British East India Company for the subcontinent) that were chartered to rule, by virtue of delegated sovereignty. The territories were in turn effectively ‘privately constitutionalised’, that is organised into administrative units by company agents who functioned as the colonial government.
Even where local, pre-existing structures of rule are left more or less intact by the dominating colonial power, such as native or customary authorities in indirect-rule colonies, those structures are transformed through re-contextualisation, such that the rule of such authorities, once defined in its own terms, becomes jurisdiction, defined in constitutional terms.
Negri, A., The Savage Anomaly, supra n. 2, pp. 3–21.
Spinoza in his review of the possible options after conquest does not seem to have considered the peculiar intermediate status of imperialism, which involves the replication-with-modification of institutions in the service of domination, quasi-incorporation but in a subordinate status. “But cities that have been captured by right of war and annexed to the state should be regarded as allied to the state, to be won over and bound by favour shown; or else colonies that would enjoy the right of citizenship should be sent there and the native population removed elsewhere; or else the city should be utterly destroyed.” TP9:13.
“For, since subjects are debarred both from counselling and voting, they are to be regarded on the same footing as foreigners.” TP8:9.
TTP17.
TP1:7.
Abdullahi An-Naim has drawn attention to this process and in particular to its emancipatory significance. “Eritrean Independence and African Constitutionalism: A Sudanese Perspective,” in Amare Takle, ed., Eritrea and Ethiopia: From Conflict to Cooperation (The Red Sea Press, Lawrenceville, NJ, USA, 1994), Chapter 7, pp. 117–125.
Hardt, M. and Negri, A., Multitude (Penguin, New York, 2004). The working-out of the implications of the Spinozan term as a distinct form of collectivity, irreducibly plural, composed of singularities and not susceptible to subsumption or integration into a unity, occupies Hardt and Negri for 400 pages. They develop it as a conceptual tool specifically for the global moment and define it in light of the consequences of globalisation for social, material, and symbolic production. Their usage is thus designed for a somewhat different set of purposes than the usage developed here, though obviously broadly similar.
In the famous series of axioms and lemmata after the first scholium of proposition 13 of The Ethics, Spinoza works out an elaborate physics of bodies and their reciprocal dynamics. He is especially concerned to account for the composite nature of the physical universe, the way in which all things are composites of other things, and the possibility of singular things or bodies to unite in greater wholes.
Post-colonial scholarship has exhaustively studied colonial and post-colonial subjectivity. Comparatively little attention has however been paid to the legal-institutional determinants of such subjectivity. In studies on South Africa (Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism, Princeton, 1996) and Rwanda (When Victims Become Killers: Colonialism, Nativism, and the Genocide in Rwanda , Princeton, 2001), Mahmood Mamdani has persuasively demonstrated that legal classification of colonial subjects and legally premised hierarchies of race and ethnicity were a fundamental institutional strategy of domination right across the colonial enterprise in Africa.
From a Spinozan perspective, it should be evident that there is necessarily a transfer of power (from colonial subjects to colonial authority) at the time a colony is constitutionalised, through their failure to resist or the failure of their resistance, that is, by virtue of the inferiority of their power to the colonial power. This is constitution by fiat, but constitution nonetheless, which accomplishes and is at least partly accomplished by the alienation and aggregation of the potentiae of the members of the colonial multitude.
Hardt and Negri, Empire, supra n. 13, at 309
See Marks, S. ‘The Rule of Law in the Era of Globalization: Guarding the Gates with Two Faces: International Law and Political Reconstruction,’ Indiana Journal Global Legal Studies v. 6, pp. 457-; Marks, S., The Riddle of All Constitutions (Oxford, 2001); Jayasuriya, Kanishka, “Globalization, Sovereignty, and the Rule of Law: From Political to Economic Constitutionalism? Constellations v. 4, p. 442.
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Newton, S. Constitutionalism and imperialism Sub Specie Spinozae . Law Critique 17, 325–355 (2006). https://doi.org/10.1007/s10978-006-9000-4
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DOI: https://doi.org/10.1007/s10978-006-9000-4