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Empires of Law: Discipline and Resistance within the Transnational System

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Abstract

This article explores the idea that law has become newly constitutive in a postmodern transnational system in which modernity's classic polarities have become obscured, the discipline of late capitalism has become widely if partially internalized outside of institutional domains, liberalism's foot soldiers (rights, citizenship, nation statism, 'free' markets) have gained new forward momentum despite a period of supposed ideological hybridity described by that overheated but ill-theorized concept 'globalization', and, finally, most arguments for socialist/egalitarian revolution or system transformation must now be seen as anachronisms. The article locates these processes as essential features of a particular disciplinary regime in which the grandeur of liberal legality is used to create loyalty to the wider project of liberalism within the consolidation of late capitalism. These regimes are called 'empires of law', and the theoretical framework within which empires of law are rendered intelligible as actual sociolegal phenomena draws from, but critically reframes, insights found in Hardt and Negri's book Empire (2000).
EMPIRES OF LAW: DISCIPLINE
AND RESISTANCE
WITHIN THE TRANSNATIONAL
SYSTEM
MARK GOODALE
George Mason University, USA
ABSTRACT
This article explores the idea that law has become newly constitutive in a postmodern
transnational system in which modernity’s classic polarities have become obscured,
the discipline of late capitalism has become widely if partially internalized outside of
institutional domains, liberalism’s foot soldiers (rights, citizenship, nation statism,
‘free’ markets) have gained new forward momentum despite a period of supposed
ideological hybridity described by that overheated but ill-theorized concept
‘globalization,’ and, finally, most arguments for socialist/egalitarian revolution or
system transformation must now be seen as anachronisms. The article locates these
processes as essential features of a particular disciplinary regime in which the grandeur
of liberal legality is used to create loyalty to the wider project of liberalism within the
consolidation of late capitalism. These regimes are called ‘empires of law,’ and the
theoretical framework within which empires of law are rendered intelligible as actual
sociolegal phenomena draws from, but critically reframes, insights found in Hardt
and Negri’s book Empire (2000).
KEY WORDS
Bolivia; empires of law; human rights; legal pluralism; liberal legality; Romania
INTRODUCTION
THIS ARTICLE explores the idea that law has become newly constitutive
in a postmodern transnational system in which modernity’s classic
polarities have become obscured, the discipline of late capitalism has
SOCIAL &LEGAL STUDIES Copyright © 2005 SAGE Publications
London, Thousand Oaks, CA and New Delhi, www.sagepublications.com
0964 6639, Vol. 14(4), 553–583
DOI: 10.1177/0964663905057594
05 Goodale 057594 (bc-t) 18/8/05 2:20 pm Page 553
become widely if partially internalized outside of institutional domains,
liberalism’s foot soldiers (rights, citizenship, nation statism, ‘free’ markets)
have gained new forward momentum despite a period of supposed ideo-
logical hybridity described by that overheated but ill-theorized concept
‘globalization,’ and, finally, most arguments for socialist/egalitarian revolu-
tion or system transformation must now be seen, alas, as naïve anachronisms.
This article was partly inspired by a reevaluation of Michael Hardt and
Antonio Negri’s book Empire (2000), particularly in light of recent research
from the boundaries of the ‘new’ Europe, which gave me a chance to test, as
it were, some of their vague ontological descriptions and quasi-mystical
ethico-political predictions against the fluid cultural and political landscapes
in eastern Europe. At the same time, this new research allowed me to develop
a comparative analytical framework in which a theory of empires of law
draws from ethnographic and historical soundings from two generally
distinct but suggestively similar regional contexts: eastern Europe (Romania)
and marginal Latin America (Bolivia). The critical interventions in the article
are not intended as final statements but are as much suggestions for a new
collaborative dialogue on the role of law in the postmodern imperium.
Although authors like Hardt and Negri appear at times to be struggling in a
sea of conceptual ambiguity, this difficulty can be understood as the result of
what is at present a period of extended transition, both for states and societies
and, equally so, for those who take it as their task to interpret such move-
ments. Although this article does not pretend to restore theoretical order
through breakthrough or synthesis, it does reflect a sense of urgency that
time is passing and at the same time a new global order is crystallizing,
without a corresponding sense that our understanding of it – from really any
angle – is keeping pace.
Law forms part of the foundation of this new order or system and one that
is shot through with contradictions perhaps more than its economic or politi-
cal or even cultural dimensions, and this alone would be enough to justify
the devotion of a relatively short article to its pursuit. But more to the point,
the production of subjectivity within empire depends almost entirely on the
universal and exalted nature of liberal legality, without which the contin-
gency and relativity embedded in the economic, political, and cultural would
be incapable of commanding loyalty; in other words, liberal legality justifies,
through its formal transcendence – here I depart significantly from Hardt and
Negri – the constitution of society and its members in practice in a way that
obscures the deliberative, exploitative, and extractive features of imperial
capitalism. Although law cannot, within this formulation, be simply reduced
to its ideological instrumentalities, this article will argue that there is a direct
link between the transcendence of liberal legality that gives meaning to
almost all influential public discourse in the current flash points of empire,
and the ongoing expansion and consolidation of what are pre-imperial
relations of production, which rely on acquiescence and even tacit consent
within global capital’s classic dependencies. This article will not – indeed,
could not – deconstruct empires of law any more than it could form part of
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a manifesto for those who would seek to transform the nature of empire
itself; rather, its aspirations are critical, it seeks to unveil.
By way of erecting fingerposts for the reader, the article is divided into two
main sections. Part I will detail the concepts and categories that form the
foundation for an emerging theory of empires of law. Here critical interven-
tions and adaptations will be described as a way of establishing a framework
within which subsequent illustrative descriptions drawn from the ethnogra-
phy and history of Romania and Bolivia will be given shape and meaning. I
will first establish the usefulness of adopting empire as both an analytical
concept and empirical category within which the contemporary expansion
and entrenchment of liberal legality can be understood. To do this I will
necessarily engage frontally with Hardt and Negri’s distinction between
imperialist and imperial global orders, and, more broadly, with much of their
analysis of a postmodern ontology, while by extension considering their
work’s relevance for the more specifically ethico-juridical questions that
animate this effort.
After this, in a section entitled ‘The Discipline of Grandeur and the
Grandeur of Discipline,’ I will describe a theoretical framework within
which we can better understand the disciplinary power of liberalism in its
matured legal forms as well as its correspondent: the seductive power of
disciplinary mechanisms themselves within both the new and old imperial
colonies. My analysis of liberal legality within empire will then lead to some-
thing of a theoretical conclusion. I will argue that liberal legality represents
the highest stage of imperialism; in other words, the triumph of grandeurous
universalism announces, at the same time that it constitutes, the fullest
development of empire within postmodernity. On this view, liberal legality
also points to – but does not represent – the future endpoint of ahistory (not,
of course, history as such), the history of global capitalism, in the sense that
a system’s highest stage is also necessarily its final stage, yet the triumph of
liberal legality does not, on the other hand, indicate what comes next.
To end this first part I will locate the theoretical outline developed here in
relation to an alternative and older framework commonly described as ‘legal
pluralism,’ i.e. a socio-legal analysis which posits and then depicts the exist-
ence of multiple and distinct legal orders existing within an integrated social
space. As I will argue, if a postmodern imperial ontology is to be seriously
considered, then this move necessarily marks the end of legal pluralism, both
empirically as a description of legality within empire, and normatively as an
analytical tool for capturing transnational law’s most important functions
and meanings.
Part II of this article will document and then interpret reaction and resist-
ance to empires of law. To do so I will examine what I see to be the major
point of struggle over the production of hegemonic subjectivities: between
those that reinforce the project of postmodern liberalism and those that, at
least formally, would appear to subvert or oppose it. I will argue that nation-
alism and other forms of counteruniversalism do not, in the end, represent
legitimate forms of resistance to empire, but are rather reactions conditioned
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(indeed, made possible) by the very same relations of production that rely
on a dialectical pairing of liberal universalism with various reactionary
subjectivities. This imperial dialectic, which can be observed quite clearly in
both Romania and Bolivia, for example, is understandable only if we pause
to examine the roles of influential social actors on both sides of the apparent
struggle for control over the level at which (legal) subjectivities will be
pitched: universally, i.e. transcendentally, or nationally, i.e. fully embedded
in the movements of history, place, the particular Volksgeist. In other words,
in order to give more substance to a dialectical theory of reaction and resist-
ance within empire I will revisit the enduringly salient variable of class.
By way of refining the level of analysis of law within empire I will focus
on a particularly important legality: human rights. Rather than simply explor-
ing the importance to empire of human rights-as-idea, however, the discussion
here will draw from the recent ethnography and history of human rights in
the two illustrative regions in order to demonstrate how, and explain why,
human rights have become the leading edge of empire’s vanguard. I under-
stand human rights as eminently illuminating of the basic propositions
developed here rather than, as some might argue, qualitatively distinct as
either idea or practice, and I will try and document the superliberalism of
human rights comparatively. I will then pursue reaction and resistance to
empires of law further by looking back briefly in order to relate the
framework developed here to what is understood to be the early struggle
against the colonial polarities of modern imperialism. If Hardt and Negri are
correct, and the peripheries have now been completely absorbed into their
corresponding metropoles, or vice versa, then where are the potential sites of
struggle – of resistance? How can the ‘empire write back’ if back has been
emptied of ontological meaning, especially if back is understood as metaphor?
Finally, in projecting into the future, in focusing the lens on empires of law
telescopically, so to speak, I will end on a decidedly pessimistic note, especi-
ally as these interventions would be viewed through a neo-marxist or post-
modern revolutionary perspective. It is possible to see the vague outlines of
this future: when the memories of the bipolar Cold War world have faded
into the mists and history textbooks; the European Union has become fully
imperial; the United States has devolved further into a sputtering neo-fascist
corporate state (and society) that remains economically powerful, exploita-
tive, and as dangerous as today, even as its inevitable decline and fall accel-
erate; and, dependent and globally insignificant nation states like Bolivia and
Romania continue to feature an old-fashioned class struggle between the
internally exploited and the small but globally ambitious capitalist cosmopo-
lites and their liberal-intellectual proxies, who yearn, dream, clamor for
Empire. Indeed, this somewhat gloomy forecasting inverts Hardt and Negri’s
quaint and endearing naïvety by arguing that if we can be assured of one
sociolegal phenomenon in the coming years it is that the multitude will be
unequivocally – as they are now, to the great consternation of their elite
(mostly western) narrators – for empires of law, in all of their discipline,
economic ruthlessness, ideological obfuscation, and cynicism.
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I. CONCEPTS AND CATEGORIES1
‘Empire’ denotes an argument as much it refers to a ‘new logic and structure
of rule’ (Hardt and Negri, 2000: xi) that orders exchange within and across
the most globally important planes of action and meaning. Indeed, there is
something unsettling about the constitutive nature of the empire hypothesis
in that its totalizing assumptions – that knowledge practices and being or
structure have become completely interexistential – depend on the existence
of the same global scale that they purport to describe. This is perhaps inevi-
table given the fact that empire assumes that the epistemological and the
ontological are interchangeable, which has the effect of rendering the theor-
etical moment as important for our purposes as the empirical – a dilemma
for some, to be sure, but one that should not detain us too long.
According to Hardt and Negri, empire2is the dominant fact of global
power, where the decline and (eventual) fall of national sovereignty is accom-
panied by a corresponding increase in deterritorialization, institutional
openness, apparent diffusion of command, fading away of rigid categories of
identity, and an increase in the planes of economic production and exchange
(p. xii). Yet empire is not a neologism for globalization in this formulation,
and here is where my own extension takes shape. Where Hardt and Negri
distinguish empire from globalization through a critique of both antiglobal-
ization and apologist orientations to this ‘phenomenon’ (-a?, process?,
history?),3I understand empire to be an apt description for something that,
while obviously derived to a certain extent from their innovative theorizing,
nevertheless expresses some important differences.
Like Hardt and Negri, I agree that empire describes a totalizing logic of
command, within which are embedded all of the subsidiary or dependent
disciplinary logics that, taken together, create the impression of a unified
global order. But here I diverge sharply from their analytical framework.
First, the totalizing logic of command that is empire for Hardt and Negri –
not, as they say, as metaphor, but as a concept with real ontological status –
is for me a simple heuristic device, an analytical strategy for bringing together
under one conceptual rubric what for me are the real units of analysis: the
various empires, which are distinct ideological social planes reflected (not
constituted) by their public discourses. So, for example, law is one dominant
type of empire, as I will show throughout this article. But one cannot identify
a single empire of law any more than one can identify a unified empire of
economics or politics. Yet empires (of law) reflect many of the characteristics
Hardt and Negri assign to the empire: they unfold through internalized
logics of discipline apart from institutions; they are as much concerned with
social production as they are with the spheres they formally denote (law, for
example); their boundaries do not follow the classical territoriality of modern
imperialist sovereignty; and so on.
And second, as will be clear from my analysis of empires of law that
encompass parts of eastern Europe and marginal Latin America, empires are
fully embedded in the continuing trajectory of western modernity, even as
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they reflect certain knowledge practices and structural dimensions that
should be considered postmodern. As we will see in the case of law, the classic
hallmarks of modernity’s imperialist phase – liberal citizenship, economic
progress, technological evolution – actually form the rationale for many
empires today, at the same time these ideas and practices become instrumen-
tal via decentered nodes of information or by transversing older geopolitical
boundaries. So contrary to Hardt and Negri’s emphasis on a definitive
movement from modernity to postmodernity within (or, which is) empire, I
argue that empires are in fact constituted by the dominant discourses of
modernity through structural developments – in communications, exchange,
migration, and so on – that at times appear to require ontological expla-
nation.4
The importance I give to modernity’s discourses within empires also
differs considerably from the role assigned to modernity more generally
within postmodernity by theorists like Fredric Jameson and Michael Speaks.
Jameson (1991) (following, to a certain extent, Speaks) sees only residues of
modernity within postmodernity, residues that are purely instrumental,
‘necessary failures that inscribe the particular postmodern project back into
its context, while at the same time reopening the question of the modern itself
for reexamination’ (p. xvi; see also 419, note 3). Within empires, on the other
hand, many of modernity’s most hegemonic discourses are not residual but
primary, despite the fact that their power is constituted within structures that
bear little resemblance to the rigid boundaries of modernity’s paradigmatic
discursive moment – colonialism. In this sense, then, ‘postmodernity’ might
be misleading when understood as marking a phase beyond or after moder-
nity, when in fact empires embody epistemological and ontological markings
of each ordering principle at the same time (that is to say, of both modernity
and postmodernity).
I have also argued that empires, like empires of law, are constituted within
a transnational system, and this also requires explanation. It has become
almost a truism that internationality has become less descriptive because of
the demise in modern sovereignty that accompanies the expansion and
consolidation of late capitalism. Nation states are increasingly transcended
by ideas and practices, which, while animated by economic imperatives that
must be identified with the nation state in certain instances, nevertheless open
up spaces for engagement and exploitation that unfold across or beyond
nation states. Transnationality therefore describes the spaces – again, whether
discursive or planar – within which empires are constituted, and the consti-
tutive process itself forms the ‘system’. As I employ it here, system refers to
processes that are increasingly imbricated rather than simply externally
located either as institutions or as discrete collectivities. To this extent we can
identify a transnational system as such without needing to invoke the support
of autopoesis or classic Luhmannian analysis. In other words, I am not inter-
ested in drawing from systems theory in articulating a theory of a trans-
national system that constitutes empires; rather, I adopt a more proccessual,
less structural, account of system.
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Perhaps another way of explaining the usage here is to invoke the socio-
legal work on networks, for example Annelise Riles’s, and to a lesser extent
the work produced through the collaboration of Bryant Garth and Yves
Dezalay. My understanding of, and reference to, networks as an analogue to
system is limited to the fact, which cannot be deduced a priori, that networks
are constituted through praxis, as Riles (2000) develops in her work, but are
not really constitutive; in other words, social actors are driven to create
multi-noded universes of action through the assortment of motives that can
be only be documented empirically. Yet this collective practice, directed
toward what appears from the outside to be a common purpose, gives rise to
only the vaguest outlines of unity; but this is enough, and this ‘system’ is one
in which, as we will see, legal consciousness is reshaped and made instru-
mental, this time in ways that bear all of the characteristics of system in the
Luhmannian sense. This movement from ‘system’ to system is certainly
central to the way hegemonic ideas are mobilized within empires.
And the process, as I have alluded to in my discussion of empires’ dimen-
sions, unfolds beyond the modern restrictions imposed by internationalism.
What is important to underscore here, however, is the fact that each relevant
system is not essentially transnational, nor is it transnational at all times and
in all places. Indeed, this fact is partly responsible for much analytical
confusion, which is exacerbated by a lack of tolerance for ontological hybrid-
ity, combined with a seemingly endless desire by both commentators and
social actors alike to make a clear break and then turn back and explain this
break through a unified and universal expansion of scale. Unfortunately
social facts do not reveal such a neat moment. Nevertheless, the specific
systems I am concerned with in this article – which create and maintain
empires of law – are in most respects transnational, with the added layer of
difficulty that much of the content of liberal legality (the major constituent
within empires of law), indeed its millenarian promise, assumes the existence
of a functioning set of international checks and balances. But this difficulty,
which becomes paradoxical in concrete situations, does not affect the basic
thrust of a main argument here, which is that the expansion and consolida-
tion of late capitalism depends on the effectiveness of liberal legality in
actuating populations – through empires of law – at the same time that it
pacifies them.5
Finally, it remains for me to establish the relation between transnational-
ism and law within this theoretical framework before moving on in the next
section to begin the work of describing the contours of the system in greater
detail. Not all law is or can be transnational; think, for example, of the norma-
tive orders within rural Bolivia. Each village features a set of rules and prac-
tices that are embedded in an unfolding local history, influenced by the
colonial and postcolonial encounters, and increasingly impacted by develop-
ment activities of various types of institutions. Yet these legal orders are not
in themselves transnational, nor is it likely that the principles that animate
them and give them meaning and context will incline them to transnational-
ity. This law is highly context-dependent and, what is even more important,
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not anchored in a jurisprudence of universality and transcendence, i.e.
grandeur (as was the Spanish legality that formed the foundation for the
colonial encounter in South America).
Liberal legality, on the other hand, in any of its several regional or philo-
sophical permutations, is at its core a quintessential transnationalism and
cannot be meaningfully understood either as theory or practice (or politics)
without foregrounding this point. Take, for example, the bundle of ideas and
practices invoked by human rights, a main arrow in the liberal legal quiver.
If human rights mean anything, it is that human beings – irrespective of
nation/nation state, time, place, culture, and so on – have rights that are
entailed by a common, equal, and universal humanness. Human rights are,
by definition, transnational and cannot be logically understood when the
scale of application is reduced, for example to the level of nation or culture.
International human rights, as an idea, if not as a set of complicated practices,
is oxymoronic, therefore, and it is likely that a whole rash of problems within
human rights derives from this unacceptable reduction of scale, that is to say,
the pragmatic reduction of an essentially transnational set of ideas to the level
of the international or below.6
Empires of law are necessarily empires of transnational law, as we will see,
transnational law that creates a specific system for the production of subjec-
tivities within – and at the service of – late capitalist relations of production.
In the next section I analyze the specific process through which liberal
legality commands loyalty and comes to form the foundation for empire.
THE DISCIPLINE OF GRANDEUR AND THE GRANDEUR OF
DISCIPLINE
If empires of law are in fact transnational systems in which law is constitu-
tive in the service of more fundamental relations of production, then we must
direct the critical lens at the process itself in order to understand how legality
is employed in this way. I have detected a set of related productive processes
that, while not joined to each other dialectically, are nevertheless simul-
taneously operative in the same social spaces (as in Romania and Bolivia, for
example). In other words, these processes are not binary opposites, either in
theory or practice, but they tend to exist within a kind of feedback loop, with
each reinforcing the other and tending toward the same purpose: the creation
and maintenance of empire. These dual processes can be called the ‘discipline
of grandeur’ and the ‘grandeur of discipline’.
The ideas that form the foundation for liberal legality find their justifi-
cation in, and power from, their universality, their presumed objectivity, their
enlightenment, their cultural neutrality, and their grandeur. Liberal legality
is, above all else, exalted, the culmination of centuries of civilizational and
jurisprudential progress, which finds its clearest expression in the locations
of its greatest triumphs: Paris and Philadelphia in the late 18th century,
Victorian London, Brussels in 2004 and so on. Colonialism, for example (the
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most remarkable preimperial globality), which was so enduring partly
because it was enacted under the sign of liberal legality, cannot be understood
without recognizing the grandiose nature of liberal legality itself. One cannot
explain the capitulation and then active participation by colonial elites in the
production of hegemony simply by invoking an opportunistic materialism,
or through recourse to a socio-psychological frame in the manner of Franz
Fanon. Rather, one must also study the disciplinary power entailed by liber-
alism, and specifically the way in which the grandeur that completely encap-
sulates liberal legal ideas like human rights and due process of law produces,
in the end, the liberal subject that then actually demands an empire of law.
To put this another way, the grandeur of liberal legality is disciplinary in
that it attracts social actors and compels them to employ their capabilities
in the service of empire, but this grandeur does not depend on the type of
‘institutional architectures’ (Hardt and Negri, 2000: 453) that a formal
Foucauldian analysis would suggest. Instead, liberal legality produces subjec-
tivities that quickly become themselves productive, but productive across the
whole range of social life, rather than confined to, or rather dependent on,
the primary function of those classic institutions of modernity: the prison,
the hospital, the university, and so on.7Social actors on the streets of
Bucharest and La Paz fully internalize the grandeur of the legal orders that
have come to completely enfold them, and they, in turn, move on to recon-
stitute and reinforce the order of liberal legality itself, i.e. they become the
producers of empire.
In identifying the discipline of grandeur I will not then go on to actually
engage critically with the underlying legal principles themselves; that is, it is
not my interest here to consider whether or not the specific core ideas of
liberal legality do, in fact, merit their apparent supereminence in some objec-
tive sense. Indeed, it is difficult to see how this point could be meaningfully
addressed without very quickly confronting, from just another angle, the idea
– or rather ideology – of grandeur itself. In any case, my concern here is to
explain the fact that the entire bundle of liberal legal principles cannot be
understood socially without considering the disciplinary process that is the
intended effect of the grandeur that prefigures them; in other words, I under-
stand liberal legal ideas to exist as a kind of superstructure in relation to a
pre-existing and primary base, which I have described as the discipline of
grandeur. I realize that this formulation inverts the typical social analysis
of legal ideologies – with basic legal principles giving coherence to a set of
dependent social practices, which then, in turn, effect change in the base –
but it seems to me that, at least in relation to liberal legality, something like
the discipline of grandeur animates liberal legal doctrine (rather than vice
versa), not to mention its socio-political instrumentalities.
As I have said, in explaining the process through which empires of law
emerge and consolidate their grip on the collective imaginary, we must
consider another component, which, while not necessarily conjoined with
the discipline of grandeur, nevertheless coexists with it: the grandeur of disci-
pline. At the same time that empires of law produce self-generating liberal
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legal subjectivities through the discipline of grandeur, both the idea and
process of discipline emerge in their own right as productive forces tending
toward the reinforcement and maintenance of empire. This development is
particularly clear in a country like Romania, which is emerging from a total-
itarian (but non-disciplinary) order – Soviet communism – at the same time
as becoming enwrapped in another (this one fully disciplinary): an empire of
law directed by the expanding European Union. Contrary to a traditional
disciplinary analysis that makes social actors unselfconscious internalizers of
the relevant disciplinary logics, social actors in Romania increasingly
embrace the disciplinary process itself, not so much because it appears to be
an undetachable aspect of liberal legality, as we saw earlier, but because disci-
pline in this sense has become grandiose on its own terms. Indeed, I would
argue that in order for disciplinary regimes like empires of law to be fully
effective, disciplinarity must become formalized and then associated with the
prestige of a progressing civilization. This also, incidentally, marks a tran-
sition from modernity to postmodernity: the moment when modernity’s
disciplinarities become institutionalized, not in the Foucauldian sense, but by
emerging quite publicly and rhetorically as the preferred engines of liberal
democracy.
LIBERAL LEGALITY, THE HIGHEST STAGE OF IMPERIALISM
In articulating a theory of empires of law, I am, by extension, making the
argument that an empire of law represents a third type of imperialism in
historical terms. As Hobsbawn (1987) explains, the period between 1875 and
1914, which he calls the ‘Age of Empire,’ saw the rise of a second type of
historical imperialism – he calls it a ‘new imperialism – in contrast with what
can be understood as the ‘first’ type. As he says, in the last quarter of the
19th century a different type of imperialism emerged as the dominant global
regime, a regime with only a vague resemblance – apart from the word itself
– to the ‘ancient forms of political and military aggrandizement on which
the term [imperialism] is based . . . Emperors and empires were old, but
imperialism was quite new’ (p. 60). What distinguished the new (or second)
imperialism from the first was the fact that territorial aggrandizement and
consolidation were now inevitable consequences of the expansion of capital-
ist relations of production, an expansion that inverted the relationship
between military/political and economic forces by making the military/
political an extension of the economic, rather than the reverse (as with
Hobsbawn’s ‘ancient forms’). Imperialism in this new sense led naturally to
colonialism and was the dominant global ordering principle until perhaps
1975.8
An empire of law is the end result of a third, and, as I will argue, final type
of imperialism. This final imperialism is characterized by the complete disci-
plinary internalization of liberal legality – through the processes I describe
in the preceding section – in the service of late (or fully matured)9capitalism.
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Liberal legality was, of course, a fundamental bulwark and vanguard within
imperialism II, but in imperialism III, liberal legality has both a different
meaning for a whole range of social actors and becomes instrumental through
a different set of productive processes. In the pre-1975 period – to give my
debatable periodization of imperialisms more explanatory weight than it
perhaps deserves – the ideas and practices of liberal legality administratively
enabled and then ideologically reinforced the expropriation of large tracts of
the geopolitical world as a necessary extension of the competition between
capitalist nation states. Indeed, the first and second generation of ethno-
graphic legal anthropologists in (most notably) Africa and south-east Asia
produced a body of work which, to a large extent, can be understood as
documenting and interpreting this process at the point at which colonials
were compelled to adopt, construct law parallel to, or, in few cases, to actually
resist, liberal legality.
With imperialism III, however, liberal legality becomes decoupled from its
traditional institutional locations (identified with the nation state), which
have, as the earlier discussion of transnationalism indicates, ceased to be
primary sites for the production of subjectivities; rather, institutions like
courts and parliaments and social welfare agencies have become, at most,
second-order locations at the service of social actors who have already fully
internalized the dominant structures of meaning. To take, again, human
rights as an example, imperialism III emerges when social actors no longer
acknowledge the importance, or even the existence, of a classical liberal-legal
institution like the United Nations because the idea of human rights has
become indistinguishable from idea of personhood itself; in other words, an
empire of law by definition automatically transforms liberal legal institutions
into redundant anachronisms. So this is what is meant when I say that,
despite correspondences, liberal legality assumes a completely different value
within imperialism III (its different instrumentalities have already been
described earlier). Indeed, let me bring the different parts of the immediately
preceding points together: imperialism III, which is an emerging imperialism
on its way to eventual global hegemony (following its earlier imperial
cousin), can be defined as the drive to produce and then consolidate empires
of law, which are totalizing regimes within which liberal legality comes to be
coextensive with identity through the internalization of liberal legality’s
imperatives.10
At the exact moment that imperialism III fully emerges as the dominant
global hegemony, we will be able to say that the end of its history also
emerges, not as a specific point in time, but as a systemic inevitability. Just
as historians of capitalism indirectly indicate the end of capitalism by period-
izing it,11 so too do does this analysis indicate the end of empires. If, as
Jameson (1991) maintains, late capitalism can be defined partly through its
dominant cultural logic (postmodernism), then I would argue that the end
times of capitalism can also be defined through what can be understood as
its dominant disciplinary logic: fully internalized liberal legality, i.e. empires
of law. To make this point another way, fully internalized liberal legality both
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defines and describes a final process of socio-legal evolution in that a liberal
legality that becomes coextensive with identity has nowhere else to go. When
social actors – across a whole range of regions and social classes – come to
think of themselves as embodying, in their thoughts and actions, the prin-
ciples of universalism, fairness, objectivity, due process, and so on, and then
go on to constitute society on these bases, history has come up against a limit.
As the discussion in Part II will show, imperialism III has not fully emerged,
that is to say social actors across the whole range most definitely have not
fully internalized the ideas and practices of liberal legality; rather, liberal
legality either still expresses itself institutionally, within the structures of
imperialism II, or social actors find themselves compelled to react to (not
resist) the creation of empires of law. Nevertheless, my analysis here assumes
that the tendency towards empires of law is increasing, and in some regions
and within some (usually disproportionately influential) social classes, expo-
nentially so. We must now look more closely at the general problem of how
to critically access these processes.
THE END OF LEGAL PLURALISM
If it is true that the tendency toward empires of law is accelerating, even if
in historical terms we are currently in what could be classified as a transi-
tional, or, even more accurate, liminal period on the way to a fully emerged
imperialism III, then a whole set of methodological problems emerge: how
should this tendency be documented? Can it be described empirically, or is
it a structural movement that can really only be inferred? How useful are
existing socio-legal methodologies and methods for these tasks? Does the
study (or interpretation) of the emergence of empires of law require funda-
mental inter- or transdisciplinarity? And, what lessons, if any, can be applied
to social science and theory more generally from research on the emergence
of empires of law, which I consider a dominant development of our time?
This article is not, unfortunately, the place to offer answers to each of these
questions, an endeavor that would require a full-length treatment in its own
right. Nevertheless, it is possible to begin to sketch the outline of a methodo-
logical approach to the study of empires of law by briefly re-evaluating what
is perhaps the most advanced existing methodological orientation to socio-
legal phenomena that bear at least a surface resemblance to what I have
described so far: the bundle of theories and practices that are subsumed under
the rubric of ‘legal pluralism.’ Studies in and of legal pluralism begin with the
assumption that there are social universes in which multiple and distinct legal
orders coexist and impact upon consciousness and everyday life at the same
time. The methodological goals for legal pluralism scholars are to identify
these coexistent multiple legalities, document their role in the production of
legal consciousness, and gauge their importance in relation to other, non-legal
structures of meaning and action.12
The emergence of legal pluralism studies was seen at the time as a major
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step forward in relation to both scholarly and governmental assumptions of
legal centralism and legal positivism, i.e. the related ideas that ‘law’ was
limited to the rules and procedures produced by the state and whose legiti-
macy was therefore dependent on the state’s. Although it was certainly trans-
formative as against legal centralism and positivism, even the notable
provocations of the legal realists could not theoretically accommodate the
research reports made possible by imperialism II (colonialism), in which
researchers documented the existence of what could only be classified as
law-like systems of dispute resolution and administrative management.
Because these reports were often produced for purely instrumental purposes
– to assist the various colonial administrators in Africa, south-east Asia, the
Pacific, and so on in extending rule (direct, or, more commonly, indirect) over
subject populations – their analytical reach was limited to that extent. Never-
theless, the prevailing view, which was conditioned, as I have said, by politi-
cal exigencies (but reinforced by all shades of contemporary jurisprudence),
was that even if law was necessarily the product of the state or sovereign,
colonial administrators and nation states would have to incorporate, politi-
cally, if not theoretically, the assorted quasi-legal orders that existed at law’s
margins. In other words, this was as much a debate about the effectiveness
of political power as it was about legal ontology.
Legal pluralism thus arose in this semi-academic, semi-political analytical
space and, although necessarily linked to the prevailing orientations towards
the fact of multiple normative systems that mostly anthropologists – with
some contributions by other social scientists and even some non-academics
– described, legal pluralism scholars produced studies that had the effect of
radically revising legal theory, even if this transformation was at times unac-
knowledged.13 There are several ways this happened that are relevant to the
present analysis, but the most important was that legal multiplicity itself was
retheorized. As I have said, jurisprudence of all types required the first-order
assumption that ‘law’ was a unique product, or constituent, of the state (or,
more broadly, the central political authority). Even the most sociological
jurisprudence of the time, which was prepared to accept the fact of non-state
legal or law-like systems coextensive with state law, nevertheless was
compelled to assign to state or central law a primary analytical and social
status.
Legal pluralism moved directly against this ancient theoretical and politi-
cal assumption by producing theory, anchored in comparative field research,
that led to quite different conclusions: the idea that social universes, especi-
ally in the colonial domains (but not necessarily), are comprised of multiple
legal systems or orders, each with its own separate and distinct ontological
status; that these multiple legal orders will be, to greater or lesser degrees,
organically embedded in the cultures or societies in which they operate; that
the different legal systems will be associated with broader and sometimes
widely unequal power structures, which will have the effect, among other
things, of affecting their durability and structural integrity; that, although
separate and distinct structurally, multiple legal orders in the same social
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universe will necessarily interpenetrate each other (in light of power inequali-
ties) so that legal theory and practice will never remain static in each legal
order, but will ‘move’ back and forth and across; and, finally, that legal plural-
ism should not be understood primarily as a new theoretical school or
position, but rather the product of historical and empirical description that
leads to the inescapable conclusion that legal multiplicity, while more or less
prominent depending on historical epoch, is an enduring social fact present
in most known human societies of any size and complexity.
Yet despite the (unacknowledged)14 theoretical significance of legal plural-
ism studies for the sociology and philosophy of law, there were dissident
voices from within legal pluralism studies itself that actually – if uninten-
tionally – point to the end of legal pluralism’s usefulness and, for my
purposes here, its ultimate unsuitability as a source for methodology in
studying the emergence of empires of law. As against what can be called the
strong theory of legal pluralism, represented perhaps paradigmatically by the
work of Leopold Pospisil, several scholars within legal pluralism moved
away from the insistence on separate and distinct legal systems on what were
mostly ontological grounds, that is to say they argued that it was not possible
to actually describe the putatively multiple legal systems they researched as
separate and distinct.
Sally Falk Moore (1986, 1973), for example, offered a theory of ‘semi-
autonomous social fields,’ of which legal fields were merely one type. As the
phrasing implies, Falk Moore insisted that within each social universe (my
term, not hers) law operates as one among several socially significant fields
of theory and practice (or ‘action’), all of which commingle and are mutually
(or severally) interdependent and, taken in the aggregate, constitute the
complete range of repertoires that are available to social actors.15 To the
extent, therefore, that there are multiple legal fields – to use Falk Moore’s
(and Bourdieu’s?) formulation – within a single social universe, each legal
field will necessarily be comprised of parts of other semi-autonomous fields,
both legal and non-legal. In other words, Falk Moore was led to deny the
possibility that non-state legal systems (or fields) could exist separately from
state law. Her social theory had the effect of restoring the traditional identifi-
cation of law with state law because she was also concerned with power, and
it was an inescapable fact that among legal fields some were more powerful,
more primary, more ontologically significant, than others. In a world of
differentially powerful, but ontologically dependent, legal fields, non-state
legal fields were relegated to a kind of peripheral or satellite status, particu-
larly when viewed from a global angle.
Boaventura de Sousa Santos (1987, 1995), completed what Falk Moore
began, namely the construction of theory from within legal pluralism studies
that had the necessary effect of rendering legal pluralism theoretically inco-
herent. Santos took the theory of putative legal multiplicity into its final
stage by interiorizing it. He argued that far from describing separate and
distinct legal orders coexisting with in the same social space, law is defined
by the condition of interlegality, in which fundamentally related shades of a
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totalizing legality – each like the different shadows of light during the day,
and as ontologically ephemeral – mix and blend in institutions, praxis, and,
most important for my argument here, in individual minds, so that legality
is experienced as an overall effect of normativity, which cannot be meaning-
fully parsed out and categorized in such Linnaean groupings as State Law,
Customary Law, Vigilante Law, Unofficial Law, and so on. Santos’s inter-
legality denies the possibility of legal pluralism by denying to law’s
constituent shades or currents even the semi-autonomy that Falk Moore had
described. In other words, legal pluralism, if it means anything, is the idea
that there are multiple legalities operating at the same time; if ‘plural’ has any
theoretical coherence in this context, it must mean this. Yet if Santos, in
particular, sustains his case, and I believe that he does, than we must conclude
that law within any one social universe is neither ontologically plural, nor is
it experienced plurally by social actors, despite what we may describe as, for
want of better phrasing, law’s internal complexity.16 That is to say, legal
consciousness confirms what this theory assumes.
It remains, then, to link this argument about (not for) the end of legal
pluralism to empires of law directly by way of suggesting possible methodo-
logical approaches, if only by exclusion. As I described earlier, empires of
law are defined as the tendency toward the complete internalization of liberal
legality across the whole range of social consciousness and action. When this
occurs, imperialism will have reached its final iteration and global capitalism
will have achieved its full breadth and width. An empire of law reflects the
movement toward the completion of a set of processes that theorists like Falk
Moore and Santos can only allude to, namely, the consolidation of compet-
ing shades or variations of legal (and other social) thought and action under
the rubric of one hegemony; in other words, empires of law require the
‘successful’ unification of these variations and, even more important, depend
on a rejection of even the possibility of the kind of legal pluralism described
earlier. Socio-legal scholars interested in studying empires of law will necess-
arily study the opposite of legal pluralism: the seemingly inexorable
movement toward, indeed partial achievement of, legal singularism.
Research on this movement would seem call for the employment of a
variety of strategies that transverse the methodologies of several academic
disciplines. Obviously, the anthropological empirical and analytical triad, i.e.
ethnography, history, and cultural critique which Laura Nader (2002) has
recently reinvigorated in her prospective discussion of socio-legal research,
will form a major part of the basic long-term repertoire. But the movement
toward empires of law requires more than this. That fact that empires of law
are disciplinary systems embedded in the imperatives of global capitalism
means that researchers will need to draw from international political
economy, particularly to the extent that IPE offers strengths in systems,
macroeconomic, and network analysis. As I have argued, empires of law
emerge through the internalization of the disciplinary logics of liberal legality
outside of the institutions traditionally associated with law: courts, police
stations, lawyers’ offices, and so on. This would indicate that classic sources
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for institutional analysis, e.g.,sociology and political science, will eventually
be less congenial for research on empires of law, at least to the extent that
institutions become either anachronistic or merely symbolic representations
of a liberal legality that has become fully detached from them. Yet this decen-
tering of institutions is as much discursive as it is structural, which means
researchers studying empires of law will need to be adept at narrative and
discourse analysis drawn from such diverse areas as communications and
linguistic anthropology, and perhaps media studies. Finally, because the
highest development of an empire of law is the complete internalization of
the discipline of grandeur entailed by liberal legality, so that identity and
liberal legality become inseparable, research into these processes would
appear to require techniques drawn from social psychology or cognate disci-
plines, although the heavily quantitative methods associated with social
psychology would not be useful in this case.17
Now that the theoretical framework has been developed at some length, I
will shift the angle of analysis in order to view the emergence of empires of
law more from the level of social action. I should emphasize, however, that
this article is not the place for a complete development of the ethnographic
and historical evidence that supports the argument about empires of law from
Part I; rather, as I mention in the Introduction, here I draw from my own
research for illustrative purposes by way of reinforcing the basic theoretical
framework and adding to it through Part II.
II. REACTION AND RESISTANCE
In Empire, Hardt and Negri (2000) see a point in time when the biopolitical
system they call ‘empire’ will pass away. This will happen first through a
structural decline and fall analogous to the gradual fading of the Roman
Empire, a process they describe as ‘corruption’. But much more ambigu-
ously, empire’s reach will diminish through the unarticulated actions of social
actors (the ‘multitude’), who will transform the structural corruption of
empire into its creative opposite – ‘generation’ – and then eventually move
against its entire foundation of capitalist relations of production. What
prevents them from indicating which generative actions might succeed in this
task is an understandable sense of neo-marxist humility in the face of what
they describe as the ‘overbearing power of bourgeois metaphysics and
specifically the widely propagated illusion that capital markets and the capi-
talist regime of production are eternal and insuperable’ (p. 386). Yet despite
this hesitation, which tends toward ethico-political paresis in their analysis,
what is important to underscore for my purposes here is the fact that Hardt
and Negri take it for granted, indeed, as something close to an eternal and
insuperable ethical truth itself, that ‘empire’ (i.e. global postmodern capital-
ism) must be opposed by the multitude, who are victims of what is an
endlessly self-producing system for the production and unequal distribution
of wealth. In other words, the teleology of the most potent critical analysis
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of capitalism has been retained and adapted, but the all-important means (i.e.
total revolution) has been replaced by a vague generative militancy at least
preliminarily represented in current global trends toward nomadism, misce-
genation, and the salutary tendency toward ‘being-against’ (pp. 361–4).
I will return to their exhortation of the multitude at the end of this article,
but first I must consider the development of what Hardt and Negri call
‘being-against’ in more detail, because empires of law are constituted, like the
Empire for Hardt and Negri, by a kind of internal crisis that serves to further
expand and consolidate their reach. I have identified two separate phenom-
ena that are social consequences of empires of law, one of which is actually
embedded at the core of the relations of production that entail empires of
law, whereas the other is only a potential consequence, one that is indeed in
opposition to empires of law, but one which is not inevitable and is actually
unlikely.
The first social consequence of empires of law is reaction, although, as it
turns out, reaction is as much a cause of empires of law as it is an effect. By
‘reaction’ I mean the production of an ideological counterpart to the
dominant hegemony, in this case represented by the ideas and practices of
liberal legality. By ‘produced’ I mean that reactions to a dominant hegemony
like liberal legality are constituted in the same moment as liberal legality
itself, that is to say they are dialectically joined to, enabled by, and necessary
for, the eventual resolution, which is not, as a pure dialectical analysis might
indicate, the formation of a new hegemony, but rather the consolidation of
the existing one. So in this sense reactions to liberal legality within empires
of law could be construed as simply subparts or corollaries of liberal legality
itself, rather than distinct social processes and forms with entirely different
rationales. My understanding of reaction as a necessary counterpart to, or
component of, the dominant hegemony of empires of law parallels the
critique of trade unionism within capitalism: that it provides capitalism a
method for channeling latent revolutionary energy and has the effect of
actually reinforcing the exploitative aspects of capitalism itself. Within
empires of law, reaction as I have defined it serves much the same role.
A paradigmatic example of reaction within (not to) empires of law, indeed
one that also could be located within imperialism II, in which, I would argue,
it functioned in much the same way, is nationalism. In both Romania and
Bolivia, nationalism has become the key ideological counterpart to liberal
legality, the one which, more than any other, channels potentially critical
energies (i.e. ‘resistance’) into the production and consolidation of liberal
legality itself. In Romania this ideological dialectic is playing itself out in the
context of ‘Eastern Enlargement’18 and Romania’s planned accession to the
European Union in 2007. Within Romania, the public ‘debate’ between pro-
EU intellectuals and various forces arrayed against different aspects of acces-
sion on nationalist grounds is among the clearest contemporary examples of
the use of nationalism to diffuse potentially critical and clear-eyed opposi-
tion to an expanding disciplinary regime.
Nationalism, as understood in Romania, is the pure Andersonian type, the
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Romanian nation being an imagined community that crystallized in the mid
to late 19th century both in opposition to imperialism II – the Austro-
Hungarian Empire to the west and the Ottoman Empire to the south-east –
and as a self-validating discourse of Romanianness. As in other central and
eastern European regions,19 in the 19th century the area that is today the
Romanian nation state was riven by a conflict between intellectuals and other
elites who identified with the universalism of the French Enlightenment, and
those intellectuals, artists, and political figures who were firmly embedded in
the German Romantic counterenlightenment, which produced the ideologies
of spirit, culture, race, and the absolute uniqueness of Volk in history. What
is important for my purposes here is the fact that at the exact moment in the
19th century when the Romanian nation was coalescing, the diverse group
of counterenlightenment elite in Romania was gaining a momentum that
would, through several iterations, endure to the present.
The clearest example of this is the case of the national poet of Romania,
Mihai Eminescu, who was educated most formatively at the Universities of
Vienna and Berlin, became a committed Hegelian and devotee of Herder and
Fichte, and went on to create a body of nationalist poetry that is still read
prominently at national public rituals, and whose bust looks down on most
public squares and gathering places. His poetry, and the political and legal
adaptations of it, is antiuniversal, antiliberal, and irrational; in short, it is
nationalist. Alfred Rocco could have been describing Eminescu’s poetry –
and, by extension, contemporary Romanian nationalism – when he argued in
1914 that ‘[n]ationalism . . . attacks democracy . . . and undermines pacifism,
humanitarianism and internationalism . . . It declares the programme of liber-
alism finished’ (cited in Hobsbawm, 1987: 142).
In Bolivia nationalism is part of a different intellectual history, yet serves
the same function: to further reinforce and consolidate liberalism’s predom-
ination, for my purposes here through its legal forms. The Bolivian nation
emerged at the end of the first quarter of the 19th century under the sign of
doctrinaire liberalism. But nationalism did not become the most important
reaction to liberalism in Bolivia until the later part of the 20th century. Before
that, the most common forms of reaction were conditioned by trade
unionism and other movements from the left.20 Reaction to empires of law
in Bolivia now takes the form of either populism (in Bolivia, a law-and-order
middle-class nationalism that excludes the large mass of indigenous peasants
and proletarians) or indigenous/Indian nationalism, which is anchored in a
pre-hispanic imaginary, emphasizes spiritual connections to land, and is anti-
European and anti-liberal21 in the extreme.
In both the Romanian and Bolivian cases, nationalism does not stand
apart from liberalism because it is only one of several of liberalism’s
constituent parts; that is, nationalism is not a manifestation of actual resist-
ance to liberalism’s hegemonies, e.g. liberal legality, because nationalism is a
formal creation of liberalism and exists primarily to reinforce and assist in
reproducing it. Resistance to liberalism – and, a fortiori, empires of law – is
still only a theoretical possibility. By resistance I mean actual structural and
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ideological opposition to liberalism and the disciplinary logics within it that
produce regimes like empires of law. There are three preconditions for resist-
ance in this sense: first, social actors across the entire range must achieve
consciousness of their role in a transnational system in which they are
compelled to internalize liberalism’s disciplinary logics at the service of capi-
talism’s globally exploitative relations of production; second, there must be
a consensus among these same social actors22 that the relations of production
this new consciousness unveils must be transformed, that is, that there is
actually something fundamentally wrong with the global order and its
constituent processes I describe in this article; and finally, the means must
exist, or be created, to enact resistance and sustain it, not so much against the
hard edges of liberalism, which have all but disappeared – perhaps this is what
Hobsbawn was referring to – but against the siren song of its grandeur.
I will venture out on uncertain ground in order to speculate about the
future possibilities for actual resistance along these lines in the last section;
nevertheless, it is possible to end this framing section of Part II by observ-
ing that a first act of resistance to empires of law, for example, would be the
complete rejection of the disciplinary logic of universal human rights. As I
argued earlier, universal human rights is the pre-eminent expression of liberal
legality and its primary generative motor at the same time, and this import-
ance requires closer analysis, to which I now turn.
HUMAN RIGHTS RIDES THE FAST TRAIN
In her book Bridging Divides, Eve Darian-Smith (1999) uses a delightful
metaphor to illustrate the conflicted nature of English legal identity in light
of the literal connection to the Continent in the form of the Chunnel, and
the transformation in legal imagination conditioned by the UK’s role within
an expanding and increasingly hegemonic European Union. As she describes,
during the debates over the construction of the Chunnel there emerged a
particularly telling public outcry over the possibility that rabies and other
diseases would flow into England through what was assumed would be the
migration into Britain of waves of unwashed immigrants, who would
suddenly be able to underpass the centuries-old – and, from the anti-
Chunnel, nationalist view (see preceding section), salutary – obstacle of the
English Channel, and stream into Kent and points beyond (notably London)
in order to immediately begin draining the public coffers and otherwise
wreak havoc throughout Albion. The nationalist imagination was certain that
rabies would ride the ‘fast train,’ which was much more an expression of
unease over involuntarily becoming ‘European’ than it was a prediction of
the speed and means with which rabies and other nasty non-English medical
problems would be allowed to enter a heretofore impregnable island fortress.
Given my enchantment with the explanatory possibilities of rabies riding
a fast train, it is perhaps less surprising than would otherwise be the case that
I adapt this metaphor to explain, in part, the speed and means with which
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universal human rights has become the key disciplinary logic within empires
of law. As Sally Merry (2005), Annelise Riles (2000) and others have shown
through the recent and highly ingenious ethnography of transnational human
rights networks, the ideas and practices associated with international human
rights move throughout a global system with astonishing rapidity and
persistence; they manage to form the framework of almost every influential
global politico-legal discourse (as I’ve said, human rights are the only global
superliberalism); and their intrinsic ideological power appears entirely
detached from any associated economic relations or purposes. Moreover,
human rights resist analytical critique from almost any angle, except for some
fox-like holdouts who refuse to get on the fast train,23 not so much because
of their self-evident coherence, but because human rights are insuperably
associated with the great human tragedies of our time and appear to stand as
a final, if at times ineffective, bulwark against even further catastrophe. So
the disciplinary logic of human rights discourse leads, among others, to the
following: international human rights are the only legitimate global safeguard
against violations, cruelty, injustice, genocide, and barbarisms of every
description; because this is true, any critical analysis or political stance that
has the effect of weakening international human rights will necessarily
increase the likelihood of more acts of barbarism occurring in the future;
therefore, any effective critique of human rights is also a proximate cause of
future injustice.
The power of this ideological syllogism, combined with the grandeur of
human rights-as-idea I describe in Part I, explains why the annual country
reports that score Romania’s progress toward aligning itself under the ‘flag
of European civilization’24 dwell at great length on Romania’s human rights
‘problem.’ In these same reports, the greatest impediment to Romania’s
passage through the ‘gateway to a balanced and harmonious structure’, i.e.
Romania’s English Channel, is nationalism, and in this way human rights and
nationalism are discursively linked in a way that both symbolizes and enacts
the dialectical relationship I have already described. And nationalism serves
this function at all levels in Romania; it heats up almost all public discourse
and prepares the ground for the reception and internalization of its counter-
part: human rights (and liberal legality more generally).25
In Bolivia the tracks for the human rights bullet train run through almost
every kilometer of the altiplano, through almost every rural village, and back
again to the capital La Paz, the depot for the scores of transnational human
rights NGOs connected by their own supertracks to Brussels and Oslo and
Paris and London (though few, not surprisingly, extend back to Washington
DC). This is perhaps because Bolivia, unlike Romania,26 never really entered
an extended historical hiatus, in which liberalism subsided into something
unrecognizable; on the contrary, Bolivia’s entire history has been conditioned
by its continuous encounter with, indeed production by, the disciplinary
logics of liberalism. Because of this, Bolivia is today incorporated by a more
fully emerged empire of law than the one currently encapsulating Romania
under the sign of the European Union.
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Let me end this section by steering the metaphor I embarked with back
into the gare. Like the rabies that for Darian-Smith embody the Other that
threatens English legal identity, human rights discourse similarly moves
rapidly across transnational networks, taking advantage of every possible
point of access opened by the imperatives of underlying relations of produc-
tion. Only in this case what makes human rights so penetrating, so fast, so
enduring once it arrives, is what it continually promises: protection from
injustice; the dignity of universalism; and, above all else, a cherished place
under the flag of Euro-American civilization.
THE EMPIRE THINKS BACK
As I argued earlier, the most obvious forms of apparent current resistance to
empires of law – nationalism, and, to a lesser extent, watered-down or new
versions of traditional movements from the left27 – are not true forms of
resistance, by which, to reiterate, I mean structural and ideological opposi-
tion to liberalism and the disciplinary logics within it that produce regimes
like empires of law. Without actually listing possible scenarios for real resist-
ance to empires of law, I have nevertheless argued that there are three pre-
conditions for any such resistance: consciousness, collective will (achieved
through consensus), and effective means. But by way of approaching the
subject of resistance from another angle, it would be useful to briefly
consider a historical moment that would appear analogous to a prospective
counter-empire: postcolonialism. Postcolonialism refers to a broad range of
discourses and politics, but I employ it here to mean the strategy, which
emerged in the 1960s and 1970s, of politicized self-representation by
colonials supported by their metropolitan interlocutors. Because the produc-
tion of the colony was primarily discursive,28 as Said and others have taught
us, postcolonialism was also necessarily logocentric; a historical survey of
postcolonialist essays insisted that ‘the empire writes [or, really, wrote] back’
(Ashcroft et al., 1990).
But as my analysis of historical imperialisms would indicate, I locate the
colonial moment within a global order that is largely diminishing in relation
to the totalizing regimes of imperialism III, of which empires of law are an
emblematic expression. When critics write about neo-colonialism, they are
not really describing the reproduction of colonial forms with slight vari-
ations; rather, they can only refer to either a historical relic whose context
and meaning have all but disappeared, or to what are the first signs of a post-
modern global order that is unfolding within the parameters of a signifi-
cantly different set of logics. Here I entirely agree with Hardt and Negri
(2000) in their sympathetic, but eventually dismissive, account of post-
colonialism as a guide for future action. The discursive strategies of post-
colonialism, according to the authors, are a ‘dead end because they fail to
recognize adequately the contemporary object of critique’ (p. 137). As they
elaborate on this point:
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What if the modern form of power these critics . . . have taken such pains to
describe and contest no longer holds sway in our society? What if these theor-
ists are so intent on combating the remnants of a past form of domination that
they fail to recognize the new form that is looming over them in the present?...
When we begin to consider the ideologies of corporate capital and the world
market, it certainly appears that the . . . postcolonialist theorists . . . have been
outflanked by the strategies of power. Power has evacuated the bastion they
are attacking and has circled round to join them in the assault . . . [Post-
colonialist] theorists thus find themselves pushing against an open door. (p. 138)
In other words, it is becoming increasingly difficult for the empire to write
back because the ontological assumptions, in which ‘back’ referred to a
critical space on the periphery of global power, no longer hold true. The
emergence of empires of law is possible partly because the traditional polar-
ities of modernity are quickly fading away. Yes, Bombay is still Bombay, La
Paz is still La Paz, and Bucharest is still Bucharest. But they are being rapidly
incorporated into emerging empires of law, which has the effect of collaps-
ing the margins into the center, or, as postcolonial and other theorists argue,
diffusing the center so that relations of power – what made the center a center
– are more or less equally replicable across what has really become a network.
All of this means, among other things, that there are no real margins to be
privileged as a potential site of creative resistance, as scholars of marginality
have described so persuasively for that earlier world of rigid dichotomies
whose explanatory moment has passed away. Rather, if dominant regimes
like empires of law emerge through the internalization of liberalism’s disci-
plinary logics, than resistance will have to be similarly internal. In other
words, what I have argued is that the emergence of empires of law is
primarily an ideological struggle over personhood, conditioned by pre-
existing relations of production, which enact this struggle through liberal-
ism’s legal forms, through a process that ensures the widest possible
inculcation of liberal values and thus an expansion and consolidation of these
basic relations. If resistance to these processes is desired (but see next
section), it will have to be above all an effort to resist the siren songs of liber-
alism that I have described throughout this article, and this struggle will need
to take place, against all anthropological and sociological wisdom, at an indi-
vidual level. To do this people will either need to resort to wax, and quickly
– as my current research in Romania would indicate – or listen to a more
enticing song, if one exists.
THE MULTITUDE FOR EMPIRE
Hardt and Negri (2000) end their stimulating and frustrating book by
bringing to the surface what had been lurking subtextually throughout: a
formal call for revolution against Empire. They are quite optimistic about the
future revolutionary possibilities:
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Empire creates a greater potential for revolution than did the modern regimes
of power because it presents us, alongside the machine of command, with an
alternative: the set of all the exploited and the subjugated, a multitude that is
directly opposed to Empire, with no mediation between them. (p. 393)
In other words, contrary to what commonsense might indicate, the post-
modern global order actually creates social and ideological conditions that
bring systemic inequalities into ever greater focus than before, and, moreover,
creates the means for challenging these inequalities. But notice how this
conclusion is almost entirely logically entailed; that is, Hardt and Negri’s
postmodern ontology eliminates the mediating structures of modernity and
does, therefore, bring social actors as close to the levers of power as possible,
indeed, appears to wrap their hands around them. The collapsing of struc-
tural levels would seem to produce this effect. But here is where all of the
problems begin. It is clearly not a logical inevitability that the multitude, with
their hands on the levers of power, will actually desire to turn them in the
way Hardt and Negri suppose. More than this, I would argue that given the
current movement toward empires of law, the prospects for the kind of revo-
lution Hardt and Negri anticipate are not bright.
Another way of arguing this point is to look back at Hardt and Negri’s
formulation. While it assumes a profound transformation in almost all the
traditional structures associated with modernity, it retains one important one:
the mechanism of historical inevitability, or, more specifically, the internal
contradictions of global capitalism that produce the crises that eventually
cause it to implode. Yet the postmodern empire Hardt and Negri describe is
a much more uncertain place, a place that is devoid of the kind of mechan-
isms they read into it, especially those which operate independently of human
agency, or, at best, use humans instrumentally. To put this another way, these
authors offer us a theoretical future that contains its own internal contradic-
tion. As this article indicates, their highly developed postmodern ontology is
sufficiently compelling for me to borrow heavily from it in rethinking the
constitution of transnational law; yet, I would also argue that we must sever
the dialectical optimism from their program in order to restore its integrity.
I admit that this is not an easy thing to do, but it seems unavoidable.
For those who see (or think) beyond, or think they do, the disciplinary
logics of postmodern global capitalism, the next steps would seem to lead
either to apologia, cynicism (perhaps realism), or, as with Hardt and Negri,
to something like the naïve comfort created by the ‘irrepressible lightness and
joy of being communist’ (p. 413). Each of these paths is problematic. Defend-
ers of postmodern global regimes like empires of law, some of whom are
actually well-meaning (for example, Thomas Friedman, mainstream Democ-
rats in the United States, pro-EU intellectuals in Romania and directors of
NGOs in Bolivia), others of whom are too transparently mercenary to dwell
seriously on for even one full paragraph (such as Samuel Huntington, US
necons, the entire law and economics school and so on), end up – with greater
or lesser degrees of enthusiasm – inextricably embedded in the relations of
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power they describe; indeed, as I have shown here in the discussion of politi-
cal and academic elites in Romania and Bolivia, they are actually necessary
to these relations. Mere interpreters of the new global order who cannot, for
a variety of reasons, really defend a transnational system that has created the
greatest wealth in history at the same time as it has impoverished more people
in absolute numbers, tend to lapse into ethico-academic paralysis, or, what is
really the same thing, produce studies that are simply descriptive.
The final critical possibility is perhaps the most ambitious and at least has
a certain amount of moral virtue attached to, especially in relation to its
opposite (the mercenary). Yet the problem with Hardt and Negri’s program
of revolution for a multitude motivated by sheer lightness and joy, is that
their formulation, despite its optimism and clever (and probably accurate)
association with that great historical proto-communist St Francis of Assisi,
must contend with the dynamics of cooptation that I have described
throughout this article (and which Hardt and Negri describe so eloquently
in relation to postcolonialism). And this leads us back to the supposed mili-
tancy of the multitude, to revolution. The history of the last 200 years has,
among other things, demonstrated that the multitude are as likely, even more
so, to internalize and then embrace regimes like empire as they are to resist
their appealing ideologies. Empires of law, constituted through the dignity
of universal human rights and other liberal legalities, cannot be ideologically
surpassed and thus tend to filter into every cell of the body politic; hardly a
recipe for revolution. Ideologically, an empire of law is diametrically opposed
to colonialism, which was simply destined to produce real resistance. And
finally, there is a basic materialist dimension to these speculations: it is not at
all clear that for Romania and Bolivia the empires of law that are quickly
encapsulating them, and the relations of production that produce them,
would not be preferable in some objective sense to other alternatives. In any
event, social actors across the entire range in Romania and Bolivia want the
corresponding empires of law to emerge much faster than they are. Even
the nationalists in both places, fated as they are to play their roles within the
dialectic I have described, seem to realize that they too, in the end, will
benefit from the coming of empire as much as their counterparts. The multi-
tude for empire: the unfortunate end of communism.
POSTSCRIPT
The future of Romania gathers each evening at the McDonald’s on Piat
a
Romana
˘just as the future of Bolivia collects under the Golden Arches on the
Prado in Cochabamba. They are mostly young elites: high-school and
university students, children of the rising business classes, recent university
graduates with their own young children. They talk about Eminem, the
possibility of traveling to Italy, how much they despise their pedantic pro-
fessors, but mostly they talk about each other, the little details. The world
they desire can be best understood by walking behind the restaurant on the
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Prado and carefully observing the way the refuse disposal system and the
hidden receiving dock display an almost perfect conception of commercial
landscape design. Or, their future may be understood in the fact that although
Bolivia has hundreds of varieties of potatoes, each with its own subtle taste
and texture, McDonald’s in Bolivia found it necessary to import French fries
made from Canadian potatoes because Bolivian potatoes were not bland
enough.
And their future may also be understood back on Piat
a Romana
˘. Even
many university lecturers, journalists for major newspapers, and directors of
influential think tanks, are part of the post-1989 generation, and their desires
are entirely conditioned by the time after that epochal break. In historical
terms, they want nothing less than to create the wealth and comfort of pre-
1848 Romania; they look backward in order to look forward. In aesthetic-
cultural terms, what is really desired is a society that produced the lazy
security of Romania’s Biedermeyer rather than the cultural agitation that
produced, say, Cubism.
The youth of Bolivia and Romania, on the Prado and on Piat
a Romana
˘,
gather to express the lightness and joy of being liberal.
NOTES
This article is based on ethnographic and historical research, and theoretical reflec-
tion and analysis, made possible by the generous support of a number of institutions:
the National Science Foundation, the Organization of American States, the Title VI
Foreign Languages and Areas Studies Fellowship Program, the David L. Boren
Fellowship Program, and the Fulbright Scholarship Program. Individuals whose ideas
I have considered for this article will recognize their influences even to the extent that
I either develop new frameworks or depart from existing ones. Despite the kindness
of colleagues in sharing of their intellectual time, all interpretations and conclusions
here are entirely my own, and I am alone responsible for any mistakes of fact or
judgment. Thanks also to the two anonymous reviewers at Social & Legal Studies,
whose comments allowed me to improve sections of the article. Finally, I must
acknowledge the patience and support of Romana, Dara, and Isaiah – my raisons
d’être.
1. In structuring the essay like this, I borrow from Isaiah Berlin (1999).
2. ‘Empire’ is perhaps an unfortunate name for this global order in so much as it
creates a certain amount of linguistic confusion; obviously ‘empire’ typically
refers to those historical empires (Roman, Ottoman, Soviet and so on). Yet we
can assume that Hardt and Negri understand this usage to bring more concep-
tual clarity to the analysis by demanding a careful thinking through of its close
pairing with historical, political, and economic regimes described by the same
word, and at the same time its invocation serves as a reminder that a post-
modern global order embodies several important types of (especially economic)
relations, not as artefacts, but as productive structures. Nevertheless, I depart
from Hardt and Negri in refusing to imbue the concept with the dignity indi-
cated by the capital E, preferring to employ empire as a suggestion or idea, as
a way of framing our understanding of dominant global planes (like the legal).
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3. Both sides of the globalization dialectic reveal a false understanding of the
current global order, in that both fail to realize that power has not been simply
co-opted by a new hegemon (e.g. the United States), but has rather become
diffused and at the same time the goal toward which it tends has been
profoundly transformed, from economic expansion to the totalizing process of
‘biopolitical production’.
4. I say ‘appear’ in order to signal that I do not intend here to enter into an
extended analysis of this question, i.e. the question whether postmodernity, if
accurate, describes a transformation in the nature of being at some levels. As
an example of where this discussion would lead, Annelise Riles (2004) recently
argued, in her unpublished remarks as a discussant in a session entitled
‘Globalization and Transnational Studies’ at the 2004 Law and Society Associ-
ation meetings in Chicago, that socio-legal scholars should avoid the ontologi-
cal question in order to devote more attention to the determinant role played
by knowledge practices within postmodernity (she didn’t use this term).
Moreover, she maintained that studies of the ‘global’ are actually analyses of
hegemonic knowledge practices that are mistakenly assumed to create a
separate plane of reality above the practices themselves. Even though Riles
(2000), at least in these brief remarks – which are, admittedly, derived from her
earlier and fuller study of networks – tended to reify postmodern knowledge
practices so as to give them ontological status, I invoke her work here only in
order to show that a deeper discussion of the ontological question here would
take me too far afield.
5. In employing the idea that liberal legalities pacify populations within empires
of law, I am obviously drawing from the work of Laura Nader (2002) on the
pacifying ideologies of ADR in the service of dominant economic interests. Yet
while following Nader’s recent work on this important topic – subject to
certain qualifications – see Goodale (2002). I actually think that Nader does not
go far enough; in other words, her theory of legal pacification can be extended
even further. It is not only the marginal legalities like ADR that pacify for what
are really non-legal economic reasons, but in fact the whole bundle of liberal-
ism, which, as this article shows, has been appropriated and employed in order
to inculcate public confidence in global markets and the ability of that system
to broaden social wealth, preserve peace between nations, foster technological
progress, and so on. And legal liberalism is the vanguard in this process.
6. I am currently writing a book, The Anthropology of Human Rights: Critical
Explorations in Ethical Theory and Social Practice, in which, among other
things, I develop this idea at much greater length.
7. The discussion here draws from Hardt and Negri’s expansion of traditional
Foucauldian disciplinary analysis and applies it to empires of law.
8. This article is not an exercise in the historiography of empire or imperialism,
however, and my intention is not to invoke work in this literature as an attempt
to make a formal contribution to it; rather, I only make recourse to a vague
history here in order to establish more clearly what kind of empire an empire
of law is, and how it differs from other regimes indicated by the same term.
The year 1975 marks, of course, the fall of Saigon and the end of American
imperialism in south-east Asia. My use of this date as the real end of the Age
of Empire is admittedly idiosyncratic and therefore subject to debate, but
perhaps not because this date unduly extends the dominance of the second type
of imperialism too close to the present in history, but because it doesn’t extend
it far enough. At present the United States is pushing forward with simultane-
ous, pre-emptive, and unilateral military and political assaults on both Iraq and
Afghanistan, which appear to be rooted in underlying economic motives. All
of this would clearly meet the criteria of Hobsbawn’s ‘new’ imperialism.
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9. In employing a chronology of capitalism throughout this article that sees
contemporary developments as embedded in a ‘late’ phase, I simply adopt a
generally commonly accepted framework among critical theorists. Jameson
(1991), for example, reminds us that ‘late capitalism’ was used first as a category
most likely by the Frankfurt School, but then it had a different, more Weberian
(i.e. more institutional), resonance than the one given to it today (and which I
adapt here). As he says, ‘late capitalism’ should be used now to refer ‘not merely
[to] an emphasis on the emergence of new forms of business organization
(multinationals, transnationals) beyond the monopoly stage but, above all, [to]
the vision of a world capitalist system fundamentally distinct from the older
imperialism [i.e. my imperialism II]’ (p. xviii). The present article would add to
this formulation through its emphasis on the presence of a disciplinarily total-
izing liberal legality, which tends to blur the distinction between the type of
economic imperatives Jameson and others emphasize, and ideas and practices
that would, in their analyses, be understood as merely superstructural or
epiphenomenonal.
10. And the motor, as it were, of empires of law, to recapitulate, is the two-part
disciplinary dynamic I have already outlined.
11. Historians and other interpreters of capitalism, particularly critical ones, almost
all agree that capitalism as a global hegemony is a ‘system’ (or some other
similar entity) with a lifespan; indeed, the claim that capitalism is currently in
its late phrase is also a positive assertion that capitalism is in its historical
twilight. The only real remaining critical question, therefore, is what comes
after.
12. This is, of course, my own idiosyncratic description of legal pluralism, but one
which would, most likely, meet with a degree of assent from scholars influen-
tial in this field. For a fuller discussion of legal pluralism studies in their various
dimensions, see Sally Merry (1988). Besides Merry herself, other scholars who
formulate their research and analysis in terms of legal pluralism, and who have
done much to set the parameters for work in this vein, are, among others, Sally
Falk Moore, Franz and Keebet, von Benda-Beckmann, Anne Griffiths,
Boaventura de Sousa Santos, and, to a certain extent, Peter Fitzpatrick, even
if his more recent work moves away from a legal pluralism framework (see,
Fitzpatrick, 1992, 2001).
13. The general lack of influence of legal pluralism on mainstream legal theory is
easy enough to explain, given the exotic nature of the legal systems described
by mostly sociocultural anthropologists; in other words, empirical descriptions
of separate and distinct legal systems operating in the same social spaces could
be written off as anomalous – and thus not theoretically significant – cases that
were either restricted to the extreme margins of dominant global developments,
or the reflections of pre-modern vestiges in the unilineal process of legal evolu-
tion, which would eventually fade away and leave ‘law’ where it properly
belonged, i.e. within the organs of the state. Even those path-breaking studies
by mostly US scholars, which demonstrated the existence of legal pluralism
within the United States, did little to affect the theoretically specious label of
exoticism that attached itself to legal pluralism (see, Greenhouse, 1986; Merry,
1990; Yngvesson, 1993). The legal consciousness and practice of working-class
or religiously fundamental Americans, for example, were also too easily classi-
fied as exotic – and, again, therefore theoretically insignificant – in their own
right.
14. It goes without saying, of course, that the theoretical significance of legal
pluralism in its own time does not depend on whether sociologists or philoso-
phers of law were prepared to formally acknowledge this fact and incorporate
it into their own work; as I have argued, they were patently not prepared to do
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this and thus did not for the reasons I describe. But this becomes something
like an intellectual (or academic) koan: does theoretical significance or insight
exist if no one hears (or writes about) it? I think most would agree that it does,
as I have posited for the insights of legal pluralism, even if the ‘sound’ some-
times can only be heard as an echo, long after the fact.
15. Although I am sure the connection has already been made, it is worth noting
that there are clear parallels here between Falk Moore’s semi-autonomous
social fields and several important aspects of Pierre Bourdieu’s sociology of
praxis.
16. Indeed, ‘interlegality’ as a term of reference is somewhat misleading when the
implications of Santos’s theory for legal pluralism are considered more fully, as
I begin to do here. On its face, interlegality, like internationalism, would
suggest a theory about-and, perhaps, argument for – relations between discrete,
even if fundamentally interdependent, legalities, when what Santos himself
actually develops theoretically, and documents ethnographically through his
research in pseudononomous Pasagarda, is a totalizing legal ontology that
could be called ‘intralegalty’, or, but with a radically different connotation,
simply ‘legality’.
17. I have struggled with the methodological problems caused by the interioriza-
tion of sociolegal processes before, in an earlier discussion of the mental mixing
of legal orders in Santos’s ‘interlegality’ (Goodale, 1998a), and in an extended
study of the possibilities for a postmodern jurisprudence (Goodale, 1998b).
Currently no adequate methods really exist for studying the internalization of
disciplinary logics like those analyzed here, although in style, if not in
substance, some currents of psychoanalysis might offer hints of what is
possible.
18. I insert this seemingly neutral and obvious phrase in quotation marks to signal
its intense discursivity. Although I cannot explore this issue in any depth here,
it is enough to recall that Romania has always occupied a highly ambiguous
position in relation to the myth-making centers of Europe (Paris, above all,
then London, Berlin, Vienna). A long line of 17th- and 18th-century literature
attests to this fact, Romania being the place of seductive gypsies, medieval
relations of production, and timeless folk superstitions; in short, although not
quite the Orient in the Saidian sense, Romania is clearly the East, and so far
East, in fact, that the tentacles of western civilization barely penetrate its
borders, or, if they do, they extend only into Romania’s West, the former
regions of the Austro-Hungarian Empire. In any case, Romania is not quite as
Eastern as Turkey, of course, one of the hearts of the Orientalist project, a fact
which makes Turkey’s accession to the EU much more improbable. For recent
critique of the discourse of ‘Eastern Enlargement,’ see the 2001 special volume
of Central Europe Review edited by József Böröcz and Melinda Kovács,
especially Böröcz (2001).
19. I thank Dr Frances Pine of the postsocialist section of the Max Planck Insti-
tute for Social Anthropology for reminding me, during a recent lecture of mine
at the Department of Social Anthropology, University of Bergen (May 2004),
of the extent of this conflict throughout central and eastern Europe during the
19th century.
20. This fact means that in Bolivia my reference to neo-marxist theories of trade
unionism and other social democratic, i.e. non-revolutionary, reactions to capi-
talism, ceases to be a theoretical analogy and becomes, in this case, literal. In
other words, I have argued that reaction to empires of law functions much as
trade unionism to (or, rather, within) capitalism, but here trade unionism was
the main reactionary form within Bolivian liberalism until quite recently.
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21. The actual enemy for Bolivia’s indigenous nationalists – represented most
clearly by Evo Morales – is neoliberalismo, which is a peculiar idea in light of
the fact that the historiography of liberalism, from the late 18th century to the
present, demonstrates the continuity and expansiveness of liberalism, even
through its supposedly ideologically transformative Keynesian moment. Here
I quite disagree with Hobsbawn and other clear-minded economic historians,
who insist on a historical endpoint for liberalism (typically sometime between
the last quarter of the 19th century and the Great Depression in the 1930s),
because I understand liberalism to embody a set of hegemonic ideas and prac-
tices that go far beyond the basic economic relations of production that are
identified with it (see Hobsbawm, 1987: 103–5 and 1995). Hobsbawm argues
that the ‘epitaph of . . . liberalism’ was justified in the first decade of the 20th
century because ‘[p]olitical life . . . found itself increasingly ritualized and filled
with symbols and publicity appeals, both overt and subliminal’ (p. 105). In
other words, where for Hobsbawm the rise of nationalism marked a clear
historical break with liberalism, for me, as I have argued here, nationalism is a
dialectical counterpart within liberalism, whose emergence simply indicates
that liberalism has matured and is becoming more globally consolidated partly
through the processes I describe in this article.
22. It is difficult, in theorizing resistance to what is literally a global order (i.e. what
I describe here is not merely a theoretical construct or ordering principle, but
something with real ontological status), to actually determine the details: how
many conscious social actors are necessary before resistance is possible? Does
this whole range need to be regionally distributed, so that those who would
lead resistance come from something like a global representative sample? What
is to be done about the inevitable power and other differentials within the mass
of those who would otherwise resist? I think these inherent difficulties are part
of the reason the work of Hardt and Negri (2000), for example, becomes
mystical or even utopian at certain points. Nevertheless, I agree with Hardt and
Negri that transformative action against empire or, for my purposes here,
empires of law, must be collective social action.
23. As Isaiah Berlin (1999) explained in his classic essay on Tolstoy’s theory of
history, there are only two kinds of people in the world: hedgehogs and foxes.
Hedgehogs are those who tend to seek out systems, unifying patterns,
programs, and totalizing frameworks within which their lives will be invested
with meaning; foxes, on the other hand, are people who, through temperament
or training, cannot tolerate unifying systems of any kind, but are rather forced
to wend their way through life in the interstices of the great systems, pointing
out their inconsistencies and otherwise reminding those who will listen about
Kant’s ‘crooked timber of humanity’.
24. The European Commission (1997) issued its formal opinion on Romania’s 1995
application to join the EU and in this pregnant document, concluded by
grandly declaring that: ‘The crux of Romania’s reform efforts . . . [is] . . . the
assimilation of democratic values and respect for human and civil rights.
Respecting and consolidating these values [is] the ultimate goal of Romania’s
integration into Europe. For Romania, the Union [is] above all a gateway to a
balanced and harmonious structure organizing the continent’s micro- and
macrocosm under the flag of European civilization’ (p. 8). The full range of
imperial logic is on display here: the grandeur of liberal legality; the argument
for choosing the path of peace and harmony; and, above all else, the subtle shift
in impetus, which requires Romania and Romanians to internalize the desire
for an empire of law and thus take all necessary steps to produce it themselves.
25. I became aware of this only two days after arriving in Romania to conduct
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research and teach in 2003–4. I had been asked to give a keynote speech in
Bucharest sponsored by a pro-EU think tank on the theme ‘Intolerance and
Extremism in Romania’, and although the proceedings officially revolved
around a 2003 Gallup survey that purported to demonstrate an increase in
‘extremism’ among Romanian voters, the real 800-pound gorilla in the room
was România Mare, or the Greater Romania Party, which formed the major
part of the opposition in the Romanian parliament because of their surprisingly
strong showing in the 2000 elections. As the 2004 elections approach, România
Mare plays its role without fault. The mere possibility of greater PRM electoral
success in 2004, and thus the implementation of its nationalist projects to unify
the ‘greater’ Romanian nation, expel Hungarians from Transylvania, and
restore the purity and dominance of the Romanian language within an enlarged
Romanian nation state, serves to amplify the grandeur of the various liberal
parties who oppose it and push social actors into the comforting embrace of
European civilization.
26. The period 1940–89 in Romania – i.e. from the rise of Antonescu’s fascist
regime to the execution of Ceauçescu – could be recharacterized as the inter-
liberalism years.
27. I have already considered social democratic and non-revolutionary forms of
opposition, which are, I have argued, analogous to nationalism in that they exist
within liberalism and serve as its ideological counterparts; for this reason, they
cannot ever really resist liberalism and its regimes. I have not, however,
considered the case of anarchism, which caused so many intellectual and politi-
cal problems during the time of Bakhunin, and which continues to do so. Anar-
chism has, of course, gained new prominence through the militancy of young
armies of black-clad vandals, who pester yearly meetings of global economic
power and who have, incidentally, transformed the Whiteaker neighborhood
of Eugene, Oregon into the postmodern Latin Quarter. Whether or not anti-
globalization anarchism can be considered true resistance to empires of law in
the way I mean is debatable. Perhaps the fact that these anarchists are frequently
photographed smashing in the windows and spray-painting the walls of Nike
and Gap stores while wearing Nike sneakers and Gap khakis (the new battle
fatigues?) suggests an answer.
28. In restating what is a common assertion, I do not, by implication, mean to deny
the tremendous human suffering produced through the colonial encounter. It
is nevertheless true that every act of barbarism committed in the name of
colonial progress and civilization was an effect of a pre-existing language of
immutable difference, which actually required such brutality in order to be
fully understood.
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... No single Latin American case can adequately epitomize the kinds of transformation that have occurred within the last (approximately) 30 years of international indigenous institutional formation (Brysk 2000, 26;Sanders 1989, 413), but we can usefully compare Bolivia with Norway and Australia in some respects. By any kind of social categorization, Bolivia has a majority of "native" people and one of the highest proportions of any country in Latin America (see Ströbele-Gregor 1994, 107, on counts; on indígena and mestizo as social, not biological, categories; and other aspects of political organization and mobilization; see also Goodale 2005;Yashar 1998). The aim of the revolutionary nationalist state established in 1952, dominated by a small criollo majority, had been to assimilate and "civilize" the Indians. ...
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