OKLOPCIC - Beyond The People. Social Imaginary

i
OXFORD CONSTITUTIONAL THEORY
Series editors:
Martin Loughlin, John P McCormick, and Neil Walker
Beyond the People
ii
OXFORD CONSTITUTIONAL THEORY
Series editors:
Martin Loughlin, John P McCormick, and Neil Walker
Oxford Constitutional Theory has rapidly established itself as the primary point
of reference for theoretical reflections on the growing interest in constitu-
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Europe’s Functional Constitution The Cosmopolitan State

A Theory of Constitutionalism Beyond H Patrick Glenn
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Turkuler Isiksel Edited by Cormac Mac Amhlaigh,
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Learning and Legitimacy The Three Branches
Andrew Arato A Comparative Model of Separation
Popular Sovereignty in Early Modern of Powers
Constitutional Thought Christoph Möllers
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Legal Order and the Politics of Constitutional Referendums
A-Legality The Theory and Practice of Republican
Hans Lindahl Deliberation
Stephen Tierney
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Beyond the People
Social Imaginary and Constituent Imagination
Zoran Oklopcic
••
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v
Acknowledgements
This book is about the importance of not closing our eyes before the situations and
environments in which we struggle to achieve something that we hope will withstand
the test of time. Completed almost fifteen years after I moved to an environment that
made the pursuit of that aspiration possible, this book is also a polemic against what
seems to be the dominant tendency in contemporary constitutional thought: to lend
dignity to such aspirations through sympathetic theoretical conceptualizations of con-
stituent power, self-determination, identity, and autonomy—collective, or personal.
Captivating, pleasurable, and comforting (especially after the fact), these idea(l)s are
also passivizing, distracting, and infantilizing. By providing ‘us’ with a virtual pat on the
shoulder, they fail to remind us that whoever we think we are, what we really need is a
helping hand. It is only because such a hand was extended by so many generous friends
and colleagues that am I enjoying the privilege, and pleasure, of writing these lines.
Though an unrefined sense of what is ‘wrong’ with the way in which contemporary
theoretical debates approach various aspects of the vocabulary of sovereign people-
hood could already be detected in my doctoral dissertation, which I defended at the
University of Toronto Faculty of Law in 2008, it took me nearly a decade to render
that initial set of convictions, assertions, and irritations more visible—and, as a result,
intelligible and sensible. It is only natural that my greatest debt of gratitude goes to the
person whose wisdom, friendship, encouragement, and gentle, but persistent probing,
gave these initial, rudimentary intuitions a chance to survive and develop—my doctoral
supervisor, Patrick Macklem. In addition to Patrick, I also wish to extend my heartfelt
gratitude to the members of my dissertation committee, Simone Chambers and Sujit
Choudhry, as well as to my internal and external examiners, Karen Knop and Stephen
Tierney, who each in their own way helped set the stage for the development of the
ideas that went into this book.
Over the last decade and a half, I have also been very fortunate to profit from con-
versations with a number of admirable colleagues. At the risk of omitting many of
those to whom I remain indebted, my thanks goes to Adrian Smith, András Jakab, Alex
Schwartz, Amy Bartholomew, Avigail Eisenberg, Benedict Kingsbury, Charles-Maxime
Pannacio, Christine Bell, Cormac Mac Amlaigh, David Dyzenhaus, Dejan Stjepanović,
Fleur Johns, Ida Koivisto, James Tully, Joel Colón-Ríos, Jarmila Lajčakova, Karlo Basta,
Kristen Rundle, Luigi Nuzzo, Luis Eslava, Maddy Chiam, Margaret Moore, Martín
Hevia, Matthew Lewans, Michael Fakhri, Miodrag Jovanović, Muhammad Shaha
buddin, Nehal Bhuta, Neil Sargent, Neil Walker, Nikolas M Rajkovic, Paul Blokker,
Peter Swan, Rayner Thwaites, Remo Caponi, Richard Albert, Rita Lynn Panizza, Ron
Saunders, Rose Parfitt, Rueban Balasubramaniam, Stacy Douglas, Stephen Holmes, Tom
Campbell, Umut Özsu, Vicky Kuek, Vidya Kumar, Vincent Kazmierski, Vito Breda, and
Yaniv Roznai. In different ways and at different places—from the University of Toronto
vi
vi • Acknowledgements
and the Department of Law and Legal Studies at Carleton University (my home insti-
tution), to Edinburgh Law School, Victoria University Department of Political Studies,
NYU Law School, and Harvard Law School’s Institute of Global Law and Policy—they
have each made the years of work that went into this book personally edifying, so-
cially enjoyable, and intellectually enriching. In particular, I wish to thank András, Fleur,
Maddy, Margaret, Nehal, and Umut, who read and commented on the portions of an
early version of the manuscript; Nikolas, for his path-breaking reading suggestions; Ida,
for our ongoing parodic re-conceptualizations of serious theoretical concepts; Adrian,
for confronting my half-developed thoughts attentively, enthusiastically, and critically;
and finally—for all of the above—K arlo, my childhood friend, comrade émigré, and
intellectual fellow traveler.
For her patience, generosity, and love—as well as for our innumerable conversations
about the substance, style, and composition of this book—I thank above all my wife
Helena Kolozetti. I also thank my parents-in-law, Nada and Vlado Kolozetti, whose
selfless hospitality I continued to enjoy throughout this process, and which I will always
cherish. Finally, the courage I felt I needed to summon in order to write this book didn’t
come from nowhere. For that I thank my parents, Slobodanka and Zdravko Oklopčić.
In nurturing my early inclinations towards the world of visual arts on the one hand, and
towards the world of politics and ideas on the other, they set the foundations for my
more recent adventures in diagrammatic writing and visual political theorizing. This
book is dedicated to my son Danilo—in hope it makes him as proud as his father is
proud of him.
Zoran Oklopcic
Toronto, January 2018
vi
Contents
List of Figures xi
A Note on the Cover xiii
A note on Usage xv
Chapter 1 A Different Beginning: Theory as Imagination 1
1. A sovereign people and its two realms 1
2. Videre aude: theory as imagination 5
3. Twining’s Palomar and his ‘cosmic wisdom’ 8
4. Imaginative theory as constituent imagination 12
5. Purposeful imagination: polemical, practical, productive 15
6. Visual imagination: figures, stages, gazes 19
7. Quasi-narrative imagination: crypto and proto 22
8. Affective imagination: affected and affecting 26
9. Ambiental imagination: prognostic, disciplinary, rhetorical 30
10. Conceptual imagination and the paper tools of theory 37
Chapter 2 Constituent Imagination: Behind Popular Expectations 43
1. The twilight (zones) of sovereign peoplehood 43
2. The people: from ridiculous (1956) to ridiculous (2016) 46
3. Popular expectations: back to the future past 51
4. Jeopardy, futility, perversity: learning from reaction 55
5. The people: an anatomy of a polemical concept 60
6. Creator vs Framework: one binary to rule them all 64
7. Beyond perspectives: the work of figuration 67
8. Emblems, ensembles, polymorphs, isomorphs 70
9. Image schemata and the laws of contrast 73
10. The anxious loop of popular sovereignty 75
11. Kelsenian ‘tendency’ and the imaginative spectroscopy 79
Chapter 3 Many, Other, Place, Frame: Beyond a Sovereign People 83
1. A sovereign: staged and dramatized 83
2. The dramatistic quartet: Many, Other, Place, Frame 85
3. Behind the stage: ex nihilo and its creatio 89
4. Behind the stage: dramatizing constituent power 94
5. Behind the people: friends, enemies, and their thirds 100
6. From Schmitt’s anxiety to Kelsen’s ‘tendency’ 105
7. Hollow topologies: constituent dramatism today 109
8. The people, (semiotically) squared 115
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viii • Contents
Chapter 4 Hope, Telos, Xenos: Beyond Constituent Power 121
1. Constituting: what is it good for? 121
2. Constituent power and its prompters 124
3. Constituting: founding and withstanding 127
4. Constituent power as the prognostic inscription 129
5. Theorizing: moral hazards and polemical gambles 134
6. Reconceptualizing: polemical clarifications 139
7. Scripting: Schmittian contamination 141
8. Scripting: Lockean exhaustion 144
9. Imagining (others): beyond reified stratagems 149
10. Bloch’s Vorgriff: a way of seeing 152
Chapter 5 Nephos, Scopos, Algorithm: Beyond Self-Determination (I) 157
1. Self-determination: five ways beyond 157
2. From emblematic holders to fuzzy ensembles 161
3. Nephos: Kelsen’s ‘ocean’ as a political aerosol 163
4. Granular attitudes: Kelsen’s ‘torment’ as
Bloch’s ‘contradictions’ 167
5. Scopos: polemical space beyond the Place 171
6. Self-determination: the geography of failure (I) 176
7. Self-determination: the geography of failure (II) 179
8. Imagining denominators: beyond transubstantiation 182
9. Imagining denominators: beyond circularity 184
10. Normative theory and its ‘red-haired man’ 188
Chapter 6 The Nomos and the Gaze: Beyond Self-Determination (II) 193
1. International jurists and their mental maps 193
2. Self-determination: beyond the jigsaw puzzle 196
3. Self-determination: beyond the hovering gaze 201
4. Kelsenian symptoms: statism and cosmopolitanism 205
5. Oscillating gaze and the structure of legal argument 209
6. A quiet calculus: Others in other universes 213
7. Legal interpretation as anxiety management 216
8. Legal interpretation as hope management 220
9. Beyond (the jurists’) self-determination? 223
10. Tipping the scales: from Apology to Utopia(s) 227
Chapter 7 Territorial Isomorphs: Beyond Foundational Authority 231
1. Territorial isomorphs and Sierpinski recursion 231
2. ‘A measure of my own Gestalt’: four laws of grouping 234
3. Beneath the source of ultimate authority 237
4. The final say: Münchausen and his trilemma 242
5. The varieties of (un)responsive foundationalism 245
6. Para-constitutionalism: between vague and strange 251
7. Constitutional pluralism: hermeneutics as
anxiety management 253
8. Radical pluralism: (why not) beyond constitutionalism 257
ix
Contents • ix
9. Abstract theories as problem-solving templates 259
10. Sierpinski recursion and symbolic reflection 262
Chapter 8 Constitutional Isomorphs: Beyond Collective Self-Government 267
1. Popular self-government: space, time, and spacetime 267
2. Cicero’s Ulysses: behind pre-commitment 273
3. Taking Kelsen literally (beyond Kelsen) 277
4. Self-government as a constitutional isomorph 281
5. Constitutional isomorphs and the pursuit of purpose 287
6. By the people? Imaginative plurality and its dignity 291
7. For the people? Shameful geography of liberal oligarchy 293
8. Of the people? Narrative identity, de-dramatized 295
9. Chained to the rhythm: beyond identity and hybridity 299
10. Seeing through: beyond the light and shadow 302
Chapter 9 An Isomorphic Pluriverse: Beyond Sovereign Peoples 305
1. Beyond people-Giants and people-Dwarfs 305
2. The vengeful Grossraum: Schmitt’s dark materials 308
3. The figure of Schmitt: the irritant and the reminder 313
4. The American sovereign: an amnesiac Narcissus 317
5. Multitude: the emblem of failure 321
6. The pretender Demos and the disciplinary pretensions 323
7. Cosmopolis: between Nomos and Telos 328
8. Beyond Cosmopolis: Nehru’s (isomorphic) world 333
9. For love of the purpose: Das telos der Erde 337
Chapter 10 A New Hope: Image Wars and Eutopian Imagination 343
1. The Square, the Triangle, and the Circle 343
2. Beyond circularity: transparency and its ironies 347
3. Theory, iconoclash, and the games of make-believe 351
4. Beyond image wars? ad bellum purificandum 354
5. Breaking the siege: the liberation of eutopian imagination 361
6. Striking back: the Anathema, the Nebula, and the Utopia 363
7. And again: the Aporia and the Tabula 368
8. Wishful images and partisan onlookers 372
9. Diagrams of hope and purpose 375
Index 381
x
xi
List of Figures
1.1 Sovereign people—the diagram of a conceptual ‘molecule’ 39

2.1 The people: from ridiculous to ridiculous 47
2.2 Four sources of legitimacy 53
2.3 Image schemata and the construction of ‘ridiculous’ 73
2.4 The anxious loop of popular sovereignty 78
2.5 Beyond the people––the steps ahead 81
3.1 Lefort’s vase 114
3.2 Semiotic square of peoplehood—the regularities of dramatism 116
4.1 Constitution as foundation and constitution as making-withstand 129
4.2 Deictic cube 138
4.3 Constituent power in space and time 154
5.1 The matrix of moders’ political attitudes 170
5.2 Kelsenian algorithm 186
6.1 The global histogram of self-determination 198
6.2 The right to self-determination, top-down and sideways 200
6.3 Self-determination as refracted through the stages of determination 202
6.4 Top-down-bottom-up legal argument visualized 211
6.5 Polemical balance of apology and utopias 229
7.1 Sierpinski gasket 232
7.2 The matrix of authority-challenges 239
7.3 Constitutional theories as problem-solving templates 261
8.1 The image schemata of constitutional temporalities 270
8.2 The alternative messages of the Ulysses and the sirens allegory 276
8.3 Imperatives of government and the dimensions of responsiveness 281
8.4 The Kelsenian ‘cone’ and the Kelsenian algorithm 283
8.5 Kelsenian algorithm beyond the layered constitutional hierarchy 286
9.1 Isomorphic pluriverse—a cross-section 331
10.1 Figure-g round, hierarchy-circularity 347
10.2 Constituent imagination—a Twining’s map 355
10.3 The emblem of an emancipated eutopian imagination 378
xi
xi
A Note on the Cover
Ulysses and the sirens. When students of popular self-government wish to make their
case for liberal-democratic constitutionalism as vivid as possible, that’s the allegory they
turn to. In popular imagination, a sovereign people looks nothing like a partially self-
incapacitated ancient warlord, however. In fact, some who invoke the people’s name
on the ground would be more likely to associate it with the downtrodden, exhausted
masses represented in Ilya Repin’s The Barge Haulers on the Volga (1874), one of the
masterpieces of nineteenth century Russian realism.
A ‘typical’ reader of the monographs published in this series—in my imagination,
someone theoretically sophisticated, socially responsible, and politically cautious—will
most likely remain unimpressed by either melodramatic representation of popular sov-
ereignty. Instead, the reader I’ve just conjured is quick to agree that a sovereign people
can only ever exist as a more or less useful fiction, a figure of speech, a metaphor we
live by: the constitutionalist representation of a national community that is imagined,
a name for a collective sovereign that is invented; a political concept whose purpose
was, is, and will continue to be polemical. While this book has no quarrel with these,
more theoretically self-aware, understandings of sovereign peoplehood, it nonetheless
dares to ask: What does this figure look like? If it’s imagined, what exactly does its
image evoke? If it’s invented, where are its blueprints? If it’s polemical, where are its
battle plans? Sensible and intriguing they may be, but these questions are inadvisable, if
not unmentionable, from most contemporary disciplinary perspectives on the vocabu-
lary of sovereign peoplehood. Among other things, this book is an attempt to answer
them. The name for that effort is constituent imagination: a practice which, even when
approached seriously, is always one step away from parody, or a step away from being
parodied, itself. Repin’s Barge Haulers is the emblem of that predicament: an illustration
intended to poke fun at the solemn nautical metaphors of contemporary constitution-
alism, but which, very quickly, under the inspection of my more sharp-eyed colleagues
became the object of ridicule itself.1
Though partly satirical in its aesthetic and rhetorical aspirations, this book rests on an
unironic conviction—an earnestly held belief that many, potentially useful, analytical
insights lie in an insufficiently explored strip of intellectual landscape delineated by the
tolerably indecorous and the disciplinarily undisciplined—two invisible boundaries of our
theoretical imaginations. To explore this zone is to find new ways of moving beyond
the traditional styles of practicing theory, and, with it, beyond the enduring represen-
tations of popular sovereignty in a wider social imaginary. While this book is not an
attempt to convince its readers that they ought to make that move, it intends to provoke
1
Yaniv Roznai, true to his humorous habitus, was quick to point to the cell phone in the hands of an ex-
hausted elderly employee in the middle of the painting.
xvi
xiv • A Note on the Cover

a particular theoretical and practical attitude towards the constitutive acts usually attrib-
uted to the figure of a sovereign people.
One figure from Repin’s Barge Haulers seems to be particularly evocative in that re-
gard. Here I have in mind not the exhausted muzhik in the centre of the painting, but
rather the man to his right; the one with his head held high. Is he hearing voices? Or is
he seeing strange new figures in the clouds? Is he indignant, with his chin slightly down-
cast? Or is he just incredulous? It’s hard to say. In painting him, Repin may have wished
to evoke a madman, a prophet, a rebel with(out) a cause, some combination thereof,
someone else altogether, or nothing in particular. One thing is certain, though. Repin’s
barge hauler is no Ulysses. Unlike Homer’s hero, he has no choice but to remain attuned
to his environment. In dragging the ship (of state) through the mud, he manages to
keep his ears clean and his eyes wide open. In contrast to prevailing conceptualizations
in contemporary political and legal thought, the self-determination, constituent power,
and political autonomy of Repin’s everyman remains inseparable from the peculiarities
of his situation, from the expectant emotions that overwhelm him; from his aspirational
orientations, and his prognostic calculations. It is these, imagined differently, that are be-
yond a variety of disciplinarily disciplined figurations of sovereign peoplehood. It is the
wager of this book that these situations, emotions, orientations, and calculations may
be talked about explicitly, purposefully, imaginatively, and productively—more playfully
with respect to prevailing terminological mediations, and yet equally ‘theoretically’,
dialogically, and seriously. What follows is the record of my attempt to show how.
xv
A Note on Usage
This book departs from prevailing ways of writing about social imaginary and theor-
etical imaginations of popular sovereignty both in substance and in style. As will soon
become fully obvious, my style is thoroughly visual, manifest not only in my ample use
of images—diagrams, tables, and graphs—but also in my frequent reliance on visual ac-
cents, such as small caps, which appear throughout the book in the body of the text it-
self. Mildly anxious about the prospects of being accused of not practising what I preach
(imagination), I have resorted to their use for three reasons: (1) in order to generate (in
my mind, as effortlessly as possible) the effect of estrangement from dominant theor-
etical preoccupations with the figure of a sovereign people and its attributes—with the
aim of drawing attention to the conceptual, visual, rhetorical, semiotic, and other con-
cealed implements of theoretical imagination used to stage the manifestations of that
people and its attributes, instead; (2) in order to underscore the imagined and imagina-
tive character of allegedly superior theoretical alternatives to specific figurations of a
sovereign people, or to the vocabulary of sovereign peoplehood in general; and, finally,
(3) in order to make further distinctions among the diversity of background imagina-
tive choices and half-thought considerations that inadvertently shape the way in which
the figure of a sovereign people appears on the pages of a theoretical monograph. In
opting for this approach, I was aware of the risk of alienating readers who expect to
confront discrete chunks of unadorned text, and not lines of text interspersed with pic-
torial emphases, visual restatements, and diagrammatic summations. If I have failed in
my ambition to deploy these visuals illuminatingly, I still hope that there will be those
who will consider it as an experiment well worth the effort—an attempt to theorize fast
and slow; to communicate mutually-related ideas at different levels of compression, in
the hope that doing so might make them easier to disassemble, reassemble, compare,
combine, adapt, discard, or deploy—and overall, situate and evaluate.
xvi
1
 1 
A Different Beginning
Theory as Imagination
1. A sovereign people and its two realms

A sovereign people has many bodies. However it incarnates itself, it does so
in two places at the same time: in the realm of theoretical inquiry and in the
realm of social imaginary. In the first, it appears in two guises: either as the
subject or, more rarely, as the predicate in a particular proposition of people-
hood. There, a sovereign people is a concept which is always an abstract someone
to something: the bearer of constituent power, the holder of the right to self-
determination, the subject of constitutional self-government, the source of ul-
timate authority, or a sovereign among other sovereign peoples. In the second
realm, in contrast, its guise is fourfold. There, a sovereign people exists as a
shorthand for a particular aspect of the doctrine of popular sovereignty; as a
figure, set against a background that renders that doctrine meaningful; and—as
a consequence of both—the catalyst of political antagonism, on the one hand,
and the mediator of the popular expectations of those who invoke its name, on
the other. To invoke its name, in this realm, is not only to refer to ‘deep norma-
tive notions’ about the ways in which we fit together,1 but also to imagine a god-
like sovereign actor whose ambivalent image has historically proven capable
of amplifying an enduring, large-scale political animosity—initially towards un-
accountable monarchies, parasitic aristocracies, and exploitative empires, and
over time towards ethnic majorities and great-power hegemonies.
In allowing those who invoke its name to harness its catalytic power, how-
ever, a sovereign people has always been a Janus-faced rhetorical device: not
only a figure to be used, but also a figure that uses; not only a rhetorical weapon
and a problem-solving device, but also the mediator of expectations among
those who reach for them. As an actor in an imaginary scene of constitution-
making, this sovereign people also acts on the plane of our anticipatory con-
sciousness, prefiguring how we may communicate our expectations of others,
for ourselves, and for the world, both in principle and specifically: here and
now, not then and there; with respect to you, not to them; and vice versa. In
other words: as the arbiter of the intelligibility, legality, and legitimacy of our
1
Charles Taylor, Modern Social Imaginaries (Duke University Press 2003) 23.
2
2 • A Different Beginning
expectations and as the warden of the spatiotemporal boundaries of their mor-
ality and sensibility. In these roles, a sovereign people also acts as the manager
of mental phenomena—emotions, attitudes, and affects—which these expect-
ations provoke, sustain, amplify, or diminish in the context of a particular pol-
itical struggle.
Among a variety of different affective attitudes that come in tandem with
the vocabulary of sovereign peoplehood, one has been particularly important.
Ignored by the theorists, the attitude in question—perhaps best referred to
as hopeful self-confidence, or self-confident hopefulness—has allowed those
who rally around the name of the people to act on the basis of a belief that
has no correlate in the historical eras prior to the one defined by the social
imaginary of popular sovereignty; a belief that ‘we, the people, have the right
to voice on our own initiative; worthy, united, numerous, and committed,
we have the capacity to change things’,2 trustful that doing so will not be in
vain and that establishing a new order of, for, and by the people can only be
for the better. Those who approach this figure theoretically, however, rarely
pause to ask, is this still what we expect today? Is it really true, as Ernst Bloch
declared in 1959—the year which, in retrospect, may be seen as the beginning
of the soon to be eclipsed zenith of that imaginary—that ‘we never tire of
wanting things to improve’?3 Or has the ‘continual propensity towards the
better’, which Bloch detected more than half a century ago, been nothing
but his own groundless projection, the result of his own overactive imagin-
ation: ‘part socialist propagandizing’, ‘part German metaphysics’,4 part echo
of the mid-twentieth century anti-colonial Zeitgeist?
As they seek to interpret the meaning of specific propositions of peoplehood,
theorists, for the most part, do not confront these questions, nor do they, in con-
sequence, have an opportunity to ask themselves those that would otherwise
logically follow: What is it that we expect from the figures that inhabit the realm
of theoretical inquiry once we broadcast them—in the world, and for those who
rely on them within the realm of social imaginary, in the field of struggle? How
do we want our figurations of sovereign peoples and their predicates to arbiter,
police, and mediate their own expectations? Which among their innumerable
struggles do we wish to catalyse, and on the basis of what? What is it that we,
the inhabitants of the realm of theoretical inquiry, envision as we assume, diag-
nose, prognosticate, hope, worry, regret, and yearn?
To ask these questions is to ask what is theory as a practice, and what is that
practice for. To aspire to answer them is to reimagine theory as the practice
of imagination, and then to practice it differently: purposefully, deliberately,
actively, and interactively. To practice theory as imagination in the realm of the-
oretical inquiry is to violate the norms of communal decorum, which stipulate
Charles Tilly, Regimes and Repertoires (University of Chicago Press 2006) 56.

2
3
Ernst Bloch, The Principle of Hope, vol 1 (Neville Plaice, Stephen Plaice, and Paul Knight trs, first published
1959, MIT 1995) 77.
Alan Mittleman, Hope in a Democratic Age: Philosophy, Religion and Political Theory (OUP 2009) 182.
4
3
A Sovereign People • 3
how to treat interlocutors’ images: always as props, always invisible, and always
unmentionable—either because they successfully prop up the propositions of
those who imagined them, or because the consequences of their failure to do
so must be indicated differently, without pointing a finger at a picture, which,
by definition, may always be pictured differently. Finger pointing, as in every
other polite conversation, is strongly discouraged. To ask: What is the point of
imagining a scene in which a sovereign people appears like that, like that?—is
to introduce irrelevant and tone-deaf considerations, more becoming of a ‘man
of business’5 than of someone appreciative of the ‘unusually conversant’ voice
of theory.
Notice, however, that the same theory-as-imagination, which commits its
practitioner to laugh away the reproachful gazes of those who claim that ‘bar-
barism may be observed to have supervened’6 whenever ‘so that what?’ and
‘on the basis of what?’ questions disrupt the flow of mellifluous theoretical
conversation, also seems to commit that same practitioner to fight the ‘critical
barbarism’ of those who participate in the scholarly games of make-believe for
the opportunities they provide to demolish someone else’s stage props.7 While
fighting critical barbarism in this arena ultimately doesn’t commit a theorist-
imaginer to refrain from exposing, ridiculing, or unmasking sacred cows, ta-
boos, and fetishes, it does commit her to keep reminding herself and others
that those who approach these entities purposefully are not idiots; that is, that
they are not constitutively incapable of detecting a conceptual shell game, a
manoeuvre of hiding the theoretical ball, or an attempt to smuggle an imper-
missible assumption when they see one. In the context of this book, it is to ask
not only what is the point of imagining the figures of sovereign peoplehood in
a certain disciplinarily disciplined way, but also what is the point of problem-
atizing or critiquing those imaginations—specifically.
Provisionally situated between these two styles of theoretical thought, then,
theory-as-
imagination is neither a dispassionate conversation sustained by
a system of winks and nods, nor an intramural sport of theoretical criticism
whose audience is known in advance, but rather one of many possible instanti-
ations of ‘symbolic action’. Always haunted by the oscillations between a vague
and concrete sense of purposefulness, the dilettantism of its diagnostic and
prognostic judgements, and the irresistible allure of the ‘adventures of thought
in writing’—its aim is always to move: someone, somewhere, and for the better.8
Those who practise it are imaginers and practically minded rhetoricians,
the ‘priests of the profane’,9 as Nicholas Onuf called them, and the veritable
5
Michael Oakeshott, Rationalism in Politics and Other Essays (Methuen 1962) 201. 6
ibid 212.
7
Bruno Latour, ‘Why Has Critique Run out of Steam? From Matters of Fact to Matters of Concern’ (2004)
30 Critical Inquiry 225.
8
Kenneth Burke, A Rhetoric of Motives (University of California Press 1969) 42.
9
Nicholas Onuf, World of Our Making: Rules and Rule in Social Theory and International Relations (Routledge
2012) 106.
4
conjurors of peoplehood. It is only by serving in those roles that their theor-
etical arguments may hope to make sense—both in relation to the partisans,
and in relation to their fellow theoretical imaginers of sovereign peoplehood.
To act in those roles—this book wagers—is to increase the chance of finding
what Roberto Unger called the ‘lost and repressed sense of transformative op-
portunity’, which still continues to hide within the galaxy of either/or binaries,
caricaturized figures, and devalued distinctions, and which revolves around its
gravity centre: the cluster of the most important propositions of peoplehood.
Not to act in those roles, as this book also wagers, would be to miss out on a
theoretical opportunity, a professional adventure, and an increasingly urgent
moment of political reckoning.
Irrespective of whether we live in an era of a new dawn, a final sunset, or
an ambiguous twilight of sovereign peoplehood, we have been confronted
with a sufficient amount of scenes of popular decision-making that ought to
compel us to step back and reimagine the toxic, bizarre, counter-productive,
and otherwise dysfunctional relationship between our popular expectations
and the traditional vocabularies we use to mediate them. So far, theorists
have done so either by refining their understandings of sovereignty, con-
stituent power, or self-determination, ultimate authority, and popular self-
government, or by simply inventing a new agent—multitude, a transnational
demos, a multipolar world—intended to fill the shoes of a sovereign people. In
contrast, this book aims to move behind this figure not by setting it aside and
leaving it behind, nor by going around the functions it still continues to serve
in the world today, but rather through it, after having found new imaginative
opportunities within the scenes in which it is staged, after having explored the
work of imagination that went into staging them, behind the curtain, by the
conjurors of peoplehood.
Doing so will broaden the imaginative space for new expectations, while
at the same time offering new ways of articulating, arguing, and negotiating
existing ones. Rather than insisting on how much is too much, how little is
too little, and how good is good enough in different arenas of struggle, this
book aims to raise the profile of the question. In other words, if you took
a better look at the imaginative choices behind the figures and the scenes
that quietly prop up the propositions of peoplehood, what stops you from
stepping back and looking at them as tokens in somebody else’s game of
make-believe that have no power to prevent you from asking: Are there new
ways to mediate them while acting purposefully, worrying consciously, and
hoping for more? All of that is at the very least imaginable: beyond friends
and enemies, revolutions and amendments, the norm and the exception,
demos and ethnos, inside and outside, constituent and constituted power,
the nation and the national minority, and other false binaries perpetuated by
self-disciplined theoretical imaginations, practised in silence across the realm
of theoretical inquiry.
5
Videre Aude • 5
2. videre aude

theory as imagination
Focused on understanding the meaning of the scenes of creation, founda-
tion, institution, constitution, self-constitution, irruption, and other manifold
stylizations of joint action, theorists of peoplehood think of the concept of
imagination in terms of a formula Jean-Paul Sartre reserved for the concept of
hell: imagination—it’s other people. It is those other people, not the theorist
in question, who have established a constitutional imagination as a repository
of established narratives, symbols, rituals, and myths, which stand ready to be
‘harnessed’ by contemporary constitutions.10 It is also these others—exercising
their ‘universal human capacity’—who took part in ‘creative collective imagin-
ation’ by constructing powerful narratives of constitutional foundations and
political beginnings.11 Finally, it is these others whose ‘communicative and
performative work’ of imagination constitutes, as we speak, the world itself—
together with its manifold ‘global problems’.12 In case there was any doubt,
today imagination is:
No longer mere fantasy (opium for the masses whose real work is elsewhere),
no longer simple escape (from a world defined principally by more concrete pur-
poses and structures), no longer elite pastime (thus not relevant to the lives of
ordinary people), and no longer mere contemplation (irrelevant for new forms
of desire and subjectivity), [but] an organized field of social practices, a form of
work (in the sense of both labor and culturally organized practice), and a form
of negotiation between sites of agency (individuals) and globally defined fields
of possibility.13
But what does it mean to participate in that practice? What are the modes and
tasks of imaginative ‘labour’ more specifically? How is it that even those who
openly recognize the importance of imagination still find it easier to describe it
than to exercise it?14 If it is true that imagination is, indeed, no longer a ‘mere
fantasy’ but a ‘form of work’, how is it that in the deluge of various academic
‘Handbooks on . . .’, there hasn’t been a single manual that would offer practical
Martin Loughlin, ‘The Constitutional Imagination’ (2015) 78[1] MLR 1, 3.

10
Yaron Ezrahi, Imagined Democracies: Necessary Political Fictions (CUP 2012).

11
David Kennedy, A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy (Princeton
12
University Press 2014) 98.

Arjun Appadurai, Modernity at Large: Cultural Dimensions of Globalization (University of Minnesota Press
13
1996) 156.
14
See, for example, Dilip Gaonkar, ‘Social Imaginaries: A Conversation’ (2015) 1[1] Social Imaginaries 195;
John Grant, ‘On the Critique of Political Imaginaries’ (2014) 13[4] EJPT 408. For a similar complaint against
the legal scholars who have embraced the ‘critical turn’ only to shy away from it ‘on the scene of their own
writing’, see Pierre Schlag, ‘Normativity and the Politics of Form’ (2015) 139[4] University of Pennsylvania
Law Review 801, 890.
6
guidance to the multitude of its global practitioners?15 How have those who
take their ‘Promethean powers’ as a given, so far had so little confidence in their
ability to ‘consciously harness them’?16 Isn’t it somewhat strange that while the
texts of contemporary Prometheans rarely feature argumentatively consequen-
tial images (and almost never their own), the medieval anti-Prometheans had
no qualms about authoring religious texts that were not only visually rich, but
also replete with tables, diagrams, emblems, and other images, tasked with as-
sisting memory, fostering meditation, and serving as the engines of ‘creative
thought’?17 In contrast to medieval monks—who at least had a fairly good sense
of what they wanted to achieve by embedding a variety of epistemic images
at different places in their texts—their contemporary colleagues almost seem
to be embarrassed when it comes to the individual dimension of their work as
imaginers. Why is that so? Is the individual work of theoretical imagination so
complex, elusive, and fleeting that it makes it, to those who perform it, literally
unimaginable? Or is imagination one of those practices that are very easy to
discuss enthusiastically, but which, at the same time, no one would be glad to
be caught doing publicly?
The imagination of those who focus on the figures of popular sovereignty
remains in a kind of a twilight zone, unable to identify with either of the two
ideal-typical imaginative attitudes. It is neither what Charles Pierce called ‘poet-
imagination’; a type that ‘bodies forth the forms of things unknowne’, and
which ‘riots in ornaments and accessories’, nor is it the ‘devil’s imagination’ of
the scientist, ‘quick to take Dame Nature’s hints’, and ‘[make] the clothing and
the flesh drop off ’ so that ‘the apparition of the naked skeleton of truth . . . [is]
revealed before him’.18 Between the two poles, the practitioners of imagination
that this book focuses on have generally veered towards the first—imagining
their role to be either that of a connoisseur, a curator, or an artist. As a connois-
seur, the task of a theorist is to learn to ‘appreciate the way in which certain
ideas and beliefs gain acceptance as the “dominant sentiments” or “collective
15
Contrast this with the proliferation of scholarly monographs about some aspect of political imagination,
including a number of recent critical approaches to politically relevant concepts, understood as the products
or objects of imagination. ‘Sovereignty’ alone has managed to entice two eponymous titles: Kevin Olson,
Imagined Sovereignties: The Power of the People and Other Myths of the Modern Age (CUP 2016); Kir Kuiken,
Imagined Sovereignties: Toward a New Political Romanticism Age (Fordham University Press 2014). See also, Gönül
Pultar, Imagined Identities: Identity Formation in the Age of Globalization (Syracuse University Press 2014); and,
Willem Schinkel, Imagined Societies: A Critique of Immigrant Integration in Western Europe (CUP 2017). While
Olson rightly emphasizes the constitutive power of imagination, Schinkel goes a step further and explicitly
envisions ‘social theory and/as social imagination’(35).
James D Ingram, ‘Introduction’ in SD Chrostowska and James D Ingram (eds), Political Uses of Utopia: New
16
Marxist, Anarchist, and Radical Democratic Perspectives (Columbia University Press 2016) xxii.
17
Mary Carruthers, The Craft of Thought: Meditation, Rhetoric and the Making of Images 400–1200 (CUP 1998) 11.
For the discussions of similar aspirations in other eras, see Lina Bolzoni, The Gallery of Memory: Literary and
Iconographic Models in the Age of the Printing Press (University of Toronto Press 2001).
Charles Pierce, Selected Writings (Dover 1966) 255, quoted from Richard Swedberg, ‘Can You Visualize
18
Theory? On the Use of Visual Thinking in Theory Pictures, Theorizing Diagrams, and Visual Sketches’ (2016)
34[3] Sociological Theory 250.
7
Videre Aude • 7
dreams” of a society’.19 More ambitiously, they see themselves as curators skilled
enough to ‘guide public ethical and pragmatic considerations for choosing from
among such competing imaginaries of order’.20 Most ambitiously, Roberto
Unger suggests that theorists should imitate artists, and ‘[make] the familiar
strange’, for the sake of redeeming ‘the lost and repressed sense of transforma-
tive opportunity’, occluded from sight by a plethora of false necessities, manu-
factured by those who practise their imaginations furtively, as the partisans of a
‘necessitarian’ social and political thought.21 How can we combat this false ne-
cessitarianism as ‘artists’? Unger doesn’t say. In fact, it turns out that he doesn’t
really want us to take this proposal too seriously, since on closer inspection the
vital work of demolishing necessitarian assumptions consists in map-making,
which would make a theorist more suited for the role of a cartographer.
In any event, we need both a clearer sense of how we might actually practise
our theoretical imagination differently (since we already do so anyway) once
we actually choose to do so deliberately, and a clearer sense of what has kept
theorists of peoplehood from attempting to do so thus far. In that respect, the
question is not ‘how?’ but ‘why not?’. Whence such ‘imaginative resistance’
to theorizing more imaginatively, among the theorist-imaginers of popular
sovereignty?22
Having never been stated explicitly, let alone discussed openly, we can only
speculate as to whether this resistance emerges from a deflated sense of the
capacity of theory to influence the social imaginary; from a conviction that the
practice of constitutional theory is mostly a matter of language and grammar;23
from a belief that the role of theory ought to be to listen, not to lecture those who
invoke the name of the people in the field of struggle;24 from having submitted
to moral and emotional blackmail broadcast by the empty circles of liberal jus-
tification;25 or from enduring anti-totalitarian anxieties of former socialists and
communists who instead of empty circles of justification, see empty places of
power and other phantasms of anti-Stalinist radical democratic imagination.26
Or, more generally: Is the imaginative resistance to a less disciplinarily discip-
lined style of imagining attributable to a deeper affective disorder of theoretical
imagination—one that causes ‘a state of interested dreamlessness’ in liberal-
democrats, the ‘nihilism of theoretical hopelessness’ in radical democrats, and
Martin Loughlin, Swords and Scales (Hart 2000) 32.

19
Ezrahi (n 11).
20
Roberto Unger, ‘Legal Analysis as Institutional Imagination’ (1996) 59[1] Modern L Rev 1, 22.
21
Originally, the term ‘imaginative resistance’ denoted the ‘comparative difficulty in imagining fictional
22
worlds that we take to be morally deviant’. Tamar Szabó Gendler, (2000) 97[2] ‘The Puzzle of Imaginative
Resistance’ 55, 56. In this book, I am using it to denote the comparative difficulty of imagining the practice of
theory as: (a) the scholarly game of theoretical make-believe, and (b) the scholarly game of make-believe that
may be ‘played’ as the practice of theoretical imagination.
See András Jakab, European Constitutional Language (CUP 2016).
23
James Tully, Political Philosophy in a New Key (CUP 2008).

24
Pierre Schlag, ‘The Empty Circles of Liberal Justification’ (1996) 96[1] Michigan Law Review 1, 47.
25
Andrew Jainchill and Samuel Moyn, ‘See French Democracy between Totalitarianism and Solidarity: Pierre
26
Rosanvallon and Revisionist Historiography’ (2004) 76 Journal of Modern History 107.

8
an ‘aversion to forwards and to the penetrating glance forwards’ in them both?27
The answers to these questions can only be speculative. But even as speculative,
they will depend on our understanding of the ways in which it is possible to
do the work of theoretical imagination more imaginatively. A first step in that
direction is to offer a provisional answer to the question: What is imagination as
an embodied, personal and interactive ‘form of work’—performed not in isola-
tion, but within the ‘organized field of social practice’? Notice that the answer
to this question in the following section cannot take exception from the general
vision of imagination that this book committed to from the outset. Call it the
paradox of imagination: irrespective of the extent of scholarly research, intel-
lectual rigour, or empirical evidence, a theoretical account of imagination can
only be provided by practising theory, imaginatively.
3. Twining’s Palomar and his ‘cosmic wisdom’

What is imagination? Most simplistically, imagination is the name for exercising
the ‘faculty for having . . . or making images’,28 which causes ‘a number of ab-
stracted ideas . . . [to be] compounded into one image’.29 At a somewhat more
refined level, imagination is an activity that consists in the mental acts of im-
aging, imagining-that, and imagining-how.30 The same elephant which is the ob-
ject of each will in the first appear simply as an elephant (blue, pink, yellow);
in the second as an elephant that grazes the lawn of my neighbour, and in the
third as an elephant that was stressed out once the neighbour called the police.
Though debates among cognitive scientists make it both impossible and un-
necessary to settle on a comprehensive definition of imagination and mental
imagery,31 this book cannot escape taking a stance on its character as a mental
faculty, an individual activity, and a social phenomenon. In this book, imagin-
ation is understood as
central to human meaning and rationality for the simple reason that what we
can experience and cognize as meaningful, and how we can reason about it,
are both dependent upon structures of imagination that make our experience
what it is. On this view, meaning is not situated solely in propositions; instead, it
27
in German 1959, MIT 1986) 1199.
Eva Brann, The World of the Imagination: Sum and Substance (Rowman & Littlefield 1992) 18.
28
ibid 23.
29
Edward S Casey, Imagining: A Phenomenological Study (2nd edn, Indiana University Press 2000) 41 passim.
30
For Casey, imaging, imagining-that, and imagining-how belong to the ‘act phase’ of imagining, which he distin-
guishes from the ‘object phase’, which is equivalent with the totality of ‘imaginative experience’, ‘of what we
imagine in a specific act of imagining’ (10).
Cognitive scientists continue to debate the nature of these images. For the most influential critique of
31
the pictorial character of mental imagery, see ZW Pylyshyn, ‘What the Mind’s Eye Tells the Mind’s Brain: A
Critique of Mental Imagery’ (1978) 80 Psychological Bulletin 1. For an influential account of the quasi-pictorial
character of imagery see SM Kosslyn, Image and Mind (Harvard University Press 1980). For a more recent sum-
mary of this position, see SM Kosslyn, WL Thompson, and G Ganis, The Case for Mental Imagery (OUP 2006).
9
Twining’s Palomar • 9
permeates our embodied, spatial, temporal, culturally formed, and value-laden
understanding.32
Imagination, then, is inescapable. Yet, we still do not seem to know enough
about its character at work, in action, and in the process of theorizing. Among
contemporary legal theorists, William Twining probably came closest to
describing theoretical imagination in practice. By way of an illustration, con-
sider the factors that shaped Twining’s theoretical gaze as he approached the
problem of globalization:
As I pondered the point of the enterprise in various places—including Oxford,
Nairobi, Hong Kong, Kampala, Wasenaar (near Leiden), Bangalore, Miami, and
Boston—three points became crystallised. First, my primary concern was with the
health of my discipline at a particular time—that is the institutionalized study of
law—from the point of view of a scholar, educator, occasional activist, and mild
agent provocateur. Secondly, although I jet-setted and networked in a number of
countries, my home and my main professional base are in England, my working
language—even in Kampala, Beijing, Miami, and the Netherlands––is English,
and my expertise is largely Anglo-American. Thirdly, words like ‘global’, ‘global-
isation’, and ‘globalism’ were a growing part of the barrage of messages from
the media and they had begun to become part of the daily vocabulary of neigh-
bouring disciplines.33
Twining’s gaze cannot be reduced to what is usually referred to as an ‘approach’.
Beyond them—or beneath them—there are myriad factors, some of which
Twining allows us to catch a glimpse of: geographical vantage points (Oxford,
Nairobi, Hong Kong); the imagination of ‘disciplines’ and of what it means
to be a good disciplinary ‘citizen’ (someone who contributes to disciplinary
‘health’); puzzlement over the meaning of increasingly influential concepts
(‘globalization’); or temperamental predilections (‘mild agent provocateur’). In
playing that role, Twining often feels like Mr Palomar—the protagonist of Italo
Calvino’s eponymous novel.
Though very well aware of Mr Palomar’s travails, Twining nonetheless em-
braces him as an emblem of his own amor fati as a theorist-imaginer; someone
who in an ‘increasingly interdependent’ and ‘more or less cosmopolitan’
world has no choice but to oscillate his gaze, in the pursuit of a project whose
‘achievement may be as elusive’, as Mr Palomar’s attempts at ‘describing a wave
or mastering a piece of lawn en route to understanding universe’.34 Though
fully aware of the bitter disappointments Palomar is forced to endure as he
keeps confronting the demoralizing complexity of the images of the world
that he constructs in his mind as he idly walks along the beach, what Twining
omits from the portrayal of this emblematic figure is the moment at which Mr
Palomar faces the consequences of imagining publicly. That is the moment, as
Mark Johnson, The Body in the Mind: The Bodily Basis of Meaning, Imagination, and Reason (University of
32
Chicago Press 1987) 165.

William Twining, Globalization and Legal Theory (Butterworths 2000) 247.
33
ibid 175.
34
10

Calvino narrates, when Palomar—finally ‘convinced that he has precisely out-
lined his own place in the midst of the silent expanse of things floating in the
void, amid the dust cloud of present or possible events’—‘decides the moment
has come to apply this cosmic wisdom to relations with his fellows’. The key
question is whether Palomar succeeds in persuading his fellows that his morph-
ology of ‘a human landscape’ is truly ‘distinct, clear’, and ‘without mists’.
Not at all. He starts by becoming embroiled in a muddle of misunderstandings,
hesitations, compromises, blunders; the most futile matters stir up anguish, the
most serious lose their point; everything he says or does proves clumsy, jarring,
irresolute.35
‘What is it that does not work?’, Calvino asks. His answer: Palomar lacks
requisite self-knowledge, ‘knowledge of one’s fellow’, that ‘has this special as-
pect: it passes necessarily through knowledge of oneself . . . precisely what Mr
Palomar is lacking [being] accustomed to considering himself an anonymous
and incorporeal dot’. Perhaps. But an alternative interpretation of what makes
his attempt to communicate his imagination ‘so clumsy, jarring, irresolute’,
would blame Mr Palomar not for the failure to know himself in the broadest
sense of the ancient gnothi seauthon, but in a more narrow sense. In that sense,
Palomar’s ‘fault’ lies in his inability to articulate the tension in his attitude to-
wards communicating his ‘cosmic wisdom’; his inability to recognize it not as
his own, but as a constitutive feature of all imagination-in-communication; and
finally, his failure to anticipate what it is about imagining that is likely to lead
to outcomes that are ‘jarring’ or ‘irresolute’. Palomar’s fault, in other words, is
that he fails to recognize that the failure to communicate his vision effectively is
not entirely his own fault.
Why this may be the case quickly becomes more apparent once we notice
that though we generally have no qualms about narrating the content of our
dreams as dreams, we seem to be far more apprehensive about reporting the
content of our imagination as imaginations. In other words, what makes the
reports of imaginative imaginings different from non-imaginative imaginings
is not the difference in the level of their idiosyncrasy or departure from reality,
but rather that we broadcast the former with a conviction about their wider, ob-
jective importance. In that sense, Palomar’s ‘cosmic wisdom’ ought to be taken
less as a humorous description of his delusions than an indicator of an attitude
that constitutes public acts of imagining as the practice of imagination.
That attitude is ‘highly ambivalent’: ‘we want to show or tell because we
have discovered something important, yet we don’t want to show or tell be-
cause we “know” that other people will or may fail to appreciate what we have
seen . . . or even criticize us as “just imagining,” having “let our imagination run
away with us” ’.36 This may also explain the remarkable reception of Twining’s
Italo Calvino, Mr Palomar (William Weaver tr, Harcourt Brace 1985) 94.

35
36
Paul B Lieberman, ‘Imagination: Looking in the Right Place and (in the Right Way)’ in James Phillips and
James Morley (eds), Imagination and Its Pathologies (MIT 2003) 27–28.
1
Twining’s Palomar • 11
own work: though widely admired, discussed, and recommended, it nonethe-
less did not prove inspirational in the way in which its author had intended. And
why would it? Practising imagination in public is difficult. Twining is the excep-
tion that proves the rule. What makes it hard, however, is not only the prospects
of being dismissed as having an overactive imagination, but also for having an
insincere mind. Martin Jay captured it best when he said: ‘ocular desire, ever
since at least the time of Augustine, has troubled those who want to privilege
sight as the noblest of the senses, for it seems to undermine the disinterested-
ness of pure contemplation.’37
Jay’s insight deserves to be pushed further, and radicalized in two ways. First,
‘ocular desire’—a desire to see something as something else, in a different light,
as transparent, as opaque, from afar or from close up—is evidence of the im-
possibility of the disinterestedness of pure contemplation. Contemplation, the-
oretical or otherwise, may be many steps removed from a tangible interest,
but can never be divorced from it.38 Second, once communicated—for example,
as ‘Why don’t you look at it this way? From this perspective, you would better
see that . . . if you noticed your blind spot, you would have . . .’—ocular desire
will be destined to provoke suspicions about the sincerity of an imaginer’s in-
sistence on the disinterestedness (or uninterestedness) of contemplations that
inform her ocular urgings, the scale of which would be proportionate to their
intensity. Practically speaking, this puts the imaginer between a rock and a
hard place. Were he to admit the interestedness of his contemplations his vi-
sions might lose whatever compelling force they might have had before that
admission. Were he to hide that interest he risks his conversations becoming—
rightly—‘jarring’ and ‘irresolute’. Is there any other way to practice imagination
publicly? Or must theorist-imaginers submit to one answer in this either/or di-
lemma? A second look at Twining’s work gives us an indication that they do
not. On closer inspection, Palomar-inspired Twining has achieved something
that has thus far been reserved only for dance instructors: showing and telling at
the same time—showing what kinds of considerations may affect the exercise
of theoretical imagination without, however, losing the substantive plot of his
concrete theoretical ‘argument’.
Set against the backdrop of Twining’s work, this book aspires to develop this
style of theoretical imagination. It does so, however, in the context of debates
that are focused on a polemical concept so consequential that any attempt to
portray ocular prompts as disinterested would very soon become suspect, and
rightly so. In such an environment, practising theoretical imagination must en-
tail a readiness to go deeper, wider, and to a more granular level in the ex-
ploration of the wanderings of the mind’s eye of the emblematic Mr Palomar,
and to accept that in doing so we are destined to expose not only the concrete
scopic choices of individual imaginers, but also the things that they managed to
Martin Jay, Refractions of Violence (Routledge 2003) 139.

37
That intuitive conclusion is perhaps best illustrated by the decidedly un-purposive theoretical accounts of
38
imagination, such as that by Paul Ricœur.

12

smuggle in as objectively valid. To practise theory as imagination, however, is
not to disqualify these smuggled artefacts—such as Twining’s claims of an ‘in-
creasingly interdependent world’ in which legal knowledge becomes ‘inevitably’
cosmopolitan, for example—as imagined, imaginary, or overly imaginative.
Rather, it is to carry the conversation further, and ask what else must have been
imagined, and why, every time we are confronted with a theoretical proposition
of peoplehood.
4. Imaginative theory as constituent imagination

In confronting this question, the best place to start are not theoretical abstrac-
tions, but rather the concrete scenes from the daily life of popular sovereignty;
not the occasions in which the ‘will’ of a righteous people ended up being
crushed by a wicked regime, but rather those in which its unobstructed exercise
proved to be dangerous, vain, futile, or counter-productive, nevertheless. Such
situations put in doubt not just the wisdom of our leaders, but also the wisdom
of having our aspirations mediated by the vocabulary of peoplehood, more
generally. They are also the situations that are relatively harder to digest the-
oretically. Perhaps surprisingly, the most ‘digestible’ ones are those that are the
most, not the least, stomach-churning: revolutions, coups, secessions, foreign
interventions, referendums, constitutional transformations, and other dramas
of sovereign peoplehood. In order to outline the contours of the imaginative
background of the theories of popular sovereignty, however, we should not
only focus on its dramas, but also on the situations in which those dramas turn
out to be farces and tragicomedies. While the former call for theoretical adapta-
tions, clarifications, and substitutions (all of which may be achieved from within
existing disciplinary perspectives), it is the latter that are capable of creating the
kind of estrangement that will provoke us to start looking beyond the people
and its sovereignty.
What we need, in other words, is to redirect our gaze away from the scenes
in which the people appears as an abstract propositional subject or predicate
and towards the real-life scenes that disclose it, against both the theorists and
the partisans of peoplehood, in an unflattering light: as a revolutionary agent
that restored liberal democracy only soon to abandon its liberal part; as the
holder of the right to self-determination, unable to answer, ‘Why should I be a
minority in your country, when you can be a minority in mine?’; as the author
of a socially emancipatory constitution whose constituent power quickly be-
comes mercurial without the constituent power of a charismatic leader; as the
electorate which vehemently rejects the financial ultimatum of supranational
financial institutions, only to impassively watch as its hopes are crushed by
those who have cynically incited it to demonstrate its sovereign ‘will’; as a de-
luded member-demos in the same supranational organization, which decided
to terminate its membership, only to experience a drastic change of heart two
days later; as the bearer of constituent power that deposed a corrupt oligarch
only to see the success of its revolution in the capital turn to civil war in the
13
Imaginative Theory • 13
countryside; or as an assembled mass that forced one ageing dictator to step
down only to end up being ruled by another, sprightlier one.
To look at the people as it appears in these scenes is to move beyond the
standard forms of theoretical inquiry, organized around ever-recurring defin-
itional questions. To look at the people as it appears in those scenes, in other
words, is to perform a particularly scandalous ‘symbolic aggression against
reality’, not simply by doubting the magic that inheres in the ‘magical epithet
“popular” ’,39 but by asking the questions that will end up revealing—and as
a result, inadvertently satirizing—the ways in which the figure of a sovereign
people continues to be reproduced visually.
So instead of continuing to be preoccupied with age- old, perennial
questions—‘Who is the people?’, ‘What is the meaning of its sovereignty?’,
‘How can it exercise its constituent power?’, ‘Did the meaning of its right to
self-determination evolve over time?’, ‘What counts as a clear manifestation of
its will?’—a less disciplined and more purposeful theoretical imagination calls
for confrontation with new questions: ‘What is the point of dignifying the in-
surrectionary potential of the figure of a sovereign people if it is increasingly
obvious that its potential exhausts itself in the theatrical simulations of popular
sovereignty?’, ‘What is it that we hope may yet happen if even those who invoke
the will of the people in those theatrical displays seem not to believe in its sov-
ereignty or its right to self-determination?’, ‘Why continue to dignify the figure
of a sovereign people if it raises unrealistic or unfair expectations in the context
of democratic revolutions in multinational states, especially if its symbolical
efficacy in the context of social revolutions has long since dwindled in most of
the world?’, ‘Why continue excluding from the scene all those who, in typical
situations, effectively exercise constituent power, whether or not they end up
being governed by the constituted powers they helped to establish?’
The imagination capable of asking these questions is both constitutional
and constituent. What makes it constitutional is its gaze—directed towards
the scenes in which peoples present themselves as the authors of constitu-
tions, the sources of ultimate constitutional authority, and as the subjects of
constitutional government; oriented towards the concept that presents itself
in a variety of figurations that hinge on manifold acts of zooming in, focusing,
oscillating, staging, scripting, recording, and dramatizing. By generating ‘narra-
tives’ of varying complexity, detectability, and scale, this imagination is a prac-
tice that is not only potentially practical in its effects, but also purposeful in its
intentions: polemical and problem-solving at the same time. What makes this
purposeful constitutional imagination constituent is its potential: its marginal
capacity to affect, together with other imaginations, the social imaginary of
popular sovereignty, and indirectly, the morphology of the anticipatory con-
sciousness of those who mediate their struggles with the help of its vocabulary.
Pierre Bourdieu, ‘You Said “Popular”?’ in Alain Badiou, Pierre Bourdieu, Judith Butler, Georges Didi-
39
Huberman, Sadri Khiari, and Jacques Rancière (eds), What Is a People? (Columbia University Press 2016) 33.
14

However it is exercised, the image of constituent imagination as practice is
itself imagined.40 As a work of a theoretical imagination, its portrait in this book
cannot escape its ambivalent duality: consciously idiosyncratic, yet somehow
still convinced that it is not. In offering a record of the journey beyond the
people, this book must inevitably be seen as an unreliable indicator of its essen-
tial characteristics. If so, one might rightly wonder if—irrespective of its am-
bition to be as exhaustive and comprehensive as possible—this book ends up
portraying imagination as a far too earnest and public-minded, while at the
same time insufficiently random, opportunistic, or compulsive activity . In fact,
it is quite possible that what determines its operation in practice—in addition,
or even instead of a desire to contribute to the success of some struggle, or to
contribute to the resolution of a perennial problem—are concerns that have
nothing to do with those that are most intimately linked with our attitudes
towards popular sovereignty: the imaginer’s worry about undermining the pro-
spect of healthy reputational returns on past intellectual investment (which
might be undermined if one were suddenly to start treating the imaginative
constants as the imaginative variables), or her ‘anxiety of influence’ that com-
pels her to imagine only that which seems to promise to distinguish her from
others. Indeed, as Dominick LaCapra has argued,
It is significant that an intention is often formulated retrospectively when the ut-
terance or text has been subjected to interpretation with which the author does
not agree. The first time around one may feel no need to make one’s intentions
altogether explicit or one may feel that this is impossible, perhaps because one is
writing or saying something whose multiple meanings would be excessively re-
duced in the articulation of explicit intentions.41
Therefore it may be misleading to refer to the account of constituent imagin-
ation that emerges in this book as its theory, or to refer to the engagements with
concrete theoretical imaginings as a meta-theory of sovereign peoplehood.
Instead, speculative morphology would seem to be a more appropriate way to
describe the nature of both, especially given the suspicions they are likely to
arouse—as too unwieldy to be analysable, too personal to be reliable, too allu-
sive to be respected, or too casuistic to be useful.
Though these suspicions rightly warn the reader to maintain a critical
stance—especially towards the diagnoses, prognoses, proposals, and other asso-
ciated assumptions that accompany the portrait of constituent imagination in
this book—they should not be taken too seriously if understood as the claims
about the impossibility of providing an interesting or useful account of theory
as the practice of imagination. Though this account may indeed involve mo-
ments of a ‘free play of possibilities in a state of un-involvement’, it is eminently
Daniel Reisberg, David G Pearson, and Stephen M Kosslyn, ‘Intuitions and Introspections about
40
Imagery: The Role of Imagery Experience in Shaping an Investigator’s Theoretical Views’ (2003) 17 Appl
Cognit Psychol 147.
Dominick Lacapra, ‘Rethinking Intellectual History and Reading Texts’ (1980) 19[3] History and Theory
41
245, 255.
15
Purposeful Imagination • 15
controllable. Likewise, even if a concrete attempt to provide a morphology of
such imagination speculatively fails to do justice to the complex interplay of the
factors that shape its exercise—from polemical motives, problem-solving pro-
jects, visual choices, subterranean emotions, unsystematic diagnoses, to un-
founded prognostications, professional self-images, half-considered rhetorical
effects, and presumed conceptual anatomies—it still does it more justice than
to describe it, misleadingly, as ‘adventures of thought in writing’.42
What follows in the rest of this chapter is an attempt to impose some order
on to these adventures, not with the aim of making those who would contem-
plate them less adventurous, but to encourage them to consider what might
be gained by thinking ofthemselves not only as adventurers, but also as land-
scape painters, choreographers, stage-directors, screenwriters, videographers,
light technicians, radiologists, civil engineers, make-up or, on occasion, con
artists. The imagination that allows them to act in those roles is indissociable
from the configuration of choices that exist across six overlapping and mutually
interacting registers: practical, visual, quasi-narrative, affective, ambiental, concep-
tual. Their overview in the rest of the chapter will lay down the groundwork for
moving beyond the people in the chapters that follow.
5. Purposeful imagination

polemical, practical, productive
Every act of constituent imagination is an act of polemical imagination. How
could it be any different? If, as Schmitt suggested, ‘all political concepts, im-
ages, and terms have a polemical meaning’,43 to theorize them is to theorize
them polemically, for the purpose of ‘out-witting or cajoling . . . one another’—
whether ‘consciously or unconsciously’.44 As it sets out to move beyond the
figures, scenes, maps, and landscapes of sovereign peoplehood, this book is nei-
ther interested in defending Schmitt’s claim, nor does it aim to persuade the
reader to accept it as true. Instead, it moves forward in the hope that the reader
will be sufficiently intrigued by this intuitively plausible claim; sufficiently at
least, to consider experimenting with more imaginative and less disciplined
ways of exercising the choices that inhere in the six registers of her constituent
imagination.
Though outlining the task of this book relieves it of the impossible task of
proving the polemical character of all theoretical imaginations, it nonetheless
cannot escape confronting another uncomfortable question: Can polemical
imaginations be practiced polemically, publicly, and productively at the same
time? Put differently, is it possible to practise polemical imagination explicitly in
a way that wouldn’t make that endeavour presumptively self-defeating? Given
Claude Lefort, Writing: The Political Test (David Ames Curtis tr, Duke University Press 2005) 245.
42
Carl Schmitt, The Concept of the Political (Georg Schwab tr, first published 1932, University of Chicago
43
Press 2007) 30.
Kenneth Burke, A Grammar of Motives (first published 1945, University of California Press 1969).
44
16

that polemical imaginations are generally practised furtively, this question has
rarely had a chance to be confronted directly. A fitting place to do so is Leo
Strauss’s well-known observation about the self-defeating nature of Schmitt’s
claim about the inherently polemical character of all political concepts.
Despite bordering on the self-evident, Strauss’s critical remark is devastating:
Schmitt’s definition ‘results in the unpolemical description of the political’45 that
‘in concreto violates this principle’.46 What generates the conceptual incoherence
in Schmitt’s claim, Strauss speculates, is Schmitt’s poetic vision of the world;
his contempt for ‘a world of amusement, a world without seriousness’. It is this
contempt for liberalism’s frivolity—not an ontological insight about the order
of things—that prefigures Schmitt’s concept of the political and his insistence
on the polemical character of all political concepts. ‘Schmitt’s basic thesis’, con-
cludes Strauss, ‘is entirely dependent upon the polemic against liberalism; it
is to be understood only qua polemical’.47 At this point, however, one might
rightly ask: Why did Strauss’s engagement with Schmitt not end right there?
What else is left to talk about once it becomes apparent that Schmitt’s claim
hinges on his vision of ‘a threat to the seriousness of human life’?48 What is to
be ‘learned’from Schmitt—as Strauss eventually suggested—if Schmitt’s entire
argument boils down to what is either his authentic spiritual, poetic, tempera-
mental contempt for a world of entertainment; or his opportunistic attempt to
craft a theory, which—as I will suggest later—may also plausibly be read as part
of his ongoing attempt to find the most effective means of undermining the
Versailles peace settlement, from his perspective of a scholar of constitutional
and international law? Why did Strauss continue the conversation?
If Heinrich Meier is correct, the answer to the question is simple. The reason
Strauss proved willing to downplay the polemical failure of Schmitt’s polemical
imagination of polemical concepts—the failure manifest in the fact that his at-
tribution of ontological status to the ‘friend–enemy grouping’ ends up violating
his own definition of all political concepts as ‘polemical’, ‘in concreto’—is that
he sympathized with Schmitt’s vision of the world.49 As Meier argued, ‘Leo
Strauss knows himself to be in agreement with Carl Schmitt in disapproving
of a world-state’, ‘in holding in low esteem a world of mere entertainment
and the mere capacity to be interesting’;50 they ‘in fact agree in their political
critique of a common opponent’.51 If Meier is right, we must rephrase our ini-
tial question: Can polemical imagination be practised publicly and productively
before an unsympathetic audience? In order to answer affirmatively, however, we
must imagine the protagonist differently: neither as a purposeless exhibitionist,
a self-unaware idiot, nor simply—as Schmitt famously put it, in response to the
American officer who interrogated him in his brief post-war captivity—an ‘in-
tellectual adventurer’.
Schmitt (n 43) 109.
45
ibid 122.
46 47
ibid 100. ibid 117.
48
Heinrich Meier, Carl Schmitt and Leo Strauss: The Hidden Dialogue; Including Strauss’s Notes on Schmitt’s
49
Concept of the Political and Three Letters from Strauss to Schmitt (University of Chicago Press 1995) 41.
ibid.
50 51
ibid 43.
17
Purposeful Imagination • 17
Instead, we must envision the theorist-adventurer more precisely—as a
gambler-conjuror, someone willing to place three bets. The first concerns the
cognitive capacity of the audience that does not share his polemical intent. The
wager here is simple, as the gambler-conjuror prognosticates that it will be fu-
tile to try to con-vince that audience in one of the usual ways (eg by making his
normative argument hinge on a problematic factual assumption, by portraying
it as ‘ontological’ in order to protect its intended generality from challenge, or
by concealing the fact that an allegedly inevitable ‘paradox’ in his argument
emerges as the result of evitable choices made in other registers of constituent
imagination). While our gambler-conjuror trusts that presumptively unsym-
pathetic audiences will be intelligent enough to unmask, deconstruct, and dis-
miss his polemical tricks quickly, he must also assume—and this is his second
wager—that more sympathetic audiences will not profit from the arguments
that otherwise rely on them. Finally, in assuming that an explicitly polemical
practice of constituent imagination is a necessary condition of finding new
institutional and rhetorical templates beyond the people, he invests his hope
in the possibility that some of these templates may end up proving attractive
enough even to initially unsympathetic audiences, despite their full awareness
of the polemical motivation behind them. That is the third and the most im-
portant wager he will need to make.
In placing these bets, the gambler-conjuror acts as a partisan of some
political cause—a remote participant in a struggle for something better. The
practical imagination he practises, however, is not only polemical. It is also
and always problem-solving.52 These two registers of practical imagination
are inextricably interwoven: no problem-solving proposal can exist without an
evaluation of the ideals, principles, and objectives worth fighting for, just as no
polemical contribution could ever exist without the identification of problems
that call for a solution. Though rarely addressed theoretically, the legitimacy of
exercising theoretical imaginations in either of these registers will often be prob-
lematized politically: someone’s struggle for something may always be reframed
as a conflict over something, or as the problem of something, and, then—in a
fresh round of polemical reframing—as the problem of someone else.53
One polemical benefit of being aware of the essentially Janus-faced character
of practical imagination—always both polemical and problem-solving—is an
increased chance to develop an attitude of polemical unimpressionability—a
particular kind of scepticism less interested in declaring the epistemic impos-
sibility of meaningful deliberation about solutions to global problems and
challenges, and more determined to remain attentive to the polemical valence
of those who identify them. As David Kennedy argued, ‘identifying a global
52
See Raymond Geuss for an argument about problem-solving as one of the most important tasks of polit-
ical philosophy (and ceteris paribus, any theory of peoplehood). Raymond Geuss, Philosophy and Real Politics
(Princeton University Press 2008) 42.
For example, ‘terrorism’, in the claim ‘terrorism is a nuclear bomb of the weak,’ has undergone a twofold
53
reframing: from a global problem that calls for a practical solution to a weapon in a local struggle, which a theorist
may or may not relativize for polemical purposes.
18

problem is rulership,’ as it ‘distributes authority and legitimacy among actors
and sets priorities for action, distinguishing what must be accepted from what
must be addressed’.54 Staying polemically unimpressionable when confronted
with strategically crafted identifications of problems, challenges, and solutions
proffered by powerful international actors may diminish the gullibility of epi-
stemically disadvantaged local partisans.
While stimulating the attitude of polemical unimpressionability the Janus-
faced image of practical imagination also discourages that attitude’s patholo-
gies, naively arrogant beliefs of having one’s opponent ‘all figured out’. What
it encourages is something else: finding new ways of nudging our opponents
to reconsider the objectives and methods of their struggles anew. What this
might mean becomes more apparent once we further complicate Strauss’s
diagnosis of Schmitt’s polemical failure. While Strauss suggested that Schmitt
imagined ‘the political’ as a conceptual remedy to what he saw as a global spir-
itual problem—not the problem in the world, but the problem with the world as
Schmitt saw it—it is also possible that the ontological pretensions of Schmitt’s
arguments were also the polemical reverberations of his prior attempts to con-
tribute to the success of the political struggle that he cared about theoretically.
That struggle, as I will suggest later in the book, was the defeat of the Versailles
peace settlement—the product of what Schmitt considered to be the brazen
hypocrisy of the United States and other victorious allied powers that prevailed
in the First World War.
Staying attentive to the ways in which polemical and problem-solving im-
aginations interact to produce polemical and problem-solving concepts sets the
stage for an alternative style of polemical confrontation. Unlike styles of po-
lemical confrontation that aim to refute the arguments of one’s opponent, the
aim of the alternative is to provoke the antagonist to think harder about what
she considers to be a problem and what she considers to be worth fighting for.
In Schmitt’s case, this would mean confronting him not with his argumentative
failure in concreto, but with non-judgemental, non-theoretical questions specif-
ically designed to provoke him to abandon the pose of a rigorous scholar qua
intellectual adventurer and reconsider the relationship between his political re-
sentments, his poetic vision of the world, and the manner in which he exercised
his practical imagination.
The fact that the productivity of such attempts will always be contestable
is no reason to keep them beyond the reach of theoretical imagination. What
keeps them unimaginable are what Pierre Schlag calls ‘unmentionables’: the as-
sumptions, visions, hopes, and anxieties that prefigure what can be said, asked,
contested, or denounced in the context of a particular theoretical discourse.55
David Kennedy, A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy (Princeton
54

Pierre Schlag, Laying Down the Law: Mysticism, Fetishism, and the American Legal Mind (New York University
55
Press 1996) 87–88.
19
Visual Imagination • 19
Leaving those unmentionables unmentioned has two noxious effects. On the
one hand, it allows disciplinarily disciplined constitutional imaginations to es-
cape reckoning with the extent of their capacity to accommodate imaginative
deviations, which may be greater than they are otherwise willing to admit. On
the other hand, it encourages them not to question what many of them seem
to take quietly for granted: that the productivity of practical imagination vitally
depends on conformity with an undeclared but effective ultimatum: Choose!
While you may radically re-envision the figures that define the morphology of
a wider social imaginary as well as propose an exhaustive normative prescrip-
tion (or a new institutional proposal) in response to a concrete problem—you
cannot do both simultaneously and productively.
6. Visual imagination

figures, stages, gazes
A practical imagination of peoplehood produces rhetorical weapons and tem-
plates for conflict-resolution. A visual imagination of peoplehood produces
pictures. Those pictures exist at different levels of abstractness, from more ab-
stract ‘image schemata’ to what Mark Johnson refers to as ‘rich images’:56 jigsaw
puzzles, ancient cities, seraglios, enchanted castles, labyrinths and monsters,
swarms, motors, boats, filters, flows, irrigation networks, hearts, and imperial
machines. Most often, the practitioners of theoretical imaginations of people-
hood do not advertise the pictures they have produced, which makes it difficult,
in turn, to determine whether they intended them to be ornamental or struc-
turally indispensable, or to evoke some ‘deeper wisdom’ that can only be con-
veyed through ‘visual images’.57
For the most part, such imagination is figurative. Its products are not simply
images, but the images of figures. But what is a figure? In simplest terms, a figure
is the part of the picture which we identify as being set against a background.
More specifically, a figure is the part of the picture we think of as somehow
‘detachable’, against a background that has ‘no form, nature or substance’, and
that is generally understood as ‘loose, empty, filmy, less articulated, more uni-
form’, or ‘unaffected by figure contour’.58 However, detachability is a highly
problematic criterion especially when a picture allows us to see figures as back-
grounds, or different figures or different backgrounds within the same picture.
Figures and backgrounds are ‘the names for sites of attention and inattention’.59
On this understanding, a figure is the part of the image that holds our atten-
tion long enough to become a privileged module of expectation-management,
which if committed to memory, may be used elsewhere, with or without its
Johnson (n 32) 24.
56
Friedrich Nietzsche, cited from Walter Benjamin, The Origin of German Tragic Drama ( John Osborne tr,
57
Verso 1977) 108.
James Elkins, On Pictures and the Words That Fail Them (CUP, reissued 2011).
58
ibid.
59
20

original ‘background’. This rudimentary figure of figure will be further refined
in the chapters that follow.
At this point we must confront a more pressing question: How do theorists exer-
cise their figurative imagination? Though theorists habitually generate new figures
and regenerate existing ones they mostly ignore this question. Schmitt’s enigmatic
remarks from Political Theology II offer a rare set of clues as to how that question
might be answered. Therein he points to the phenomenon of ‘continuous and recip-
rocal’ ‘meta-ana-katamorphosis’, which on the basis of the material available in an
‘immensely polymorphous realm’—comprised of ‘naïve projections’, ‘numinous
fantasies’, ‘reflective reductions’, and various ‘socio, bio-, or technomorphic’
analogies—may result in a variety of new figurations. In this realm,
The king [may] appear as God, and God as a king [and where] God can also
be imagined as the world’s electric motor, and the electric motor as a kind of
machine that moves the world . . . as if through a kind of space-shuttle [where]
all of this can be expressed in polymorphic metaphors . . . [so that] the huge
Leviathan, Thomas Hobbes’ state [appears] tetramorphic: as well as being the
great but mortal god, he is a huge animal, and, furthermore, a large man and a
big machine.60
Though Schmitt doesn’t explicitly counsel against attempts to exercise fig-
urative imagination deliberately and purposefully, he does make sure to
emphasize that meta-ana-katamorphosis—perhaps best translated as complex-
distort-simplification—occurs in a highly unpredictable environment. Since it
occurs in a ‘hall of mirrors’ it would be ‘pretentious’ to expect that it might
end up producing anything but perverse consequences, especially if oriented
towards the production of secular, and not the reproduction of ‘secularized
theological’ political figures. From the way Schmitt describes them, the fig-
ures that emerge from the hall of mirrors are best understood as formations—
created by no individual person in particular. It is society itself—as Claude
Lefort might have interjected at this point—that in an attempt to ‘arrive at
a quasi-representation of itself ’, uses these polymorphs to give itself a shape
(mise en forme) as it puts itself on the scene (mise en scène). Doing so, according
to Lefort, is the only way in which society will ever be able to make sense (mise
en sens) to others and to itself.61
This of course is a metaphor—the product of Lefort’s vivid constituent im-
agination. Even if the hall of mirrors prevents us from attributing the outcomes
of meta-ana-katamorphosis to anyone in particular, and even if mise en scène is
an act of a ‘creative collective imagination’,62 it is still concrete individuals who
take part in society’s formation by exercising their imaginative powers in a cer-
tain way. The image of a society staging itself is itself an act of staging. In this
case, it is performed by Lefort, just as the promenade of polymorphic figures
Carl Schmitt, Political Theology II: The Myth of the Closure of any Political Theology (Michael Hoetzl and
60
Graham Ward tr, first published 1970, Polity 2008) 57.

Claude Lefort, Democracy and Political Theory (Polity 1988) 219.
61 62
Ezrahi (n 11) 38.
21
Visual Imagination • 21
seen from a ‘space-shuttle’ is an act of meta-ana-katamorphosis performed by
Schmitt. Rather than mere figures, set against some background, Schmitt’s fig-
urative ‘polymorphs’ are exhibits intended to demonstrate a broader point he
wanted us to appreciate. They are not simply put on a stage—they are staged
against a background capable of serving as a stage.
Moreover, what makes the promenade of Schmitt’s figurative sovereigns vis-
ible is not a particular combination of intrinsically evocative assemblages of
elementary ‘socio-, bio-, and technomorphs’, but the fact that we gaze at them
in a particular way: ‘as if through a kind of space-shuttle’.63
Though simple and obvious, this point should not be forgotten: to produce
figures of sovereign peoplehood, staging must be the outcome of a sequence
of more elementary visual choices, which together constitute an underlying
‘scopic regime’.64 To appreciate their importance, we need not go further than
one of the most influential images in the prehistory of the social imaginary of
popular sovereignty—the frontispiece of Hobbes’s Leviathan. Seen from a dis-
tance, the features of Leviathan’s face are not particularly evocative. On closer
inspection, they reveal the likeness of Charles II. After having adjusted the
angle of our zoom and sharpened our focus, Leviathan’s body appears not as
a uniform mass, but as a densely packed multitude of individual subjects, most
of which devoutly gaze towards the head of the body. Designed deliberately
to achieve an ‘impossible task’ of evoking two attitudes at the same time—
‘rational obedience, by those who understand the logic of their situation’ as
well as ‘passionate obedience . . . by those who are in “awe” or “terror” of the
sovereign’s power’65—the frontispiece of Leviathan reveals what Lefort’s alle-
gory of societal self-staging hides: the mise en scène is the work of individual
stage-setters, costume designers, choreographers, light technicians, make-up
artists, and playwrights. They are the ones who make it possible to imagine
a society anthropomorphically, as an agent that strives to ‘arrive at a quasi-
representation of itself ’.
Sometimes this quasi-representation results in a scene in which nothing hap-
pens, as is the case with Hobbes Leviathan. Composed out of manifold tiny indi-
viduals, Leviathan just stands there, behind the hill, holding sceptre and sword,
and looking out over the town at its feet. Though the frontispiece is recogniz-
ably emblematic of a need to establish sovereign power, the scene still tells us
little about how that sovereign power came about. For that, we need to turn our
gaze towards scenes where something happens, in which ‘Leviathan’ exists not
Schmitt (n 60) 53.
63
64
My use of the term ‘scopic regime’ is inspired by Martin Jay’s ‘Scopic Regimes of Modernity’ in Hal Foster
(ed), Vision and Visuality (Bay 1988). For Jay’s objections about the use of the term in contemporary human-
ities and social sciences, see Martin Jay, Essays from the Edge: Parerga and Paralipomena (University of Virginia
Press 2011).
65
Noel Malcolm, ‘The Titlepage of Leviathan, Seen in a Curious Perspective’ (1998) 13[2] The Seventeenth
Century 124, 143–45. For the discussion of Hobbes’s active participation in the design of Leviathan’s fron-
tispiece, see Horst Bredekamp, ‘Thomas Hobbes’ Visual Strategies’ in Patricia Springborg (ed), Cambridge
Companion to Hobbes’s Leviathan (CUP 2007) 29.
2

as an immovable illustration of a broader point, but rather as the work of the
actors who are put on the stage, and are visualized in a way that allows them to
be seen as participants in the act of institution that gives birth to the figure of a
sovereign.66 Having emerged from a distinct way of seeing, the images of such
acts are not just works of visual imagination, but chronological arrangements
that are emplotted in a rudimentary, narrative-like sequence. The meta-ana-
katamorphosis that produces them is not simply an act of staging, but also an
act of dramatization—the site where the visual meets the narrative register of
constituent imagination.
7. Quasi-narrative imagination

crypto and proto
What kind of narrative imagination is constituent imagination? The answer
depends on what is meant by ‘narrative’. If Andrew Abbott is right, those
who create narratives often focus on ‘three things at once; following stories,
investigating cultural symbols, and attending closely to language’.67 In the dis-
ciplines focused on the figure of a sovereign people, or on some aspect of its
vocabulary, narrative is mostly left undefined. Explicitly or implicitly, theor-
ists equate narratives with stories of constitutional development,68 of ‘people-
hood’ in general,69 or of ‘We the people’ in particular.70 Such stories are told at
different levels of complexity: as relatively simple ‘accounts of an imaginary
past’,71 as more elaborate narratives about the ‘struggle[s]‌to achieve unity’
that ‘[provide] coherence and integrity to the constitutional project’,72 or as
‘descriptive-explanatory’ theoretical accounts which from another level at-
tempt to provide a compelling story of the ‘dominant constitutional narra-
tives’ on the ground.73 In each case, story-like narratives ‘recount happenings’
in a way that endows them with a ‘a point’, ‘import’, and ‘results’.74 While not
all who are attuned to the importance of narrative understand it in a story-
like fashion, even those who hold a more ecumenical vision of narrative—as
a ‘[code] that [relates] our normative system to our social constructions of
reality and to our visions of what the world might be’—cannot resist collapsing
Burke (n 44).
66
Andrew Abbott, ‘Against Narrative: A Preface to Lyrical Sociology’ (2007) 25[1] Sociological Theory 67.
67
Lawrence B Solum, ‘Narrative, Normativity, and Causation’ (2010) Mich St L Rev 597.

68
Rogers Smith, Stories of Peoplehood: The Politics and Morals of Political Membership (CUP 2003).
69
Gerald Torres and Lani Guinier, ‘The Constitutional Imaginary: Just Stories about We the People’ (2011)
70
71 Md L Rev 1052.
Loughlin (n 10) 9.
71
Gary Jeffrey Jacobsohn, Constitutional Identity (Harvard University Press 2010) 90.

72
Neil Walker, ‘Constitutional Pluralism Revisited’ (2016) 22[3] European Law Journal 333, 339.
73
Peter Brooks, ‘Narrative Transactions: Does the Law Need a Narratology?’ (2006) 18 Yale JL & the
74
Humanities 1, 24.
23
Quasi-Narrative Imagination • 23
it into a ‘literary genre for the objectification of value’, such as ‘history, fiction,
tragedy, [or] comedy’.75
The problem with a pervasively story-centric understanding of narrative is
that it offers a distorted and partial—and hence misleading—understanding
of the kind of imagination that is involved in the production of narrative-like
structures. On the one hand, a story-centric vision of narrative fails to alert us
to the intrinsically non-narrative character of imagining—and, as a result, to the
intrinsic difficulty of practising narrative imagination. In contrast with fantasy,
whose ‘most stirring feature’ is its narrativizing ‘tendency to tell a story’, the
products of imagination are extremely fleeting. According to Edward Casey76
The entire fantasy sequence settle[s] into a fairly circumscribed pattern . . . [but]
[n]‌o such ‘circumscribed pattern’ characterizes imaginative experiences, [which
makes it] very difficult to superimpose a narrative form on what we imagine. For
such a form to ‘take,’ a certain continuity in content and manner of presentation
is required. In the absence of such continuity, isolated episodes may appear, but
they will not fit together to constitute anything like a story. 77
On the other hand, the story-centric vision of narrative also desensitizes us to
the importance of these ‘isolated episodes’—which together with other, more
primitive quasi-narrative devices—define the way in which we engage in the
work of imaginative ‘meta-ana-katamorphosis’. Though Paul Ricœur was right
to claim that ‘ancient tragedy, modern drama, novels, fables, or legends’ supply
requisite material for the narrative emplotment of the acts of political founda-
tion, social revolution, national liberation, and other ‘moments’ of constitutional
transformation. It is these, more rudimentary crypto-, proto-, and meta-narra-
tive–like structures that allow them to remain encoded in theoretical texts in the
way that they are.78 Because of their character, it is more fitting to speak not of
narrative, but rather of quasi-narrative imagination.79 In the toolkit of plotting
devices, the ones in the following list are the most important:
Robert Cover, ‘The Supreme Court 1982 Term. Foreword: Nomos and Narrative’ (1983) 97 Harv L Rev 4, 10.
75
76
Edward Casey, ‘Imagination, Fantasy, Hallucination, and Memory’ in James Phillips and James Morley
(eds), Imagination and Its Pathologies (MIT 2003) 80. For more on the differences between narrative imagin-
ation and the kind of imagining involved in ‘presuming’ and ‘supposing’ see Gregory Currie, ‘A Claim on the
Reader’ in Ilona Roth (ed), Imaginative Minds (OUP 2007) 169. But cf. Mark Turner, The Literary Mind (OUP
1996) for an account of ‘narrative imagining’, as well as Hayden White, The Content of the Form: Narrative
Discourse and Historical Representation (The Johns Hopkins University Press 1987) 157. (‘Among the various
form-g iving devices available to the imagination . . . narrative enjoys a privileged position. It is privileged
because it permits the representation of both synchrony and diachrony, of structural continuities and of
processes by which those continuities are dissolved and reconstituted in the kind of meaning production met
with in such forms of narrative as the novel. Narrative not only presents but justifies, by virtue of its univer-
sality, a dream of how ideal community might be achieved.’)
Casey (n 76) 81.
77 78
Paul Ricœur, Time and Narrative, vol 1 (University of Chicago Press 1984) ix.
This is not meant to suggest that constitutional discourse doesn’t include story-like narratives. See Maurice
79
Charland, ‘Constitutive Rhetoric: The Case of the Peuple Québécois’ (1987) 73[2] Quarterly Journal of Speech 133.
24

Among the six devices, anecdotes are the most story-like. They are intended to
evoke a desirable way of founding a polity, or a superior way of constituting a
new political order. These mini-stories seem to be a thing of the past, yet, as we
will discover soon enough, they are a feature of the present. Although contem-
porary theorists do not stage the scenes of the social contract in the same ways
that Hobbes, Locke, and Rousseau did, they continue to do the work of staging
nonetheless. Whatever contemporary theorists end up evoking theoretically
may always be seen as a scene—a rudimentary, partial, or hidden anecdote.
In this book, such scenes are the occasions to exercise theoretical imagination
differently: explicitly, systematically, and without trying to conceal or downplay
the constituent power of the ‘aesthetic prefiguration’, present behind, or under-
neath, all acts of ‘evaluative prescription’.80
Treating those anecdotes as one of the six devices of semantic innovation
and not necessarily as part of an overarching story-like theoretical narrative will
allow us to ask the following five, otherwise theoretically unmentionable ques-
tions: What was (actually) done? (What is the character of the act?) When or
where was it done? (What are the features of the scenic environment in which
the act occurred?) Who did it? (Who are the agents who brought it about?)
How did they do it? And for what purpose? Once approached diagnostically,
anecdotes will reveal themselves not simply as the mini-records of dramatic
acts of foundation, institution, or self-constitution, but rather as the concrete
instantiations of proto-plots—deeper quasi-narrative templates without which
the acts would not make sense. While some theorists speak of these acts as
transformational events, or constitutional moments, this does not capture what
makes them precious from the perspective of the social imaginary of popular
sovereignty, and interesting from the perspective of theoretical imagination. As
I will argue later in the book, in order to make sense—for those who find them
sensible, that is—these acts must quietly, if rudimentarily, be emplotted in a
master-narrative turn: before-trajectory—turning point—after-trajectory.81
In the works of contemporary theorists of constituent power this quasi-
narrative template would not often be narrativized any further. Historically,
however, the legitimacy and sensibility of a specific turn—the name for a de-
vice that sutures a turning point with the before- and after-trajectories—has
often depended on the implicit or explicit schematic narration of the events
that either established their number, character, and relevance as part of the
before-trajectory, or established their spatiotemporal relationship during the
turn itself.82 Two narrative devices are particularly important: the first, which
tacitly seeks to assure us that what started off looking like a turning point won’t
turn for the worse; and the second, which more or less explicitly offers the cri-
teria for identifying the moment at which the before-bad trajectory becomes
Pierre Schlag, ‘Prefiguration and Evaluation’ (1992) 80[4] Calif L Rev 965, 970.
80
Andrew Abbott, Time Matters: On Theory and Method (University of Chicago Press 2001) 25.
81
Cf Jack M Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press
82
2011) 4.
25
Quasi-Narrative Imagination • 25
legitimately unbearable, so that every turning point—if it were to occur after
that point—gives birth to a trajectory, which may presumptively be con-
sidered after-better. Here, the criteria in question do not offer a yardstick for
identifying the moment itself—after which it would become legitimate to at-
tempt to effect a turning point—but a quasi-narrative template of abominable
escalation, which when inscribed in a text must take the form of a litany, a list
of grievances, often found in the declaration of independence of new states, or
in the preambles of new constitutions adopted after major political crises.
Litanies are best understood as the quasi-narrative forms whereby quantity
turns into quality, where individually irrelevant episodes acquire the status of
indicia, which––when woven into the list of escalating grievances––transform
themselves into conclusive evidence of the character of a constituent turn as
understandably inevitable. Likewise, in providing these individual incidents with
a rudimentary narrative template, litanies also legitimize the attitudes of a
projected constitutional ‘self ’, which––having been confronted with the re-
proachable behaviour of its other––acted admirably: patiently, reasonably, and
constructively. In order to work as intended, however, such litanies must never
evoke anything that would violate the implicit script: ups and downs; moments
where the other appears in a better light; unattributable contingencies; or sus-
penseful mysteries. Neither are such litanies intended to be read as stories. Due
to their impoverished causality, any attempt to do so would sound like the al-
most plot-free narrations of small children: mostly devoid of ‘because’, and al-
most exclusively reliant on ‘and then . . . and then . . . and then . . . and then . . .’.
Whatever their content, no anecdote, turn, script, or list can ever exist
without relying on some underlying image schemata, which ‘play a crucial role
in our ability to comprehend anything meaningfully’—including narratives.
As ‘small spatial stories’,83 which are ‘semantically very rudimentary’, image
schemata ‘operate at one level of generality and abstraction above concrete,
rich images’. As the vehicles of imagination, they perform two roles: (1) they
render a particular anecdote, proto-plot, script, or list intelligible; and (2) they
render some of them more, and some of them less, conceivable. To operate
on the basis of the image schema path, for example, is to be able to imagine,
at a higher level of abstractness, popular self-government as a journey and, at
a lower level of abstractness, the same journey as the one in which the people
acts like Ulysses, who, in order not to be killed by the sirens, orders his crew to
tie him to the mast of the ship. To substitute the image schema path with the
image schema scale, however, would make this powerful allegory of liberal-
democratic constitutionalism not simply less credible, but inconceivable. To op-
erate on the basis of the scale schema is to encounter a situation, which, due to
the nature of our schematized spatiotemporal expectations, calls for measuring,
not travelling. It is to be confronted, to put it differently, with a scenic environ-
ment that is constitutively incapable of evoking more complex allegorical im-
ages of progressively unfolding collective self-government. Instead, what were
Turner (n 76) 15.
83
26

once progressive unfoldings, developments, and evolutions, would in a new
scene appear as oscillations between more and less, faster and slower, bigger
and smaller, and sooner or later.
While image schemata may be chosen deliberately, most often they come en-
coded in the anecdotes that theorists inherit within texts, which are considered
canonical in their respective disciplines. What they also inherit with those texts are
the scopic regimes that make image schemata imaginable. Through a telescope, as
Pierre Rossanvallon remarked, the body of the people will appear as a distant, uni-
form planet, but through a microscope that same body would reveal the morph-
ology of its cross-sections, and a ‘series of paths’ running through it.84 Likewise, it
is only on the basis of a particular gaze––t he one relying neither on telescopes nor
on microscopes––that we may envision the people as Ulysses, the imaginary sub-
ject of constitutional pre-commitment. Paying attention to the way in which me-
diums of visual imagination—be they theatrical stages, canvases, jigsaw puzzles,
stained glass, translucent holograms, or the screens of CAT scanners—interact
with the devices of quasi-narrative imagination, will also allow us to detect the
final quasi-narrative on our list. Dwelling in the twilight zone between the nomos
and the narrative, this ‘imagined instant of unified meaning’, as Robert Cover called
it, mostly passes unnoticed. To be alert to the quasi-narrative character of con-
stituent imagination is to recognize its importance, as the most primitive if-then
storyline: ‘a legal DNA, a genetic code by which the imagined integration is the
template for a thousand real integrations of corpus, discourse, and commitment’,85
which is at work whenever we speak of constituent power, self-determination, or
constitutional self-government—an algorithm.
8. Affective Imagination

affected and affecting
To see ‘legal DNA’ at work, one must confront a scene ‘in which the nomos
is transparent’—a scene of ‘exoteric universalizability’, in which constitution-
making appears not as mystery but as ‘theophany’.86 To be able to see it, our
gaze must remain transfixed on its object, and not recoil from what is being
seen: quasi-narrative imagination is visual imagination, which, just as every
other aspect of constituent imagination, cannot escape the sway of its affective
register.87 Those who today practise it professionally as the conjuror-theorists
of peoplehood follow in the footsteps of ancient homines magi, helping transmit,
with their conjurations what was once a ‘new and strange art: the art of ex-
pressing’ and ‘organizing, his most deeply rooted instincts, his hopes and
fears’.88 As the practitioners of a quasi-narrative, they are also, at the same time,
See Pierre Rosanvallon, Democratic Legitimacy: Impartiality, Reflexivity, Proximity (Princeton University Press
84
2009) 7.
Cover (n 75).
85
ibid.
86
For the ‘affective logic’ of imagination see Kathleen Lennon, Imagination and the Imaginary (Routledge 2015).
87
Ernest Cassirer, The Myth of the State (Yale University Press 1949) 47.
88
27
Affective Imagination • 27
the practitioners and the captives of an affective imagination. Like practical
imagination—which is both polemical and problem-solving—affective imagin-
ation is Janus-faced: both affected and affecting, influenced by the emotions that
accompany the expectations of theorists and partisans, and, at least in principle,
capable of influencing them in turn.89
But what does it mean more specifically? Or, as Richard Sherwin put it, ‘what
state of being, what mood, affect, beliefs, memories, and values [do such im-
ages] invoke, and how? How do we think and feel through image[s]‌?’90 While
the answers to these questions may be given with a greater or lesser degree of
nuance and analytical precision, the purposes of this book will be sufficiently
served by two distinctions. The first concerns the temporal orientation of emo-
tional states provoked by the imaginations of sovereign peoplehood. Here, we
distinguish between the reminiscent or the backward-looking emotions (such
as resentment, regret, and shame), and the expectant, or the forward-looking
emotions (such as hope, desire, and anxiety). The second distinction concerns
the imaginative character of these emotions.
Here, following Kendall Walton, we may also distinguish between two types
of recollective and expectant emotions—both of which may be fictional and
actual. The former are roused in an audience which is ‘participating psycho-
logically’ in what Walton called the ‘game of make-believe’.91 Given that the
entire universe of sovereign peoplehood is the world of make-believe, fictional
emotions are best understood as those that are provoked among participants de-
liberately. Though fictional, the emotions they will feel are nonetheless real—in
the context of the game. For example, when one feels scandalized by the fact
that the results of a sovereignty referendum have not been verified by the parlia-
ment in accordance with the constitution, one is not simply imagining that one
is being scandalized, one imagines being scandalized, ‘and imagines this from
the inside’.92 ‘Imagining in this manner is prescribed’, as Walton argues, ‘given
the nature of his game and his actual experience.’93 On the other hand, actual
emotions are provoked in those who have become carried away, and have for-
gotten that they are participating in a game of make-believe. Instead of being
scandalized (fictionally) by violations of the rules of the game, which demand
that one shows requisite piety towards the idea of constitutional supremacy,
For affective imagination in legal theory, see Maksymilian Del Mar, ‘Legal Understanding and the Affective
89
Imagination’ in Paul Maharg and Caroline Maughan (eds), Affect and Legal Education: Emotion in Learning
and Teaching the Law (Ashgate 2011) and Maksymilian Del Mar, ‘Thinking in Images in Legal Theory’ in
Maksymilian Del Mar and Claudio Michelon (eds), The Anxiety of the Jurist: Legality, Exchange and Judgment
(Ashgate 2013).
Richard K Sherwin, Visualizing Law in the Age of the Digital Baroque: Arabesques & Entanglements (Routledge
90
2011) 174.
91
Kendall L Walton, Mimesis as Make-Believe: On the Foundations of the Representational Arts (Harvard
University Press 1990). For the application of Walton’s framework to constitutional theory, see Olaf Tans,
‘Imagined Constitutionality: Rethinking Democratic Citizenship with the Aid of Fiction Theory’ (2015) Law,
Culture and the Humanities 1.
Walton (n 91) 247.
92
ibid.
93
28

one might instead feel genuine hatred towards those who dared to violate the
will of a living sovereign people. Though their chances are better when it comes
to provoking the first kind of emotion, theorists of peoplehood also generate
a variety of conjurations that fortify extant visions of a sovereign people, and
which likely have a cumulative effect on the emotions of those who invoke its
name on the ground. How they do so is in the eye of the theoretical beholder.
Consider, again, Hobbes’s Leviathan. According to Schmitt, Leviathan is a
figure of anxiety-management, intended to quell the fears of ‘anguished indi-
viduals’ at the moment their anxieties about life in the state of nature ‘rise to
an extreme’.94 For Mark Reinhart, however, the figure of Leviathan was not in-
tended to diminish the anxiety of the governed, but rather to amplify these anx-
ieties in such a way that it would provoke in them ‘passionate obedience’ to an
existing sovereign.95 In contrast to both Schmitt’s and Reinhart’s Leviathan, the
Leviathan of Michel Foucault is a figure tasked with managing a different kind
of emotion, one that is not forward-looking, expectant anxiety, but backward-
looking, recollective resentment. The problem that Hobbes was ‘trying to
eliminate’, as Foucault put it, was not anarchy-breeding religious fanaticism,
but rather a very different kind of social antagonism that had its roots in the
memory of a distant traumatic event—the Norman conquest imagined as the
cause of the social dispossession of native Anglo-Saxons.96 What Hobbes sought
to achieve—if Foucault is right—by implicating the generation of Leviathan in
two mutually incompatible anecdotes about the creation of sovereignty, was
not to stoke the imagination of diffuse but existential future threats, but rather
to offer a pacifying rationalization to deflate the intensity of social resentment
stoked by the imagining of an illegitimate Norman conquest.
Though it may be tempting to try to determine whose Leviathan—Schmitt’s,
Foucault’s, or Reinhart’s—offers the most accurate description of Hobbes’s af-
fecting imagination, the purpose of doing so will appear dubious once we focus
on the affected (ie impacted) side of affective imaginations. Approached in that
light, there are no illuminating answers to the questions: Was Schmitt’s descrip-
tion of ‘anguished’ individuals whose rising terror culminates in an image of a
powerful Leviathan the work of his own anxieties, which he then imputed to
others? Was Schmitt’s anxiety uniquely his own, or was it just the manifestation
of a more generic, pervasive ‘Cartesian’ anxiety, which—as Richard Bernstein
famously argued—‘lie[s]‌at the very center of our being in the world’,97 and
which leads us to compulsively search for ‘some fixed, permanent constraints
to which we can appeal and which are secure and stable’?98
Carl Schmitt, Leviathan in the State Theory of Thomas Hobbes: Meaning and Failure of Political Symbol (George
94
Schwab and Ema Hilfstein trs, first published 1938, Greenwood 1996) xx.
Mark Reinhardt, ‘Vision’s Unseen: On Sovereignty, Race, and the Optical Unconscious’ (2015) 18[4] Theory
95
& Event.
Michel Foucault, Society Must be Defended: Lectures at the Collège de France 1975–76 (Picador 2003) 89–112.
96
Richard Bernstein, Beyond Objectivism and Relativism: Science, Hermeneutics and Praxis (University of
97
Pennsylvania Press 1983) 19.

ibid.
98
29
Affective Imagination • 29
If this is the case, to what extent is the present-day intensity of this anxiety
still influenced by the perceptions of political problems from bygone eras;99 by
the visions of autonomous urban enclaves in early modern Italy as the sites
of ‘revolt . . . diseases . . . miasmas and death’—‘the fact of town’ that pushed
princes to find new vocabularies to justify absorption of these enclaves into
their surrounding estates?100 In sum: even if it were possible to map the sedi-
mented layers of various affects—which, over the course of history, shaped the
ways in which figures of a sovereign people affect the expectations of those who
invoke its name today in the field of struggle—doing so would inadvertently fail
to capture the morphology of the affective register of contemporary theoret-
ical imaginations of peoplehood.101
Those who have focused on the traces of anxiety within theoretical traditions
and individual arguments explicitly, have mostly done so as the diagnosticians
of anxiety—not as its imaginers, themselves caught in the ebb and flow of their
own recollective and expectant emotions. While bracketing this dimension of
their theoretical imaginations appears to be rhetorically advantageous—as it
seemingly enhances the certitude with which diagnosticians prognosticate the
therapeutic success of the remedies they propose—there is little reason to ac-
cept their wagers. Put differently, those confronted with prognostications which
assert that a ‘better understanding of the nature and function of the visual sub-
lime will help to arrest the baroque recession of reality and in so doing ease
the metaphysical anxiety . . . that it entails’—cannot be expected to refrain
from asking sensible and obvious questions: Better for whom? Better where?
Better when? Better on the basis of what? Nor is there much reason to believe
that these questions will simply vanish once confronted with more polemic-
ally forceful calls to ‘[crowd] out’ the anxieties that frustrate the emergence
of ‘a less superstitious understanding of society’ through an ‘irresistible social
engagement’.102
Though the likelihood of such social engagements might be increased by
broadcasts of more evocative and hopeful visions of a better future, crowding
out the anxieties that continue to feed superstitious visions of society will re-
main unlikely if we cannot find alternative forms of anxiety-management. This
requires not only a greater attention to the ways in which ‘reliance on traditions
For an account of concrete historical anxieties as contributing to the imaginary of king’s two bodies see
99
Marie Axton, The Queen’s Two Bodies: Drama and the Elisabethan Succession (Royal Historical Society 1977) ix.
For a philosophical meditation on the character of anxiety see Eric L Santner, The Royal Remains: The People’s
Two Bodies and the Endgames of Sovereignty (University of Chicago Press 2011).
100
Michel Foucault, Security, Territory, Population: Lectures at the Collège de France 1977–78 (Picador 2009) 91–92.
In addition to Schlag’s ‘Empty Circles of Liberal Justification’, for explicit treatment of anxiety in the
101
context of constitutionalism, see Ethan Lieb, ‘The Perpetual Anxiety of Living Constitutionalism’ (2007) 24
Constitutional Commentary 353. For a diagnosis of a pervasive ‘worry’ in ‘modern jurisprudence’, ‘about
compromising what is taken to be the appealing anonymity of law’, see Jeremy Waldron, The Dignity of
Legislation (CUP 1999) 24. For a diagnosis of the ‘Cinderella complex’, an affective disorder that plagues com-
parative lawyers, see Günter Frankenberg, ‘Critical Comparisons: Re-Thinking Comparative Law’ (1985) 26[2]
Harv Int LJ 399.
102
Unger (n 21) 566, 576.
30

and legitimate authorities . . . allay such states of mind’,103 but also an effort to
find new ways to encourage anxiety-stricken constituent imaginations of sover-
eign peoplehood to look beyond the coping mechanisms sanctioned by the the-
oretical imaginations of sovereign peoplehood and Western constitutionalism.
9. Ambiental imagination

prognostic, disciplinary, rhetorical
Being aware of affective imagination will allow us to detect how it shapes the
quasi-narratives we tell each other when we debate, for example, whether it is
‘the people’ or ‘the multitude’ that exercises its constituent power, or whether
it is the constituent or destituent power that is being exercised. Equally im-
portant, staying attentive to the subterranean work of the affective register of
constituent imagination will also allow us to keep track of the prefigurative
power of other imaginary scenes, not just those dramatized as constitution-
making ‘anecdotes’, theoretically. Those scenes appear in images that are fuzzy,
vague, elusive, and layered, and are almost never put on record. When they are,
they allow us to detect the fragments of the totality of factors that shaped one’s
theoretical imagination. Remember Twining. While his biographical sketch
does not disclose the content of all dimensions of his imagination, it alerts us
to those we have yet to discuss: the ambience—a felt environment; surroundings
suffused in an atmosphere without which they would not be what they are.
Accordingly, rather than referring to an environment, an ad hoc adjective such
as ambiental better describes the character of this dimension of constituent im-
agination. In principle, there is no limit to the range of ambiences that affect the
work of our constituent imaginations. In this book we focus on the three least
idiosyncratic: prognostic, disciplinary, and rhetorical.
We stumble upon the first when we muster courage to start bringing up what
is theoretically unproblematizable: the concrete morphology of a theorist’s ex-
perience and expectations. Together, these two elements define the prognostic
ambience of every theorist’s imagination, as well as the style of a theorist’s im-
agination. Though vague and seldom re-examined critically, the picture of that
ambience is what enables a theorist to exercise the diagnostic and prognostic
judgement that allows her to comply with the unstated requirement of all the-
orizing: to discriminate between the kind of theorizing which is for the worse,
and the kind of theorizing which is for the better.
On rare occasions when they are directly confronted with the question
‘What were you thinking?’, theorists opt for more extravagant descriptors,
such as ‘intellectual adventurer’, rather than refer to themselves as diagnosti-
cians and prognosticians. Even among those with less appetite for concealing
the imaginative aspects of theoretical practice, enthusiasm for emphasizing its
prognostic and diagnostic sides remains muted. Rather than opening up the
prognostic and diagnostic side of their work for inspection, some, like Twining,
Michael Rustin, ‘Practical Utopianism?’ (2004) 26 New Left Rev 136, 145.

103
31
Ambiental Imagination • 31
are content to refer to the job of a theorist as that of a ‘hired subversive and a
professional dilettante’.104
To embrace this professional dilettantism is to refuse to run away from its
implications. It is to accept the fact that ‘whenever you speak of the promise
of a theory, a purposive or teleological notion is invoked’ and with it, ‘a cloudy
promise . . . is projected into the future in a way that supports several experi-
ments, and rules out others’—in a way, we might also add, that would make even
the most amateurish futurologist laugh.105 This book submits that this embrace
is not only liberating but also useful: saving time (which would have otherwise
been spent debating the conceptual coherence or theoretical persuasiveness of
something that essentially hinges on a cloud) while simultaneously nudging all
those who would otherwise be tempted to continue splitting conceptual hairs to
confront the (e)utopian dimension of their own constituent imaginations. This
dimension is occasionally acknowledged, but rarely as something that is intim-
ately linked with the imagination’s practical, problem-solving faculty, which, as
Unger argued, quickly transcends the horizons of concrete problems and solu-
tions, bringing forth ‘what is’ into ‘the light of our insight into what may come
to be’.106 Such imagination is not utopian, but eutopian—not focused on ‘the
phantasmagorical horizon of ultimate possibilities’, but rather oriented towards
‘what can happen, or we can make happen’. Its ‘commanding principle’ is ‘af-
finity to action’, anchored in the ‘anticipated change’.107 To look at the practice
of imagination in this light is also to see afresh the concepts that it produces. As
Reinhart Koselleck usefully reminds us:
Modern political terminology is typified by its containment of numerous con-
cepts (Begriffe) that are more exactly anticipations (Vorgriffe). These concepts are
based on the experience of the loss of experience, and so they have to preserve
or awaken new expectations. Moreover, for moral, economic, technical, and pol-
itical reasons they call for objectives that assimilate more desires than previous
history was able to fulfill.108
Later in the book, I will show how even the insistently exegetical accounts of
peoplehood eventually reveal the treacherous traces of some—irrespective of
how rudimentary—act of prognostic imagination, that morphs two images
into one: the first, which evokes, to use Koselleck’s terminology, a past and
present ‘space of experience’, and the second, which evokes the future ‘horizon
of expectation’.109 With this in mind, this book may be understood as an experi-
ment in a style of theorizing in which a theoretical intellectual adventurer does
Twining (n 33) 175.
104
William Connolly, The Fragility of Things: Self-organizing Processes, Neoliberal Fantasies, and Democratic
105
Activism (Duke University Press 2013) 9.

Roberto Unger, The Religion of the Future (Harvard University Press 2014) 83.
106
ibid.
107
Reinhart Koselleck, Futures Past: On the Semantics of Historical Time (Keith Tribe tr, first published 1979,
108
Columbia University Press 2004) 251.

ibid 260.
109
32

not conceal her adventurism, but instead attempts to inhabit it in the person of
a gambler-conjuror—a theoretical adventurer who accepts that the persuasive-
ness of his theory may be gambled away once he has revealed the dilettantism
of its prognostic and diagnostic foundations.
What sustains my enthusiasm for this stance throughout this book, however,
is not only the disposition of a ‘mild agent provocateur’, but also a wager that,
using the broadest frame possible to approach the jeopardies, futilities, and per-
versities of peoplehood might allow us to address them in ways that would
not otherwise have the opportunity to appear, on different scales and within
different spatiotemporal frames. More concretely, what animates this wager are
specific bets based on assumptions about: (1) the enduring value of constitu-
tionality; (2) the resilience of global power disparity; (3) the practical appeal of
territoriality; (4) the dignity of imaginative diversity; and finally, (5) the practical
outcomes of practising theoretical imagination differently.
In other words, an aspiration to make large-scale and long-term political pro-
jects withstand—endure over time—is highly unlikely to go out of style, even
if ‘constitution’, the etymology of which inscribes this aspiration, somehow
vanishes from our vocabulary. The same goes for (ethno-) national conflicts
over territorial sovereignty, and the phenomenon of territoriality in general: it
is highly unlikely that the former will abate in the foreseeable future, or that
the latter will lose its appeal as a cheap, reliable, and seemingly more neutral
technology of political control—even if the force of nationalism abates and
the world transforms itself into a framework of non-territorial transnational
demoi, a world federation, or something else.110 Nor is there a reason to de-
value territoriality on ethical or political grounds, at least not without first in-
quiring into its specific objectives in individual struggles. Rather than treating it
as something that keeps ‘universally sociable’ humankind parcelled out across
a network of nation-states, it should also be recognized as an indispensable tool
of ‘constitutive secessions’: forward- looking, spatially-bounded, large- scale,
comprehensive political projects for the better—the objectives of a particular
kind of utopian imagination.111
I hasten to add that the price for an attempt to restore dignity to such vi-
sions is not silence with respect to the current realities of popular struggles
on the ground. To the contrary, the (e)utopian imagination practised in this
book arrives in tandem with: (1) a new template of conflict-resolution beyond
the language of territorial self-determination; (2) a new scheme of critical
familiarity—which allows us to affirm the dignity of purposeful democratic im-
aginations and render the oligarchic capture of liberal democracy more vivid;
and (3) a new way of thinking about the problems of organizing deep political
plurality in a plural but isomorphic world.
Robert Sack, Human Territoriality: Its Theory and History (CUP 1986) 33.

110
For the idea of ‘Utopia’s constitutive secessionism’, as the necessary condition of utopian thought see
111
Fredric Jameson, Archaeologies of the Future: The Desire Called Utopia and Other Science Fictions (Verso 2005) 24.
3
Though they do occasionally put their diagnoses and prognoses on record,
theorists of peoplehood do not pause to discuss how and why they imagine
the space of experience and the horizon of expectation the way they do. There
are a number of reasons for this, one being their failure to examine a long-
standing belief that doing so is not their job. Needless to say, not all theorists
embrace such a rigid professional self-image, and enthusiasm varies among
those who do. One element that affects it is their disciplinary imagination—the
way in which they envision their professional scene. As is the case with im-
aginary scenes evoking the figure of a sovereign people, these scenes evoke a
more or less undifferentiated ‘community’, ‘field’, or ‘discipline’. And as is the
case with the dramatizations of peoplehood in theory, such scenes presuppose
another, ‘universal’ scene in which different ‘communities’ coexist. From the
perspective of most theorists of peoplehood, the character of such scenes is
of meta-theoretical concern only, and, as such, almost never enters the focus
of theoretical imaginations of peoplehood.112 In contrast, this book gives them
much more attention.
Though the vague mental images of disciplines, fields, and debates do not af-
fect this stage setting directly, they do shape individual professional self-images.
What also shapes them is the image of one’s audience––the object of ambiental
imagination that makes it not only disciplinary, but also rhetorical. While the
former produces scenes of conversation among interlocutors—always im-
agined either as the actual addressees or as the likely auditors—the latter gen-
erates the images of their possible, broader audiences, which may potentially
include over-hearers and eavesdroppers.113
Though their images are vague, and rarely discussed, this does not mean
they don’t exist. When they do appear publicly, however, they mostly do so in
two implicit ways, both of which are on display in Sandford Levinson’s medi-
tations on the nature of his audience. The first is much more rare, as it evokes
‘everyone in the world’—an audience that inhabits an auditorium which is
global and non-discriminating.114 The second, the image that Levinson actually
settles on, is much more modest. It is the image of an audience prefigured, in
part, by the theorists’ ‘choices of topic, style, vocabulary, forum, and the like’.
In its most extreme form, such audiences exclude everyone who is not a com-
petent speaker of the interlocutors’ theoretical language, one which, as Edward
Said remarked, remains ‘oblivious to everything but a well-guarded, constantly
shrinking fiefdom forbidden to the uninitiated’.115 For Said, that raises the ques-
tion: ‘What is the acceptable humanistic antidote?’ In this book, this question
For the critique of both ‘disciplinary imperialism’ and inter-disciplinarity see Friedrich Kratochwil, ‘A
112
Guide for the Perplexed? Critical Reflections on Doing Inter-Disciplinary Legal Research’ (2014) 5[4] TLT 541.
For a distinction between addressees, auditors, overhearers, and eavesdroppers see Allan Bell, ‘Language
113
Style as Audience Design’ (1984) 13[2] Language in Society 145.

Sanford Levinson, ‘The Audience for Constitutional Meta-Theory (Or, Why, and to Whom, Do I Write the
114
Things I Do?)’ (1992) 63 U Colo LRev 389, 394.

Edward W Said, ‘Opponents, Audiences, Constituencies, and Community’ (1982) 9[1] Critical Inquiry 1, 4.
115
34

is posed more specifically: How may those who practise their imaginations in
their constantly shrinking fiefdoms be encouraged to emancipate their imagin-
ations from the norms that rule what may or may not be said across those
realms?
The answer is implicit in Said’s question: to open the gates of those fiefdoms
to the ‘uninitiated’. The productivity of attempting to do so by inducing the-
orists to commit to the broadest possible image of their audiences is highly
dubious, however. If Levinson’s musings are any indication, such victories are
likely to be fleeting: even if initially hospitable to such an image, theorists would
quickly recoil from what they would recognize as their embarrassing ‘narcis-
sistic fantasy’.116 Another way to make theorists open the gates of their fiefdoms
to the uninitiated is to embarrass or ridicule them. Perhaps the most notable
example of this tack is Cornelius Castoriadis’s call:
To be done with this ecclesiastical, academic, and literary ‘respectuosity’ [to] fi-
nally speak of syphilis in this family, of which half the members are clearly suf-
fering in general paralysis [and to] take by the ear the theologian, the Hegelian,
the Nietzschean, the Heideggerian, bring to Kolyma in Siberia, to Auschwitz,
into a Russian psychiatric hospital . . . and require that they explain, on the spot
and without subterfuges, the meaning of the expressions ‘There is no power but
of God,’ ‘All that is real is rational,’ ‘the innocence of becoming,’ or ‘releasement
toward things’.117
Judging from the uptake of Castoriadis’s work across disciplinary boundaries,
there are good reasons to doubt that such attempts would be met with success.
While his work has been widely discussed and interpreted, it has failed to en-
courage those who practise their imaginations to do so with less ‘respectuous’
reliance on the mediating vocabularies of their respective disciplines.
So why did Castoriadis’s call fail to resonate (even among scholars who ap-
proach his work in an anti-Castoriadis spirit, respectuously)? At fault are not
only the ecclesiastically respectuous academics, but also Castoriadis himself.
What he failed to appreciate is the way in which their ecclesiastical imaginations
immunize them from the real world of struggle and suffering. What helps them
remain indifferent is not just an image of themselves as cloistered—existing, as
many international lawyers like to imagine, in an ‘invisible college’—but also
an image of an existentially dangerous other: a ‘result-oriented [wielder] of
power’,118 someone who neither wishes to nor is able to comprehend the goods
of the theorist’s endeavour in the spirit in which they were produced, but is only
interested in using them as ‘ammunition’. To admit him into the audience risks
the possibility of ‘brute disruption of play’ on the staged scenes of theoretical
conversations.119
Levinson (n 114).
116
Cornelius Castoriadis, Philosophy, Politics, Autonomy (David Curtis tr, OUP 1991) 9–10.
117
Meir Dan-Cohen, ‘Listeners and Eavesdroppers: Substantive Legal Theory and Its Audience’ (1992) 63 U
118
Colo LRev 569, 587.

ibid.
119
35
This has a direct implication for one of the aims of this book: to encourage
those who participate in these conversations to experiment more freely with
the pictures that inform their vocabularies. This project is not likely to succeed
without first finding a way to estrange theorists from the anxiety-inducing im-
ages of such single-mindedly result-oriented wielders of power—audience mem-
bers who threaten the very survival of their practice. Rather than parachuting
theorists’ imaginations into environments in which it is obvious that there is
nothing to be said or explained (before a concentration camp prisoner, a psychi-
atric hospital, or a torture chamber), this book confronts them with a partisan
eavesdropper—an invented audience member; someone who may otherwise be
a theoretical ‘civilian’ but who may still be perfectly capable of demolishing their
carefully constructed arguments quickly by pointing to their, otherwise ‘un-
mentionable’, constituents: from performative contradictions and false dichoto-
mies to aesthetic sympathies and temperamental predilections.120 Rather than
parodying academic ‘respectuosity’, however, the eavesdropper is someone with
a stake in the game, and who is, as such, more interested in the practical conse-
quences of accepting a theory of a polemical concept that she intends to use po-
lemically for practical purposes. At a more general level, partisan eavesdropper
is the latest in the line of fictional, quasi-Socratic faux-ingénues; a character who,
in the context of this book, also aims to nudge theorists to be more forthcoming
about the specific assumptions, anticipations, and aspirations baked into their
theories of peoplehood,121 as well as to reflect on the meaning of ‘persuasion’—
the (un)declared formal objective of their scholarly conversations. Rather than
simply imploring theorists to stop trying to persuade each other, the interloping
eavesdropper intends to remind them of the existentially violent character of
their intellectual aspiration, as well as to confront them with the possibility that
the understanding of what happens when ‘I want to persuade somebody to
change his opinion’, such as the one offered by Ernesto Laclau below, is much
more prevalent than they might wish or believe:
As the belief I want to inculcate in him is not the . . . truth of the opposed belief
that he actually has, what I want to do is not to develop his belief but to cancel it
out of existence. . . . Let us suppose that I succeed in my efforts. In that case, he
has been converted to my belief. But the element of force is always there. All I have
done is to convince my friend that he become my ally in killing his belief.122
The reason, however, why ‘persuasion’ is not an activity aimed to convince the
interlocutor to become an ‘ally in killing’ his own belief is because every the-
oretical argument almost always allows some portion or aspect of the belief in
For the view of accidental audience-members as perfectly qualified ‘full-blown reflexive and skillful meta-
120
physicians’ see Bruno Latour, Reassembling the Social: An Introduction to Actor-Network-Theory (OUP 2005) 57.
Among the four possible ways of reacting to the presence of conversational overhearers, or anticipated
121
eavesdroppers—‘indifference’, ‘concealment’, ‘disguise’, and ‘disclosure’—most theorists adopt the former,

and when cornered, the second or the third stance. For more on the four positions, see Herbert H Clark,
Arenas of Language Use (University of Chicago Press 1992) 256.
Ernesto Laclau, Emancipation(s), (Verso 1996) 113.
122
36

question—be that an assumption, conviction, diagnosis, prognosis, hope, anx-
iety, antipathy, or something else—to survive. A more fitting metaphor, then,
is perhaps that of a theorist-conjuror as an unauthorized tax-collector, and his
‘argument’ as an imaginative tax on your political imagination.
Sometimes, the undeclared ‘tax rate’ of a theoretical argument will be very
high, amounting, in some cases, to imaginative expropriation. For example, if
you embrace the statist theory of self-determination that attributes that right
to a territorial people you will no longer be able to see non-territorial nations as
bearers of that right. Other times, the imaginative tax rate will be lower, say 80
per cent. For example, you might initially think of ‘the people’ as an identifiable,
enduring collective subject whose ‘will’ is always legitimate and never to be dis-
puted, but, after reading a particular article on a democratic or constitutional
theory that you find persuasive, you’ll be compelled to see it with new eyes: as
a community affected by a particular decision, and, in principle, ‘unbounded’.123
You will still be able to make the argument you were initially invested in, but
with much greater difficulty. Finally, the imaginative tax may be minimal, as
when new images seek to contribute to ‘the public airing of differences’, rather
than to facilitate their disappearance or reduction.124
For the most part, theorists of peoplehood will not see this as a problem,
either because they will believe that one’s original anticipatory consciousness
‘ought’ to be transformed (for being wrong, unappealing, dangerous, futile, or
illogical) or because they have a hard time imagining an audience that could
ever be imaginatively ‘taxed’ in such a way, (given the ‘monographic logic’ to
which their theoretical inquiry conforms most of the time and which com-
pels them to specialize in a particular aspect of the vocabulary or a particular
situation in which this vocabulary is used). With the figure of partisan eaves-
dropper in mind, however, it would hopefully become more sensible for them
to accept the following imperatives of constituent imagination:
In this book, compensation will not come in the form of a persuasive ‘argu-
ment’ that suggests a more ethical, efficient, prudent, beautiful, realistic, or,
in whatever way imaginable, ‘better’ expectation. Instead, the second principle
demands compensation for the damage that new images have wrought on ori-
ginal expectations. In the context of this book, part of the compensation will
consist of making sure that new figurations—beyond the people—allow those
who have embraced them to go on defending, rationalizing, and legitimizing
them in new ways. Or, to transition from a metaphor with historically constitu-
tionalist overtones to a fully commercial one: this principle demands that every
act of imagination which suggests that a new way of looking at things may be
Arash Abizadeh, ‘On the Demos and Its Kin: Nationalism, Democracy, and the Boundary Problem’ (2012)
123
106 APSR 867.
Terence Ball, ‘Confessions of a Conceptual Historian’ (2002) 6 Redescriptions 11, 23.
124
37
Conceptual Imagination and the Paper Tools of Theory • 37

in the original interest of those who do so is put in circulation with a clearly at-
tached label—caveat emptor. Buying into a new set of pictures is to buy into an
opportunity to imagine old projects in new ways, perhaps at the risk of losing
interest in them in the process.
10. Conceptual imagination and

the paper tools of theory
As objects of constituent imagination, the figures of sovereign peoplehood sur-
vive in texts. Inscribed in one, they are ready to migrate to another. Their im-
agining proceeds through reading and writing. During that process, not all are
imagined equally vividly and deliberately. In fact, most of those who imagine
theoretically would probably insist that theorizing unfolds without seeing or
actively visualizing any image in particular. At the same time, most would prob-
ably accept that theoretical propositions may be seen as prescriptions for or
prohibitions against engaging in certain acts of propositional imagining ((not-)
imagining that X), which themselves may trigger prescriptions to perform or
abstain from certain acts of non-propositional imaging ((not-)imagining X). In
other words, even those who would dispute that theorizing in their case entails
a more active exercise of visual imagination would, in all likelihood, not dispute
that envisioning theorizing as the activity of imagining is imaginable. What is
less imaginable is the idea that many theoretical claims rest on an image that
depicts not a scene, person, or map, nor an activity, and not even an allegorical
symbol, but an abstraction incarnated nowhere: a sovereign people as a concept.
Seeing concepts as the objects of visual imagination is difficult, not only be-
cause it is objectively hard, but also because the concealment of polemical mo-
tivations in the background of particular conceptualizations makes it hard for
theorist-imaginers to imagine that deliberately visualizing conceptualizations
might be useful, interesting, or important for their endeavour.125 What they will
do instead, in most cases, is to take for granted the pre-existing division of theor-
etical labour. When it comes to the concept of the people this division assumes
that constitutional theorists focus on the people as the bearer of constituent
power; international jurists on the people as the holder of the legal right to self-
determination; normative theorists on the same people––but only as the holder
of the moral right to self-determination––a nd where democratic theorists treat
this figure as a deviation from the correct way of looking at a demos (legitim-
ately constituted, in their mind, only through the application of a version of the
all-affected interests principle). In doing so they will ignore the question of what
it is they hope to achieve by continuing to speak about overlapping phenomena
without looking at how others do the same. More importantly, they will remain
For a sophisticated anatomy of concepts that distinguishes ‘conceptual kind, function, structure, modality,
125
and phase’ see Peter de Bolla, The Architecture of Concepts: The Historical Formation of Human Rights (Fordham
University Press 2013) 32. For another attempt to offer a more systematic visual representation of the pro-
cess of concept formation, see the discussion of concept ‘cores’, ‘webs’, and ‘cakes’ in Felix Berenskoetter,
‘Unpacking Concepts’ in Felix Berenskoetter (ed), Concepts in World Politics (SAGE 2016).
38

indifferent to the possibility that their other, unexamined visions of the people
as A from the perspective of B shape their own, carefully argued ones, in which
the same figure appears as C from the perspective of D.
What is being evaded, more specifically, is the clarification of background
conceptual pictures, that would highlight a couple of otherwise ignored theor-
etical questions. The first concerns the basic features of the concept’s anatomy,
and leads to a question: Is the concept a ‘skull’ or a ‘skeleton’? The second—in
cases where the answer to the first question is the latter—concerns that concept’s
propositional anatomy, and leads to three additional questions: (1) How many
propositional ‘vertebrae’ are there in this conceptual skeleton? (2) How are they
arranged? and (3) ‘What is the ‘endoconsistency’ of their arrangement?126 That
is, how far can we go in detaching the individual ‘vertebrae’ before the concep-
tual skeleton, as a whole, ceases to exist? In any event, the answer of this book
to the first question is ‘six’. In order of appearance, these propositions are:
The answers to the other two questions are more difficult, since they require
an active exercise of visual imagination, oriented towards something that only
exists in the sphere of ideas. What is habitually used in such situations by nat-
ural scientists are not ornamental naturalistic illustrations but diagrams: the
types of ‘epistemic images’ capable of not only illustrating a particular theory,
but also of serving as the ‘paper tools’ of their theoretical imagination.127 The
kind of imagination ‘required to form a mental diagram of a complicated state
of facts’, is what Pierce metaphorically referred to as ‘a devil’s imagination’.128
Theorists of peoplehood are neither poets nor natural scientists—which helps
explain why they would treat the diagrammatic tools of ‘a devil’s imagination’
with ambivalence, or, when not ignoring them completely, use diagrams spar-
ingly and ornamentally, ‘rarely go[ing] beyond what was said in the text’.129
Behind this diagrammatic squeamishness is a deeper dilemma, however.
To use diagrams earnestly—but to theorize something that cannot possess the
‘skeleton of truth’ (which is what a devil’s imagination is looking for)—is to
give the impression of mathematical rigour, in a context where there can be
none. Even using diagrams cynically—as nothing but hot-air ‘rhetorical math-
ematics’—would still, as some argue, be a shot in the dark, since we still have no
For Deleuze and Guattari, from whom I borrow the term, they are ‘distinct, heterogeneous, and yet not
126
separable’. Gilles Deleuze and Felix Guattari, What Is Philosophy? (Graham Burchell and Hugh Tomlinson trs,
Verso 2004). For the reasons that follow, I disagree.
I borrow the term ‘paper tools’ from Ursula Klein, Experiments, Models, Paper Tools: Cultures of Organic
127
Chemistry in the Nineteenth Century (Stanford University Press 2003).

Pierce (n 18) 255.
128
Swedberg (n 18).
129
39

idea about what makes them capable of exerting any sort of rhetorical power,
in the first place.130
These worries are exaggerated. First, as intellectual historians have already
demonstrated, diagrams used in natural sciences were not only highly useful
paper-tools of theory-making, but were perpetually exposed to the kinds of ‘slip-
pages between realistic depiction, convenient calculational device, and heuristic
guide to further research’, which are generally not expected from hard sciences,
such as theoretical physics for example.131 Second, as even diagram-sceptics
admit, the diagrams’ deceptive pretensions of mathematical rigour can easily
be mitigated by a conscious choice to depict them in a way that parodies their
potential to evoke exactness and objectivity. In fact, one might argue—and this
is the position I adopt in this book—that even without such deliberate parodies,
diagrams are reminders of the visual freedom which every theorist-imaginer
continues to enjoy.132 Finally, even without knowing what endows diagrams with
rhetorical power specifically, we know enough to recognize that ‘bypassing the
construction of the meaning of verbal premises and manipulating visual images’
allows those who use them to (1) ‘reduce the load on working memory and
speed up the process of inference’; (2) be ‘less likely to overlook possible config-
urations’; (3) ‘keep track of alternative possibilities’;133 and (4) ‘[make] others see
and speak’, and in that way, even as ‘[a]‌lmost blind and mute’;134 (5) help ‘con-
struct a real that is yet to come’.135 As an illustration of how might that be—and
as an example of what it might mean to parody a diagram—consider Figure 1.1.
P6 P1
P5 P2
P4 P3
Figure 1.1 Sovereign people—the diagram of a conceptual ‘molecule’
Christoph Lüthy and Alexis Smets, ‘Words, Lines, Diagrams, Images: Towards a History of Scientific
130
Imaginary’ (2009) 14 Early Science and Medicine 398, 399.

David Kaiser, Drawing Theories Apart: The Dispersion of Feynman Diagrams in Postwar Physics (University of
131

Michael Lynch, ‘Pictures of Nothing? Visual Construals in Social Theory’ (1991) 9[1] Sociological Theory 1.
132
Malcolm I Bauer and PN Johnson-Laird, ‘How Diagrams Can Improve Reasoning’ (1993) 4[6] Psychological
133
Science 372, 377.
Gilles Deleuze, Foucault (Seán Handd tr, Minnesota University Press 1995) 31.
134
Gilles Deleuze and Félix Guattari, A Thousand Plateaus (Brian Massumi tr, Continuum 1987) 157.
135
40

What is this geometrical shape? Apparently nothing more than the earlier list
of six propositions of peoplehood arranged in a hexagram, which students of
organic chemistry would quickly recognize as the structure of benzene, and
which—in the form of six monkeys holding each other’s tails—occurred to a half-
asleep Auguste Kekulé (1829–96) as he contemplated its chemical composition.136
Though we have no way of performing an experiment that would demonstrate
whether or not theorists of peoplehood imagine a benzene-like conceptual struc-
ture of peoplehood, Figure 1.1 may be used as a green screen that puts the con-
tours of their imaginations in much sharper relief, allowing us to, if not postulate,
then at least speculate and ask: On the basis of what I have said, doesn’t the con-
ceptual anatomy of your molecule of sovereign peoplehood resemble the ben-
zene-like structure above? If not, what does it look like? Most importantly: What
explicit and implicit assumptions—visualized or not—have determined its shape?
What Figure 1.1 allows us to see is that the character of various theoretical
approaches to the question of the identity of the people as a ‘holder’, ‘bearer’,
‘subject’, or ‘source’ depends not only on their disciplinary perspectives, but
also on how theorists imagine the relationship between p1, p2, p3, p4, p5, and
p6.137 That aspect of their imaginations may only be inconclusively inferred,
mostly from their lateral observations, and never from the core of their argu-
ments. Certain normative theorists for example, seem to affirm P3—not only, or
even predominantly, because they believe that living in a nation-state of one’s
own is indispensable for individual flourishing—but because they fear that
abandoning it is destined to make P4 and P5 unimaginable. Others, such as con-
stitutional pluralists, are likely to affirm P5 as a matter of principle, yet consider
P4 as always contestable, which, in consequence, makes their attitude towards
P3 far less enthusiastic than those who focus on it directly, as would theorists
of national self-determination. Finally, foundational constitutionalists who em-
brace P2, P4, and P5—and critique constitutional pluralists for failing to offer
a compelling story about the origins of ultimate constitutional authority—se-
cretly uphold an understanding of the identity of a constitutional subject that
makes P3 dependent not on its place in the benzene-like conceptual structure of
peoplehood, but on something else, external to it.
This detail shouldn’t pass unnoticed since it reminds us that Figure 1.1 is
not only a diagrammatic representation of a conceptual ‘molecule’ of a sov-
ereign people, but also the figure of its concept—set against a background. In
many cases, it will be impossible to ascertain its more specific features. What
See Klein, Experiments, Models, Paper Tools.

136
137
Recognizing the schematic picture of the anatomy of a political concept as one of the sources of im-
aginative variability is also important because it casts light on the alleged practice of ‘concept-packing’, par-
ticularly prominent, according to Pierre Schlag, among those who approach political and legal concepts as
‘normativos’. What follows from the discussion so far is not that concept-packing doesn’t exist, and cer-
tainly not that normative and other theorists don’t casually infuse their arguments about what is ‘reasonable’
with their aesthetic and other subjective predilections, but rather that part of the reason for why they insist
on a very specific meaning of the concept in question is because they fail to reflect on how they imagine
the anatomy of conceptual propositions and their mutual endoconsistency. For the discussion of concept-
packing, and other scandals of ‘normative legal thought’, see Schlag (n 14) 824 and throughout.
41

it is possible to conclude in every case, however, is that there may be more
than one explanation of why theorists of peoplehood gravitate—despite the
exceptions briefly mentioned already—towards a seemingly commonsen-
sical baseline of conceptual imagination: if you remove the people from the
position of subject in one proposition of peoplehood, you must, as a matter
of logic, do the same with respect to all others. A self-reflexive, but naive be-
lief in the extreme anatomical fragility of the conceptual structure of sover-
eign peoplehood is not the only, or perhaps even the predominant, root cause
of its resilience and ubiquity. In addition, this belief may also be fortified by
a more or less conscious embrace of one of the following four conceptual
complements:
Visualized in the context of this diagram, the framework turns the blank back-
ground into a raster of hexagonal shapes: a beehive-like schema of separation,
whose governing protocols determine which propositions of peoplehood
within a hexagonal ‘molecule’ go together, and why. Some theorists of people-
hood have a less fancy name for it: international law. To those who embrace
this conceptual complement, the identity of the people as the subject in P2
derives, in the final analysis, from the enframing structure of normative pre-
scriptions determined by the constellation of the norms of self-determination,
non-intervention, territorial integrity, sovereign equality, and so on. Though
these norms may be legal in nature, what makes them part of the frame is
their capacity to bring a sovereign people into conceptual life by enframing it.
The alternative to the vision of the people as enframed is offered by the second
conceptual supplement in the line: creative creator. While the framework
enframes everywhere—hence a hexagonal beehive–background image—the
creator creates somewhere, one thing at a time, but nowhere in particular.
Unlike the frame, this method is much harder, though—as we will see later in
the book—not impossible, to visualize. What makes it almost invisible are its
imaginative pretensions: the vision of the creator not as a framer or sustainer,
but as the essence of sovereignty, incarnated in every manifestation of sover-
eign peoplehood.
Though the book doesn’t devote nearly as much focused attention to sup-
plementary concepts as it does to the figures of the creator and the frame
their contribution to the stultification of our theoretical imaginations will be-
come fully apparent as we gradually move across the terrain of the six proposi-
tions of peoplehood. Most often recognizable by their suffix ‘-ism’, their task is
to ‘supplement’ the concept of a sovereign people at a lower level of generality,
or––as Koselleck put it––t o ‘mediate between the political tasks of the day and
the general philosophical apprehension of the world’.138 While Koselleck ar-
gued that in doing so such concepts provide other concepts with their ‘internal
temporal structure’, that suggestion is misleading.139 Though it may be that the
Koselleck (n 108) 167.
138
ibid 252.
139
42

totality of the claims that the ‘supplementing’ ideology-concepts do prefigure
the ‘internal temporal structure’ of other concepts, this is only possible be-
cause they avail themselves of the quasi-narrative plotting devices, which are
prefigured by a an unreflective theoretical imagination.
The roots of their petrification may be ideological, but need not continue to
be. For example, while it may be that Schmitt’s concept of the political has its
polemical roots in his deeply rooted Catholic conservativism and German na-
tionalism, it may also be, as Strauss argued, that Schmitt’s concept of the political
has its roots in a hostility to a background world picture (more poetic than ideo-
logical) of frivolous entertainment. Whatever the roots of it in that particular
case, a ‘petrified’ theoretical gaze is always sustained by a twofold refusal: (1) to
re-envision, deliberately and systematically, the space of experience that served
as grounds for the prognostic and diagnostic evaluation of worthy ‘political
tasks’, and (2) to consider the possibility that the ‘apprehension of the world’ (as
Koselleck called it) to which those tasks are related, may itself be re-apprehended.
What follows from this is a simple conclusion that will be exemplified in a
number of places throughout the book: once the gaze of theorists become less
disciplinarily disciplined and, in consequence, less petrified, it will discover some-
thing that those who uphold the prefigurative power of supplementary concepts
wish to hide. A less petrified look at those concepts will reveal new conceptual
binaries, which cut across those inhabited by a variety of antagonistic -isms.
Once seen as internally divided, these -isms will also reveal the hidden, ig-
nored, or trivialized dimensions of their ideological, political, or spiritual kin-
ship. And once that happens the reasons to take one’s unexamined mental image
of the conceptual molecule of peoplehood for granted will appear far less con-
vincing. Throughout the book, diagrams will assist us in the attempt to make
our theoretical conceptualizations more self-aware by acting as ‘bookkeepers’
of alternative and new possibilities,140 and by providing a ‘display of relations of
pure function’ among otherwise disparate and neglected, but vital components
of our conceptual imaginations of peoplehood.141 In doing so, they will incar-
nate the promise and the curse of constituent imagination: by freezing the inces-
sant textual flow they will reveal themselves as not only as signs (that postulate
causations and correlations) but also as symptoms (that reveal the creative force of
somebody’s purposive, practical, and polemical imagination). As such, they will
act as the paper-tools of theory-making and the emblems of the emancipation of
constituent imagination. Unlike texts that pride themselves in being ‘compel-
ling’, ‘gripping’, or ‘arresting’, they are the pictures that loudly exclaim: Things
could be different! We, the diagrams, could also be pictured differently.
140
Kaiser (n 131) 218.
141
Jakub Zdebik, Deleuze and the Diagram (Continuum 2012) 5.
43
 2 
Constituent Imagination
Behind Popular Expectations
1. The twilight (zones) of sovereign peoplehood

A sovereign people is the figurative ventriloquist of our aspirations, a security
blanket for our anxieties, and a projectile that we launch against those who
stand between us and the horizon of our aspirations. Theorized in the abstract,
its will is invoked in the context. That context is both real and imaginary. The
people whose name we invoke locally is always part of some broader picture of
the world we would rather not discuss. Conveying specific expectations from
others, and for ourselves, talking about a sovereign people is always a way of
talking about the world. Often backward-looking, the vocabulary of popular
sovereignty is always one among possible ‘anticipatory way[s]‌of talking about
the whole of humanity’.1
If so—if the figure of a sovereign people exists only within some broader
world picture— the project of moving beyond the people may, in prin-
ciple, be pursued in two ways. The first is to simply imagine a different, re-
placement figure: a transnational demos, a cosmopolitan constitution, or
a de-territorialized multitude. The second is to begin by asking preliminary
questions about the world picture that makes the figure of a sovereign people
meaningful. In that case, these will be our questions: In which movie theatre, in
which gallery is it shown? Through which optics is it projected? To which audi-
ence is it addressed?2 Is it really true that ‘nothing else is presented or hidden’
behind the horizon it evokes?3 Change your optical instruments, and what was
a landscape painting a moment ago may in an instant turn into the screenshot
of a video game—not the work of an old master, but the product of computer
programmers’ anonymous labour: the shape of the figure of the people is in the
eye of its beholder. To confront these questions is to take the first step towards
the emancipation of our constituent imaginations ‘beyond’ the people––the
trajectory that alludes to the benefit of traversing the horizon we imagine from
Fernando Atria, ‘Living Under Dead Ideas: Law as the Will of the People’ in Maksymilian Del Mar and
1
Claudio Michelon (eds), The Anxiety of the Jurist: Legality, Exchange and Judgment (Ashgate 2013) 137.
2
Bruno Latour, Reassembling the Social: An Introduction to Actor-Network-Theory (OUP 2005) 187.
3
Jean Luc Nancy, The Grounds of Image (Fordham University Press 2005) 60–61.
4
44 • Constituent Imagination

within the space of experience we’ve traversed thus far, from the point that we
presently inhabit.
‘Beyond’ evokes that benefit in a particular way. While always alluding to the
rewards behind the horizon of popular expectations, it recoils from exhorting
those holding them to leave them behind. In that regard, ‘beyond’ is more than
just an overused way of indicating the direction of one’s argument. It is also
an oblique way of asserting the dignity of hesitant scholarly adventurism, and
often an implicit suggestion of how to get behind the horizon ahead: by going
across, above, around, under, or—as is the suggestion of this book—by moving
through: finding new paths by looking at the same morphology of obstacles
differently.
As it evokes ‘distance’, ‘progress’, and ‘future’, ‘beyond’ is also the trope that
allows us to put the questions of orientation and general visibility aside. One
may imagine moving beyond only if one sees some orienting horizon ahead.
This confronts us with another preliminary question. What if that horizon is
fading? What if, instead of the era of popular sovereignty, we live in the period
marked by the ‘twilight of political fictions’?4 What if recent ‘monumental
showings of the people’ are in the end nothing but ‘mere surface eruptions
of a gathering momentum of the micropolitics of crowds, mobs, and multi-
tudes’—not the new dawn of popular sovereignty?5 Like the ‘fiction’ of a sov-
ereign people itself, however, the ‘twilight’ of its horizons is also the work of
someone’s imagination. Rather than rejecting it, or embracing it, the rest of this
section asks what kind of perceptual changes, more specifically, hide behind the
allegory of twilight.
The first concerns our mental maps of sovereign peoplehood. Rarely prob-
lematized systematically, these implicit conceptual geographies have allowed
us to evaluate the conformity of local constitutional transformations with the
ideals of popular sovereignty. Inscribed in these maps, the North figures as a
zone of its sensibility; South as volatility and futility; West as dignity; and East
as infamy. In a world in which these zones begin to dissolve—where ‘Euro-
America’ increasingly resembles ‘Africa’,6 and where demos of the West increas-
ingly manifests its will akin to ethnos of the East—it becomes more fitting to
refer not to a global twilight, but a shifting archipelago of the twilight zones of
sovereign peoplehood.
The second change in the social imaginary of sovereign peoplehood con-
cerns the way in which the people presents itself discursively, as part of the
claim-making political vocabulary of those on the ground. At least when
it comes to the vocabulary of the right of peoples to self-determination its
‘twilight’ should not be interpreted as its final sunset, even though its steady
‘discursive demise’ has by now been well documented in the literature. In
4
Dilip Gaonkar, ‘After the Fictions: Towards a Phenomenology of the Multitude’ (2014) e-fl ux 1. 14.
5
ibid.
Jean Comaroff and John Comaroff, ‘Theory from the South: Or, How Euro-America Is Evolving toward
6
Africa’ (2012) 22[2] Anthropological Forum 113.

45
The Twilight (Zones) of Sovereign Peoplehood • 45

fact, to those focused on the recent constitutional crisis in Catalonia the al-
leged twilight resembles not the sunset but the new ‘dawn’ of the right to
self-determination. Absent from the legitimizing discourses of Montenegrin,
Scottish, Flemish, or Kosovar sovereigntist movements—none of which in-
sisted on the legal right of their peoples to ‘external’ self-determination—that
vocabulary made a striking comeback in the foundational texts adopted by
the Catalan parliament in the prelude of the crisis provoked by Catalonia’s
defiance of Spanish constitutional authority.
Finally, twilights may also refer to the mutations in the symbolical efficacy
of the people’s name. This in turn, may refer to two different things: first, to
how catalytic the vocabulary of grassroots enthusiasm could be (when it comes
to the exercise of what theorists’ call ‘constituent power’); and second, to how
corrosive could that same vocabulary be (when it comes to the ability of those in
power to resist demands for radical change). In both cases, the verdict about the
symbolical efficacy of peoplehood will depend on what Kenneth Burke referred
to as ‘circumferences’: the spatiotemporal frames that our mind’s eye settles on
when it diagnoses problems or when it prognosticates futures.7 Though their
role is vital and obvious, their constitutive effects remain ignored.
Consider, for example, what happens once you set your gaze on Western
Europe and focus on the symbolical efficacy of the vocabulary of popular sov-
ereignty and constituent power in the context of struggles for social eman-
cipation. Gazed at through this frame, they will both seem long ‘expired’, at
least since the French Revolution of 1848, the last successful social revolution in
Western Europe, which some, including Marx, considered to be a farce anyway.
By the same token, a different spatiotemporal frame—say, Latin America over
the last twenty, not two hundred years––will immediately brighten the picture
of popular sovereignty. As we shall see in Chapter 4, those pictures are further
complicated by the necessity to presume alternative scenarios that allow us to
postulate the events that have occurred in the past as better or worse, not in the
abstract but in comparison with the alternatives that have unfolded differently
in another, imagined, and parallel universe.
One thing is clear, however: whatever ‘twilight’ might have set in over the
landscape of popular sovereignty, it is not likely to be the twilight of a polit-
ical fiction. Were that the case, we would have already recognized this fiction
for the ‘awkward patch’ that it is, and would have probably made more pro-
gress in analysing ‘the patterns of tension that tore [the] fabric’ covered by it,
and in ‘discern[ing] elements in the fabric itself that were previously obscured
from view’.8 To the contrary: the vocabulary of peoplehood has proved remark-
ably immune to a never-ending stream of scholarly denunciations. Rather than
denouncing its fictitiousness any further, it may be better to pause for a mo-
ment on what those denunciations hide.
7
Kenneth Burke, A Grammar of Motives (first published 1945, University of California Press 1969) 77.
8
Lon L Fuller, Legal Fictions (Stanford University Press 1967) viii.
46
2. The people
from ridiculous (1956) to ridiculous (2016)
‘On the surface it seemed reasonable: let the people decide. It was in fact ri-
diculous because the people cannot decide until somebody decides who are the
people.’9
This remark, made by Ivor Jennings in 1956, is probably one of the most
cited critical remarks in the history of theoretical debates about the people.
Interestingly, however, it has never been referred to in relation to its actual po-
lemical purpose. A closer look at Jennings’s argument quickly demonstrates
that he didn’t intend to decry the ridiculousness of ‘letting the people decide’ in
the abstract. Rather, his purpose in doing so was quite specifically polemical—
to denounce the speed of the dissolution of the British Empire, whose colonies
didn’t exhibit requisite ‘homogeneity’ (necessary for a democracy understood
as the government of ‘public opinion’). In Britain, however, wrote Jennings in
1956, ‘government by the people’ is still a ‘reality’—‘not a fiction’.
Once we fast-forward from 1956 to 2016, the irony of this claim becomes
hard to ignore. Sixty years after he made his famous remark, one might wonder
would Jennings still stand by his claim about the ‘reality’ of government by the
people in Britain had he had the opportunity to witness the way it exercised
its will in a referendum on leaving the European Union? Would he have con-
cluded that the idea of the British people has become as ridiculous as that of a
self-determining people in the colonies? Or would he have reconsidered his be-
liefs about homogeneity and education as essential prerequisites for letting the
people decide? Or, would he have revised his judgement about what it is that
makes the farcical insistence on letting the people decide so ridiculous?
Whatever the answer, what gives the air of ridiculousness to the idea of gov-
ernment by the people in 2016 has nothing to do with the problem detected
by Jennings in 1956. Instead of being ridiculously illogical the 2016 referendum
revealed the idea of ‘letting the people decide’ as farcically demoralizing. While
the result of the Brexit referendum indirectly dealt a blow to the identity of the
British people by reigniting the debate about Scottish independence, its main
effect was to undermine the credibility of the idea that there is such a thing
as its (legitimate) will. More broadly, the post-Brexit political fall-out has also
pointed to the perceptual conditions that need to be met in order for us to be
able to keep calm and carry on—indifferent to the innate fragility of all political
notions that rely on the popular ‘will’.
The post-Brexit fallout has shown us that to be able to dispel the air of this
will’s ridiculousness persuasively we must be able to preserve a seamless fusion
of three scenes that make its manifestations intelligible. In the first—before the
moment of decision—a sovereign people presents itself as a multi-cephalous
deliberative deliberator. In the second—at the moment of decision—a sover-
eign people presents itself as a mono-cephalous decisive decider. Finally, in the
9
Ivor Jennings, The Approach to Self-Government (OUP 1956) 56.
47
From Ridiculous (1956) to Ridiculous (2016) • 47

third—after the moment of decision—a sovereign people will appear as valid
victor, the champion in a match between two ‘teams’, two sides around which
manifold members of deliberative deliberator clustered before the moment
of decision.
The three scenes will remain indistinguishable in our imaginations as long as
the three figures of the people don’t reveal themselves to us in a new light: de-
liberator not as deliberate, but as deceived, deluded, or distracted; decider not
as decisive, but demoralized, dithering, and dubious; and victor not as valid,
but vain, vapid, or even vicious. If that were to happen, the old charge of circu-
larity would appear in a new light: not as a token of the ridiculousness of the
idea of ‘letting the people decide’, but rather as the price paid for an attempt to
conceal the impossibility of reconciling, as a matter of principle, three distinct
criteria for evaluating the legitimacy of the wills of these three figures: its right-
ness in the case of a deliberator—which, in principle, requires the reopening
of a settled issue as soon as there is an indication that a better decision may be
reached; its decisiveness in the case of a decider—which, in principle, makes
vox populi authentic only if it is similar enough to the vox dei, indifferent to
all criteria outside itself; and finally, its fairness in the case of a victor—which
makes its victory legitimate only if achieved by honouring the rules of fair play.
The aftermath of the Brexit referendum made the contingency of that fusion—
represented as three overlapping circles in Figure 2.1 —increasingly apparent.
1776
1956
2016
Figure 2.1 The people: from ridiculous to ridiculous
As numerous public opinion surveys following the referendum demonstrated,

the decider wasn’t decisive about leaving the EU after all.10 Likewise, the claims
of those who voted ‘Leave’ but changed their minds to ‘Remain’ after the refer-
endum, claiming they had been deceived about the meaning of ‘exit’ in Brexit,
made the deliberator appear more deluded than deliberative. Finally, having
denied the validity of the victor’s victory, team ‘Remain’ has refused to blend
back into the deliberative British demos, making it even more manifest that the
Adrian Lowe, ‘Brexit is not the will of the British people––it never has been’ <blogs.lse.ac.uk/brexit/2016/
10
10/24/brexit-is-not-the-will-of-the-british-people-it-never-has-been/> accessed 11 October 2017.

48

decider hasn’t been decisive, but dithering—quite unlike a sovereign that is sup-
posed to establish order ex nihilo.11 In comparison to the ‘scandal’ Jennings de-
tected in 1956, controversies about the will of the people in the aftermath of
the Brexit referendum have far less, if anything, to do with the incoherence
of the circular logic behind the idea of the British people, and far more to do
with the tenuousness of the competing claims about the authenticity of its will,
and its allegedly logical political consequences.
The implications of this for the study of popular sovereignty shouldn’t be ex-
aggerated. The vocabulary of popular sovereignty, as we have seen, has proved
remarkably immune to the claims seeking to undermine its perceptual cred-
ibility, even though the 2016 Brexit, not unlike the 1776 one, may yet, in retro-
spect, be recognized as a turning point in the history of theoretical debates
about popular sovereignty, and not just an event of regional significance that
confronts the European project with questions ‘that needed to be put sooner
rather than later’.12
However we end up immemorializing it, Brexit is an occasion for reckoning
with three issues that otherwise might not have been recognized as important
or urgent, without its catalytic, and perhaps cathartic contribution. At the
most general level, Brexit confronts theorists with the cost of their loyalty to
traditional synecdochic representations of the moments of popular decision-
making. Those representations, as we will see in the next chapter, have tradition-
ally evoked a group of individuals whose uniform agency—whether manifested
in seizing initiative, acting in concert, co-instituting, or engaging in ‘joint
action’—inadvertently conceals the multiplicity of heterogeneous expectations
that accompany every act of popular decision-making: from backward-looking
attitudes, such as resentment, disappointment, and regret, to forward-looking
ones, such as hope and anxiety.
Theorists of peoplehood either completely ignore these attitudes, or con-
sider them only to dismiss them as unworthy of theoretical representation. The
2016 Brexit allows us to ask: What do they hope to achieve by doing that? What
is the presumed benefit of fantasizing about moments of joint action, if the vast
majority—the one that ‘decided’ Brexit—can by no stretch of the imagination
be described as acting jointly, or sharing the same goal? Brexit made the latter
painfully obvious: the goal of ‘exit’ meant different things for different people,
who, irrespective of the carefully crafted deliberative framework, still cast their
vote based on their hopes and anxieties.
Put differently, post-Brexit controversies corrode the arguments of those
who believe that the legitimacy of popular decision-making may be evaluated
in terms of the quality of the deliberative process that preceded it. That as-
sumption rests on wishful thinking, however: while deliberations nudge us
to re-evaluate our political commitments in the light of new knowledge, they
11
See ‘EU Referendum Rules triggering a 2nd EU Referendum’ <https://petition.parliament.uk/petitions/
131215> accessed 22 March 2017.
Neil Walker, ‘The European Fallout’ (2016) 17 German Law Journal 125, 129.
12
49
From Ridiculous (1956) to Ridiculous (2016) • 49

remain powerless against expectant emotions such as hope, the purpose of
which is precisely to give those on the ground a ‘method of radical temporal
reorientation of knowledge’.13
By the same token, post-Brexit controversies may also be seen as symptom-
atic of the increasingly ambivalent attitude of citizens of Western liberal dem-
ocracies towards the idea of majority vote. On the one hand, that ambivalence
may, not without reason, be attributed to the influence the ideals of founda-
tional constitutionalism exert over the imaginations of ordinary citizens. If that
is the case, it would explain a curious discrepancy in recent attitudes towards
the outcomes of majority votes in the United States—the polity that reveres
the idea of popular sovereignty—and Britain, the polity which, thus far, has
not. On this view, what made American citizens metabolize, relatively easily,
the minoritarian victory of Donald Trump in 2016 was its conformity with the
written norms of the American constitution. The British public were far less
willing to tolerate a minoritarian victory because of the corresponding absence
of written norms in the unwritten British constitution. On the other hand, none
of this explains why American citizens did not mobilize against a constitution
that makes such minoritarian victories possible (twice over the last two dec-
ades), nor does it explain why many British citizens think that a constitutional
‘rematch’ is a legitimate possibility once ‘the people’ have spoken.
The other possibility, then, shouldn’t be dismissed lightly: that the mutually
juxtaposed attitudes towards the constitutionally transformational outcomes of
majority vote in the United States and Britain in 2016 both stem from the same
disturbing phenomenon: a vision of popular self-government as an interactive
game, whose legitimacy derives not from the rules qua norms of the constitu-
tion imposed on itself by a sovereign people, but from the rules qua the rules
of fair play, which are themselves agnostic on the criterion of what, ultimately,
constitutes victory.14 The members of ‘team Remain’ in Britain who called for
another referendum seem to have discovered just that, that the rules of fair play
that govern the game that results in a majoritarian victory do not have an in-
built bias towards a particular format for establishing its final outcome—be that
a constitutional play-off, the best two out of three, or something else.
This, in turn, invites us to consider the constitutive implications of shifting
cultural attitudes towards majoritarian decision-making, which are far from
apparent from adjectival perspectives on democracy, such as liberal, populist,
deliberative, epistemic, agonistic, or radical. It seems that rather than dying a
‘slow death’,15 democracy is being gamified––vulgarized ‘as some form of con-
sumer decision’––designed to encourage ‘impulsiveness, impatience, siloing,
Hirokazu Miyazaki, The Method of Hope: Anthropology, Philosophy and Fijian Knowledge (Stanford University
13
Press 2005) 5.
For a parallel trend in comparative constitutional jurisprudence, with regard to the unamendability of
14
supra-constitutional constitutional norms, see Yaniv Roznai, Unconstitutional Constitutional Amendments: The

Limits of Amendment Powers (OUP 2017).
15
Michael Wilkinson, ‘The Brexit Referendum and the Crisis of Extreme Centrism’ (2016) 17 German Law
Journal 131, 139.
50

and closed-minded hostility’.16 The video screens in CNN’s newsroom during
the night of American presidential elections—rather than being a testament
to the ineluctably agonistic character of democracy, or to its descent into a
liberal-democratic spectacle—confronts us with a phenomenon that deserves
a different name.
Provisionally, we may name it ludic majoritarianism—a form of government
which makes majoritarianism optional in the name of a grand bargain that con-
temporary liberal democracies propose to their citizens: express your personal
self-determination by participating in the ‘ “infinite game”—one played for the
sake of play [and whose] object . . . is to keep the game going as long as pos-
sible’!17 The tonality of this majoritarianism—a strange mix of ethnocentric so-
lemnity, quotidian indifference, and diffuse but discernible frivolity about its
consequences—is an occasion for reckoning with the political consequences of
the ways in which moments of popular decision-making are being imagined
theoretically. They occur on the one hand in the scenes in which the attitudes of
those who are about to take part in the exercise of a sovereign will of the people
are rudimentary and uniform, and on the other hand within a scenic environ-
ment that theorists portray as unworthy of further problematization.
We will discuss those scenes in greater detail in Chapters 3, 4, and 5 but what
ought to be foreshadowed at this point is the question of their sensibility: What
do theorists hope to achieve, and for what reasons do they think it beneficial to
take a very small number of people who may be understood as acting jointly,
and treat them synecdochically—pars pro toto, as the stand-in for all the mem-
bers of a polity? What is the anticipated advantage of portraying a select number
of constituents synecdochically, and turning the theoretical gaze away from
everyone else: the majority who are ‘interpassive’ citizens who leave action for
another day; who often secretly couldn’t care less about the responsiveness of
the government to the will of the people; but who nonetheless enthusiastically
participate in the plebiscitary manifestation of its will, if it provides them with
an opportunity to discharge their frustration against immigrants, minorities,
distant supranational-bureaucrats, or foreign enemies?
By ignoring the diverse, real-life attitudes of those who participate in acts
of popular decision-making, theorists of peoplehood have remained indif-
ferent to such questions. In so doing, they also grossly overestimate the cap-
acity of deliberation to affect their hopes, desires, and anxieties. Focusing on
fantasies about the exercise of constituent power of the people, multitude, or
plebs, risks neglecting the role of feelings of resentment, the sense of having
been taken for a ride, and the desire to get even when the opportunity arose.
That constellation of emotions cuts across Jennings’s simplistic geography
Douglas Rushkoff, ‘Permanent Revolution: Occupying Democracy’ (2013) 54:2 The Sociological Inquiry
16
164, 165.
ibid 167. Also symptomatic in that regard are the ways in which we refer to what are imaginably the most
17
consequential outcomes of majoritarian decision-making in the recent history of European Union and the
United Kingdom—Grexit, Brexit, Indyref—semi-humorous portmanteaus, more befitting a cute kitten name
than a way of referring to moments in which a god-like sovereign exercises its will, ex nihilo.
51
Popular Expectations • 51
of ridiculousness, and can be captured neither by the figure of demos nor by
the figure of ethnos. Ironically enough, it is that very constellation that gave
power to the constituent power of the American and the British peoples in a
way that took most of those who concern themselves with this concept by
surprise.
3. Popular expectations

back to the future past
Brexit is perhaps the most glaring recent detail in a rough map we need be-
fore we embark on a journey ‘beyond’ the people. That map evokes neither a
global dusk nor a global dawn. Instead, it is best understood as a speculative
outline of the shifting twilight zones of popular sovereignty. The phenomena
it allows us to see, however—the failure of deliberation to speak persuasively
to expectant emotions, the ascent of ludic majoritarianism as a symptom of
gamified democracy, the oligarchy-indifferent but immigrant-intolerant fig-
urative mutant of demos and ethnos—are not the only issues we will need to
keep in mind as we look beyond the horizon of popular expectations. Other
issues will be better detected not by looking around the present ‘space of
experience’ of popular sovereignty, but by looking back at the anti-colonial
and postcolonial horizons of expectations that began to surface around the
time Jennings made his damning verdict. In contrast to Jennings, who diag-
nosed its ridiculousness, our retrospective verdict of peoplehood is more am-
bivalent: though there are only a few who deny the dignity of anti-colonial
and postcolonial expectations, most keenly remember them as flawed and, in
many respects, failed.
As is the case with the qualifier, ‘ridiculous’, it is not clear what we mean
by the term ‘failed’. The primary purpose of gaining a more comprehensive
sense of the ‘failures’ of the vocabulary of popular sovereignty across different
arenas of political struggle is not to redeem the dignity of anti-colonial and
postcolonial expectations, but rather to trace the assumptions and aspirations
that remained in their shadows—none of which are today adequately captured
by the terminology of cosmopolitanism, global constitutionalism, statist plur-
alism, transnational forms of governance, nationalism, self-determination, or
popular sovereignty. On our journey beyond the twilight zones of popular sov-
ereignty, their value has yet to be appreciated.
As is the case with all horizons of expectation, the anti-colonial horizon is
the product of imagination. Though originating from different ideological back-
grounds and within different political contexts, most expectations that were
prefigured by anti-colonial attitudes relied on a simple image of a synergistic, vir-
tuous circle where national liberation sets the stage for social emancipation and
provides emotive fuel in the struggle against imperialism; where social emanci-
pation, in turn, provides political substance to the struggle for national liberation;
and where, in doing so, the former protects the latter from falling prey to petty
chauvinism while, at the same time, setting a good example for anti-colonial
52

struggles and international solidarity abroad.18 In their ideal form, the three
struggles were imagined as overlapping and mutually reinforcing, though a
number of possible variations were also possible: one struggle, serving two ob-
jectives at the same time (the national liberation of Vietnam affects ‘the destiny
of humanity’19); the success of one struggle setting the stage for the success of
the other (where national liberation creates conditions for ‘complete liberation
of the productive forces and the construction of economic, social and cultural
progress of the people’20); or establishing the framework within which the fruits
of three struggles can be enjoyed at the same time (‘the unity of the nation, the
welfare of the masses as well as the right to freedom and self-sufficiency’21).
Although they differed in the way they conjured concrete relationships among
different arenas of popular struggle and their intended outcomes, those who in-
vested their expectations in anti-colonial struggles saw them not only as intrinsic-
ally related and cross-fertilizing but also as inherently democratic and progressive,
even if non-liberal. Interestingly, those who strove to justify the legitimate plur-
ality of postcolonial democratic imaginations rarely did so by denying worth to
Western conceptions of liberal democracy. On the contrary. As Kwame Nkrumah
explained, ‘having placed our faith in the working of a liberal democracy, I ar-
dently desired to give it every chance,’22 but (alas) a ‘one party system’ proved it-
self to better ‘express and satisfy the common aspirations of a nation as a whole’.23
While Nkrumah sought to carve out exceptions to the universalist preten-
sions of Western liberal democracy by pointing to its failures, others turned to
the history of political ideas in order to stimulate the perception of conceptual
familiarity—and, indirectly, political dignity—of non-liberal democratic institu-
tions. For example, Yugoslavian theorists of social self-management defended
the democratic credentials of a system based on ‘self-managing microorgan-
isms’ by pointing to the similarities between that model and the model pro-
posed by the early modern theorist of federalism Johannes Althusius.24 Though
without reference to the Western theoretical canon, a similar emphasis on
the superiority of small-scale democracy over representative democracy can
be found in the defences of Zambian tribal ‘direct democracy’,25 Indonesian
‘democratic consultation’ in local communities,26 and the Chinese principle of
shanliang banshi (‘consulting to settle the matter’).27
Partha Chatterjee, Nationalist Thought and the Colonial World: A Derivative Discourse (Zed Books 1986).
18
George Lawson, ‘Revolutions and the International’ (2015) 44 Theory and Society 299.
19
Amilcar Cabral, ‘National Liberation and Culture’ in Patrick Williams and Laura Chrisman (eds), Colonial
20
Discourse and Post-Colonial Theory (Columbia University Press 1994) 64.

Frantz Fanon, The Wretched of the Earth (Richard Philcox tr, first published 1961, Grove 2004) 37.
21
Yuri Smertin, Kwame Nkrumah (International Publishers 1987) 66.

22
ibid 123.
23
Michael McCullock, ‘Polyvalent Federalism: Johannes Althusius to Edvard Kardelj and Titoism’ in Lee
24
Ward and Ann Ward (eds), The Ashgate Research Companion to Federalism (Ashgate 2009) 331.
See Kenneth Kaunda, ‘The Future of Democracy in Africa’ (1964) 15 Transition 37.
25
See John Koe and Yusuf Kuliang, ‘Sukarno: An Examination of a Charismatic Leader in a Non-Western
26
Democracy’ (1963) 24[1] Ind J Pol Sci 33.

For Mao Zedong’s account of this principle, see Shigong Jiang, ‘Written and Unwritten Constitutions: A
27
New Approach to the Study of Constitutional Government in China’ (2010) 36[1] Modern China 12, 34.
53
Popular Expectations • 53
Another way in which their visions of democratic government deviated from
the templates of Eurocentric imagination concerned the nature and role of
postcolonial constitutions. Even though such constitutions present themselves
‘as moral autobiographies of “new” nations’,28 the imagined source of their
legitimacy was not to be found in the democratic exercise of ‘the will’ of the
people in the past. As Partha Chatterjee argued:
Unlike the classical examples of the United States or France, or of many coun-
tries of Europe following their nineteenth-century democratic revolutions, the
postcolonial constitution could not easily be conceived of as a new compact con-
gealing and stabilizing the results of a revolution that had been completed. In
many ways, the real revolution of transforming colonial society was only being
inaugurated by the postcolonial transition.29
Irrespective of their notional reliance on the will of the people, the constitu-
tions of postcolonial states derived their legitimacy not from the exercise of
the people’s constituent power in the past or its actual will below, but from the
project of attaining progress ahead and, in the cases of communist countries
such as Yugoslavia, from the scientific laws of historical development above.30 In
more general terms, this point can be summarized schematically in a diagram of
authority-locations (Figure 2.2).
Historical/Natural/Moral Law
ABOVE
FUTURE
PAST PRESENT
Progress
Act of foundation
accelerated
(social contract)
development
BELOW
The ongoing will of the people
Figure 2.2 Four sources of legitimacy
Upendra Baxi, ‘Postcolonial Legality’ in Henry Schwarz and Sangeeta Ray (eds), Blackwell Companions in
28
Cultural Studies (Blackwell 2005).

Partha Chatterjee, ‘Introduction: Postcolonial Legalism’ (2014) 34[2] Comparative Studies of South
29
Asia, Africa and the Middle East 224. See also Margaret Kohn and Keally McBride, Political Theories of
Decolonization: Postcolonialism and the Problem of Foundations (OUP 2011) 24.
For the concept of ‘secular eschatology’ in the context of the relationship between the universal and the
30
particular, see Ernesto Laclau, Emancipation(s) (Verso 1996). See Branko M Pešelj, ‘Socialist Law and the New
Yugoslav Constitution’ (1963) 51 Geo LJ 651, 697 for the critique of ‘the Yugoslav obsession to create new ideas
within the teaching of scientific socialism’.
54

In contrast to the American or French—‘We, the people’—who derive their
authority from ‘behind’ and ‘below’, the ‘authorial subject position’—in the
Indian constitution for example––belongs not to the people but rather to ‘an
administrator’.31 Seen from that perspective, Karl Loewenstein’s description
of postcolonial constitutions as ‘semantic’32 is incomplete and thus misleading
in one important way: the character of postcolonial constitutions was cata-
chrestic: ‘secured by other places’.33 Rather than being the source of authority,
‘the peoples’ of such constitutions exist as the figures of speech used to evoke
the wrong term for the context.
As anti-colonial leaders and intellectuals aspired to turn postcolonial states
into vehicles of accelerated economic development, their expectations hinged
on a particular world picture: a world of equals, in which each sovereign people,
irrespective of its actual power, enjoys equal political respect from its fellow
peoples. What needs to be emphasized, however, is that many anti-colonial in-
tellectuals did not see such pluriverses––or ‘the peoples’ and their rights in it––as
purposes in and of themselves. Unlike most nationalistic pursuits of ‘the right
to self-determination’ today—whose main geopolitical ambition is to become a
client to a regional or global hegemon—anti-colonial nationalists have tied their
hopes and purposes to ‘the question of mankind’, to ‘the cerebral mass of all hu-
manity’, as Fanon poetically put it, ‘whose connections must be increased, whose
channels must be diversified and whose messages must be re-humanized’.34
Whatever this might have meant for Fanon, recent historical scholarship makes
it increasingly clear that the picture of the relationship between anti-colonial na-
tionalism and humanist internationalism is much more complex than the one that
we have inherited from the dominant narratives of decolonization. For example,
Léopold Senghor—French-African poet, politician, and the president of Senegal
(1960–80)—saw self-determination not as a right to form an independent state
from the ruins of the French Empire but rather as a right that extends the bond
of social solidarity between the French metropolis and its colonies.35 In a different
way, but in the spirit of a similar detachment from nationalist ideals, Jawaharlal
Nehru’s vision of One World managed to reconcile the grudging respect for non-
democratic particularism, the political commitment to nationalist internation-
alism, and the hopeful anticipation of the elements of global federalism.36
Had it succeeded, the constitutional structure of postcolonial India within
the constitutional structure of One World would have reconciled—under a
Sandipto Dasgupta, ‘ “A Language which Is Foreign to Us”: Continuities and Anxieties in the Making of
31
the Indian Constitution’ (2014) 34[2] Comparative Studies of South Asia, Africa and the Middle East 228, 231.
Karl Loewenstein, ‘Constitutions and Constitutional Law in the West and in the East’ (1969) 30[3] Ind J Pol
32
Sci 203, 213.
33
Gayatri Chakravorty Spivak, ‘Constitutions and Culture Studies’ (1990) 2[1] Yale JL & the Humanities
133, 144.
Fanon (n 21) 237.
34
See generally Gary Wilder, Freedom Time: Negritude, Decolonization, and the Future of the World (Duke
35
University Press 2015).
Manu Bhagavan, ‘Princely States and the Making of Modern India: Internationalism, Constitutionalism
36
and the Postcolonial Moment’ (2009) 46[3] Indian Economic and Social History Review 427.
5
Jeopardy, Futility, Perversity • 55

single framework—anti-democratic, monarchical princely states at the micro
level; a sovereign, republican India at the mezzo level; and the emerging world
federation. Had it succeeded, Senghor’s transcontinental ‘Union of French
Socialist Republics’ would have prevented metropolitan France from turning
into the semi-covert neo-imperialist meddler in the affairs of postcolonial states
it is today––transforming it instead into a political equal among equals, ‘no
longer the federator, but the federated’.37 Though the aim of this book is not to
draw inspiration from it concretely, it is worth imagining what might have been
some of its achievements:
African sans papiers in metropolitan France would not be foreigners demanding
hospitality but citizens whose rights of mobility, family reunification, social se-
curity, and political participation were legally protected. Africans would not be
outsiders appealing for economic aid from a foreign French state nor targets of
dehumanizing humanitarianism. Violations of their human rights could be adju-
dicated in a federal justice system rather than depend on the weak ethical norms
of international law or the good will of powerful nations.38
Nehru’s and Senghor’s projects faded even before the vanishing anti-colonial
horizon fully disappeared from sight. While they embraced self-determination
out of strategic or ethical reasons in the 1950s, Western states continued to
tolerate its vocabulary in the 1970s only as decolonization’s ‘untidy leftover’.39
Ultimately losing out to the ascendant vocabularies of human rights40 and civil
society,41 the right to self-determination was initially ridiculed, denigrated (as
the drug that ‘excite[s]‌its addicts to a frenzy of destruction’),42 and ultimately
tamed under the rubric of the ‘right to democratic governance’,43 which coin-
cided with the full ‘rehabilitation of Western civilizational self-confidence’ after
the fall of communism.44
4. Jeopardy, futility, perversity

learning from reaction
While we know a lot about the material causes for the failure of anti-colonial
expectations, we still do not have a comprehensive theoretical meditation about
the role of constituent imagination in that failure. Failure can be analysed in
a number of ways, but in this section I follow Albert Hirschman in treating
37
Wilder (n 35) 153. ibid.
38
Bradley R Simpson, ‘Self-Determination, Human Rights, and the End of Empire in the 1970s’ (2013) 4[2]
39
Humanity 239, 240.
40
See Samuel Moyn, The Last Utopia: Human Rights in History (Belknap 2012).
41
Makere Stewart-Harawira, The New Imperial Order: Indigenous Responses to Globalization (Zed Books 2005)
156–57.
Elie Kedourie, ‘Introduction’ in Elie Kedourie (ed), Nationalism in Asia and Africa (Frank Cass 1970) 146–47.
42
Thomas Franck, ‘The Emerging Right to Democratic Governance’ (1992) 86[1] AJIL 46. For argument
43
about the ‘discursive demise’ of the language of self-determination see Uriel Abulof, ‘We the Peoples? The
Strange Demise of Self-Determination’ (2015) EJIR 1.
David Scott, ‘Norms of Self-Determination: Thinking Sovereignty Through’ (2012) Middle E L Gov 195, 198.
44
56

failure not as a unitary diagnosis, but rather as the work of polemical, prac-
tical, and ambiental imagination: a complex verdict that unites three kinds
of judgement—that of futility, jeopardy, and perversity—which, according to
Hirschman, together define what he famously called the ‘rhetoric of reaction’.45
I use this term analytically and do not intend to pass evaluative judgements
on those who subscribe to this rhetoric whose echoes can be found in the pol-
itical evaluations of Western scholars and commentators of the anti-colonial
era, as well as in the assessments of leading anti-colonial intellectuals. While
some anti-colonial intellectuals embraced the trope of ‘futility’ openly––such
as Senghor––likening self-determination to an ‘old hunting rifle’,46 others, such
as Fanon, only indirectly recognized its importance. In order to ‘safeguard our
countries from regression, paralysis, or collapse’, Fanon wrote in 1963, ‘we
must rapidly switch from a national consciousness to a social political con-
sciousness’.47 Though he mainly blamed the false cosmopolitan consciousness
of postcolonial elites for the deviations in the nationalist consciousness of the
masses, Fanon also considered, in passing, the distorting effect of Western con-
stituent imagination even on the anticipatory consciousness of those whose
minds were not poisoned by ‘willful narcissism’:
Our mistake, under the pretext of combating Balkanization, was not to take into
consideration that pre-colonial factor of territoriality. Our mistake was not to
give enough attention in our analyses to this factor, exacerbated by colonialism,
but also a sociological fact, which no theory on unity, however commendable or
appealing, can eliminate. We let ourselves be tempted by the mirage whose con-
figuration is the most satisfying for the mind, and taking our ideal for reality, we
believed we only needed to condemn territoriality and its natural offshoot, micro
nationalism, to get the better of them and ensure the success of our chimerical
endeavor.48
Writing around the same time, Clifford Geertz diagnosed a similar problem: ‘The
new states are abnormally susceptible to serious disaffection based on primor-
dial attachments’ that produces ‘governmental immobilism’.49 Unlike Fanon,
he was better able to pinpoint the source of Fanon’s mysterious ‘mirage’: the
imagination of a collective ‘self ’ and of an ideal of ‘self-rule’ as ‘the fons et origo
of legitimate authority’.50 The failure of postcolonial states to negotiate its de-
structive effects, Geertz predicted, will result in ‘Balkanization, Herrenvolk fan-
aticism, or the forcible suppression of ethnic assertion by a leviathan state’.51
I use the taxonomy of the ‘rhetoric of reaction’ developed by Albert Hirschman in a different context.
45
Albert O Hirschman, The Rhetoric of Reaction: Perversity, Futility, Jeopardy (Belknap 1991).

46
Frederick Cooper, ‘Alternatives to Nationalism in French Africa, 1945–60’ in Jost Dülffer and Marc Frey
(eds), Elites and Decolonization in the Twentieth Century (2011) 117.
47
Fanon (n 21) 142.
48
ibid 158.
Clifford Geertz, ‘The Integrative Revolution: Primordial Sentiments and Politics in the New States’ in
49
Clifford Geertz (ed), Old Societies and New States: The Quest for Modernity in Asia and Africa (Free Press of
Glencoe and Collier-Macmillan 1963) 105–57.
50
ibid. ibid.
51
57

Throughout the postcolonial world, Geertz’s prophecy fulfilled itself with
varying degrees of accuracy, sparking the emergence of a new subfield of con-
sociational democracy devoted to offering institutional templates of power-
sharing as a means of escaping the predicaments that Geertz and others identify.
What interests us in this chapter, however, is a different question: What logic is
entailed in the image of a collective sovereign ‘self ’ that can cause such ‘fanati-
cism’, provoke Balkanization, or incite forcible suppression of ethnic groups?
What is it in the image of a ‘purposeful unitary state’ that provokes such sen-
timents? Why can a state not be purposeful without provoking nationalist
backlash?
In disciplines such as constitutional, normative-political, or international
legal theory, which most systematically focus on the propositions of people-
hood, these questions have largely been ignored. Postcolonial theorists, in
contrast, have given them much more attention, focusing on the relationship
between nationalism and postcolonial political consciousness.52 With notable
exceptions, however, they have failed to explore the relationship of postcolonial
imaginations to the propositions of peoplehood.
The best direct answers to the questions above come from Bernard Yack and
Arjun Appadurai. Following Yack, the key to understanding the predicament
Geertz described lies in the opportunistic origins of the enduringly symbiotic
relationship between the ideologies of nationalism and popular sovereignty. In
order to imagine the people as the ultimate source of political authority, whose
constituent power is not legally predetermined, we cannot satisfy ourselves
with the image of the people as an atemporal, territorially defined community
of citizens.53 To make credible the image of the people as the holder of an on-
going right to collective self-government, we must make it appear plausible that
the people is the unconditioned holder of constituent power. The people, as
an always potentially active sovereign, must constantly be ready to spring into
constituent action. To imagine that possibility, we need a trans-temporal col-
lective subject––united not by predetermined, bounded space but by nothing
other than an enduring sentiment shared by its members. In other words, we
need an (ethnic) nation.54 The result of such imagination, according to Yack, is
toxic: having become the people’s alter ego, a nation inherits a righteous indigna-
tion towards all those who do not conform to its will, and its fury, once intended
for despots and kings, can now be unleashed against minorities.55 What turns
the very existence of such minorities into an existential threat––as Appadurai
argued––is both a vision of the people’s sovereignty and a particular vision of
popular self-government where the formation of popular ‘will’ is seen through
Laura Chrisman, ‘Nationalism and Postcolonial Studies’ in Neil Lazarus (ed), The Cambridge Companion to
52
Postcolonial Literary Studies (CUP 2004) 183.

Bernard Yack, ‘Popular Sovereignty and Nationalism’ (2001) 29[4] Political Theory 517, 523.
53
Bernard Yack, Nationalism and the Moral Psychology of Community (University of Chicago Press 2012) 239.
54
Bernard Yack, ‘Response by Bernard Yack’ in ‘Debate on Bernard Yack’s Book Nationalism and the Moral
55
Psychology of Community’ (2014) 20[3] Nations and Nationalism 395, 408.

58

the lens of the ‘aggregation of singular interests’.56 In the contexts where pol-
itical ownership over a state belongs to a sovereign people understood as a na-
tion, the process of democratic self-government always remains haunted by the
prospect of a major existential crisis. As sovereign, ethnic nations perpetually
have to ‘prove’ their existence through a majority vote, they will always fear
the day when they might lose it. Shaped by the imagination of sovereignty and
democracy, their fears of becoming a minority take the form of an ongoing
‘anxiety of incompleteness’ that, under the right circumstances, may lead to a
pattern of ‘collective’ action that Appadurai calls ‘predatory’.57
Yack and Appadurai’s diagnosis requires qualification. It becomes increas-
ingly apparent that the force of predatory identities has no particular connection
with the majority’s vision of majoritarianism as a decision-making procedure.
A predatory animus towards vulnerable minorities can just as easily be recon-
ciled with a minoritarian will of the people as with the majoritarian one (as in
the United States after the 2016 presidential elections). What protects it against
challenge at the normative level is the vision of an electoral victory won fairly;
what endows it with a distinctly populist tonality is the element of surprise and
disruption, not the sense that the people has spoken through the preferences of
a majority. This ludic majoritarianism—the dirty secret kept by both liberalism
and populism—appears to have emerged from transformations in the symbi-
otic relationship between popular sovereignty and nationalism when an already
troubled duo became an even more troubled trio, once neoliberalism insinuated
itself. The result? Not the demise of ‘the people’, as some have concluded,58
but rather a mutation caused by the fusion of three ideals—the love towards
the people, the unity of the people, and the sacrifice for the people—where
nationalism renders sensible the first, popular sovereignty the second, and neo-
liberalism the third—turning the vocabulary of peoplehood into what Wendy
Brown called the ‘national-theological discourse of moralized sacrifice’ in the
name of ‘the health and survival of the whole’.59
Adding a small qualification to Yack’s analysis only amplifies its conclu-
sions: in addition to its capacity to rationalize toxic nationalist grievances into
democratic legitimacy, the language of peoplehood can now more efficiently
do the same when scapegoating immigrants and other minorities—while at
the same time keeping the general population indifferent to the real scandal
of liberal-democratic popular sovereignty: the role the oligarchic capture of
democratic mechanisms of decision-making has played in accelerating social
inequality.
The aim of the chapters that follow will be to imagine a new set of figures
beyond self-determination, constituent power, and popular self-government
that not only expose the landscapes of socioeconomic deprivation, but also
Arjun Appadurai, Fear of Small Numbers: An Essay on the Geography of Anger (Duke University Press 2006) 57.
56
ibid.
57 58
Alexander Somek, The Cosmopolitan Constitution (OUP 2014) 237.
Wendy Brown, ‘Sacrificial Citizenship: Neoliberalism, Human Capital, and Austerity Politics’ (2016) 23[1]
59
Constellations 3, 4.
59

contribute to diminishing its effects among those who invoke the name of
the people in the fields of struggle, both domestic and international, local and
global.
The futilities and perversities of peoplehood have haunted the language of
self-determination and popular sovereignty in those fields as well. In demanding
sovereign statehood—and expecting accelerated development as a result—anti-
colonial movements have accepted the devil’s bargain. Their polities achieved
international recognition, in exchange for accepting what came with it: the
divide between the public and the private sphere, and the logic of economic ef-
ficiency and capitalism that assures its perpetuation.60 And accepting this logic
set in motion another one: accepting the template of Western popular sover-
eignty also meant agreeing to be measured, compared, potentially declared
deviant, and then disciplined in line with the expectations implicit in Western
standards of good governance. Put differently, while embracing ‘the mirage’
of sovereign peoplehood made anti-colonial expectations dangerous and vain,
their belief that a purposive constitutional order can contribute to their accel-
erated development in a world whose power differentials remained unaltered,
made them perverse.
What constantly undermined the attempts of postcolonialists to reduce
those differentials was not only the outlook of international political economy,
which often pitted postcolonial states against each other, but also the fact that
the very template of sovereign statehood and popular sovereignty put them in
a rhetorically precarious position, between, to use Akhil Gupta’s observation,
‘different levels of spatial commitment and organization’.61 As challengers of
the Western hegemony, globally, postcolonial nationalists found themselves in
the position of lesser hegemons, locally. Fighting an upward struggle for na-
tional emancipation vertically, and struggling to maintain international anti-
imperialist solidarity horizontally, they could not escape the recursive logic of
popular sovereignty, and the rhetorical opportunities it provided to their adver-
saries, diagonally. The futility, in this context, must be attributed not simply to
the language of popular sovereignty and national self-determination, but also,
more specifically, to the idea of synergy between three, allegedly mutually re-
inforcing popular struggles. In the same way in which the template of sovereign
nation-state and popular sovereignty had no way of arbitrating between dif-
ferent levels of spatial commitment, the ideology of synergy had no way of ar-
bitrating between different levels of ideological commitment. Governments that
privileged democratic, national, and geopolitical aspects of political emancipa-
tion were naturally more sympathetic to the position of the United States and
its allies. And conversely, governments that understood global socio-political
pluralism as the transitional stage towards the radical transformation of global
Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality
60
(CUP 2013) 254.
ibid 68.
61
60

socioeconomic systems were less concerned with the counter-hegemonic, but
still hegemonic aspirations of the Soviet Union.
The end of the Cold War seems to have rendered moot the attempts to get to
the root causes of ‘acute schizophrenia’ that plagued institutionalized forms of
international solidarity. 62 By the end of decolonization, it has become apparent
that not only are the possibilities for an effective realization of popular sover-
eignty in global peripheries and semi-peripheries drastically curtailed,63 but also
that the previously emancipatory vocabulary now exists as a rhetorical device
that belongs to what Kees van der Pijl called the ‘imperial gearbox’ of popular
sovereignty—at the disposal of powerful states whenever they wish to project
their political power abroad as effortlessly as possible.64 If van der Pijl is right,
the defining feature of the contemporary vocabulary of popular sovereignty is
not just its jeopardy or futility but also the perversity of the effects the language
of peoplehood produces in a wider field of struggle. Once the catalyst of wel-
come political antagonism, today it serves as its safety-valve; once the conduit
of non-negotiable political demands, today it serves to deflect them; once the
name of the collective speaker of ultimatums, today it serves to suppress the
addressee’s sense of humiliation and disappointment.
As is the case with all diagnostic and prognostic judgements, perversity, fu-
tility, and jeopardy are the categories of polemical, practical, and ambiental
imagination. While Hirschman associated them with the rhetoric of conserva-
tive reactionaries, they are perhaps better understood more widely: as part of a
more ideologically polyvalent rhetoric of discouragement that—inseparable from
the polemical anatomy of popular sovereignty.
5. The people
an anatomy of a polemical concept
In Chapter 1, the concept of a sovereign people revealed its Janus face—both
theoretical and polemical at the same time. What sustained both its sides were
Reinhart Koselleck’s ‘supplementary concepts’—a variety of -isms that define
which theoretical understandings of which propositions of peoplehood go to-
gether, how, and why. As we’ve already seen, however, these supplementary
concepts never fully prefigure the ways in which those on the ground invoke
the name of the people. While they allow those confronted with the demands
of peoplehood to evaluate it as legitimate, legal, or sensible within a broader
picture, they remain incapable of capturing the performative aspect of its in-
vocation in the scenes of political conflict in which it appears most frequently.
Among a number of possible scenes, consider the following five. The
first is the scene of democratic struggle: it evokes the conflict between two
John Graham, ‘The Non-aligned Movement after the Havana Summit’ (1980) 34[1] J of Int’l Aff 153.
62
John Agnew, ‘Rethinking Popular Sovereignty in Light of the Arab Awakening’ (2012) 15[1] Arab World
63
Geographer 82, 89.
See Kees van der Pijl, ‘Arab Revolts and Nation-State Crisis’ (2011) 70 New Left Review 27, 29–31.
64
61
An Anatomy of a Polemical Concept • 61

agents—the people and the tyrant, an illegitimate ruler who oppresses the
people from within. The second scene is anti-imperialist: it evokes the struggle
of the people against the empire—the agent that oppresses it from without,
sometimes through subordinate tyrants from within. The third scene is so-
cially emancipatory: here, the people confronts the oligarchy—an agent that
oppresses the people, less violently than insidiously, from within. The fourth
is the struggle for national liberation: in this scene, the people confronts a mi-
nority, a ‘quasi-people’—an agent that pretends to be the real people, but is in
fact empire or oligarchy in disguise. Finally, in the fifth scene we encounter the
struggle among co-equal peoples: here the people seeks to accomplish the pre-
vious four by preserving its status as an equal. In more formal terms, this can
be represented by five polemical binaries in which the people occupies the pole
of rhetorical superiority:
These polemical binaries allow us to clarify what is meant by moving beyond

the people by exercising constituent imagination differently. From what we’ve
seen so far, there are two main ways of moving beyond: disciplinarily discip-
lined and polemically straightforward. Focused on one or more theoretical
proposition of peoplehood—and not on specific political antagonists which
the subjects and the predicates of those propositions presume but formally
deny—the first complies with a mode of inquiry, what Burke called ‘mono-
graphic’. The second, in contrast, starts with a specific polemical binary in
mind. While the first allows the theoretical interpretations of specific proposi-
tions to dictate the distribution of rhetorical superiority and inferiority across
different polemical binaries—the second works the other way around: it is the
political antagonism towards the people’s polemical ‘others’ on the right side
of the binaries (b1)–(b5) that ultimately determines the theoretical meaning of
the subjects and the predicates across different propositions of peoplehood.
Though overly simplistic, these two approaches provide a useful contrast to
the alternative pursued in this book.
In order to get a better sense of it, we will need to move not only beyond
Schmitt’s understanding of polemical concepts, but also beyond important re-
finements of his views by his eminent follower Reinhart Koselleck. With re-
spect to Schmitt, the problem is straightforward. While he rightly argued that
‘all political concepts, images, and terms have a polemical meaning’, Schmitt
mistakenly contended that they must be: ‘focused on a specific conflict and are
bound to a concrete situation; the result (which manifests itself in war or revo-
lution) is a friend–enemy grouping, and they turn into empty and ghostlike
abstractions when this situation disappears’.65 In fact, exactly the opposite is the
case: concepts must not be bound to a specific conflict and concrete situation,
Carl Schmitt, The Concept of the Political (Georg Schwab tr, first published 1932, University of Chicago
65
Press) 30.
62

and must not turn to empty and ghostlike abstraction when such situation dis-
appears. To be polemically effective, they must extend to a class of situations
in space: they mustn’t be presented as casuistic conceptualizations but always
evoked as applicable to a category of conflict, or a particular type of struggle.
Likewise, to be polemically effective, their evocative power must endure over
time; it must remain an active part in the social imaginary among potential par-
ticipants in conflicts on the ground.
This view is implicit in the way Koselleck—it would appear mistakenly—
understood the essence of Schmitt’s ‘scientific achievement’: his ability ‘to for-
malize the contrast of classes and peoples and deploy them both functionally
and ideologically in their various substantive formulations in such a manner
that only the basic structure of possible contrasts became visible’. Koselleck’s
important contribution, from the perspective of the present discussion, con-
sists in further development of the taxonomy of the types of polemical con-
cepts, three of which are particularly significant for our inquiry: an ‘asymmetric
counterconcept’, an ‘asymmetric oppositional counterconcept’, and a ‘sym-
metric counterconcept’.
In the case of asymmetric counterconcepts, ‘counterconcept’ denotes a con-
ceptual pair with a ‘claim to cover the whole of humanity’—‘where the claim to
universality is incarnated in one part of the binary’, enabling the speaker to in-
voke the concept that occupies that pole polemically—to ‘discriminate against
those who have been defined as the “other” ’—those on the right side of the
binaries of Greek/Barbarian, Christian/Heathen, and Human/Non-Human.66
The difference between asymmetric ‘counter-’ and ‘oppositional’ concepts is
subtle: in the first case, their purpose in identifying the ‘other’ as inferior is not
simply to deny a modicum of recognition to one’s opponent, but to exclude its very pos-
sibility. In the second case, their purpose is more modest: to deny ‘the reciprocity
of mutual recognition’.67 In this case, says Koselleck, the superior pole ‘can be
used on an equal basis and can be founded upon mutuality’ and is, in principle,
‘transferable’.68 In contrast to both, ‘symmetric’ counterconcepts constitute ‘a
frame for possible antitheses without identifying them’.69
This brings us to the first, analytical point: once we accept that polemical
concepts must not be bound to a concrete situation, we are compelled to accept
that we cannot describe them accurately with the help of Koselleck’s taxonomy,
and that there may be the ‘point at which the capacity of the “asymmetrical
counter-concepts” tool begins to decline’.70 In our case, it is only in the con-
text of (b1), (b2), and (b3) that we come close to the vision of the people as
66

ibid 156.
67
ibid.
68
ibid 191.
69
70
Jan Marco Sawilla, ‘On Histories, Revolutions, and the Masses: Visions of Asymmetry and Symmetry
in German Social Sciences’ in Kay Junge and Kirill Postoutenko (eds), Asymmetrical Concepts After Reinhart
Koselleck: Historical Semantics and Beyond (Transcript 2011) 187.
63
An Anatomy of a Polemical Concept • 63

asymmetric counterconcept that allows those who invoke its name to ‘discrim-
inate against those who have been defined as the “other” ’––be they tyrants or
imperialists. In the context of (b4), however, it is more appropriate to speak
of the people as an asymmetric oppositional concept—available, in principle,
to all who want to claim its name, be they national majorities fighting to pre-
serve the territorial integrity of their polities in the name of their internal self-
determination, or national minorities struggling for independence in the name
of their external self-determination. Finally, (b5) presents the people as a sym-
metric counterconcept. Here, invoking the will of the people carries no po-
lemical advantage against other peoples—that is to say, no polemical advantage
without invocation of an argumentative supplement, which is not immediately
discernible from this binary.
Though Koselleck portrays their difference as categorical, the difference be-
tween ‘asymmetric counter-’ and ‘asymmetric oppositional’ concepts is a matter
of degree. In the first case, invoking the superior pole will most likely serve the
parties known in advance, and will be less available to their antagonists—either
because their content precludes them from invoking it credibly, or because they
make its invocation, for whatever reason, nonsensical. In the second case, in
contrast, the likelihood of being able to identify concrete benefactors of the
superior pole will be lower, while its availability to them will be higher. Put dif-
ferently, while it would never occur to Heathens to dispute Christian claims to
moral superiority by claiming to be Christians, it often does occur to minorities
to claim that they are, in fact, ‘peoples’, in order to dispute the political super-
iority of their antagonists who claim the same. In that case, the claim to univer-
sality will be up for grabs. Moreover, those polemically identified as belonging
to the ‘inferior’ pole wouldn’t counter such claims with their own asymmetric
counterconcept (say, Muslim/K afir) but will instead denounce them as a case of
‘linguistic deprivation’, bordering on ‘theft’.71
This is significant because it alerts us to characteristics shared by all three
polemical types, which get obfuscated by the fact of categorization. In all three
cases, the status of the superior pole is prefigured by something else. In this
book, its name is framework: ‘the scheme of separation’.72 From the perspec-
tive of the vocabulary of peoplehood, the scheme of separation ought to be
seen as one of the manifestations of what others have called the ‘sovereignty
frame’73 or a ‘justificatory framework’: an all-encompassing constellation of
‘shared meanings’ that ‘sanction prevailing forms of political organization and
repertoires of institutional action’.74 From this perspective, the people is the
work of framework; the legitimacy, intelligibility, or legality of its invocation
71
Cornelius Castoriadis, The Imaginary Institution of Society (Kathleen Blamey tr, Reprint edn, MIT 1998).
72
Neil Walker, ‘Sovereignty Frames and Sovereignty Claims’, University of Edinburgh School of Law
73
Research Paper Series No 2013/14.

Christian Reus-Smit, The Moral Purpose of State: Culture, Social Identity and Institutional Rationality in
74
International Relations (Princeton University Press 1999) 10–11. From that perspective, this concept is wider
than the concept of international law or international legal order.
64

doesn’t inhere in its name, but rather in the features of a world-picture.75 It is
this framework that shapes the extent of our ‘dreamworld’,76 and that deter-
mines the extent of its ‘geoculture’.77
What makes the vocabulary of peoplehood so plastic—fragile yet resilient—
is the fact that framework itself occupies a pole in another binary, orthogonal
to (b1)–(b5). This is the binary:
Creator is the name for the figure that allows us to envision the people in
a god-like manner: not as the work of framework, but as the creator of the
framework—the subjecting ‘Subject’ whose will establishes the totality of con-
stitutional order ex nihilo.78 Like God, such agent is constrained neither by pre-
existing spatial discriminations among different audiences, nor by their possible
attitudes towards the content of his will, nor by his imagination of what went
on before, or what is bound to happen later.
6. Creator vs framework

one binary to rule them all
Cutting orthogonally across (b1)–(b5), the creator–framework binary struc-
tures the totality of imaginable understandings of the figures that occupy the
first five—both the people and its inferior ‘others’: tyrants, empires, minorities,
oligarchies, and other peoples. Although attitudes towards their pre-figurative
power differs across disciplines, both framework and creator are, in principle,
equally capable of rendering the popular demands made against them logical,
intelligible, legitimate, and legal. From both sides of that ‘master’ binary, the
name of the people can be invoked to demand different things: from empires, dis-
solution; from other peoples, reciprocal respect; from national or socioeconomic
minorities, submission; and from one’s own citizens, loyalty—in exchange for
justice, order, and equal influence. In each case, both poles participate in the pre-
figuration of popular expectations across the spacetime of popular struggle.
As an illustration, consider a demand made in the name of the people’s right
to self-determination directed against a colonial administrator. From the per-
spective of spatial expectations, any such demand entails organization with ref-
erence to three things: a referent place; an area around it on the inside; and an
area around that area, outside. From that perspective, any such demand may be
read as a bundle of more precise injunctions: ‘you (dictator, colonialist), over
there, perform an action over here (evacuate the presidential palace, withdraw
For the concept of ‘world picture’, see Martin Heidegger, ‘The Age of the World Picture’, The Question
75
Concerning Technology and Other Essays (Harper Perennial 1982).

Susan Buck-Morss, Dreamworld and Catastrophe: The Passing of Mass Utopia in East and West (MIT 2000) xi.
76
Immanuel Wallerstein, Geopolitics and Geoculture: Essays on the Changing World-System (CUP 1991) 11.
77
Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (George Schwab tr, first published
78
1922, University of Chicago Press 2006).

65
Creator vs Framework • 65
from our territory, hand over the keys to the central bank)! You (citizens, com-
patriots, army, police, ethnic minorities) all around here, comply, aid, don’t frus-
trate the success of popular aspirations! You, over there (other states, NGOs,
etc), stay away from here (our affairs, identifiable in space)!’
From the perspective of temporal expectations, such demands are always
accompanied by a demand about the tempo of expected compliance. In the
context of the right to self-determination, this is perhaps most vividly ex-
pressed in UN Resolution 1514, which stipulates that ‘the peoples’ vested with
the right to self-determination, have not only a right to demand decoloniza-
tion at some point, but have a right to demand that it be brought ‘to a speedy
and unconditional end’, without using other considerations as a ‘pretext for
delaying independence’.79
Notice, however, that this need for speed cannot be explained from the per-
spective of those who envision the people as the work of framework. As we
will see in Chapter 6, some international jurists treat the people as a terminus
technicus only; a label for one component of a legally binding proposition whose
purpose is defined by the overarching telos of the post-1945 international legal
order: the respectful accommodation of ideological differences among sover-
eign states. From that perspective, there is no necessary link between the name
of the people and a sense of political urgency. Indicative in this regard is the shift
in attitudes towards self-determination among international lawyers after the
end of the Cold War: the sovereignty that would have been seen as ‘delayed’ six
decades ago would today more probably be seen as yet to be ‘earned’. Needless
to say, this reminds us that the prefigurative powers of framework and cre-
ator vary from one disciplinary community to another. More likely to theorize
constituent power as the capacity for creatio ex nihilo, constitutional theorists
would more probably envision the people as the subjecting ‘Subject’. In con-
trast, most international legal theorists would imagine the people as the work
of frame(work). But, as we will see later, on a number of occasions their im-
aginations will never unequivocally choose one over the other. Even so, their
choice between two poles is rarely unequivocal.
Within a wider social imaginary, however attributed, the co-presence of
framework and creator, though rarely discussed, is nevertheless keenly felt
in the ways in which it has a practical importance, as it affects the character of
public discourse about ‘the will’ of the people. The toxic moral psychology that
accompanies demands for self-determination—and which, as we saw earlier,
Yack attributed to the symbiotic relationship between the doctrines of popular
sovereignty and nationalism—must also, in part, be attributed to the rhet-
orical opportunities this co-presence affords to those in the field of struggle.
Available to antagonists at the same time, framework and creator turn con-
tests over the right of self-determination into an infuriating shell game: a
Declaration on the Granting of Independence to Colonial Countries and Peoples Adopted by General
79
Assembly Resolution 1514 (XV) of 14 December 1960 <http://www.un.org/en/decolonization/declaration.

html> accessed 11 October 2017.
6

popular revolution there (say, Maidan Square in Kiev)—which draws its sym-
bolical start-up capital from the people’s god-like pouvoir constituant—creates a
new state of affairs that places pressure on others around there (the rest of the
Ukraine) to comply with the dictates of its pouvoir constituées (the institutions
of a post-revolutionary Ukrainian state). When the authority of those pouvoirs
is contested by those who, Matryoshka-style, claim to represent the constituent
power of another ‘people’ in the creator-template (in Crimea, Lugansk, or
Donetsk) that challenge is in turn refuted by invoking the right of the ‘internal’
self-determination of the people of Ukraine as the subject of international law
(in the framework-template).
In all such cases, seeking polemical advantage occurs at three parallel
levels: that of the of the social imaginary (good demos vs vile ethnos); that
of the theory (good revolutionary ‘people’ vs bad ‘insurgents’ provoking civil
war); and, at the meta-polemical and meta-theoretical level (the people as the
subjecting Subject vs the people as the work of framework). In such cases, the
figure of creator helps us understand what primes us to embrace ultimatums
as the natural way of conveying our expectations about the tolerable amount of
time between the popular demand at time ‘t’ and its satisfaction at ‘t+1’.
At this point, notice that the figure of creator tells us nothing about the ex-
pectations we have from t2—over time—from the perspective of its identity as
a turning point that broke the arrow of time into two trajectories, ‘before’ and
‘after’. Notice, as well, that the ‘silence’ of the creator, in this regard, is only
natural: as a figure that compels us to interpret the agency of a sovereign people
as creatio ex nihilo, the creator cannot but operate in this way. A god-like sover-
eign is the creator of everything—including time. Needless to say, this violates
our intuitions. We may be led to issue an ultimatum in the name of the people
at t1 out of a sense of indignation, contempt, or rage, but behind all such de-
mands, as I will argue in Chapter 3, there must yet be a sense that its success at
t2 will be for the better. In many revolutions, that expectation is often described
as a ‘desperate hope’. Whether desperate or not, such hope is more than just a
powerful expectant emotion: it is the constituent of the constituent power of
the people.
Most scholars who theorize this turn in reference to the people’s constituent
power, implicitly follow Koselleck: as the event of krisis, something that coin-
cides with the act of krinein, when something is literally cut, selected, or de-
cided.80 On this view, crisis is not an opportunity to take a turn for the better,
but an act of a figure prefigured by a creator: a god-like sovereign decider, as
the figure that makes the very idea of a turn for the better intelligible. From this
viewpoint, the reason we may hope for a better-after is not because of the telos
of the act, but rather the identity of its creator.
This is a conclusion we need not accept. Against the backdrop of a dif-
ferent understanding of historical time, we may still imagine these moments
Reinhard Koselleck, ‘Crisis, Consciousness and Historical Construction’, Critique and Crisis: Enlightenment
80
and the Pathogenesis of Modernity (first published 1959, MIT 1998) 240.

67
Beyond Perspectives • 67
as turns for the better. What turns krisis into a legitimately irrevocable de-
cision, on this view, is not the decision taken by a sovereign. Rather it is the
stalling, regression, or deviation from progress: an ideal of historical time
that makes the very idea of a turn for the better intelligible. To exercise con-
stituent power in such situations is not to emulate God. It is to conform to
a script, predicated on the idea of revolution as an ‘accelerating process in
which many conflicts, bursting the system apart, accumulate so as to bring
about a new situation after the crisis has passed’.81 From this perspective, the
polemical concept of the people as a revolutionary rhetorical weapon is not
only an ‘asymmetric counter-’—vis-à-vis tyrants, empires, and oligarchies in
space—but also a ‘periodizing iterative’ in time.82
This temporal dimension of the polemical concept of the people confronts
us with an unsavoury choice: between a quasi-theological conception of sover-
eignty on the one hand and the seemingly secular vision of historical progress
on the other. In this book, moving beyond the people entails moving beyond
this binary choice as well. To embrace either is to ignore the obstacles and op-
portunities that confront purposive political projects as they seek to negotiate
their relationship with their co-constitutive environment—as well as to remain
indifferent to the expectant emotions, such as hope and anxiety, that have the
capacity to amplify or diminish the power of constituent power.
What will keep reminding us of these obstacles, opportunities, and expect-
ations is the set of figures that are not only different from those evoked by the
propositions of peoplehood, but that are also imagined differently. To get there,
we will need to move beyond not only the false sense of necessity that compels
us to choose between imaginative estrangement and prescriptive precision, but
also beyond the logic of theoretical inquiry that unwittingly stimulates it.
7. Beyond perspectives

the work of figuration
When practised in conformity with Burke’s ‘monographic terms of place-
ment’, every theory of peoplehood hinges on a specific ‘circumference’—the
spatiotemporal frame of its author’s gaze that quietly defines the limits beyond
which a theory in question becomes unintelligible or insensible.83 While many
theorists take their ‘circumferences’ for granted—ignoring how their choices
constitute what may and what may not be said about the term they approach
‘monographically’—some don’t. Instead they openly acknowledge (even em-
phasize) the perspectival nature of their thinking. In many such cases, however,
‘perspective’ is a trope that acts as a ruse, allowing those who invoke it to per-
form an act of rhetorical triage, which allows them not only to evade a more
ibid.
81 82
ibid.
83
Burke’s description of the ways in which monographic terms shape our imagination is a schematic simpli-
fication, as he readily admits. Neither can theorizing ever fully escape the conformity with the monographic
logic, implicit in the aboutness of every theory, nor is every theorist of peoplehood preoccupied with con-
forming with the dictates of two formulas.
68

open discussion about the images they must have imagined as they theorized X
as Y, but to also appear self-aware, ecumenical, and modest in doing so.
As an illustration of what’s problematic about it, consider this famous cele-
bration of perspectival thinking:
The plurality of forms of existence corresponds [to] an equal plurality of spaces.
Quite simultaneously, the plurality of skills introduces a different environment
in the acts of everyday life of each one of us. The inhabitant of a big city has a
different image of the world than does a farmer . . . Life and the world are seen in
a different light by an airplane pilot, and they have different dimensions, depths,
and horizons. The differences in the perception of space are even larger and
deeper . . . among various periods in the history of mankind.84
At first glance, the vision offered by Schmitt is exhilaratingly liberating: we live
in a world where we can change places and perspectives, where the dignity of
our perspectives will not be denied if we come from a different era, and where,
if you don’t prefer the perspective of a pilot, you can always become a farmer.
What is silently assumed in the case of the farmer and the pilot, however, is our
knowledge of their proper job. The pilot will always see the world from a top-
down perspective and will, if he is a good pilot, naturally trust or commit only
certain images to memory. By admitting their perspective in advance, and then
letting this perspective conceal the possibilities entailed in an act of envisioning,
disciplinary communities protect their (territorial) integrity without having
to resort to asserting their sovereignty, and in this way protect the ‘existential
status’ of their points of focus.85
As we’ve seen in Chapter 1, perspective is just one among manifold choices
that inhere in the scopic register of visual imagination. Only through some
combination of all four—figurative, scenic, dramatistic, and scopic—may the
figures of sovereign peoplehood appear on the stage: either as the immovable
exhibits, intended to demonstrate the rightness of a particular argument, or
as the actors, intended to raise our appreciation for certain dramas of sover-
eign peoplehood, and not for the others. The imagination that creates them,
however, requires the medium in which they are to be evoked, before our eyes,
but also the medium in which they will endure and travel, sometimes incog-
nito, sometimes conspicuously. The reality these figures represent, select, de-
flect, distort, simplify, or complexify is in turn inscribed, encrypted, and evoked
elsewhere.
That elsewhere is the text—most often a journal article, or a monograph—
the medium in which theorists store more or less finalized products of their
imaginations. For the most part, theorists think of texts as anti-images, which,
when it comes to theoretical figures, convey information about ‘a shape that
is externally identifiable, a composite of observable characteristics and the
Carl Schmitt, Land and Sea (Simona Draghici tr, first published 1954, Plutarch 1997) 28.
84
Paul De Man, Blindness and Insight: Essays in the Rhetoric of Contemporary Criticism (University of Minnesota
85
Press 1983) 11.
69
Beyond Perspectives • 69
configuration of a person’s distinctive features that enable recognition . . . an ob-
servable configuration as indicative of a political order, a phenotype thanks to
which we recognize it as distinct and different from other systems’.86 This book,
however, views both text and figure as works of imagination, which could be
imagined differently.
Instead of existing as a binary, text and the image may be reimagined as two
points on a spectrum that runs from ‘pure writing’ to ‘pure picture’.87 What this
spectrum includes, as James Elkins argued, is a variety of ‘hypographemics’
and ‘subgraphemics’, and a number of other combinations, which in the ca-
nonical texts that interest us mostly come in the form of capitalizations (such
as ‘Lawgiver’ in Jean-Jacques Rousseau’s Social Contract), frequent italicizations
(such as ‘empty place’ and ‘place of power’ in Claude Lefort’s Democracy and Political
Theory), or graphically separated tabulations (such as five ‘political antitheses’ in
Schmitt’s The Concept of the Political). But even when they don’t appear before us
visually accentuated, many theoretical concepts may also be approached as ‘iden-
tifiable’ and ‘observable’ figures, as Nadia Urbinati suggested a moment ago.
This, of course, only raises further questions—from where? How? By whom?
From the perspective of those who observe how theorists use them argu-
mentatively, these figures function as propositional props––t hat respectful par-
ticipants in a theoretical conversation must not put in question, even if they
disagree with the content of the proposition. Even if they think that the prop-
osition of their interlocutor is unwise or foolish, the nature of the ‘game’ they
play consists in finding another way to demonstrate this, without turning the
picture of the prop into a theoretical problem (at least not publicly). Very often,
when props start circulating across theoretical conversations, they will carry
the certificate of origin: they will appear not as a Partisan or a Lawgiver, but
as Schmitt’s Partisan, and Rousseau’s Lawgiver. Such figures are more than just
humble propositional props. They are emblematic certificates—props that evoke
an image that allows a theory to proposition the audience to submit to a par-
ticular regime of expectation-management by taking the concrete assumptions,
wagers, prognoses, fears, and hopes behind it for granted.
In many cases, using these certificates won’t be necessary. While those
who embrace the idea of a territorial people might refer to Sieyès’s nation as
‘the body of associates united’ in order to prop up their claim that all consti-
tutional theorists must imagine legitimate constitutional subjects in this way
today, those who support an ethnocentric, or a non-territorial vision of nation-
hood won’t have any use for Sieyès’s argument. Nor will they have much use
for Schmitt—too discredited in that regard to be invoked as emblematic of the
right understanding. Instead, they will rely on the emblematic figures that are
already out there, in a wider social imaginary. What they will continue to ignore
is the possibility that they might be heard by eavesdroppers: the partisans, not
Nadia Urbinati, Democracy Disfigured: Opinion, Truth, and the People (Harvard University Press 2014) 1.
86
87
James Elkins, The Domain of Images (Cornell University Press 1999) 238.
70

the theorists of peoplehood—those who may or may not be aware of the role
these figures play in encouraging them to submit to a regime of expectation-
management that a particular theorist finds desirable. Finally, to those who ob-
serve how both the theorists and the partisans of peoplehood use figures as
rhetorical weapons, their allegedly ‘externally identifiable’ shapes will look not
like the ‘phenotypes’ of political order, as Urbinati suggested, but more like
the contours of arbiters, wardens, and managers of a particular vision of that
order––a vision wished for by the theorist who evokes them.
When it comes to those who might encounter the same props by chance,
however, we can only wonder if they are aware that the figures they confront are
props in the scholarly games of theoretical make-believe. While some among
them might be aware of the role figures play in encouraging them to submit to
a regime of expectation-management that a particular theorist finds desirable,
many of them won’t be aware that they are in the presence of the aspiring arbi-
ters, wardens, and managers: the aspiring judges of the legitimacy and legality
of our expectations, the policemen of their intelligibility and sensibility, and
the life-coaches that teach us what it is about our expectations that is worrying,
hopeful, contemptible, regrettable, disappointing, or undesirable.
8. Emblems, ensembles,

polymorphs, isomorphs
In Chapter 1, we started from a simple definition of a figure as the site of at-
tention, which, in a theoretical context, turns into a module of expectation-
management. From what we’ve seen so far, however, the figure of that figure is
multi-dimensional. In this book we will look at it from at least nine viewpoints,
four of which we have discussed in the previous section:
When figurative props appear as politomorphs, they will be depicted either

naturalistically, allegorically, or symbolically. Naturalistically, as assembled
citizens, coordinators, external interveners, more or less impartial arbiters,
partisans, great powers, friends; allegorically as Ulysses, the Lawgiver, or an an-
cient reluctant conscript; or symbolically as a möbius strip, the Chicken-and-
the-Egg Dilemma, or a mythical snake, ouroboros. For Schmitt, all of them
emerge through the process of complex-distort-simplification––‘meta-ana-
katamorphosis’ as he called it––on the basis of the material available in the
‘immensely polymorphous realm’, replete with a variety of socio-, bio-and
techno-morphs.
What sets the limit on the range of their possible combinations––and what
allows ‘the king to appear as God, and God as a king, [and] God . . . as the
world’s electric motor’—is our scopic regime: the fact that we gaze at all of
them through a ‘kind of a space-shuttle’.
71
Emblems, Ensembles, Polymorphs, Isomorphs • 71

Evocative as it is, the ‘space-shuttle’ metaphor is also misleading. What it
evokes is the gaze of the astronaut, rather than the variety of ways in which
we may imagine what she sees through the window. As Nelson Goodman put
it,‘radical reordering, which occurs whenever we construct a ‘static image’ may
result ‘from the input on scanning a picture’, from ‘building a unified and com-
prehensive image . . . from temporally and spatially and qualitatively heteroge-
neous observations’, and ‘other items of information’.88 In each case, the shape
of perceived items will change ‘under different geometries’, in the same way
that, ‘different orderings’, would alter the perception of their patterns. Those
observed ‘under a twelve-tone scale [will be] quite different from those per-
ceived under the traditional eight-tone scale’.89
To take them at face value is to miss an opportunity to ask: Is there some
pattern in this picture as a whole that could tell me what it is for? To ask this
question is to look for algorithms. If there is a monochromatic red square
that appears on the video screen, what defines its shape and colour is not
its essential squareness and redness, but the function that orders a certain
number of pixels to appear as red and square-shaped. If so, Schmitt’s meta-
ana-k atamorphosis entails at least two distinct modes of figuration––e mblem-
making, and ensemble-making, that result in two kinds of theoretical props,
respectively:
Emblems are used in two ways: as tokens, visibly representing their substance,
and as shields, protecting the token-users from being asked what they are for.90
In contrast to emblems—figures that are defined by their essence, and under-
stood to be substantially different from others—ensembles are defined by a cer-
tain function. On the one hand, they are de-fined through the application of
a function that establishes the criteria for identifying the members in an en-
semble; on the other, they are defined functionally and are designed to serve a
particular purpose. To encounter them is to be tempted to ask the question that
emblems work hard to make unimaginable: What are they for?
Irrespective of their constitutive attitude, when inscribed in a text, both
emblems and ensembles are inscriptions of purpose. Communicated with the
intention of acting as the arbiters, wardens, and managers of someone’s ex-
pectations, they are based on certain expectations themselves: that they will
serve for the better where needed, and that they will do so better than the
others. Following Koselleck, such figures are more than rhetorical weapons and
problem-solving tools, they are also:
Nelson Goodman, Ways of Worldmaking (Hackett 1978).

88
ibid 13.
89
Cf Mark Turner, The Literary Mind (OUP 1996) 101. (‘An emblem is a parable that starts from one story and
90
projects from it a generic story that covers other stories belonging to the same conceptual domain.’)
72

In the guise of emblematic exhibits and emblematic actors, figurative antici-
pations need to conform to the minimal requirements of renvoi so that ‘every
representation refers to other representations’.91 When it comes to the figures,
which are set on a stage as the actors in a scene—not simply standing there as
the exhibits against the contrastive surface—the requirements of renvoi become
more demanding. Set on a stage on which it must act, the figure of the actor
must cohere with everything else on the scene,
when the curtain rises to disclose a given stage-set, this stage-set contains simul-
taneously, implicitly, all that the narrative is to draw out as a sequence, explicitly.
Or, if you will, the stage-set contains the action ambiguously (as regards the norms
of action) and in the course of the play’s development this ambiguity is converted
into a corresponding articulacy [so that even if] one could not deduce the details
of the action from the details of the setting . . . one could deduce the quality of
the action from the quality of the setting.92
To envision emblematic actors in this environment is to look at someone’s cre-
ations not only on the stage, but against the background that is best described as
a ‘scenic environment’. Which, if Ernst Cassirer is right, ‘has a relatively limited
radius of action’, and is capable of affecting ‘only a particular, narrowly limited
portion of the plane’.93 If so, what is beyond the limits of that portion remains
unknown, and whatever exists in other parts of the plane cannot be seen as the
replication of the scenes that may be registered within that figure’s limited ra-
dius of action. In contrast with emblems which are—within that limited portion
of the plane—singular, indivisible, embedded and incomparable, ensembles
are always plural, separable, detachable, and commensurable. Unlike emblems,
each is always one of many: among those already existing, and among those al-
ways possible. The function that defines their membership is the function that
defines the formation of other ensembles as well. This brings us to the final
figurative divide:
Tokens are simplified emblems. They are reduced to a picture or word, neither
of which requires further elaboration. Emblematic figures approximate the
ideal-typical emblem, whose elements pictura, inscriptio, and conscriptio allow
us to treat ideas as something that can be easily visualized, summarized, and
if necessarily, briefly elaborated upon. Tokens are their simplified version as
they most often lack the component of conscriptio. To see their logo (a nation’s
territory on the map), or hear their name (empire, people) is considered
enough by those who embrace them. With their help, the audience will know
all they need to know. Templates, on the other hand, are organized ensembles
that order their reproduction, transformation, and perpetuation. To look for
Castoriadis (n 72) 323. See similarly, Ernst Cassirer, The Philosophy of Symbolic Forms, vol 3: The Phenomenology
91
of Knowledge (Ralph Manheim tr, Yale University Press 1957) 230.

Burke (n 7) 7.
92
Cassirer (n 91) 230.
93
73
Image Schemata and the Laws of Contrast • 73

them is to look for the protocols behind abstract theories and for the patterns
that result from their application.
9. Image schemata and the laws of contrast

Abandoning old emblems and replacing them with new ones offers one way of
moving beyond the people. The discussion that started by revisiting Schmitt’s
meta- ana-
katamorphosis demonstrated what other possibilities remain at
our disposal. From what we’ve seen so far, we may also move ‘beyond’: (1) by
envisioning more abstract emblems as the cause of seemingly concrete ones;
(2) by reimagining existing emblems as ensembles; (3) by imagining new ensem-
bles and representing them emblematically; which may or may not result in
(4) the ruination of existing tokens and the creation of new templates, ‘de-
signed to reproduce as faithfully as possible in some new medium the structure
or web of relationships in an original’.94
However we begin, we may do so not only from specific scenes, but also
from the other direction––from the schemata that make such scenes intelli-
gible. Though their power is most apparent wherever constitutional ‘narra-
tives’ evoke journeys, processes, virtuous circles, or constitutional ‘outsides’,
these schemata are constitutive of the intelligibility of all propositions. By way
of an example, consider once more Jennings’s 1956 verdict. In order to agree
with the proposition that the idea of letting the people decide is ridiculous,
one needs to take Jennings’s entire scopic regime, summarized in Figure 2.3,
for granted:
J
G
S
D
B
PL A
O
T1 T2
P
Figure 2.3 Image schemata and the construction of ‘ridiculous’
Max Black, Models and Metaphors: Studies in Language and Philosophy (Cornell University Press 1962) 222.
94
For an extensive and illuminating discussion of ‘the images and figures of the emblem tradition [used as the]
didactic and popularizing modes of disseminating the moral content of law’, and the law’s ‘visiocracy’ in
the late middle ages and the early modern era, in general, see Peter Goodrich, Legal Emblems and the Art of
Law: Obiter depicta and the Vision of Governance (CUP 2014).
74

What Jennings demands from his reader, more specifically, is to imagine:
(1) Two schemata: (a) the path (p), which establishes the possibility of trajec-
tories and turning points, and (b) the inside-outside (i-o), which establishes
the intelligibility of a demand to ‘let the people decide’.
(2) The image of decision (d) as: (a) the inscription of a boundary between
the people’s inside–outside, and (b) the cause of the turn (t1) from the
before-trajectory (b) (within a broader, politically undifferentiated space)
and the after-trajectory (a) (within a narrower place (pl)), belonging to a
constituted people).
(3) The after-trajectory as a forward-moving path that connects the turning
point (t1), as the ‘origin’ of the people, with t2––the moment when a de-
mand for self-determination made in the name of that people––‘on the
surface seemed reasonable’.
(4) The mental journey ( j) from t1 to t2, and a gaze (g) that detects someone
(s), not simply as someone who decided who ‘the people’ are, but someone
whose identity makes a demand for self-determination not simply un-
reasonable, but emphatically ‘ridiculous’.
However, notice the following: had Jennings imagined that someone to be
a divine creator the verdict— ‘ridiculous’—
would have been impossible.
Similarly, had he imagined that someone as being imagined by those on the
ground as a divine creator, ‘ridiculous’ would be the wrong word to use to
devalue a demand for self-determination. Fanatical, ruthless, deluded, or ‘primi-
tive’ perhaps—but not ridiculous. Moreover, had he imagined that someone not
as a divine creator, but as an international arbitrator, or a judge, ‘ridiculous’
would not be the right word to refer to whatever might have been problem-
atic in a request to let the people decide either: invalid, illegal, inequitable,
perhaps—but, again, not ridiculous.
Likewise, Jennings would not have been able to reach his verdict had he
imagined only the portion of the trajectory after, nor would he have been
able to reach it had he zoomed in only on the moment at which asserting
the right of the people to decide appeared reasonable. Instead of travelling
along the journey trajectory back to the turning point (t1) to look through
the enclosing gaze at a very particular someone, he might have simply stayed
put, focused on the moment t2. Had he done that––believing that for what-
ever reason he must suppress the memory of the heteronomous constituent
act at t1––he would have been confronted with the option of switching from
the image schema path to the image schema circle. Prevented from going
back to look for the work of a heteronomous someone at the moment of foun-
dation, the ridiculousness of the demand to let the people decide would have
transformed itself into the ‘the paradox of constituent power’, which, rather
than insoluble, may be ‘overcome . . . by reference to reflexive identity’(which,
for all intents and purposes, amounts to imputing the forward-looking path
75
The Anxious Loop of Popular Sovereignty • 75

schema of a progressive journey of collective self-government to those on the
ground).95
Finally, none of this would have been imaginable had the figures on the scene
been less identifiable to begin with. Without an enduring contrast between the
inside and the outside, between the people and someone who decided who ‘the
people’ are, there would be no scandal of constitutive heteronomy either to be
taken notice of in the first place, or to be remembered as relevant in the second.
The simple point at the end of this inquiry is that even the most basic visual
and proto-narrative templates such as image schemata need to be seen in order
to be ‘believed’. When it comes to more elaborate narrative structures such as
constituent anecdotes, that simple requirement presents itself in the guise of
three unwritten laws of scenic contrast:
10. The anxious loop of popular sovereignty

This book will deliberately violate these basic laws of contrast, which will allow
us to detect new isomorphic patterns behind (or beneath) the scenes of popular
sovereignty. This will come at a price. To violate the laws of contrast is to dis-
rupt the work of emblems—the figures that allow us to communicate, mediate,
and satisfy our expectations, and, in doing so, to modulate the expectant emo-
tions that accompany them. To move beyond those emblematic of a sovereign
people, we need to know not only which expectations these figures mediate—
or how we might transform the emblems of peoplehood figuratively—but also
to have an idea of the way in which the ‘will’, ‘power’, and ‘rights’ of sovereign
peoples modulate the affective landscape of our anticipatory consciousness.
The most productive place to start in the context of our inquiry is Hans Kelsen’s
account of the functions of majoritarian decision-making.
As we saw earlier, Kelsen argued that the figure of a sovereign (people)
emerges because our ‘basic instincts’ cannot stand an image of an ‘alien will
For image schemata in literary texts more generally, see Michael Kimmel, ‘Analyzing image schemas in lit-
95
erature’ (2009) 5 Cognitive Semiotics 159. For the implicit rejection of Jennings’ scopic regime in constitutional
theory, see Martin Loughlin, ‘On Constituent Power’ in Michael W Dowdle and Michael A Wilkinson (eds),
Constitutionalism beyond Liberalism (CUP 2017).
76

that subjugates one’s own’.96 Since we cannot stand the idea of being domin-
ated by anyone but ourselves, we end up conjuring the image of the people––a
‘mystical, general person’ that allows us to imagine ourselves not as enduring,
but escaping the torment of heteronomy.97 Though Kelsen doesn’t say so expli-
citly, the people and its ‘will’ here function as the devices of expectation-man-
agement. They can perform that function in two ways. On the one hand, they
act as the lenses of rationalization that allow citizens to see themselves as part of
a collective political body and experience the ‘will’ of the ‘alien’ order as their
own—irrespective of its actual content (According to this view, the language
of popular sovereignty is the language of self-pacification.). On the other hand,
the people and its ‘will’ act as the vehicles of facilitation, wherein its role is to pro-
vide justification for the forms of decision-making that actually contribute to
the alleviation of the torment of heteronomy by taking into account the actual
content of individual political preferences.
Later in the book, we will see how Kelsen distanced himself––though not
unambiguously––from this view. As a result, most contemporary scholarship
on Kelsen starts from the premise that the idea that the vocabulary of popular
‘will’ somehow contributes to the escape from the torment of heteronomy
cannot be taken seriously. The ordinary language we use to speak about the
manifestations of popular ‘will’ suggests otherwise. Consider, for example, the
ubiquitous references to ‘good enough’ often heard when we discuss the legit-
imacy of a particular decision reached by a majority vote. Though seemingly
unremarkable, they become highly symptomatic once we remind ourselves of
the binary outcomes of its majoritarian manifestations: ‘in favour’ or ‘against’;
‘pro’ or ‘contra’, ‘yes’ or ‘no’. The criterion of ‘good enough’, however, is scalar.
A way to reconcile the tension between the binary ‘will’ and the scalar, ‘good
enough’ majority is to treat ‘good enough’ as evidence of the quality of authen-
ticity of the people’s ‘will’. Often, this is the assumption we make: parties that
win more votes have a stronger popular mandate; the outcome of a referendum
supported by a high majority is interpreted as a sign that the people has clearly
spoken. Such outcomes, however, can only be seen as ‘good enough’ if there
are other possibilities along the same spectrum, which can be seen as worse,
the same, better, or the best. Following that logic, the ‘best’ would be the out-
come reached unanimously—satisfying the concrete preference of everyone,
not just the majority. Given that, every binary manifestation of the will of the
people—yes–no, pro–contra—must be seen as a contingent way to serve what
Kelsen called ‘the tendency to unanimity’. With actual unanimity impossible to
achieve, a majority vote is the best way of achieving ‘maximum possible [indi-
vidual] freedom’,98 as it requires ‘fewer . . . individual wills . . . for changing the
will of the state’ and in that way makes an ‘accord between the individual will
and the will of the state . . . easier’.99
Hans Kelsen, ‘On the Essence and Value of Democracy’ in Arthur J Jacobson and Bernhard Schlink (eds),
96
Weimar: A Jurisprudence of Crisis (University of California Press 2000) 84.

ibid 88–
97
90. 98 ibid 101. 99 ibid 87.
7
The Anxious Loop of Popular Sovereignty • 77

This view of democracy is intuitive, and is reflected in the language we
tend to use to evaluate the legitimacy of political outcomes. But what makes
us so averse to speaking openly about this function of the vocabulary of
peoplehood?
The answer to this question comes in three steps. First, the vocabulary of
peoplehood is a device that suppresses the anxiety of fragmentation (the dif-
fuse fear of the dissolution of political order) and the anxiety of domination
(an equally diffuse fear that the imaginary collective body might lose its au-
tonomy). Though impossible to prove, it is plausible that invoking the ‘will’ of
a sovereign people will act to suppress the former, while invoking the ‘will’ of
a people that is sovereign will do the same with respect to the latter anxiety.100
As it suppresses them both, the vocabulary of popular sovereignty gener-
ates the third: the anxiety of collaboration. Unlike the first two, this anxiety is
derivative. What generates it is the fact that the people must always act both
as a desire-manager that aims to alleviate the torment of heteronomy, and as
a vehicle of anxiety-management that aims to alleviate diffuse fears of frag-
mentation and domination. To be successful at both, it must perform those
alleviative functions furtively. To ‘admit’ that it performs the former is to admit
that there is no logical cut-off point to the pursuit of the ideal of ‘maximum
freedom’.101
This brings us to our final point. Without a justifiable cut-off point—ultimately
in the form of some demand to respect the integrity of the spatiotemporal jur-
isdiction of constitutional order—an anxiety of fragmentation would be des-
tined to arise. Without it, it would not be possible to answer why a particular
degree of satisfied political aspirations is good enough.102 Without it, to put it
differently, the mechanism of leaving the torment of heteronomy would only
accentuate the fact of heteronomy, especially among minority preferences that
continue to be misaligned with the ‘will’ of the constitutional order. In both
cases, instead of soothing the anxieties of fragmentation and heteronomy, the
denuded nature of the vocabulary of peoplehood would exacerbate them.
To put it metaphorically, revealing that it moonlights as the facilitator of
individuals’ ‘basic instincts’ would destroy the people’s day job as a cognitive-
behavioural therapist of anxiety disorders. This situation gives rise to some-
thing that could be called the torment-anxiety loop and which emerges from the
interplay between the people as the vehicle of desire-satisfaction (p1, 1*, t), on
the one hand, and its identity as a vehicle of anxiety-reduction (p1, 1*, a1, a2) on
the other:
100
This far from exhausts the ways in which the vocabulary of peoplehood serves the purposes of affect-
management. For example, Fanon upheld the ‘mirage’ of unitary nationhood in fighting Balkanization not
because of an underlying belief in its capacity to suppress the fears it provokes, but because it was ‘most sat-
isfying for the mind’. Fanon (n 21).
Kelsen thought there is, but that discussion will have to await Chapter 3.
101
Kelsen thought that it is, but that discussion will have to be postponed until Chapter 8.
102
78
A1 1*
2*
P2 T A3
A2 1* P1
Figure 2.4 The anxious loop of popular sovereignty
Within this loop—represented in Figure 2.4—the language of popular will (1*)

quells the anxieties of fragmentation (a1) and the anxiety of domination (a2) by
evoking the presence of a spatiotemporally integral political body (p1) whose
members are owed equal concern and respect, and who have a reason to con-
sider themselves as collectively autonomous. At the same time, however, the
language of popular will (1*) always risks inflaming those anxieties as it aims to
‘rescue’ as many individuals as possible from the torment of heteronomy (p1,
2*, t). As a matter of principle, the imperative of doing so is indifferent towards
the spatiotemporal integrity of extant polities, and is, in Kelsen’s imagination,
logically prior to the ideal of political equality.
As a result, the anxiety of collaboration (a3) arises from the refusal of the
people to abdicate either of its roles: its ‘day job’ as a motivating vocabulary of
democratic deliberation and equal concern and respect, and its ‘side job’ as a ve-
hicle of improving the degree of satisfied political desires, irrespective of their
morality or rationality. Here, what suppresses that anxiety is another, more
concrete imagination of peoplehood (p2), which manifests itself through the at-
tempts to distinguish between ‘good’ peoples (often imagined as ‘civic’ and ‘ter-
ritorial’) and ‘bad’ peoples (most often portrayed as radical ethno-nationalist, or
ethno-religious communities). Over the last couple of decades, this distinction
has been amply problematized in various corners of political theory. From the
perspective of the anxious loop, however, the demos–ethnos, or civic–ethnic
binary presents itself as something else: a way for those who invoke the people
in concrete circumstances to have it both ways: to facilitate Kelsen’s ‘tendency’,
while at the same time suppressing fears of fragmentation and domination.
In other words, to invoke ‘the will’ of the people in such cases is an attempt
to render respectable the claim that is disputable: ‘This is enough! We will no
longer be accommodating any intensely felt political preferences! Nor are we
willing to discuss it any further.’
79
Kelsenian ‘Tendency’ and the Imaginative Spectroscopy • 79
11. Kelsenian ‘tendency’ and

the imaginative spectroscopy
The anxious loop of peoplehood is a hypothesis, an act of imagination. For
the purposes of this book, its main benefit lies in helping to articulate, in a
more precise manner, the inhibitions that prevent us from openly discussing the
people’s side job: its contribution to what Kelsen called ‘the tendency towards
unanimity’, on display every time a majority vote succeeds in making it easier to
exit the torment of heteronomy; leaving fewer individuals in that state. Though
we will return to this point later in the book, notice, however, that ‘easier’ and
‘fewer’ can be calibrated and traded off against each other in a number of ways
across the entirety of constitutional spacetime. As we will see later, ‘easier’ and
‘fewer’ are only two of the variables that may determine the content of that
‘tendency’ in constitutional practice. For example, those imagined as belonging
to a sovereign people may exercise their right to self-determination by gath-
ering signatures for a popular referendum; they may exercise their ‘constituent
power’ by passing constitutional amendments in a referendum; or by toppling
a dictator; or by seceding from a sovereign state. In order to determine what
Kelsen’s tendency might mean in these contexts we need a description not only
of the function of popular sovereignty but also of the workings of that ten-
dency in those diverse but related situations.
To do so, however, we mustn’t fold back onto what we are trying to move
beyond: the people, its self-determination, or its self-government. What we
instead need is an imaginative device that will allow us to see those situations
not as something better described by one particular proposition of people-
hood rather than by another, but rather as mediums through which it is
possible to ‘refract’ the (hidden) prescriptive content of all propositions of
peoplehood.
Metaphorically, this device is best seen as a kind of spectroscope: a system
of stacked lenses that represent the stages of determination, through which we
pass the light of the people’s will in order to detect the hidden frequencies that
it entails, at the five stages of determination:
Each stage is an occasion for a decision. At (s1): what conditions must be met

for a constitutional order to initiate the process of constitutional change? At
(s2): what criteria ought to govern the reconfiguration of its spatiotemporal
extent? At (s3): what kind of jurisdictional authority should this order possess
vis-à-vis its environment? At (s4): what kind of purposes should this order serve,
and how should it organize the satisfaction of the imperatives of government
that serve its enterprise? At (s5): how should this order respond to the demands
80

from ‘the people’ on a day-to-day basis—across the totality of different sites of
political decision-making?
In allowing us to reinterpret popular struggles as the conflicts over the con-
tent at s1–s5, this device is useful analytically and imaginatively. On the one hand
it allows us to track the shifts of focus in the approaches to popular sovereignty
across different scholarly disciplines and over time. For example: from the per-
spective of s1–s5 analytic, the preoccupation of early modern constitutional
thought with the scenes of social contract may also be seen as the result of a
gaze that fused s1 and s4, while at the same time making s2 and s3 invisible. In
contrast, the gaze of contemporary constitutional theory—preoccupied, until
recently, with only s4 and s5—seems to be expanding its circumference; now
including not only s1 (problematized with reference to the idea of constituent
power), but also, increasingly explicitly, s2 (with reference to the conceptions
of sub-state nations as those power’s legitimate bearers). Unlike constitutional
theory, international legal theory and normative theory have largely preoccu-
pied themselves with s1, s2, and s3, though influential normative theorists have
made incursions into s4, the stage of polity formation, which has until recently
been colonized almost exclusively by constitutional theorists.103
On the other hand, the most important role of this spectroscope is that of
a tool—an imaginative optical instrument whose function is to help us dis-
cover hidden prescriptive protocols that are encoded across different proposi-
tions of peoplehood, as well as to envision how they operate in constitutional
spacetime: in the conflicts over its rightful parameters (s1–s3), over its legitimate
objectives (s4–s5), and over the capacity of concrete constitutional orders to
pursue those objectives in a wider environment (s3).
This wouldn’t have been possible if its metaphorical ‘lenses’ were not also at
the same time imagined as the plural stages of determination. In most theories
they are either analytically indistinguishable, or are condensed within a single
scene that evokes a momentary act of political foundation. In this book, in con-
trast, determination has two meanings: (1) the determination of what ought to
be done so that the desired effects, encoded in the language of popular will, be
achieved, and (2) the determination by someone—not the people—of how to best
achieve them. Notice, however, that the widening of the temporal frame of the
original scene cannot occur without the simultaneous extension of its spatial
frame. Historically, constitutional theory has kept that frame extremely narrow,
focusing on single moments of constitution-making, one constitution at a time.
Before we deploy our imaginary spectroscope for our purposes in Chapters 5,
6, 7, and 8, Chapter 3 will confront us with the techniques on which historically
influential stage-setters, choreographers, and dramatists relied to discourage us
from looking behind the scenes of popular sovereignty:
See eg Allen Buchanan, ‘The Ethics of Revolution and Its Implications for the Ethics of Intervention’ (2013)
103
41[4] Phil & Pub Aff 291.

81
Kelsenian ‘Tendency’ and the Imaginative Spectroscopy • 81
P1 P2
P6 P3
P5 P4
S1
S2
M S3 P
S4
S5
F O
C B1 B2 F
B6 B3
B5 B4
Figure 2.5 Beyond the people––the steps ahead
In this chapter we approached these scenes from the perspective of two master-
figures: as creator’s (c) creations, or as enframed by the framework (f). As
Figure 2.5 indicates—and as we will soon see in Chapter 3—this is not how ca-
nonical constitutional thinkers bring them to life. When they appear on the
stage, what is behind them is the work of four dramatistic stage props: many
(m), other (o), place (p), and frame (f), which—in mediating the prefigura-
tive powers of the creator and the framework—allow all other figures to ap-
pear as the emblems of something else. That, as the arrows in Figure 2.5 wish
to indicate, will set us off on our journey across the remaining five proposi-
tions of peoplehood, resulting, in the end—and in keeping with the spirit of
this project—in a new emblematic diagram of a less disciplined, but more pur-
poseful constituent imagination.
83
 3 
Many, Other, Place, Frame
Beyond a Sovereign People
1. A sovereign
staged and dramatized
What makes abstract ideals rhetorically effective? Do these ideals need to make
sense visually and be condensed figuratively before we invoke them publicly?
Or do their names alone have the power to move us successfully? Our people’s
sovereignty—we know how it makes us feel, even when we don’t ‘see’ any-
thing in particular. The ideal of popular sovereignty—we recognize its dignity
even if we cannot immediately visualize the picture of the standard of legit-
imate government. What’s far less certain is whether we’d still think the same if
we allowed ourselves to take the two elements in the name of that standard—
‘popular’ and ‘sovereignty’—seriously. Once separated, the adjective and the
noun that together define the expression ‘popular sovereignty’ remind us of
the visual conditions of its rhetorical credibility: there is no such ideal without
the people, a dramatis persona which acts sovereignly. In other words, for the
figure of a sovereign people to make sense to its audience, it must exist not
simply as an emblem of legitimate government, but also as the main protag-
onist in a mini-drama—a representative anecdote as Kenneth Burke called it—
that culminates in a single act of constitution-making.
This chapter focuses on select, theoretically influential, and visually memor-
able scenes of constitution-making and explores the directorial, choreographic,
and cinematic choices of constitutional thinkers who, in staging them, inad-
vertently ‘selected’, ‘deflected’, and ‘reflected’ what they took to be wider social
reality.1 In exercising their choices these thinkers conform to unstated ‘laws’
of constitutional dramatism that permit them to resort to a number of scenic
tricks, some of which, as we shall soon see, remain surprisingly popular across
disciplinary divides and historical eras. In surveying how these tricks manifest
themselves in the canon of modern constitutional thought, this chapter also
takes notice of an interesting stylistic change—away from the naturalistic repre-
sentations of early modern social contract theory and towards optical illusions,
1
Kenneth Burke, A Grammar of Motives (first published 1945, University of California Press 1969) 59.
84
84 • Many, Other, Place, Frame

folded spaces, and empty places that seem to be favoured in the contemporary
representations of sovereign peoplehood.
This transition is more than just a matter of stylistic preference. If Ernst
Bloch is right, the move away from the quasi-realistic scenes of covenanting
among humans, and towards fully de-contextualized, allegorical representa-
tions of mindlessly marching insects (for example) is symptomatic of some-
thing that has yet to be confronted explicitly. Bloch called it the ‘nihilism of
theoretical hopelessness’,2 an ‘aversion to forwards and to the penetrating
glance forwards’—something that keeps all those who theoretically celebrate
smooth spaces and empty places in the state of ‘interested dreamlessness’.3 In
what can be read as a decisive repudiation of the ideals of contemporary consti-
tutional theory, Bloch insisted on the necessity of filling ‘the hollow space which
the dispatching of the God-hypostasis leaves behind’ with the representation of
‘the mode of reality of concrete ideals’.4
In sum, this chapter has three main objectives. The first is analytical, and in
its pursuit I will rely on Burke’s terminology in the hope that it will result in a
more systematic taxonomy of the ways in which the figures of (popular) sover-
eignty appear ‘en scène’ through the work of those who most of the time prefer
to treat them as ‘mise’ on it by somebody else. The second objective is polem-
ical. It is to provoke a more direct confrontation between two styles of con-
stituent imagination: the (e)utopian and the traumatized. The former is hopeful,
purposeful, concrete, visual, and forward-looking. The latter is not. The em-
blem of the first is Bloch. The emblems of the second are too numerous to
mention but its luminaries include Lefort, Schmitt, and Arendt among others.
What marks the traumatized style of constituent imagination are false binaries,
exaggerated contrasts, many of which have to do with bad eyesight (from in-
ability to focus to diminished peripheral vision). Which brings us to the third,
rhetorical aim of this chapter: to set the stage for the re-dramatization of these
binaries and exaggerated contrasts, but in a way that differs from earlier rhet-
orical gambits—such as Castoriadis’s implicit belief that sneering references to
philosophical ‘syphilis’ may be the best way to provoke a new style of theoret-
ical imagination.
In contrast, this book is predicated on a conviction that a different kind of
critical attitude—at the same time constructive and critical as well as satirical,
(self-)ironic, and earnest—stands a better chance of challenging the captivating
power of disciplinarily disciplined approaches to the vocabulary of peoplehood.
In part, that attitude naturally follows from my choice of Burke’s dramatism
as the main analytical, diagnostic, and constructive device of this book. Unlike
actor-network theory—an approach that would, in many cases, allow us to
make the same, or similar, critical points—Burke’s dramatism is not only more
2
in German 1959, MIT 1986) 1199.
ibid.
3 4
ibid 1202.
85
The Dramatistic Quartet • 85

theoretically straightforward about the polemical character of all theoretical
interventions,5 but is also more capable of accentuating the comic and often
farcical nature of theoretical conversations. This is possible because the devices
that allow us to analyse those conversations as competitions among different
scenes of constitution-making hinge on a meta-dramatization of the practice
of theory, where theorists act as puppeteers, producers of special effects, and,
more often than not, con artists. As Burke argued, however, the occasion for
such satirizing presents itself only when the irony of dramatism becomes fully
manifest:
When one tries, by the interaction of terms upon one another, to produce a de-
velopment which uses all the terms. Hence, from the standpoint of this total form
(this ‘perspective of perspectives’), none of the participating ‘sub-perspectives’
can be treated as either precisely right or precisely wrong. They are all voices, or
personalities, or positions, integrally affecting one another.6
Burke hoped that his ‘pentad’ would provide adequate ‘terministic equipment’
that would provoke a systematic analysis of the ‘level of motivation which even
wholly rival doctrines of motives must share in common’ and allow us to be-
come more ‘aware of the ways in which we are the victims of our own and
one another’s magic’.7 The sections that follow are devoted to what is perhaps
the most important way of performing that magic in the conceptual history of
sovereign peoplehood: the staging of the special effect of creatio ex nihilo, which
allows the conjurors of the figure of a sovereign (people) to liken it to its divine
omnipotent precursor.
2. The dramatistic quartet

Many, Other, Place, Frame
Before we explore how the special effect of ex nihilo is produced, we should first
develop a more refined sense of the characteristics of the four ‘stage props’, the
four dramatistic tools that theorists must use in order to produce a compelling
representative anecdote. Following Burke’s taxonomy, these anecdotes may be
‘substantial’ (such as those that aim to evoke the agency of a sovereign and his
act realistically) or ‘metonymic’ (those in which an agent symbolizes something
outside of itself, be that another agent or another element in the pentad). Most
of the anecdotes that interest us in this book will be ‘synecdochic’, evoking
a scene inhabited by agents whose relationship with the ‘people’ conforms to
the template of pars pro toto—‘a part for the whole’. One highly educational
scene, to which we will return later in the book, is evoked by Carl Schmitt
in his Constitutional Theory: it occurs ‘during street demonstrations and public
festivals, in theaters, on the running track, or in the stadium’, where those
5
6
Burke (n 1) 512. ibid 442.
7
86

assembled and ‘engaged in acclamation’—‘to the extent that [they do] not only
appear as an organized interest group’—are, ‘at least potentially, a political en-
tity’, the people itself.8
Scenes such as these rest on a number of scopic choices that allow their au-
thors to evoke what is, in effect, only a short trailer for a longer movie, based on
a constitution-making script whose contents are never really revealed by their
dramatist screen-writers. Before we get to these higher stages in the dramatist’s
craft, however, we should explore a more basic pattern that many canonical
dramatists follow when they evoke anecdotes about representative ways of
founding a state, exercising constituent power, or co-instituting a new constitu-
tion. Though many of them feature a number of agents, most of them privilege
only one dramatis persona, whose purposeful agency culminates in the consti-
tutive act. From the perspective of the act, that dramatis persona may play two
roles. The first is that of a sovereign (people) itself—portrayed as the author of
the constituent act. In most constitutive anecdotes that interest us, we will find
that this actor performs a different role: not that of a sovereign itself, but ra-
ther that of an entity that is about to transform itself into a sovereign, properly
speaking.
In this book, the name given to this entity is many—neither a collective,
corporation, or swarm, but rather the multitude of those who are usually
portrayed as assembled in close proximity to each other, and whose equiva-
lent attitudes towards the impending act allow us, the readers, to jump ahead
and envision them as a uniform, quasi-political body. In the language of actor-
network theory, constitutional dramatizations encourage us to treat such fig-
urations as intermediaries, even though they can only ever exist as mediators.
The former ‘[transport] meaning or force without transformation: defining
[their] inputs is enough to define [their] outputs’.9 In contrast, the latter ‘trans-
form, translate, distort, and modify the meaning or the elements they are sup-
posed to carry’; they ‘cannot be counted as just one’, as constituent dramatists
suggest, but may always also count ‘for nothing, for several, or for infinity’.10
Sometimes, separated only by a couple of pages of text, many will appear in a
subtly different guise—not as an intermediary but as a potential mediator. To
notice it in such a situation is what Louis Althusser called a ‘discrepancy’—a
symptom of something operative but unacknowledged, often manifest in the
inexplicable mutations in the attitudes of those seen as its members, from one
scene to another.11
Though they may be motivated by myriad reasons, what often provokes those
mutations scenicly is the quiet introduction of place on to the scene of the con-
stitutive act. Not all anecdotes rely on that stage prop. For example, Hobbes’s
anecdote about the ‘Institution’ of a commonwealth—while occurring in a
Carl Schmitt, Constitutional Theory ( Jeffrey Seitzer tr, Duke University Press 2007) 272.
8
Latour (n 5) 39.
9 10
ibid.
Louis Althusser, Politics and History: Montesquieu, Rousseau, Hegel and Marx (Ben Brewster tr, first published
11
1972, Verso 2007).
87
The Dramatistic Quartet • 87

highly specific environment; ‘the state of war’—nonetheless occurs in no place
in particular. In contrast, place plays a much more prominent role in Hobbes’s
rehearsal of that scene several paragraphs later, when he argues that it is ‘a
major part’ of those who have ‘entered into the congregation’ who ‘by con-
senting voices [declare] a sovereign’.12 As is the case in most other canonical
constitutive anecdotes, this one relies on place furtively. While Hobbes did so by
nudging us to presuppose the place of congregation, contemporary dramatists
of sovereign peoplehood do so differently. Instead of imperceptibly sneaking
place into a naturalistic anecdote that describes an antagonistic scene—as did
the early modern dramatists of sovereignty—their representations of (virtuous)
circles, empty places of power, or möbius strips hide it in plain sight. Or, as we
will see in Chapter 4, they may also do so by sneaking place into the present
tense of the verb used to define constituent power.
Their acts of imaginative contraband serve two important rhetorical pur-
poses. First, they allow dramatists to have their cake and eat it too: to expli-
citly repudiate the notion that the constitutive agent has a substantive identity,
meanwhile subtly encouraging us to keep imagining that it has, nonetheless.
Admittedly, this claim sounds counter-intuitive: we usually think of substance
as something that is intrinsic to a mobile body and that is, in consequence,
location-insensitive. However, as Burke reminds us, substance is sub-stance: its
etymology reminds us that substance is always space-sensitive, extrinsic to the
political agent in question. As we will soon see, the contraband of place dis-
courages not only scrutiny of the allusions about the uniform identity of a
would-be sovereign, but also scrutiny of the portrayals of everyone else. As
‘stance’ words, ‘foundation’ and ‘constitution’ ‘merg[e]‌intrinsic and extrinsic
reference’,13 and in so doing lead us to forget a simple axiom that governs the
situ-ation of constitution-making: ‘to be emplaced is not just to be cozily con-
tained by an encircling surface but to be sustained by powers that ensure that
what is in place will be inherently stronger for having been there’.14 One of the
important claims of this chapter is that the success of ‘merging intrinsic and
extrinsic reference’ is never complete, as most constitutive anecdotes evoke the
agency of other agents in one way or another.
Though they are portrayed in a wide variety of ways, most such agents share
one important characteristic that allows us to stylize them under the umbrella
of a generic figure of ‘other’: while they may always exercise their agency to
affect the constitutive act of many, the opposite is never the case. The figure
of other may do this by disturbing the ‘attitudes’ of many—their ‘preparation
to act’—by sufficiently changing their expectations and expectant emotions. In
this chapter, other takes the shape of three important characters: the lawgiver,
the enemy, and the interessierte Dritte (Interested Third). In the first guise, cap-
tured in Rousseau’s Social Contract, his motivations will be noble and his role in
Thomas Hobbes, Leviathan (first published 1651, OUP 1996) 115.

12
Burke (n 1) 51.
13
Edward Casey, The Fate of Place: A Philosophical History (University of California Press 1998) 89.
14
8

polity constitution generative and indispensable to our sovereign existence. In
the second role—portrayed differently in Hobbes’s Leviathan and Schmitt’s The
Concept of the Political—his motives will be predatory. In this case, the effects of
his actions on polity constitution are the mirror images of those produced by
the lawgiver: while his appearance on the scene of polity constitution is con-
tingent, the success of its actions guarantees the obliteration of the political
aspirations of many.
Unlike the lawgiver or the enemy, the third figuration of other has captured
the least attention among contemporary theorists of peoplehood and sover-
eignty. In the guise of the interested third, captured by Schmitt in The Theory
of the Partisan, his motives, unlike the motives of the lawgiver, are ambiva-
lent: he affects polity constitution not necessarily for the sake of many but pri-
marily for his own sake. When he does, his actions are generative of a polity’s
constitution, but not necessarily the one we had in mind. What distinguishes
him from the figure of the enemy is that the success of his constituent engage-
ment does not extinguish the object of his constituent attention but keeps it
politically ‘alive’ in one form or another.
In cases such as these, others act as localizers, whose agency brings place
into the scene evoked by a particular representative anecdote. As a prototype,
such anecdote represents a superior approach to constitution-making. Such
anecdote is ‘substantial’, to use Burke’s term, as it ‘embodies the conclusions
of the development’ towards the constitutive act, which makes it ‘ “representa-
tive” of the society as a whole’.15 As an illustration, such anecdote exemplifies
what the ‘work’ of framework ought to look like. In this case, the anecdote
is ‘adjectival’, as it ‘embod[ies] one of the qualifications necessary to the total
definition’.16 Here, others exist not only as the ‘workers and artisans who have
now deserted the scene because they let objects carry their action in absentia’,
but also as those who have turned something into place ‘through the now si-
lent mediation of drawings [and] specifications’.17 In this case, others appear
neither as existentially threatening enemies nor as nurturing and indispensable
lawgivers, but rather as those whose agency is preframed by frame: appliers of
‘specifications’, ‘agents’, and ‘guarantors’ of ‘nomos’, operators of ‘schemas of
separation’.
Frame is the fourth stage prop of constituent dramatism. It is the name
for the protocols’ constitutional transformation that claims to be doing the
work of framework authoritatively, independently of anyone’s authority. As
the work of the framework itself, such frame is not the creation of creator.
Nor is it derivative from the agency of many and other, creator’s own in-
complete earthly dramatizations. As a stage prop, frame is the figure of a
norm taken at face value—the emblem of sheepish legalism. Once detected
in the vicinity of the anecdotes that keep their prototypical and illustrative
character in perfect balance, frame will reveal itself as the repository of
Burke (n 1) 516.
15 16
ibid 508. Latour (n 5) 194.
17
89
Ex Nihilo and its Creatio • 89

recursive algorithms that allow us to observe the homology between local
‘microcosm’ and global ‘macrocosm’.18 Such anecdotes, in Burke’s termin-
ology, are not only synecdochic, but are also ‘noblest’. Later in this chapter,
we will encounter one such noble synecdoche, particularly important for our
inquiry, which may be reconstructed from Hans Kelsen’s argument about
the relationship between popular decision-making and its contribution to
‘the tendency towards unanimity’, both at the level of the domestic constitu-
tional ‘microcosm’ and at the level of the international legal ‘macrocosm’ of
national self-determination.
3. Behind the stage

ex nihilo and its creatio
We will return to the figure of frame at the end of the chapter. To get to it, we
begin our inquiry from the opposite side, from the defining attribute of the
creator––its capacity for creatio ex nihilo, which even today allows us to treat
a sovereign (people) as a god-like demiurge of a constitutional order. To start
from that attribute, however, is to start from an ‘embarrassment’: the embar-
rassment implicit in the ‘impossib[ility] [of] imagin[ing] the “way” of creation’.
Here, Burke makes another valid point: if the ‘ “way” is literally a path across
some ground’, it should be obvious that ‘even a “first act” must have been en-
acted in some kind of “scene” ’.19 If Burke is right, then Hans Blumenberg is also
right to claim that ‘the phenomena of linguistic secularization [manifest in the
texts that allegedly evoke images of a god-like sovereign] cannot be . . . exten-
sively demonstrable [with] recourse to theology as such; rather it is a choice of
elements from the selective point of view of the immediate need, in each case,
for background and pathos’.20
But what creates the background and pathos of the creatio ex nihilo? What
choice of elements must we make in order to stage it into existence as a
dramatistic special effect? Burke’s critical remarks on the ‘way of creation’
provide us with an indication. For him, speaking of ways of creation is symp-
tomatic of the vestiges of polytheism from which the notion of a Christian
monotheistic ‘God’—and with it, a sovereign people—developed over time.
This occurred through a series of mutations where one particularly powerful
god graduated to the status of the only one—the all-powerful creator that
stands outside time and place—by gradually absorbing the attributes of lesser
ones. If Burke is right, the quasi-theological pathos of creatio ex nihilo is staged
not by evoking the act of creation on nothing, or from nothing, but by con-
forming to the corollary of the first law of contrast, which we have discussed
ibid.
18 19
ibid 69.
Hans Blumenberg, The Legitimacy of the Modern Age (Robert M Wallace tr, first published 1966, 2nd edn 1973,
20
MIT 1985) 93. See also Marc de Vilde, ‘Meeting Opposites: The Political Theologies of Walter Benjamin and
Carl Schmitt’ (2011) 44[4] Philosophy and Rhetoric 363, 368.
90

in the previous chapter. In this context, this corollary may be treated as the first
law of constituent dramatism:
Such scenes allow dramatists to defend the perceptual credibility of the figures
they evoke not only as a matter of prudence or ethics, but also as a matter
of elementary logic. The most famous example of that is of course Hobbes’s
Leviathan. In the scene that we may name ‘Institution’, there is no one to take
notice of other, because many is a mere ‘multitude’, a pre-political phenom-
enon, incapable of producing coherent mental phenomena such as willing or
observing. At the moment it would seem to have become capable of doing so, it
ceases to exist, having been incorporated into the persona of the Sovereign. The
same logic, but in reverse, applies to the scene ‘Acquisition’, where common-
wealths are established ‘by natural force’. In that case, the victorious Sovereign
has no reason to envision itself as other, and the vanquished commonwealth
no longer exists anyway.
At this point, notice that there are two ways in which we could continue
our inquiry: simply analytically or analytically and polemically. In the first case,
our focus would be on a dispassionate dramatistic reinterpretation of the ca-
nonical scenes in the history of constitutional thought. In the second case, we
would do so with a keener interest in the tricks on which they rely to achieve
their purpose. The most important dramatistic trick is not, strictly speaking,
the work of dramatistic imagination. Rather, it is the product of a more basic
scopic choice: spatially—making the circumference of our lens narrow; and,
temporally—cutting short the recording of what that circumference captures.
As we have seen above, we ‘institute’ a Sovereign in an instant when we ‘agree
and covenant’. Nothing that might have occurred before, and nothing that will
occur after, matters. This is of crucial importance, since the canonical texts that
serve as objects of the theoretical imagination of peoplehood evoke not one
but myriad scenes, among which only a handful are theoretically canonized as
representative anecdotes.21
While Burke’s analytic offers us ‘terms that clearly reveal the strategic spots
at which ambiguities necessarily arise’,22 that analytic must be complemented
with a willingness to exercise our scenic imagination in a way that allows us to
detect the symptomatic ‘discrepancies’ that appear between different anecdotes.
To detect them, our scopic regime must include an oscillating gaze––allowing
us not only to detect the discrepancies, but also to get a sense of certain regu-
larities that all constituent dramatizations that evoke a sovereign people must
follow.
The first discrepancy concerns the character of many. For example, in a scene
that occurs several pages after the scene of ‘Institution’, Hobbes allows us to
Hobbes (n 12) 113.
21 22
Burke (n 1) xviii.
91

overhear the inner thoughts of those who are about to institute a Sovereign well
in advance. We encounter them just as they are about to institute it, ‘every one
with every one’, later on. To them, Hobbes offers the following advice:
The multitude sufficient to confide in for our security, is not determined by any
certain number, but by comparison with the enemy we fear; and is then suffi-
cient, when the odds of the enemy is not of so visible and conspicuous moment,
to determine the event of war, as to move him to attempt.23
This advice is interesting for two reasons. First, notice that by allowing us to
glean the ‘we’ that fears an enemy, Hobbes undermines his divide between a
non-incorporated, irrelevant many (‘multitude’, as he calls it) and the incorpor-
ated ‘one’ of a Sovereign. By conjuring the ‘we’ that fears, he attributes political
relevance to the pre-political attachments of this non-incorporated quasi-figure
of many. Second, notice the condition for the appearance of this ‘we’: it appears
not in isolation but in the company of the other portrayed as the enemy—‘the
“enemy” they fear’—whose image critically influences their attitudes towards
the size of the already desired future commonwealth.
According to Sofia Näsström, this passage suggests that Hobbes’s evoca-
tion of an enemy ‘clearly anticipates the work of Carl Schmitt, who often is
charged for making the identity of the people (we) dependent on the powers
of the enemy (they)’.24 While Näsström insightfully detects the relationship
between minor threads in Hobbes’s thought, on the one hand, and Schmitt’s
central theoretical point, on the other, her characterization misses something
crucial: Hobbes allows us to see this ‘we’ during the period when ‘we’ may
meaningfully respond to the imagined external threat—put differently, when
‘we’ stands a chance of successfully fighting back or negotiating its way into
political existence. Moreover, we can see the figure of the enemy at the scene of
foundation (this time detected from within a wider spatiotemporal frame) be-
cause Hobbes for a moment forgets—or chooses to set aside—his prior remarks
about the politically and juridically inconsequential figure of multitude, in turn
dignifying the partial political desires that turned those that ‘fear’ into a ‘we’
even before they detected the ‘enemy’. This allows us to postulate the second law
of constituent dramatism:
Another discrepancy, which allows us to detect further law-like regularities, oc-

curs when we detect the simultaneous presence of many and place at the scene.
That discrepancy appears when we contrast Hobbes’s description of the scene
Hobbes (n 12) 112.
23
Sofia Näsström, ‘The Legitimacy of the People’ (2007) 35[5] Political Theory 624, 638.
24
92

of ‘Institution’, in which institution is unanimous, with another scene (which
we may call ‘Institution by Major Part’), where a majority,
by consenting voices declared a sovereign; he that dissented must now consent
with the rest; that is, be contented to avow all the actions he shall do, or else justly
be destroyed by the rest. For if he voluntarily entered into the congregation of
them that were assembled, he sufficiently declared thereby his will (and therefore
tacitly covenanted) to stand to what the major part should ordain: and therefore
if he refuse to stand thereto, or make protestation against any of their decrees,
he does contrary to his covenant, and therefore unjustly. And whether he be of
the congregation, or not; and whether his consent be asked, or not, he must ei-
ther submit to their decrees, or be left in the condition of war he was in before;
wherein he might without injustice be destroyed by any man whatsoever.25
Hobbes’s early critics immediately noticed the tension between this major-
itarian account of foundation and the account that presupposes unanimous cov-
enanting. ‘It is not a plurality, but a totality of voices which makes an assembly
be one will,’ Filmer complained. The act of instituting a Sovereign by way of
plurality is not ‘a proper speech’.26 However, the second sentence shows why
Filmer is wrong: covenanting by a majority vote presupposes the tacit consent
of those who have voluntarily entered into the congregation. But the phrase
‘entered into the congregation’ also shows us why Filmer might have been quick
to spot the inconsistency. To be ‘entered into’, the congregation must be im-
agined as a place, not a unanimous assemblage of tacit covenanters. But to
be imagined as the site where unanimous covenanting occurs, place must be
understood as the force that changes the nature of the attitudes of those who
enter it. That, however, would make it irreconcilable with the ‘original’ scene
of ‘Institution’. Hobbes is aware of this, so, in the last sentence of the para-
graph, he changes his mind and allows that the dissenters may not have tacitly
consented after all. Following this route, we fold back to the original account of
the commonwealth ‘by institution’: either they have tacitly consented or their
dissent simply keeps them in the state of war vis-à-vis the consenting major part
of unanimous covenanters.
But if it is possible to enter ‘into’ the congregation and not be ‘of the con-
gregation’—(notice, by the way, that Hobbes continues to evoke congregation
in the second scenario as well)—why must we presume that the same does not
hold for everyone? It is not impossible to imagine congregations of those who
assemble for one purpose, or for myriad purposes, and where only a minority
or a plurality arrived with the intention to institute a commonwealth? What, in
that case, justifies majority vote? Whatever the answer, the baseline question is
simple: What is the reason behind Hobbes’s compulsion to complicate the ini-
tial scene of Institution?
Hobbes (n 12).
25
Robert Filmer, ‘Observations on Mr. Hobbes’s Leviathan: Or His Artificial Man—A Commonwealth’ in
26
GAJ Rogers (ed), Leviathan: Contemporary Responses to the Political Theory of Thomas Hobbes (first published
1652, Thoemmes 1997) 7.
93

From the perspective of mainstream political theory, this ‘discrepancy’ is a
problem that theorists may elect to resolve as they attempt to re-establish coher-
ence in the entire argument. From the rhetorical and dramatistic perspective,
however, this discrepancy is a symptom of the compulsion to assume a theor-
etically unnecessary risk. What is being risked is not simply the theoretical, but
also the perceptual coherence of the argument in question. As is the case with
other dramatizations that we will encounter later in this chapter, that coher-
ence would be endangered once the audience discovered a dramatistic trick, in
this case, Hobbes’s quiet insertion of place on the scene of instituting. Which
brings us to another important point. Theorists rely on this trick because they
want to harness the power of the next two laws of constituent dramatism:
In order to get to the remaining two laws of constituent dramatism, con-

sider now the discrepancy that may be detected in the work of Jean-Jacques
Rousseau, where place plays a more prominent role than in the scenes evoked
by Hobbes. In contrast to Hobbes, who mainly ignored the territorial aspect
of constitution-making, Rousseau argues that the people’s territory is the ag-
gregate of the parties to the social contract, provided they are ‘united and con-
tiguous’.27 Having directly confronted the side of constitution-making that
Hobbes largely ignored compelled Rousseau also to be more straightforward
about the relationship between the ideal of unanimity and the fact that this
ideal must materialize in a bounded territory. At that point, however, Rousseau
is compelled to cede ground and accept a discrepancy in his argument, claiming
that ‘residence constitutes consent’ and that ‘to dwell within its territory is to
submit to the Sovereign’.28 This contradicts his previous understanding of the
people’s territory and his understanding of a unanimous social contract as the
only legitimate way of founding a people.
Moreover, the ‘united and contiguous’ account of the people’s territory is
contradicted by Rousseau’s insistence elsewhere in the text that the task of
delineating the territorial extent of the polity belongs to a ‘skilled statesman’
whose determination must not be based on ‘abstract reason’ but on prudential
judgment.29 In this case, smuggling the figure of place into the scene of foun-
dation will have the same effect as allowing the figure of other to appear in the
Jean-Jacques Rousseau, The Social Contract (Maurice Cranston tr and intro, Penguin 1968) 67.
27
ibid 153.
28
29
Allan Bloom, ‘Rousseau’s Critique of Liberal Constitutionalism’ in Clifford Orwin and Nathan Tarcov
(eds), The Legacy of Rousseau (University of Chicago Press 1992) 143, 161.
94

imaginations of many: it will allow the otherwise suppressed figure of political
desire to appear as such. In Hobbes’s case, it is the desire that unites a fearful
‘we’, without which it would have been impossible to identify an ‘enemy’ that
‘we’ fear. In Rousseau’s case, the partial desire appears after the moment of
foundation. While he led us to believe that the formation of a polity is a matter
of unanimous consent, his talk of ‘residence’ within a ‘territory’—smuggled in
by the figure of place—suggests that Rousseau realized that such unanimity is
‘a luxury a would-be state cannot afford’.30 In this case, as in the previous one,
to detect discrepancy is to detect desire: those that Rousseau incoherently calls
‘residents’ within a (unanimously) formed polity did not consent to it. Noticing
discrepancy allows us to imagine that they might have wanted something else in
the first place.31 Which brings us to the last two laws of constituent dramatism:
4. Behind the stage

dramatizing constituent power
What allows us to identify the discrepancies between different dramatizations
of the scenes of covenanting is Hobbes and Rousseau’s shared compulsion to
make a highly idealized scene more realistic by complementing it with add-
itional ones. In Hobbes’s case, the initial scene of ‘Institution’, which occurs in
the middle of nowhere, is redone as the more credible scene of ‘Institution by
Majority Vote’. In Rousseau’s case, the initial scene of the social contract—in
which there is no reference to the territorial extent of the polity—is comple-
mented by a discussion about how a skilled statesman might determine it. In
both cases, a more realistic scene may be seen as an unforced mistake—an un-
necessary elaboration of the basic scheme on display in the first one—which
triggers in our mind the disbelief that ultimately undermines the perceptual
credibility of both. Some critics, such as Filmer, were immediately able to de-
tect a discrepancy and from it denounce the entire argument as incoherent.
Steven Johnston, Encountering Tragedy: Rousseau and the Project of Democratic Order (Cornell University Press
30
1999) 35.
In Rousseau’s case, this specific discrepancy is only one among a number of others. For example, he fam-
31
ously imagined ‘the people’ as the outcome of the social contract of unanimous and free individuals, but
at the same time, he sees it as an entity shaped by the figure of a benevolent and generative other—the
Lawgiver, as ‘the founder of nations’. Even if we bracketed this contradiction (there is nothing to be gained
by noticing it since the Lawgiver is benevolent, generative, and indispensable) a more basic one, arising from
the nature of the social contract, would remain unresolved. Althusser (n 11) 125.
95
Dramatizing Constituent Power • 95
Notice, again, that he was only able to do so because he was willing to oscil-
late his gaze, and in that way resist one thing that works in the dramatist’s fa-
vour: the linearity of the text as the medium in which those scenes are encoded
and which discourages the gaze from oscillating back and forth.
Though keen to avoid being in a situation where he might be accused of
contradicting himself, Emmanuel Joseph Sieyès—the theorist most often asso-
ciated with the concept of constituent power—couldn’t escape the temptation
to avail himself of the assistance provided by the scopic regime, implicit in the
text’s linearity. In a manner which would surely appear strange to a contem-
porary theorist of constituent power who revels in its ‘paradoxes’, Sieyès was
insistent on the contradiction-free nature of his theory, making sure to empha-
size that ‘even if the Nation had held regular sessions of the Estates-General,
it would [still] not be up to this constituted body to pronounce upon a dispute
affecting its own constitution’ because that ‘would be a petition of principle or
a vicious circle’.32 In a similar attempt to steer clear of vicious circles, Schmitt
detects ‘a contradictory confusion’ in the claim that ‘a constitution is valid not
because of its normative correctness but only because of its positive character,
and that, nevertheless, the constitution as a pure norm establishes a system or
an order of pure norms’.33 Though escaping the chicken-and-the-egg paradox at
s4, the way in which Sieyès choreographed the nation’s constituent power into
existence generated two other contradictions. For our purposes, they can be
more easily detected once we have appropriately expanded our gaze to include
the developments at the preceding stages of polity formation, s1–s3.
The first is the contradiction between Sieyès’s definition of ‘nation’ at s1 and
his (far more theoretically influential) definition of ‘nation’ at s4. On the one
hand, a nation already exists at s1: what triggers the process of polity formation
is the desire of isolated individuals ‘seeking to unite’, and ‘This fact alone makes
them a nation’.34 On the other hand, the nation that exercises constituent power
at s4 is a ‘body of associates living under a common law and represented by the
same legislature’—an entity whose identity is prefigured by Sieyès’s dramatistic
choice: smuggling in the figure of place at the scene of foundation.35 The
second contradiction follows from this dramatistic choice: though he escaped
the vicious circle at s4 (since the will of the nation cannot be prefigured by the
Estates General as the constituted body), Sieyès did not escape it at s2 and s3.
Smuggling in the figure of the (bounded) place at the scene of identification
may have prevented us from asking too many questions while our gaze is dir-
ected at s4—but only at the price of an uncomfortable choice: between the
constituent power of external constituent powers (that codetermine s2 and s3)
or the vicious circle that we must accept if we were to insist that the object of
the nation’s constituent power is the spatio-temporal totality of a constitutional
order. As we will see later in the text, contemporary constituent dramatists are
Emmanuel Joseph Sieyès, ‘What Is the Third Estate?’ in Political Writings: Including the Debate Between Sieyès
32
and Tom Paine in 1791 (Michael Sonenscher tr, Hackett 2003) 139.

Schmitt (n 8) 112.
33
Sieyès (n 32) 134.
34
ibid 97.
35
96

willing to embrace this latter contradiction as a virtuous ‘paradox’ and not a
vicious circle.
In Sieyès’s case, textual linearity proved to be a particularly powerful ally, as
it allowed him successfully to morph the persuasive force of the initial scene of
‘Isolated Individuals’—in which a Nation exists solely in virtue of its members’
unanimous attitudes towards each other—and the other, more realistic one of a
‘Body of Associates’, in which it is the convention of ‘common laws’ that turns
individuals into the members of a Nation. In contrast to the contractarian im-
agination of polity formation that exhausts itself in the act of foundation, Sieyès
imagined the process of polity formation that begins with the establishment
of the nation in isolation, and then unfolds through two more ‘epochs’, during
which constituent power is generated and ultimately exercised. In tracking con-
stituent power in time and in space, Sieyès gradually changes the character of
the entire picture. What began as the scene of isolated individuals seeking to
unite transforms into the picture of ‘forty thousand parishes covering the whole
territory’36 that serve as locations within which lower-level delegates elect the
members of the Constituent Assembly, who in the end exercise the nation’s
constituent power by adopting a new constitution. Put more metaphorically,
the scene of isolated individuals operates as a rhetorical rocket booster whose
function is to overcome the gravity force of our anxiety about being dominated
by the constitutive preferences of others, and get us to the stratosphere of a
civil condition in which the command module of the USS ‘Body of Associates’
can take over.
In adapting Sieyès’s account of constituent power for his polemical purposes,
Schmitt was more careful—if ultimately unsuccessfully—not to undermine the
logical coherence of his argument by making an effort to be clear about the
proper domain of the operation of the people’s constituent power. For Sieyès,
the nation can exercise its constituent power immediately after s1—and not ne-
cessarily at s4 only—when ‘everyone involved in the association seeks to give
their union consistency [where] all want to accomplish its purpose and when
they confer with one another and agree upon public needs and how to meet
them’. It is the public-minded activity of the ‘essential underlying elements’ of
individual wills that creates ‘constituent power’ and attributes it to the people—
not the existence of common laws and legislature. In contrast, Schmitt was
clear that an account of constituent power presupposes a specific event at s1.
From that perspective, the moment of the social contract, for example, is ‘al-
ready presupposed in the theory of the constitution-making power’.37 Second,
Schmitt also made more explicit the assumption behind Sieyès’s claim––that
the nation ‘exists prior to everything [and] is the origin of everything’.38 In
Schmitt’s adaptation, to be able to exercise constituent power, such nation
must be a ‘unity capable of political action’ that possesses the ‘consciousness
ibid 140.
36 37
Schmitt (n 8) 112.
ibid 136. For a rare notice of this tension, see Chimene I Keitner, The Paradoxes of Nationalism: The French
38
Revolution and Its Meaning for Contemporary Nation Building (SUNY 2007) 65–66.
97
of its political distinctiveness’ and ‘the will to political existence’.39 Finally, while
Sieyès was content to notice the desires of isolated individuals—their will to
give their union consistency—but was otherwise content to assume that they
exist as the body of associates, Schmitt was explicit that this desire must be a
lasting ‘social-psychological’ phenomenon: homogeneity, whether it is ‘natur-
ally given or historically achieved’.40
However, rather than being successfully excoriated, the discrepancies
that plagued Sieyès’s account found a new way to resurface in the text of
Constitutional Theory, irrespective of the apparent precision of Schmitt’s defin-
ition of what counts as the exercise of constituent power: ‘an act that constitutes
the form and type of the political unity, the existence of which is presupposed’.41
Though Schmitt insisted that such act determines ‘the entirety of the political
unity in regard to its peculiar form of existence’, the qualifications ‘form’ and
‘type’ have left ample room for interpretation. Framed as a question: is the deci-
sion about these qualifications a decision about the content of s2 and s3 or only
about the content of a constitution at s4? As we will see in a moment, the result
is a contradiction within Schmitt’s account of constituent power, irrespective
of which interpretation we choose. As in the cases discussed in the previous
section, such contradictions are best seen as symptomatic discrepancies: less so
in the case of Schmitt’s desire to provide a realistic constituent dramatization
than in the case of Schmitt’s concrete polemical intent that prevented him from
hiding them better.
While the domestic polemical target of Constitutional Theory is well rec-
ognized in the literature, for us its international aspect is more interesting.
Discussing the post-war settlement that established the international terri-
torial administrations of Danzig or Saarland, Schmitt argued that ‘when the
comprehensive political status of a state concluding a contract is determined
through an international law contract’, the result can only be the ‘elimination
of the [constituent] power of the state that became dependent’.42 ‘As large and
pressing as the burdens of the German Reich are’—Schmitt writes, anticipating
an objection—‘and as immense and destructive as the opportunities for inter-
ference by the allied powers. . . the decision about these existential concepts is
not directly transferred to a foreign power’.43 In contrast, although the people
of Danzig (the vast majority of whom were German) could exercise demo-
cratic control over the affairs of the city, they nonetheless cannot be seen as
having exercised a ‘free decision on the type and form of political existence’.44
The problem with Danzig was not that the territory itself was ‘founded’ by
39
Schmitt (n 8) 127. That characteristic of ‘the nation’ distinguishes it from ‘the people’. For Schmitt, ‘In con-
trast to the general concept of the people, the nation concept means a people that is individualized through
a politically distinctive consciousness’ (234).
40
ibid 207. Schmitt is clear that hoping to achieve a ‘maximum’ of homogeneity in a polity is a dangerous
illusion. While it would lead to ‘minimum government and personal leadership’, so that ‘the resolution of
political affairs occurs ever more “of itself ” ’, this outcome would merely lead to a ‘vegetative form of exist-
ence’, making such a polity easier prey for a ‘foreign, politically active people’ (248).
ibid 75–77.
41 42
ibid [emphasis added]. 43
ibid. 44
ibid.
98

the Principal Allied Powers (s2), but that its internal constitutional government
was being exercised by the ‘representatives called to service through the estab-
lished process’, in agreement with the High Commissioner of the League of
Nations (s4).
Notice how the contours of other appear in both cases only to be dismissed
as irrelevant. What dismisses him in the first case is the fact that it determines
the content of s3 and s4. What dismisses this figure in the second case is the fact
that constituent power does not operate at s2—otherwise Schmitt would have
been forced to admit that the Principal Allied Powers had affected the spatial
form of existence of the German people by altering its territory.45 Notice, how-
ever, that to reach this conclusion, Schmitt must smuggle in great powers as the
constitutive others at the meta-level. The criterion for judging the presence or
the absence of constituent power in both cases hinges on the acceptance of the
relevance of the settlement imposed by external constituent powers.
Seeing how this undermines Schmitt’s definition of constituent power is
made more difficult in the context of Germany, which, even after the post-
war boundary changes, continued to be inhabited by a people with ‘the will
to political existence’ and the ‘consciousness of its political distinctiveness’.46
Nevertheless, this definition does not presume that the ‘will’ and ‘conscious-
ness’ must exist in a uniform manner vis-à-vis all territorial communities out-
side a particular people’s boundaries. In the period Schmitt takes as an example,
the German people can be seen as the bearer of constituent power, though it
exhibits a radically decreased or non-existent consciousness of distinctiveness
vis-à-vis ‘the peoples’ of Austria, Saarland, or Danzig.
If so, what stops us from extending the same conclusion to the question of
whether or not the people of Danzig is vested with constituent power? Like the
consciousness of the German people itself, the ‘consciousness of its political
distinctiveness’ was unevenly distributed vis-à-vis its political environment.
The answer to this question depends on the concrete understanding of what
must be ‘presupposed’ in Schmitt’s definition ‘the people must be present and
presupposed as political unity’ to be considered the subject of constitution-
making power. In the section of Constitutional Theory that discusses constitution-
making power most directly, this presupposition can only be gleaned from
Schmitt’s remark that ‘fundamentally new forms can be introduced without the
state ceasing to exist, more specifically, without the political unity of the people
ending’. So even though they exist as collective political subjects in territorial
units in which they enjoy substantial measures of autonomy, the peoples of
sub-state entities in federal states do not have the constitution-making power.
Instead, this power belongs to the people of the federation, and the federation
The fact that the personal and territorial jurisdiction of the Reich was contingent on the will of the Council
45
of the League of Nations (in the case of the wished-for annexation of Austria, provided for in Article 62 of
the Weimar Constitution) does not lead Schmitt to deny the Reich’s character as a sovereign state based on
the people’s constituent power.
Schmitt (n 8) 127.
46
9
rests on an existentially substantial similarity of its members. Or, as Schmitt puts
it most explicitly, ‘the existential distinctiveness of these peoples, interests, and
convictions find their political form in the state’.47
This interpretation allows Schmitt to affirm his initial conclusion by claiming
that what is presupposed about the ‘political unity, the existence of which is
presupposed’, is a sovereign state.48 But what justifies treating ‘state’ as a sign
of existential distinctiveness? On the one hand, the answer cannot be an ‘eth-
ical or juristic norm’––which ‘would not at all be in a position to justify any-
thing’––since the people as the ‘special type of political existence need not
and cannot legitimate itself ’. On the other hand, even if we understood ‘state-
hood’ as evidence of existential distinctiveness, this still does not explain why we
should treat it as the evidence of existential distinctiveness. Schmitt does not
answer this question, but notice what this more precise definition of constituent
power aspires to achieve polemically: to give intellectual respectability to the
constitution-making power of the German people in the Weimar Republic, to
deny the constitution-making power to ‘the peoples’ of Danzig and Saarland,
and, last but not least, to deny the constitution-making power to ‘the peoples’
of heterogeneous states.
If constituent power can belong only to the people of a sovereign state that
exhibits ‘consciousness of its political distinctiveness’ and ‘the will to political
existence’, the criterion for the existence of that people’s constituent power
is the success in the existential struggle that has culminated in the formation
of the sovereign state. This interpretation allows for further conclusions,
from which Schmitt draws only the first: the attempts to preserve the homo-
geneity of the existing sovereign peoples are democratically legitimate ways
to preserve the people’s constituent power. These measures may include, as
Schmitt notes: exile, assimilation, the control of foreign entry, or immigration
legislation.49
The second implication of treating state sovereignty as a necessary condition
of constituent power is one that Schmitt is not ready to embrace openly: other
(a great power or an alliance of great powers) can legitimately reconstitute sov-
ereign ‘peoples’ under the condition that those ‘peoples’ continue to exist as
homogenous populations with a will to political existence. And this, finally, en-
tails an even more troubling implication: it would allow other to separate parts
of a sovereign people’s population and territory and assign them to states that
are able to absorb them without endangering their own homogeneity.
The third implication follows if we push the preceding conclusion to its lo-
gical end: the zone of constituent freedom that belongs to other can be gener-
alized as a principle of a higher normative order. That principle is an element
of frame, the content of which has nothing to do with secularized theological
creatio ex nihilo, but which simply offers practical advice to great powers: When
you dismember or annex other states, reconfigure them spatially so that they contain
homogenous populations that will manifest will to political existence! While Schmitt
ibid 394.
47
ibid 75.
48
ibid 262.
49
10

implicitly, and perhaps inadvertently, accepts the second implication, he rejects
this one explicitly:
The political decision reached regarding the type and form of state existence,
which constitutes the substance of the constitution, is valid because the pol-
itical unity whose constitution is at issue exists and because the subject of the
constitution-making power can determine the type and form of this existence.
The decision requires no justification via an ethical or juristic norm.50
At this point, we could ask: If those who are conscious of their distinctiveness
cannot be prevented from determining the ‘type and form’ of ‘state existence’,
what prevents them from determining the ‘state existence’ itself ? If the former
requires no ethical or juristic justification, does it mean that the latter does? And
if it does, why? These questions bring us to the fork in the road that we encoun-
tered when we assumed that a sovereign state is what had to be ‘presupposed’.
We could consistently deny the relevance of ethical and juristic justification not
only at s4 but also s1–s3. Constitutional Theory also allows for this interpretation.
For example, Schmitt claims that:
The state does not have a constitution, which forms itself and functions ‘according
to’ a state will. The state is constitution, in other words, an actually present condi-
tion, a status of unity and order. The state would cease to exist if this constitution,
more specifically, this unity and order, ceased to exist.51
A reference to Aristotle’s understanding of a constitution further clarifies
Schmitt’s claim that when ‘a new constitution is founded, a new state arises’.
Similar to a ‘song or musical piece’, a constitution is preserved even if the com-
position of the choir changes, or ‘if the place where they perform changes’.52 This
suggests that sovereign statehood is only the best evidence, not the necessary
condition, of the people’s constituent power. This has further implications: it
suggests that homogeneity is required of a people, not of the population of a
state; it suggests that the people is mobile and can exercise its constituent power
elsewhere; and it suggests that there may be different peoples vested with con-
stituent power within a single sovereign state. Finally—and ironically—this
would seem to affirm what Schmitt banishes: that there is an ethical principle
that says there ought to be a place in the world where a people, any people, can
exercise its constituent power.
5. Behind the people

friends, enemies, and their thirds
In the eyes of contemporary theorists, Schmitt’s account of constituent power
figures as an adapted continuation of his main thesis about the secularized
theological character of all important political concepts,53 or as a forerunner
ibid 136.
50
ibid 60.
51
ibid.
52
Renato Cristi, ‘Carl Schmitt on Sovereignty and Constituent Power’ (1997) 10[1] CJLJ 189.
53
10
Behind the People: Friends, Enemies, and their Thirds • 101

of an emancipatory understanding of constituent power.54 This chapter argues
that Schmitt’s Constitutional Theory should be seen differently: not as his oppor-
tunistic adaptation of the language of democratic legitimacy, but rather as a
foreshadowing watershed in the evolution of his deviant constituent imagination.
This means three things. First, the way in which Schmitt seeks to eradicate
the presence of frame from the scene in Constitutional Theory foreshadows an
enduring thread in his subsequent constituent dramatizations: irrespective of
how he chooses to stage a new political ‘entity’, he always smuggles in frame as
a figure that supplements its (otherwise non-normative) criterion of identifica-
tion. Second, Schmitt’s Constitutional Theory should also be seen as a watershed
for his constituent imagination. As it will become more obvious in the pages
that follow, that watershed is not only between a normative, domestic, and con-
stitutional Schmitt and an ontological, global, and international Schmitt, who
after the Second World War finally emerges as a ‘spatial thinker’.55 Rather, it
marks the beginning of a vacillating trajectory that ultimately leads him to offer
elements for a de-theologized constituent dramatization that instead of ex ni-
hilo effects evokes the field of constituent struggle. Third, the yardstick that
makes this trajectory deviant is not Schmitt’s own pre-1928 constitutional im-
agination but the general tendencies exhibited by contemporary constitutional
dramatists. Even when they critique Schmitt, they have continued producing ex
nihilo effects of their own, which stand in sharp contrast to the Schmittian scene
of constituent struggle that will emerge at the end of this section.
What might have prevented theorists from detecting it is the gravitational
pull of Schmitt’s central theoretical insights themselves, encapsulated in self-
contained essays that, on the surface, do not communicate with each other.
From a dynamic perspective of his evolving constituent imagination, things
look different: The Concept of the Political (1932) can be seen not only as the mani-
festation of Schmitt’s loss of interest in ‘abstractions’ and ‘normative ideals’,56
a return to political ontology,57 or the articulation of the distinction between
friend and enemy, but also as his attempt to resolve the ambiguities that plague
his account of constituent power in Constitutional Theory.
In The Concept of the Political, Schmitt attempts to do so by explicitly rejecting
the territorial prefiguration of the political character of the people and its con-
stituent power. Instead, the political character of an ‘entity’ is determined by
the application of three cumulative criteria: first, it must embody ‘the utmost
degree of intensity of a union or separation’; second, it must be oriented toward
the ‘most extreme possibility’ of existential conflict with an enemy; and third,
it must exist as ‘a totality of men that fights at least potentially . . . and stand in
Andreas Kalyvas, Democracy and the Politics of the Extraordinary Max Weber, Carl Schmitt, and Hannah Arendt
54
(CUP 2008).
Mitchell Dean, ‘A Political Mythology of World Order: Carl Schmitt’s Nomos’ (2006) 23[5] Theory, Culture
55
& Society 1, 8.
Carl Schmitt, The Concept of the Political (Georg Schwab ed, Rutgers University Press 1976) 28.
56
Cristi (n 53) 192.
57
102

opposition to a corresponding totality’ whose present character as a territorial
state is historically contingent, not conceptually necessary. Without bounded
space to regulate the legitimate manifestations of antagonisms, political entities
may emerge and dissolve through the trials of strength and will. The peoples
who are ‘afraid’ to determine friends and enemies and afraid of the ‘trials and
risks’ of pursuing an independent political existence will cease to exist in a pol-
itical manner.58 Likewise, political entities organized as states may disappear in
civil wars if a new political entity successfully asserts itself at their end. There
are no reasons for these processes to give rise to hard theoretical feelings: they
are the manifestations of the logic set in place by the distinction between friends
and enemies, which is ‘neither normative nor purely spiritual’.59
If we look more closely, however, Schmitt not only describes but also justifies
the wars that lend equal dignity to friends and enemies against those that turn
an enemy into ‘a monster’ that must be ‘utterly destroyed’ and not ‘compelled
to retreat into his borders only’.60 The inclusion of ‘his’ in ‘his borders’ suggests
that the friend/enemy distinction is normative and, perhaps more importantly,
that the figures of place and frame are not banished from the scene of identi-
fication. Even if we interpreted Schmitt’s reference to ‘his’ generously—as an
injunction towards the victorious side to exercise self-restraint and not pursue
the enemy to the point of extinguishing his equal dignity—that would still pre-
suppose the idea of a location beyond which a war conformant to a symmetrical
counterconcept by default becomes a war conformant to an asymmetrical one.
So while bounded space is excluded from the criteria for the definition of a con-
crete political entity, the figure of an identifiable place has remained a necessary
criterion of the political as such.61
Schmitt does not properly revisit the question of ‘his borders’ until 1962.
However, in Nomos of the Earth, published in 1950, he offers ‘the theory of con-
stitutional processes and power manifestations’, which radically departs from
his previous preoccupations with collective political subjectivity. There, Schmitt
also addresses the question of ethical and juristic norms that aggravated his
accounts of constituent power in Constitutional Theory as well as his account
of a political entity in The Concept of the Political. There—instead of a collective
agent that decides on the ‘form and type of political unity’—a new territorial
legal order is constituted by an enigmatic, impersonal ‘nomos’.
That nomos, however, is not a normative framework. Though always con-
taining concrete ethical and juridical norms in different historical eras, the
meaning of nomos transcends political morality and international law, both
qualitatively and perceptually. While both normative systems can be, and in
fact should be, approached from a stable perspective, the meaning of nomos
is impossible to glean without fusing three perspectives from which they
Schmitt (n 56) 49.
58
ibid.
59 60
ibid 36.
For an argument along similar lines that charges Schmitt with smuggling normative commitments into his
61
constitutional ontology, see Richard J Bernstein, ‘The Aporias of Carl Schmitt’ (2011) 18[3] Constellations 403.
103
Behind the People: Friends, Enemies, and their Thirds • 103

disclose themselves. Seen from the ground, during the process of polity for-
mation, nomos is the name for someone’s (it does not matter whose) activity
of land appropriation. Seen from the ground, following the completion of that
process, nomos is the act: a new polity itself. Seen from above, nomos is nei-
ther the act nor the product but rather the sum of historically contingent but
ever-present ‘multifarious ways of ordering . . . coexistence’, among which the
most important are ‘public and private principles and procedures for territorial
changes’.62
Though such nomos justifies the creation of new polities and shapes global
territorial changes, its continuing operation critically relies on a global constel-
lation of political power. In such a constellation, great powers serve as ‘agents
and guarantors’ of global territorial order, tasked with the role of ‘adjudicating
territorial changes’.63
Notice, however, that irrespective of how radically different this image is
from those of early modern contractarians, it relies on the same dramatistic
choice: the suppression of other as a figure worth evoking as an obstacle
and an opportunity. In this case, Schmitt ultimately portrays their role as un-
worthy of further problematization—not because they are absent or preda-
tory (Hobbes), or benevolent but inescapable (Rousseau), but because they
are judicialized: though great powers create nomos among themselves, vis-à-
vis weaker others, they are simply ‘guarantors’, and adjudicators of territorial
changes.
In The Theory of the Partisan, we again encounter a political ‘entity’ based
on intense affective bonds of political friendship. Unlike in The Concept of the
Political, this political entity has a specific name: the partisan,64 an intensely
committed, mobile fighter who fights for his land. Schmitt’s remarks about the
inner thoughts of partisans and their enemies suggest, that the four criteria are
not sufficient to identify a partisan as a political entity. The partisan ‘knows, and
accepts’ writes Schmitt, reporting the partisan’s inner thoughts, ‘that the enemy
places him outside law, statute, and honour’.65 However, ‘the revolutionary
fighter does this too, and declares the enemy a criminal and all concepts of
law, statute, and honour an ideological fraud’.66 While ‘knowing and accepting’
might suggest that the partisan simply registers the fact of enmity that exists
outside ‘all concepts of law, statute, and honour’, he nonetheless considers him
a criminal. But what establishes their moral and political symmetry in general is
not the fact of enmity as such but the equal legitimacy of their interpretations
of what is required by nomos.
62
Carl Schmitt, Nomos of the Earth in International Law and Jus Publicum Europaeum (Telos 2003) 82–83
[emphases mine].
ibid 191.
63
64
Carl Schmitt, The Theory of the Partisan: A Commentary/Remark on the Concept of the Political (AC Goodson
tr, Michigan State University Press 2004).
ibid 20 [emphasis mine].
65
ibid.
66
104

Instead of simply observing the intensity of political antagonism, as he does
in The Concept of the Political, here Schmitt inhabits the field of constituent
struggle from both perspectives recording in the text the justification for them both.
This has one particularly important implication. In The Theory of the Partisan,
the other emerges neither as a lawgiver, an enemy, nor as a judicialized great
power that guarantees the territorial status quo and adjudicates its changes.
Rather, the role of other in this case belongs to interessierte Dritte—an ‘inter-
ested third party’—which, unlike the previous figurations of other, ‘essentially’
belongs to what Schmitt calls ‘the situation of the partisan’. As such, its func-
tion is not predatory or annihilative. However, while the interested third party
is indispensable to his ‘situation’, the partisan cannot count on its benevolence.
Unlike Rousseau’s lawgiver, who has the best interests of the parties to the so-
cial contract in mind, the interessierte Dritte can perform its ‘essential function’
in a number of ways. Irrespective of its motivations and concrete actions, this
incarnation of the figure of other always plays a constituent role: ‘providing
the link for the irregularity of the partisan to a regular so that he remains within
the realm of the political’,67 without which the partisan could not avoid ‘falling
like the thief and the pirate into the unpolitical . . . criminal sphere’.68
At this point it is important to emphasize the dramatic difference between
this scene, and most of the others which, in the history of constitutional
thought, appear as the acts of foundation, constitution, self-constitution, or co-
institution. Seen from the perspective of their formal outcome, the difference
between them is trivial: the scene of partisans and ‘interested thirds’ does not
result in a ‘constitution’—neither for the polity whose land partisan defends, nor
for the political community in whose name she acts. On closer inspection, how-
ever, interessierte Dritte does constitutively affect the constitution of the partisan
as a political factor—and in that way, indirectly, also affects the constitutions
mentioned earlier. In this scene, there isn’t the ‘pathos’ that Blumenberg spoke
about. Nor is there anything particularly ‘secularized theological’ about it. The
reason for that is not simply that other finally appeared on the stage openly, but
that it appeared in a way that violates the template we identified early on, and
which prevented dramatists from staging it in the way in which it presents itself
here: as ambivalent, ambiguous, and co-constitutive.
From now on, we will refer to him as a xenos—a double Foreigner: foreign
both to the partisan’s telos, and to the telos of the dramatistic patterns that
prevail in early modern, modern, and contemporary constitutional thought.
To extricate xenos from the scenic environment of the uniform scene of
constitution-making, and to emplace it across the plurality of new stages s1–s5
is the first and decisive step that will allow us to leave creator behind (as it will
undermine the capacity of dramatists to produce its defining attribute—creatio
ex nihilo—which, from the dramatistic perspective must be seen as a misnomer).
Earlier sections aimed to show why: as everything else, the ex nihilo on the scene
ibid 65.
67
ibid 53.
68
105
From Schmitt’s Anxiety to Kelsen’s ‘Tendency’ • 105

is the result of someone’s theoretical creatio. To serve the purpose of the stage
effect—think of it as a flash of light—its background must be contrastive and
seemingly uniform.
Xenos—the figure extricated from the background of such scenes provides
them with a richer texture and makes them more inhospitable to ex nihilo spe-
cial effects. Doing so, as we saw a moment ago comes at a cost: ‘agentifying’
xenos must be repaid by ‘de-agentifying’ the agents which figure either as a
would-be people, or as a sovereign people itself. Once we have done so, how-
ever, we must return to the question of frame. Without the idea of a sovereign
people, the question becomes: Who—if anyone—will now do the ‘work’ of
framework? Without authorizing the acts of (would-be) sovereign peoples, can
frame still provide us with a scheme for their (re)production? While Schmitt
cannot help us with these questions, Hans Kelsen can.
6. From Schmitt’s anxiety to Kelsen’s ‘tendency’

One of the things that prevented Schmitt from introducing frame at the scene
of constituent struggle are the diverse ways in which he characterized his schol-
arly projects over time: to understand the meaning of constituent power in a
democracy (in Constitutional Theory); to move past ‘abstractions [and] norma-
tive ideals’69 and elucidate the ontology of the formation of political identity (in
The Concept of the Political); or to offer a more historically grounded account of
the characteristics of that identity in the context of the struggles over territorial
sovereignty (The Theory of the Partisan). The only time the figure of frame is vis-
ible at the scene of constituent struggle, is when it appears alone: in The Nomos
of the Earth. There, it does all the work: in encouraging us to imagine the figures
of many and place as politically inconsequential, Schmitt’s nomos also distracts
us from asking about the content of the norms that govern their relationship
with a variety of powerful others that regulate the processes of ‘land appropri-
ation’ from the outside.
Though this may help explain how Schmitt managed to ignore the question
of the prescriptive content of nomos in an era in which ‘land appropriations’
can only be rightfully exercised by sovereign peoples, it still does not explain
why. Some of it, as we will see in Chapter 9, may have to do with Schmitt’s lin-
gering animosity towards the principle of national self-determination. Another
possible explanation for his indifference towards the normative character of
contemporary nomos, however, can be gleaned from his enigmatic remark in
The Theory of the Partisan:
The enemy is not something to be eliminated out of a particular reason, some-
thing to be annihilated as worthless. The enemy stands on my own plane. For this
reason I must contend with him in battle, in order to assure my own standard, my
own limits, my own Gestalt.70
Schmitt (n 46) 28.
69
Schmitt (n 64) 61.
70
106

Revisiting the distinction between friend and enemy in his private post-war cor-
respondence, he offers a variation of the same conclusion:
The indeterminacy of the enemy evokes anxiety (there is no other kind of anx-
iety, and it is the essence of angst to sense an indeterminate enemy); by contrast,
it is a matter of reason . . . to determine who is the enemy (which is always the
same as self-determination), and with this determination, the anxiety stops and
at most fear remains.71
In these remarks, Schmitt’s ontology presents itself not as an accurate descrip-
tion of the logic of the formation of political ‘entities’ but as a visual therapy for
Schmitt’s own anxieties. Put differently, what prevented Schmitt from postulating
the frame that would demand that we treat enemies ‘on our own plane’ (or not
treat them as ‘enemies’ at all!) is his belief that doing so precludes the establish-
ment of a stable self-image of those whose ‘political friendship’ binds them to a
particular political community. Its Gestalt—its shape and form—can only be es-
tablished by means of contrast with the outside. That contrast must be stark—
otherwise, ‘the indeterminacy of the enemy’ would continue feeding our anxiety.
For our purposes, these remarks are important not only because they allow
us to speculate about what made Schmitt compulsively hide the traces of
normativity from his constituent dramatizations, but also because they indi-
cate which two acts of imagination are necessary in order to bring the figure
of frame to the scene of constituent struggle, which is already inhabited by the
figurations of many, place, and other. The first act entails the willingness to
foreground what Schmitt otherwise mentions in passing: that the figurations
of sovereignty and peoplehood, together with the stage props that bring it
into existence, are the products of the work of an anxious constituent imagin-
ation. The second act entails a decision to abandon, as impossible, the goal that
Schmitt sets out for himself in the quote above: stopping the anxiety, instead of
managing it.
As we saw in Chapter 2, the one who is willing to manage this anxiety is
Kelsen. Kelsen explicitly postulated the relationship between the affective di-
mensions of the constituent imagination of popular sovereignty and the norm it
serves: the maximization of individual self-determination, or, as Kelsen called it,
‘the tendency towards unanimity’. Such understanding would have been impos-
sible without a particular image of ‘the people’ that enables Kelsen to imagine
the majority vote as a technique that serves this tendency. As a technique that
makes ‘accord between the individual will and the will of the state . . . easier’,72
the majority vote can only be intelligible if we assume the vacillation in the
content of these wills over time. As a result, ‘the people’ cannot be a monolithic
entity but a ‘provisional entity’.73 Put differently, in order to detect the frame
Quoted from Gopal Balakrishnan, The Enemy: An Intellectual Portrait of Carl Schmitt (Verso 2000) 113.
71
72

Hans Kelsen, ‘The Conception of the State and Social Psychology—With Special Reference to Freud’s
73
Group Theory’ (1924) 5 Int J Psychoanalysis 1, 12.

107
From Schmitt’s Anxiety to Kelsen’s ‘Tendency’ • 107

of ‘the tendency’ behind ‘the will’ of ‘the people’, Kelsen had to become less
anxious about his own ‘Gestalt’. Instead of identifying the sharp contours of
nations and peoples in the field of existential struggle, this allowed him to pro-
visionally identify the presence of such entities as an ‘ocean of psychic happen-
ings [where they] rise like waves in the sea and after a brief space [are] lost again
in an ever-changing ebb and flow’.74
In On the Essence and Value of Democracy, however, the operation of this ‘ten-
dency towards unanimity’ is still local; developed in conversation with Jean-
Jacques Rousseau, whose direct democracy––in Kelsen’s opinion––remains
destined to be exercised spasmodically:
Even if the governing will of the state arises directly from referendum, the indi-
vidual is free only at one moment, only while voting, and only if he votes with the
majority and not with the outvoted minority. Therefore, the democratic principle
of freedom appears to demand that the possibility of being outvoted be kept to
a minimum.75
In his 1942 Holmes lectures, however, Kelsen abandoned––if only briefly––his
earlier position, that ‘democracy contents itself ’ with approaching unanimity
only domestically. In that essay––devoted to the prospect of establishing a world
federation after the end of the Second World War––Kelsen extended the applic-
ability of the democratic principle globally, arguing that:
If one assumes as the fundamental principle of democracy not only equality
but freedom, freedom in the sense of self-determination, and if one takes as
the unit, from a collectivistic viewpoint, national communities, not human in-
dividuals, then one must admit self-determination of peoples as a democratic
requirement; and one must also admit that a community of states approaches
the democratic ideal more closely by way of decentralization than by way
of centralization. [1]‌The problem is to unite a number of states whose na-
tionals differ from one another in language, culture, and history, and who feel
themselves different. [2] If matters that the people of a member state regard
as their own are regulated by norms [that] are created by a central organ in
which these people are not represented or are represented inadequately, then
these people will feel themselves injured in their right to self-determination. [3]
They will then demand decentralization in the name of the democratic right
of self-determination, and will prefer a purely international organization of
the community of states to a federal one. [4] The principle of international law
that binding decisions can be reached only by unanimity, that no full member
of the community can be obligated against its will, corresponds to the idea of
self-determination.76
ibid 9–10.
74 75
Kelsen (n 72) 86.
76
Hans Kelsen, Law and Peace in International Relations: The Oliver Wendell Holmes Lectures, 1940–41 (first pub-
lished 1942, William S Hein & Co 1997) 141–42. Though present-day scholars ignore Kelsen’s admittedly short-
lived enthusiasm for a more liberally applied right to self-determination, those who reviewed his book in 1942
didn’t fail to notice it. The reaction—as is the case with similar proposals today—was that of a concerned
scepticism. ‘He insists on the democratic requirement of self-determination of States,’ as Edwin Borchard
108

This has consequences for the principle of boundary drawing:
A satisfactory solution of the territorial problem is, therefore, possible only on
the basis of the principle of self-determination. We must try to realize the right of
self-determination of the peoples as extensively and honestly as possible. Where
minorities are unavoidable they are to be organized as entities with constitutional
rights. The treaty establishing the international community must grant them the
status of personality in international law; that means that it will be possible for
them to call upon the international court in case of violation of the provisions for
minorities determined by the constituent treaty.77
Seen against the background of Kelsen’s entire scholarly output, these remarks
are a barely noticeable exception to his other, more well-known positions
on self-determination and sovereignty. The picture they paint is nonetheless
striking––an international order where the tendency to unanimity operates
globally; where the exercise of national rights to self-determination exists as a
localized application of a global tendency; and where this tendency acts as the
common denominator that renders intelligible both the status-quo-preserving
principle of sovereign equality and the status-quo-destroying principle of the
right to self-determination.
For those still unpersuaded, this is what reaching this conclusion looks like
in slow motion: In (1) Kelsen does not mention unanimity by name but uses
‘fundamental principle of democracy’ and a ‘democratic ideal’ as stand-ins.
‘Decentralization’ allows collectivities—national communities and states—
to approach this ideal, not individuals, (as in his 1928 piece). In (2) Kelsen’s
vision becomes imperceptibly more granular. The problem, he says, is to
unite the states whose nationals—in plural—not only objectively differ in cer-
tain ways, but who also ‘feel different’. As yet, nothing follows from this.
In (3) Kelsen describes the meaning of the right to self-determination from
the perspective of an aggrieved member state of his imagined world feder-
ation, arguing that the grounds for grievance are inadequate representation.
At this point, we cannot be sure about the granularity of Kelsen’s vision.
Given the grammatical conventions of the English language, we cannot be
sure whether, when he speaks of the people who ‘are’ not represented, he
has in mind a corporate body or a multitude of individuals. In (4) Kelsen says
that in this case, ‘decentralization’ ought to be seen as the manifestation of
the right to self-determination.
Notice, however, how this remark quietly abandons ‘inadequate represen-
tation’ as a politically relevant criterion for whether or not ‘decentralization’
claimed, ‘whereas several students have demonstrated that this is profoundly inconsistent with sensible eco-
nomic relations and ultimately with peace itself, even if there were agreement on what shall be the scope of
the unit of self-determination’. Edwin Borchard, ‘Book Review: Law and Peace in International Relations’
(1942) Iowa L Rev 161, 167.
Kelsen (n 76) 160.
77
109
Hollow Topologies • 109

ought to take place. To grasp the significance of (4), recall that in this case, the
meaning of ‘decentralization’ is not decentralization from a somehow more ab-
stractly centralized international order of sovereign states but the secession from
a world federation. That decentralization, in turn, is the same ‘decentralization’
that in (1), Kelsen portrays as approaching ‘the democratic ideal’ as the stand-in
for unanimity, which finally explicitly appears, at that point, as indisputably con-
nected with self-determination.
Put differently: a local (domestic) majority vote in favour of a ‘secession’ from
an imagined world federation would be a move towards unanimity globally. By
implication, if a secession from a state-like world federation is a manifestation
towards unanimity, then the tendency towards unanimity can, in principle, op-
erate within states as the manifestation of the principle of sovereign equality,
non-intervention, and democratic self-determination. That conclusion can be
justified in prudential terms, but it can also be seen as an ethical ideal: Kelsen,
as we just saw, asks for the application of self-determination not only ‘as exten-
sively’ but also ‘as honestly’ as possible.
In any event, Kelsen presents us with an image of a world tendentially re-
sponsive to fluctuations in political desire. While Schmitt’s pluriverse is gov-
erned by a nomos indifferent to popular struggles, the Kelsenian universe is
governed by a ‘nomos’ whose purpose is progressively to contribute to their
satisfaction. In his Nomos, Schmitt leaves us wondering about its contemporary
content. In the Holmes Lectures, Kelsen offers the answer: it is his 1928 ‘ten-
dency towards unanimity’ gone global. Given the stark differences that separate
them, the irony that follows from this should not be missed: moving beyond
the people by moving beyond the creator/framework binary with the help
of Schmitt and Kelsen confronts us with a world picture which a variety of
figurations of peoplehood kept from our sight: Schmitt’s pluriverse governed
by Kelsen’s nomos—whose implicit algorithm governs the universal (re)produc-
tion of territorial sovereignty.
7. Hollow topologies

constituent dramatism today
The reproduction of popular sovereignty confronts us not only with the ques-
tion of its orientation, but also with the question of its aspiration—not only
with the nomos but also with the telos of demos and ethnos. As we have seen
in the introduction to this chapter, to reckon with the question of telos in the
way proposed by Bloch is to envision it as both forward-looking and concrete. In
so doing, however, we would have to leave behind not only the naturalistic and
allegorical early modern and modern dramatizations of the social contract
and constituent power, but also the contemporary, more symbolic dramatiza-
tions that either have no time for the specific purposes of constitution-making,
or that even insist on its inevitable vacuity. While Bloch would consider such
10

dramatizations symptomatic of their authors’ ‘nihilism of theoretical hopeless-
ness’, we should not accept this verdict without further consideration of how
these new figures evoke what they do, and for what purpose. In the rest of this
section, I focus on the following three exhibits: ouroboros, the möbius strip, and
rubin’s vase.
The first is a stand-in for the creator: the first living creature in the uni-
verse, an immortal, self-constituting, and self-reproducing being. In ouro-
boros, we encounter not a god-like sovereign producer of place, as in the early
modern dramatizations of social contract, but rather ‘God biting His own (spa-
tial) tail!’—an instance not of ‘the divinization of space, but the spatialization
of divine!’.78 Perhaps in order to conceal that fact, ouroboros is only rarely
mentioned by its name in contemporary debates about the character of sover-
eign peoplehood and its self-government. Nonetheless, its image can rightly be
seen as an apt metaphorical summation of the increasingly influential attitude
among contemporary constituent dramatists, who rather than accepting that
its manifest circularity invalidates the perceptual credibility of the figure of a
sovereign people (as did implicitly Sieyès and Schmitt) portray such circularity
as the condition of its intelligibility.
According to this view the constitutional identity of modern democratic
states is not shaped by the dominant ethnicity or ideology; rather, it emerges
‘from the confrontation of the very paradox on which its corresponding con-
stitution rests’.79 For those who are not persuaded by this verdict, notice that
the theoretical worshippers of ouroboros also have a less metaphysical and
more prosaic answer at their disposal.80 ‘Staring obsessively’, says Gunther
Teubner, ‘at power struggles in the global political arena of international
politics where legal globalization takes place only partially at best, they will
overlook dynamic processes in other arenas where global legal phenomena
are emerging in relative insulation from politics.’81 The attempts to de-
paradoxify the paradox would result only in ‘temporary postponement, con-
cealment, invisibilization, suppression, repression’, ‘pensiero debole’, or ‘blind
experimentalism’.82
The möbius strip carries a similar message, through a slight tweak in the top-
ology of the place that prefigures partisan expectations. Here, tweaking should
be understood literally; as a sequence that starts with the flattening of the three-
dimensional body of the mythical ouroboros into a two-dimensional surface;
Casey (n 14) 126.
78
See Michel Rosenfeld, The Identity of the Constitutional Subject: Self hood, Citizenship, Culture, and Community
79
(Routledge 2009) 10.
For some doubts about the emancipatory potential of this image, see Susan Buck-Morss, ‘Visions of
80
Empire’ (2007) 37[2–3] Diacritics 171.

Gunther Teubner, ‘Global Bukowina: Legal Pluralism in the World Society’ in Gunther Teubner (ed),
81
Global Law Without a State (Dartmouth 1997).

Gunther Teubner, ‘Dealing with Paradoxes of Law: Derrida, Luhmann, Wiethölter’ in Oren Perez and
82
Gunther Teubner (eds), Paradoxes and Inconsistencies in the Law (Hart 2006) 60–61.
1

proceeds with twisting it by 90 degrees along its length; and is completed with
connecting the ends of that surface into a strip. What emerges from this im-
aginative tweaking is not a morphology of the terrain of constituent struggle
but a topology of a smooth space of popular self-government with only one side
and one boundary. Among theorists of sovereignty and constituent power, as
well as among the theorists of political subjectivity in general, one of its stylized
versions is especially popular. That version portrays not simply a folded strip,
but, more specifically, Escher’s wood engraving showing marching red ants who
eventually find themselves at the exact same spot without ever crossing to the
other side of the strip. Such a metaphorical ‘ant’—a member in a self-governing
‘people’—can, according to Alenka Zupančič,
believe at every moment that there is a side which it hasn’t explored, the other
side of that which it is walking on. It can strongly believe in this other side or this
beyond, even though there is no other side, as we know. Without knowing it the
insect thus explores the only side there is.83
Rather than being understood as the perfect description of false consciousness,
this picture ought to be seen as the allegory about the paradox as the necessary
condition of political subjectivity. According to Zupančič,
The paradox embodied by the topology of the Möbius strip thus consists in there
being only one surface and yet at every point there is also its other side. If we now
imagine the subject walking along the Möbius strip, then that constitutively lost
part of the subject which falls out of her reality . . . is at all times tarrying on the
other side of the subject, even though the subject explores the entire surface. . . .
its very falling out (on the other side) constitutes the field of possible experience
for the subject . . . object. . . supports the formal constitution of the subject and
her (symbolic) reality.84
Notice that in contrast to ouroboros, the image of bounded, circular, and
folded place of the möbius strip has three advantages. First, it makes the idea of
collective (or individual) autonomy not only contingent on the spatiotemporal
closure to the outside environment but also coexistent with heroic narratives
of overcoming and achieving. Second, in contrast to ouroboros—which is
the embodiment of the people itself—the möbius strip is the picture of polit-
ical space traversed by the people. In that way, the static, spatiotemporal, and
integral strip can be imagined as the condition of the intelligibility of polit-
ical aspiration and as the condition of the imagination of political progress.
Third, the fact that by ‘dropping out of the subject’s horizon, [the other side]
constitutes, or “opens up”, [his] very horizon’,85 enables us to imagine the
spatiotemporal integrity of political space and its internal boundlessness as
constitutive not only of the hopes for a better-after themselves but also of their
dignity. Or, to put it differently: imagining the political space as constitutively
Alenka Zupančič, ‘Anxiety, Enthusiasm and the Event’ (2005) 11[4] Parallax 35, 40.
83 84
ibid 48.
ibid.
85
12

‘twisted’ prevents us from judging as unreasonable the moments when ‘the
people’ radically redefines its political project out of anticipation of something
better on the other side of the strip.
Notice also that the picture of the möbius strip alone is insufficient to generate
such hopes but requires the active suspension of disbelief on the one hand and
bad memory on the other. To embrace the twisted strip as legitimate political
space, one must ignore the fact that the strip exists not as a natural occurrence
but as the result of a sequence of deliberate actions: cutting in shape, bending,
twisting, and properly connecting its edges. This thought, of course, never en-
ters the red ants’ minds as they march on, seemingly never to encounter an
obstacle to their ‘self-government’. But if we, instead of looking at them from
above, descended onto the surface of the strip itself, we would have also real-
ized that the möbius strip can only fulfil its role on the condition that the red
ants fail to remember how they ended up there and fail to recognize the terrain
they have traversed repeatedly. Predictably, the möbius strip will not do for ants
with a better memory or for those with a more vivid imagination. In contrast
to their more forgetful colleagues, they will remember the initial heteronomy
that compelled them to restrict their desires to that folded space, and may, as a
result, refuse to see it as legitimate.
Before inquiring into the hollow space of the third figure—lefort’s vase—
notice the specific location of that hollowness in the context of the former two.
When we encounter the image of ouroboros, the empty space is external to its
body (of a metaphorical popular sovereign). When we encounter the image of
the möbius strip, the void is in the same location but complemented with a little
visual detail: the location of self-government is not the three-dimensional ‘body’
of the people (ouroboros) but the smooth, never-ending yet sharply delineated
space of a folded strip. When we encounter lefort’s (Rubin’s) vase, however, the
‘empty space’ is not outside the location of popular self-government––it is the lo-
cation of popular self-government itself. Though Lefort is clear about the cho-
reographed nature of constituent imagination—the fact that societies are not
only ‘formed’ but also ‘set on the scene’—his own contingent dramatistic choices
remain in the background of his central polemical manoeuvre: introducing ‘the
people’ as the superior pole of an asymmetric counterconcept through an act of
visual imagination.
In lefort’s case, the inferior side of the binary is the totalitarian ‘People-as-
One’, a corporate or organic unity whose ‘will’ is fully predetermined by religion,
historical truth, or science.86 In contrast, the will of ‘the people’ who is located
on the left side of the binary is only contingently and never fully and perman-
ently prefigured by the choice of a concrete political purpose. In a democracy,
‘power belongs to no one’,87 and the identity of the people ‘remains latent’,
which allows for a ‘controlled challenge’ of political authority and its ‘creat[ion]
Claude Lefort, The Political Forms of Modern Society: Bureaucracy, Democracy, Totalitarianism (MIT 1986) 297.
86

87
13

and re-creat[ion]’ in its name.88 However, for empty space to be meaningful as an
image of a democratic people, the solid environment that gives it its shape must
be rendered politically irrelevant, or, as Lefort says, in ‘democracy . . . the figure of
the Other is abolished’.89
The image that captures the essence of Lefort’s visual choices is Rubin’s
vase: an optical illusion that features the sharp contrast between black and
white surfaces, and whose contours give rise to two incompatible images.90
Which image will be seen as meaningful depends on whether the contours are
understood as the borders to the peripheral surfaces (which consequently ap-
pear as two black silhouettes confronting each other) or to the white centre
surface (which appears as a vase). Perceiving those silhouettes as the figure of
other—and not abolishing it—would cause, if only for a moment, the white
space to lose its intelligibility as the site of collective self-government. Instead
of being an object invested with meaning—a vase—it would revert to an empty
space between the silhouettes. In consequence, in order to perpetuate the idea
of a people as a collective, willing agent, silhouettes must therefore retreat into
nothingness.
Contrary to Bloch’s surmise, lefort’s vase does not have to be read as the
visual image of ‘the nihilism of theoretical hopelessness’. Instead, as with the
inventors of the tetra-morphic Leviathan, whose pent-up ‘anguish’ triggers ‘the
spark of ratio’ that leads them to invent the image of a sovereign ‘mortal god’,
it should be seen as a visual representation of the anxious dimension of his
constituent imagination. To put it differently, had we not abolished other (and
in that way allowed ourselves a chance to see it as an opportunity and obstacle
in a struggle for a purpose), we could not have seen empty space as percep-
tually meaningful. Worse yet, ‘the authority of those who make public deci-
sions [would vanish], leaving only the spectacle of individuals or clans whose
only concern is to satisfy their appetite for power. . . society [would be] put to
the test of a collapse of legitimacy . . . by all the signs of the fragmentation of the
social space, of heterogeneity’.91
A number of scholars have already challenged this conclusion without relying
on Rubin’s vase as an illustration of Lefort’s visual choices. Nonetheless, using
Rubin’s vase in this context is productive for at least three reasons. First, it helps
us challenge Lefort’s equation: democracy = the abolishment of other. This op-
tical illusion shows us that it is possible to be aware of the silhouettes as consti-
tutive other and still find the empty space politically meaningful as the matter
of the (onto)logical relationship in which both are implicated. That, at least, is
Chantal Mouffe’s reinterpretation of Schmitt’s distinction between the friend and
ibid 230.
88

89
Edward S Casey, Getting Back Into Place: Toward a Renewed Understanding of the Place-World (Indiana
90

Lefort (n 91) 233 [emphasis mine].
91
14

the enemy; that the ‘we’ of political identity is impossible without an identifica-
tion of ‘them’.92 To call these multiple and competing forms (in plural) a political
community (in singular) is the work of Mouffe’s figurative imagination, rather
than an ontological necessity. Just as her decision to evoke ‘constitutive outside’ as
the scenic environment of the place of constitution is a dramaturgical choice not
to set the scene of constitution-making with active (constitutive) others in sight.
In addition to what we’ve already heard so far, there are two other reasons
why contemporary constitutional dramatists keep others away from the scenes
that evoke the acts of constitution. The second may be gleaned from Lefort’s
cryptic remark, ‘the ultimate reference to the identity of the People as the
instituting Subject, proves to mask the enigmatic arbitration of Number’. From
a Kelsenian perspective, however, there is nothing enigmatic in that arbitration.
The meaning of the ‘will’ of ‘the people’ is to alleviate the torment of heter-
onomy, generated by the submission to the will of other.
The third and final reason becomes more apparent once we take another
look at lefort’s vase. What makes the imagination of people’s power qua
empty place appealing, lies not only in its capacity to lend intellectual support
to our desire to keep our collective options open, but also in its capacity to sup-
press the fact that they are not. The latter point would become manifest if we
paused for a moment not simply on the externally constituted emptiness of
Lefort’s vase, but also on its particular shape. Even when the metaphorical vase
of a political community is ‘empty’, the array of concrete purposes it can ever
possibly serve remains limited. While it can, in principle, serve a number of
purposes—to contain or transport water, wine, oil, or even sand—it can never
serve as a receptacle for bricks (Figure 3.1).
Figure 3.1 Lefort’s vase
By the same token, the political character of that phenomenon (named nephos in Chapter 5) does not
92
hinge on the presence of the figure of the constitutive other. See Arash Abizadeh, ‘Does Collective Identity
Presuppose an Other? On the Alleged Incoherence of Global Solidarity’ (2005) 99[1] APSR 45.
15
The People, (Semiotically) Squared • 115

For our purposes, this has an important implication. To embrace the ‘trained
perspective’ proposed by Bloch is not to forsake the possibility of democratic
open-endedness in favour of an ‘absurd and cruel’ vision of a political life;93 ra-
ther, it is to refuse to allow the image of hollow open-endedness to conceal the
fact that the place of democracy is not open-ended after all. This is an important
line of inquiry to which we will return in Chapter 4.
8. The people, (semiotically) squared

Up to this point, the dramatistic perspective on the central figures in early
modern, modern, and contemporary constitutional thought has allowed us to
achieve three objectives: first, to reinterpret creatio ex nihilo as the stage effect
of concrete dramatistic choices; second, to offer a new understanding of frame
and its ‘scheme of separation’ without relying on the figure of ‘the people’;
and third, to get a better sense of the regularities in the exercise of dramatistic
choices among those who evoke the scenes in which a sovereign (people) ap-
pears either as the constituting agent or as the constituted act. It is conformity
with the six laws of dramatism that makes new concepts appear to be ‘[home-
sick] for the scenes of their childhood’, not some enigmatic kinship they share
with the life of individuals.94
An opportunity to detect further law-like regularities emerges once we
choose to imagine the representation of many (m), other (o), place (p), and
frame (f), not simply as a rectangular field, as in Figure 2.3. (see Chapter 2), but
as a semiotic square, as described in Figure 3.2, below. Doing so allows us not
only to understand the roles these figures play in the work of dramatism, but
also to elucidate their semiotic relationship as governed by the relations of con-
trariness, contradiction, and implication.
In doing so, we start from the figure of many and approach it—together with
the other three characters—from the vantage point of a constitutive attitude
that prefigures its identity. From that vantage point, the identity of the four fig-
ures can now be redescribed in the following way. In the case of many, concrete
attitudes are singularly decisive in the emergence of the figure of the Sovereign.
In the case of the figure of place—contrary to the figure of many—concrete
attitudes are irrelevant for the formation of a sovereign. In the case of other—
the non-many—concrete attitudes are not singularly decisive for the emergence
of a Sovereign, which means that they may ultimately be irrelevant from the
perspective of this figure. In contrast, in the case of frame—the non-place—
concrete attitudes among the many are not irrelevant for the formation of the
sovereign (people) (Figure 3.2).
Damian Chalmers, ‘Constituent Power and the Pluralist Ethic’ in Martin Loughlin and Neil Walker (eds),
93
The Paradox of Constitutionalism: Constituent Power and Constitutional Form (OUP 2007) 302.

Søren Kierkegaard, The Concept of Irony, with Constant Reference to Socrates (Harper & Row 1965) 47.
94
16

M P
Ø
p
m
o(E)
e S
p
n
p v
f o
d m
f o(L)
F O
contrariness M–Many Ø–ouroboros
contradiction P–Place n–nomos
implication F–Frame d–demos
O–Other e–ethnos
Figure 3.2 Semiotic square of peoplehood—the regularities of dramatism
Situated at the upper corners of the semiotic square, many and place exist as
the end-poles on the axis of idealization (m–p). Situated at its lower two cor-
ners, frame and other exist as the end poles on the axis of actualization (f–o).
That axis discloses the relationships of implication that the m–p axis otherwise
conceals: that the figure of many alludes to the ‘schema of separation’ implicit
in frame (f ⇨ m), on the one hand, and that the figure of other exists as the
quiet localizer that determines the place of many (o ⇨ p), on the other. This
point will become particularly important in Chapter 5, when we discuss the
contradictions of the right to self-determination. For the purposes of our dis-
cussion at this point, a broader, more formal implication of the relationship be-
tween the two axes is more important. Even if a particular anecdote seemingly
succeeds in evoking the constitutive act with the help of only one member in
the dramatistic quartet, there will always be at least one more that lurks in the
shadows and that a particular dramatist will often not want us to see.
The key to detecting the work of the full quartet is to move quickly from an-
ecdote to anecdote. As we have seen earlier in the chapter, the objective of such
oscillation is diagnostic: to look for the discrepancies between different scenes
of constitution-making, and to detect the presence of the figures which are not
supposed to be there. Consider once more Hobbes’s ‘Institution’. Initially, many
is the only figure we encounter on the scene. In a scene that follows, however,
we are able to glean the presence of other as the enemy on the horizon who
affects our calculations. Having kept the previous scene in mind will now lead
us to ask: Are many those who are marked only by their immediate attitudes to-
wards the institution of the would-be Sovereign at hand, or are they marked by
their attitude towards the enemy who they (together) fear before they have insti-
tuted it? As we also saw earlier, other is even more pronounced in Rousseau’s
dramatization of the social contract. There, it immediately generates cognitive
dissonance between two discrete scenes: one in which individuals establish the
sovereign people through a social contract, and another, where other—in the
figure of a lawgiver—is on hand to help them do so properly.
17

Defined, as Burke claimed, by the ‘ratios’ between its different constituents,
the rhetorical power of each such scene will vary accordingly. While useful in
the context of the analysis of properly dramatized constitutive anecdotes, the
idea of ‘ratio’ shows its limitations in the context of contemporary dramatiza-
tions. The scenes in which we encounter ouroboros biting its tail, or red ants
marching on and on and on along their möbius strip, or lefort’s vase evoking
nothing but an empty ‘place’ of power are distinctly undramatic. For example,
we are told that ouroboros biting its tail signifies self-constitution, but we may
just as easily be witnessing a moment in its progressive vanishing, as it grad-
ually devours more and more of its tail, ultimately disappearing from the scene
altogether. Likewise, the möbius strip is supposed to evoke the activity of on-
going collective self-government but we have no reason not to imagine that
situation as a mindless traversing of the same terrain. In other words, these
non-dramatic scenes obtain their Burkean ratio only through supplementary
explanation of the symbolism of the scene. Though not dramatic in and of
themselves, they are nonetheless subtly dramatized to discourage us from im-
agining other scenarios.
These subtle dramatistic discouragements can be detected not only in the case
of the three symbolical scenes in Section 7. They may also be detected in the
context of non-scenic representations of constitutive agents (such as demos or
ethnos) and in the context of constitutive acts (such as Schmitt’s nomos). In all
such cases, our semiotic square provides us with a matrix for comparing these
dramatistic activities. In each case, the dramatization can be visually described as
a parallelogram, the shape of which is determined by the points m, p, f, and o—
each representing the degree of evocative power inherent in the respective mem-
bers of the ‘dramatistic quartet’ that participate in the staging of a particular
figure in question. In each case, the proximity of m, p, f, and o to their cognates
is proportional to the potential to identify them as actively constituting what is
otherwise portrayed as a symbol for an aspect of a constitutive anecdote. Gazing
at ouroboros, for example, it will rarely occur to us to ask: ‘Where is everyone
else (long oO)?’95 ‘In what Place in particular does it bite its own tail (long pP)?’
To what law does it conform as it does so (long Ff )?’ Or, ‘what kinds of attitudes
must this snake exhibit in order to decide to bite its own tail?’ The visual terms
set by this picture make such questions nonsensical: ouroboros bit its tail be-
fore everyone else existed and before it was possible to speak of discrete places.
Rather than conforming to it, ouroboros is the creator of the frame. Rather
than exhibiting attitudes that lead to the creation of the world, ouroboros is a
single entity that wills it into existence.
In contrast to ouroboros, the profile of m, f, p, and o that reveals itself by gazing
at Schmitt’s nomos is different. In this case, Schmitt’s insistence on Landnahme
makes the figure of place much more memorable: hence the short pP on the
diagram above. Unlike with ouroboros, with Schmitt’s nomos we know that
the role of powerful states is crucial. While they are not yet the ‘interested third
parties’ from The Partisan, we can clearly see them, in their role of ‘agents and
Incidentally, the same goes for möbius strip and lefort’s vase. When we encounter little ants marching
95
round and round it doesn’t occur to us that they may desire something in particular within that folded space.
18

guarantors’ of global territorial order, tasked with the role of ‘adjudicating terri-
torial changes’,96 hence a shorter imaginative distance between o and O.
The situation is different with the figure of demos—the prototypical ‘body of
associates living under a common law and represented by the same legislature’ of
Sieyès. Like ouroboros, the construction of the figure of demos is plagued by cir-
cularity. However, with contemporary incarnations of the figure of demos—the
sovereign people, here understood as the citizenry of the entire state—it is more
apparent that the normative framework that decides the scope of that demos,
hence a comparatively short fF in this case. For those who embrace this figur-
ation of a sovereign people nowadays, place is fully derived from the criterion
of pluralization presumed by F. Irrespective of its derivative character, its profile
is nevertheless higher than that of ouroboros, hence a comparatively short pP.
The same is the case with the figure of many, which the unified and unitary
ouroboros conceals. In biting its own tail (metaphorically, self-constituting it-
self ) ouroboros wants nothing in particular. Finally, while we could not im-
agine the figure of other in the context of ouroboros, the other of demos
may appear more openly. In that case, it will be a figure that closely resembles
a Rousseauvian lawgiver, whose only role is to help jumpstart that demos into
sovereign existence. In contrast, the figure of ethnos relies on a different figure
of other: not the Lawgiver—an indispensable midwife to collective self-govern-
ment—but the Enemy, an adversary to resist in existential struggle.
While the other of demos has to comply with frame to be admitted onto
the scene (as uncontroversial), the Enemy features on the scene of ethnos as the
transgressor of a non-juridical, quasi-ethical frame (according to which ethnos
deserves sovereignty against any possible pre-existing legal convention). Finally,
in contrast to the many of demos, which are best understood as a crisp set of the
members of a territorial polity, the many of ethnos is a fuzzy set of those whose
national identities, language, or culture qualify them for membership in a body
generally understood to be the holder of the right to self-determination. In add-
ition to allowing us to inscribe those figures of theoretical and folk imagination
within a matrix that plots their indebtedness to a particular combination of four
stage props, Figure 3.2 also allows us to complement the six dramatistic laws we
have detected so far with additional hypotheses about other possible patterns
that are likely to be found in the work of constituent dramatism:
(1) Early modern, modern, and contemporary dramatizations exhibit stylistic
differences that mirror conceptual ones. The dominant character of early
modern contractarian dramatization is m, with the exception of Rousseau,
where m shares the stage with l. In contrast, modern dramatizations of con-
stituent power rely on a combination of m and p. In Sieyès’s Third Estate,
place is introduced gradually but explicitly. In Schmitt’s case, it is posited at
the outset, but elusively. With Sieyès, f is mentioned, in passing, but expli-
citly. In Schmitt’s Constitutional Theory, it is detectable but vigorously denied.
Schmitt (n 62) 191.
96
19

(2) Dramatists never stage an encounter among all four figures in a single
scene. Were they to do so, creatio ex nihilo would not be the mystical act of
a god-like sovereign but would instead reveal itself as the magician’s trick
of its creator, the dramatist of peoplehood.
(3) For the most part, dramatists only admit to using one or two figures at the
same time.
(4) Scenes with a more evocative place and those with a more evocative frame
will suppress the anxiety of fragmentation, as will scenes that combine an
evocative many and an evocative place.
(5) The price to be paid for the sake of perceptual credibility in the latter case
is unanimity as the mechanism of decision-making. Thus far, we have seen
two ways in which this price may be paid: in a single scene, reluctantly
and incoherently (Hobbes, the scene of ‘Institution by Majority Vote’), or
by transitioning from a scene of unanimity (Sieyès, the scene of ‘Isolated
Individuals’) to a scene in which majority vote is implicitly inscribed as a
decision-making procedure (the scene of the ‘Body of Associates’).
(6) All such cases rely on a smuggling operation: putting place on the scene
in violation of the requirements implicit in another one, which is usually
more formulaic. In the case of Hobbes, this occurs in a single stroke (‘enter
into the congregation’). In the case of Sieyès, it occurs imperceptibly, as iso-
lated individuals in the first ‘epoch’ end up delegating constituent power to
the national assembly across their ‘forty thousand parishes’, represented by
a presumably territorial ‘same legislature’.
(7) When such smuggling operations are detected, two questions suddenly be-
come apparent. First, ‘who constituted place?’ Could it be that Sieyès’s iso-
lated individuals multiplied and organized themselves across three ‘epochs’
without anyone around them to interrupt that process in any meaningful
way? Second, ‘on what grounds, should one submit to a majority vote
(Hobbes), or to the pouvoir constituée established by the National Assembly’s
exercise of constituent power in this particular place?’ The first is the ques-
tion of other, and the second is the question of frame.
(8) Once we ask the second question, it becomes possible for us to infer a secret
function performed by all dramatizations that privilege m+p: to evoke the cri-
terion of pluralization—implicit in frame’s ‘scheme of separation’—furtively.
A final look at the semiotic square suggests that the two triangular areas, ∆MPS
and ∆FOS, exist as a zone of fragility, suspicion, and resentment. The choreo-
graphed figures that appear in the first raise the question of how we can take
seriously partial desires if they are prefigured by a smuggled-in spatial referent.
Those that appear in the second raise the question of how we can take seriously
the impartial application of frame if, behind it, there is an arbitrary constituent
influence of other. In contrast, the remaining two triangular areas—∆MFS and
∆POS—are zones of stability and quietism: they encourage us to reconcile our-
selves with existing figures, portrayed either as the incarnations of the morality
120

of social reality ethnos or as the incarnations of the impossibility of tran-
scending its deeper logic (Schmitt’s nomos).
Moving beyond creator and framework in the manner described in this
chapter allows us to begin the work of imagining the scenes of determination
from s1 to s5 in a way that transcends the atmosphere of suspicion, paralysis,
resentment, and quietism. If Burke is right, doing so more self-reflectively, self-
critically, and with a sense of humour, will also render more transparent the
dramatistic contribution of each member in the dramatistic quartet. The figures
that belong to that quartet are not only the objects of theoretical knowledge, but
are also important for the polemical, problem-solving, and rhetorical aims of
this book. From that perspective, the contribution of this chapter is two-fold: (1)
it outlines the contours of xenos as a particular figuration of other; and (2) it es-
tablishes the preliminary link between Kelsenian ‘tendency’ and the algorithm in-
scribed in the frame that governs the exercise of the right to self-determination.97
That picture is still incomplete. In Chapter 5, the uniform attitudes that de-
fined many will be analysed in their fluidity and granularity, the result of which
will be nephos: the cloud-like substrate for the work of ensemble-making, and
as such the substrate of demos and ethnos alike. In the same chapter, place will
be re-envisioned as scopos—the reified outcome of a ‘scopic regime’ of those
who invoke ‘the people’ as the holder of a territorial right. In Chapter 6, our
discussion will illuminate other dimensions of the Kelsenian ‘tendency’ (as an
ideal served by all ‘algorithms’ of self-determination) and explore what makes
it invisible to the disciplinary perspective of international lawyers—those who,
among a variety of conjurors of peoplehood, have the most symbolic power to
declare it illegal and illegitimate. Before we turn our attention to these issues,
we first need to confront two things we have set aside in this chapter. The first
is telos, the element in Burke’s original pentad that remained almost imper-
ceptible across the variety of representative anecdotes we discussed in this
chapter: the purpose of the constitutive act; the intention behind the agent’s
exercise of its constituent agency; the objective of a constitutional enterprise
that we presume when we speak of a demos (and its self-government), an
ethnos and (its self-determination); and the nomos (that governs them all). The
second is ‘constituent power’—an increasingly popular yet problematic way of
describing the quality of an agency whose exercise culminates in the constitu-
tive act. These two questions are intimately linked and are both discussed in the
chapter that follows.
97
This is where this book sharply diverges from those who simply take notice of the heteronomous character
of all constitutional settlements. See eg David S Law, ‘The Myth of the Imposed Constitution’ (2013) Legal
Studies Research Paper No 13-05 (1 May 2013) and Richard Albert, ‘Imposed Constitutions with Consent?’ (2017)
Boston College School of Law Research Paper 434, 1, 2. For an intermediary position, see Andrew Arato who
remains committed to a ‘post-sovereign’ distinction between ‘imposition’ and ‘agreement’, though only as
‘ideal-types that can be approximated to a greater or lesser degree, but never completely realized’. Andrew
Arato, Post Sovereign Constitution Making: Learning and Legitimacy (OUP 2016) 143. For an attempt to explicitly
confront the issue of foundational heteronomy in constitutional theory, see also Chaihark Hahm and Sung
Ho Kim, Making We the People: Democratic Constitutional Founding in Postwar Japan and South Korea (CUP 2015).
12
 4 
Hope, Telos, Xenos
Beyond Constituent Power
1. Constituting
what is it good for?
What are the purposes of (the act of ) constitution? From what we’ve seen in
the previous chapter, most constitutive anecdotes seem to allow us to identify
them relatively straightforwardly: from the character of their agency, from the
attributes of the scenic environment in which they exercise it, or from some
combination thereof. To imagine an agent as a ‘homogenous’ collective marked
by a ‘will’ to exist, for example, is also to have good reasons to imagine an
ethno-nationalist constitutional order as the ultimate objective of its exercise
of constituent power. Likewise, to imagine a set of agents as freely exchanging
promises as a means of constituting a new constitutional order is to be more
likely to imagine the purpose of that order narrowly; as devoted to the per-
petuation of an overarching institutional environment in which the practice
of promising may continue to flourish. Finally, to imagine a new sovereign as
‘instituted’ in an anxiety-ridden atmosphere of constant anticipation of possible
wars is to be more likely to consider the alleviation of that anxiety as one of the
main purposes of the act of ‘Institution’.
Burke’s dramatism allowed us to look behind these scenes and better under-
stand the constituent theoretical stagecraft that goes on behind the curtains. At
the same time, however, Burke’s methodology provided us with no clues about
how to make sense of his enigmatic claim that all such scenes ‘covert[ly] retain’
the purpose of the act of constitution, yet that they keep it under the constant
threat of ‘dissolution’.1 On first glance this doesn’t make much sense. If we can
still relatively straightforwardly discern the purposes of constituent acts from
other elements in Burke’s ‘pentad’, in what sense is it possible to claim that they
are at the brink of extinction?
As we will soon see, the purpose that is under constant threat of dissolution
is of a particular kind. Suppressed and sustained at the same time, that purpose
is aspirational in a way that most contemporary theorists find uncomfortable.
1
Kenneth Burke, A Grammar of Motives (University of California Press 1969) 290.
12
122 • Hope, Telos, Xenos

Situated between two imaginary poles—the one in which it appears as ultra-
concrete and the other in which it appears as substantively vacuous—the
purpose that Burke considered to be an endangered species of constituent
dramatism stands in the middle. To be guided by it is to exercise power in the
hope of constituting something identifiably better.
Today, the idea of a constitutional better—not good, not plural, not ideal, not
diverse, not new, not miraculous, not mysterious, not unexpected—but better,
only survives at the margins of theoretical imagination.2 Instead, the quiet rhet-
orical anchor of the theoretical visions of constituent power are the two tropes,
which—perhaps precisely because they are so allusive of the better—prevent its
name from ever being uttered aloud in the course of a theoretical conversation.
These tropes are good enough and enough! The first allows us to treat the quo-
tidian outcomes of majoritarian decision-making as legitimate manifestations
of the will of a sovereign, self-governing people. The second allows us to think
of revolutionary exercises of the people’s constituent power as intelligible, sens-
ible, and desirable at the same time. Sentenced by contemporary constitutional
theory to oscillate between good enough and enough! those who invest their
expectations in the figure of sovereign people have no way of lending dignity
to those tropes’ reverse side: Why not yet? Not good enough! Nor do they have
a way to express the dignity of a constitutional order that is vigilant towards
those attitudes, because it is for the better.
To move beyond the people and its constituent power is not only to
reinscribe onto the scenes of constitution the figures of telos and xenos that
allow us to think of the better as the objective of constitution-making more
clearly, but also to raise the profile of the constitutional vision of the con-
certed pursuits of the better. In the utopian imagination of Ernst Bloch,
these pursuits have their origins in human nature—in our universally shared,
insatiable desire ‘of wanting things to improve’.3 In this book, the status of
this urge is more modest. Rather than postulating it as an immutable and in-
eradicable aspect of human ontology, this hopeful pursuit of a better life is
treated as a prognostic speculation and as a polemical wager. Hence Blochean
Vorgriff: the anticipation that inscribing telos and xenos into the dramatiza-
tions of constituent power will be for the better.
That said, this chapter does not wish to suggest that the feelings of in-
justice, humiliation, indignation, and disappointment don’t play an important
role in feeding the appetite for the exercise of constituent power. At the same
time, the fact that they do still doesn’t explain why we consider it normal that
2
For the examples see Kim Lane Scheppele, ‘Aspirational and Aversive Constitutionalism: The Case for
Studying Cross-Constitutional Influence through Negative Models’ (2003) 1[2] ICON 293. Beau Breslin,
From Words to Worlds: Exploring Constitutional Functionality ( Johns Hopkins University Press 2009) 50. See
also Gary Jacobsohn, ‘The Permeability of Constitutional Borders’ (2004) 82 Texas Law Review 1763.
3
1959, MIT 1995) 77.
123
Constituting: What Is it Good For? • 123

those on the ground aspire to use their power to constitute something new, or
to re-constitute something old, anew—unless they were hopeful that doing so
would be an improvement. Though this chapter remains agnostic on the power
of hope to catalyse the potential of constituent power in the early stages in its
exercise, it is worth noting that it was not only Bloch who thought of it as a
‘gathering’, ‘practical’, and ‘militant emotion’4 that is constitutionally conse-
quential. In fact, similar views can be found where they are least expected—in
the canon of constitutional theory itself. As Emmanuel Joseph Sieyès re-
marked in his Views of the Executive Means Available to the Representatives of
France in 1789:
Already patriotic and enlightened citizens who for so long have looked with sad-
ness and indignation upon those millions of men now piled together without any
plan or order, have begun to allow themselves some feeling of hope. Now they
can believe in the force of circumstance and can see at last that the moment is at
hand when we can become a nation.
Instead of towards the scenes that would confront it with the constitutive
power of hope and purpose, the gaze of contemporary constitutional theory
is directed elsewhere: towards hollow, empty, or in some other way vacuous
environments, which in turn allow present-day constitutional theorists to re-
main preoccupied with the questions of identity, narrativity, normativity, and
ontology. In contrast to contemporary constitutional theorists—who appear to
agree with Paul Ricœur’s suggestion that from ‘ “nowhere” springs the most
formidable questioning of what is’5—in this chapter I start from a political ques-
tion that strikes me as even more formidable: not ‘What is?’ or ‘Who is it?’ but
‘What is it for?’ Rather than answers, these questions provoke anxieties. To take
them seriously—constitutional theorists seem to worry—is to be forced to con-
sider not only ‘What, concretely, for?’ but also ‘For whom, specifically?’ And to
take seriously these questions would leave them powerless (or so they fear) to
evoke the ideals of human dignity, political equality, individual autonomy, and
collective self-government—pictorially.
As we move forward with reinscribing telos and xenos into the contem-
porary imagery of constitutional theory, these worries should be neither trivi-
alized nor exaggerated. Keeping that in mind will allow those who a moment
ago looked into constitutional grounds to look around instead, and, in doing
so—as this chapter aims to show—gain new analytical insight. Once we stop
obsessing about constitutional origins, identities, and subjectivities, we will be-
come more attuned to the quasi-narrative character of the foundational acts
of constituent power, existing not simply as the turning points that break the
time arrow in two, but rather as the hoped-for turn for the better: events
4
ibid.
5
Paul Ricœur, ‘Imagination in Discourse and in Action’ in Anna-Teresa Tymieniecka (ed), The Human Being
in Action: The Irreducible Element in Man (Part II) (Springer-Science+Business Media BV 1978) 19.
124

that divide constitutional time into the trajectories worse-before and better-
after.6 Anxious to evoke momentary and unitary acts of constitution-making,
contemporary constitutional theory remains indifferent to at least four kinds of
constitutional turns:
(1) focal—between ‘a period where we cannot predict future outcome’ (such
as in the state of nature, for example) to a stable constitutional trajectory
(within a polity, which establishes a stable pattern of political interaction);
(2) randomizing—establishing a break between the stable trajectory before
and the trajectory after, whose path is unpredictable and always possibly
tragic;
(3) simple—changing the direction of a relatively stable past sequence of con-
stitutional events towards another, equally stable one; or, finally,
(4) contingent—the ones secretly hoped for by many, if not most constitutional
theorists—where it is the ‘internal event sequence’ of the turning point
itself that reprogrammes (for the better) the trajectory after, about to
follow thereafter.
Constitutional theorists aim to discourage their audiences from re-examining
the presumptive costs and benefits of looking at the acts of constitution-making
in this light. That is understandable. Doing so would be destined to provoke the
question of hope, purpose, environment, and of their own hopeful or unhopeful
anticipations.
2. Constituent power and

its prompters
Critical to the success of their efforts to persuade others to remain indifferent to
these issues is the capacity of their theories to evoke visual contrast. That con-
trast may be evoked in two main ways: either directly, by portraying the figure
of other in non-ambiguous terms, or indirectly, with the help of a particular
dramatistic trick (most often, by quietly inserting place onto the scene of con-
stitution). In such situations, other and place will function not only as the props
that prop up the scene of constitution-making, but as credibility-enhancers that
distract us from asking: What is this concretely for? To do so successfully, these
enhancers must themselves be made more immune to the temptations to envi-
sion them differently.
For that purpose, constitutional thinkers rely on a different set of tools of con-
stituent stagecraft. Following Kendall Walton, we shall call them prompters.7
For Walton, prompters nudge us to ‘imagine what otherwise we might not be
Andrew Abbott, Time Matters: On Theory and Method (University of Chicago Press 2001) 249. I thank Nikolas
6
Rajkovic for making me aware of Abbott’s work.

Kendall L Walton, Mimesis as Make-Believe: On the Foundations of the Representational Arts (Harvard University
7
Press 1990) 22.
125
Constituent Power and its Prompters • 125

imaginative enough to think of ’, or, more ambitiously, to lure ‘our imaginations
into unfamiliar territory’.8 In doing so, prompters coordinate ‘the imaginings of
the participants and also [give] them grounds to expect such coordination, [but]
without disruptive discussion’.9 When used by constituent dramatists, they are
always Janus-faced and while they ‘broaden our imaginative horizons’ in cer-
tain respects, in others they narrow them down. While they nudge our imagin-
ations towards unfamiliar territories, they also warn them to remain within the
bounds of familiar ones. For the purposes of this book, the latter are far more
important. In the rest of this section, we therefore focus on the following two in
particular: Schmitt’s way of life and Lefort’s totalitarian adventure.
The first allows Schmitt to evoke his famous enemy not as a particular repre-
sentation of intense purposeful commitment—which may or may not be na-
tionalistic in its orientation—but rather as the central emblem of the concept
of the political—which, though notionally agnostic towards nationalism, re-
mains quietly biased towards it. Before that a quick reminder: though some are
inclined to treat Schmitt’s Enemy mostly as the product of his polemical imagin-
ation, earlier we saw that this figure cannot be understood without appreciating
the contributions of its affective and visual registers. As we saw there, enemy
may also be seen as the product of Schmitt’s conviction that the best way to
deal with the anxiety about his own ‘Gestalt’ is to extinguish it by dramatically
increasing the contrast between the self and the other. Notice, however, that
what allows the enemy to act as a rhetorical decoy that distracts us from the
teloi of political ‘entities’ is not only the allegedly ontological character of the
friend–enemy distinction. It is also a subtle scenic trick that Schmitt relies on in
order to persuade us so.
What is rarely appreciated is the fact that the enemy is dramatized as an agent
whose antagonistic attitude is specific to the scene: not only intensely hostile,
but also intent to ‘negate [his] opponent’s way of life . . . and his form of ex-
istence’.10 Notice, once again, the specificity of that scene. The opponent is
portrayed as preoccupied not with achieving some telos in general, but rather
with achieving the very specific, backward-looking objective: protecting his way
of life.
At this point, however, we must ask two highly speculative but revealing
questions. First, what prevents us from imagining an organization or group
committed to their ‘way of life’ who would seek to preserve it only up to the
point of existential conflict? And, second, why should such an entity not be
considered ‘political’? Schmitt’s answer is circular: a ‘people’, which exists in
the political sphere, cannot—despite professions to the contrary—‘escape from
making this fateful distinction’.11 This, however, seems like a factual prediction
that people will not want to escape making this ‘fateful distinction’, rather than
8
ibid. ibid 23.
9
Carl Schmitt, The Concept of the Political (Georg Schwab tr, first published 1932, University of Chicago Press
10
2008) 27 [emphasis mine].
11
ibid 53.
126

an ontological necessity. Schmitt says as much when he claims that the people
‘afraid’ of the ‘trials and risks’ of pursuing an independent political existence
will cease to exist in a political manner.12
Schmitt’s enemy is more than just an emblem of a refigured anxiety. It is also
an emblem of a disfigured telos. What disfigures it is our lack of attention,
successfully encouraged to look elsewhere: towards a way of life. Here, the
function of Schmitt’s way is to prevent the figure of enemy from betraying the
fact that political antagonism is not a digital, but analogue matter—a matter
of degree, always purposeful, but not necessarily existential. In other words, a
way of life is a prompter that allows the figure of enemy to discourage us from
reflecting on the way we habitually envision the relationship between telos
and xenos. Without it, to put it differently, enemy would be less symbolically
efficacious in asking us to take the preservation of the hegemony of dominant
cultures—as the only legitimate objective of political struggle—for granted.
Compare now Schmitt’s way with Lefort’s adventure—the figure that allows
Lefort to present other not simply as justifiably abolished, but also to prevent its
transformation into xenos; a different kind of other . As we saw in Chapter 3,
Schmitt and Lefort are very similar in that regard. Beyond their differences in
ideology, there is a striking similarity in their recipes for how to deal with the
threats to the survival of worthy political projects imaginatively. Whatever their
other differences, both enemy and other must be banished as the condition of
the survival of ‘our way of life’—crypto-pastoral and nationalist for Schmitt,
and essentially liberal-democratic for Lefort. What makes this structural hom-
ology between enemy and other hard to detect is the fact that the roles these
figures play are the mirror-images of each other. In Schmitt’s case, the enemy
must be abolished concretely, in political struggle—yet remain envisioned ab-
stractly, as an existential threat to our way of life. In Lefort’s case, the other
must be abolished abstractly, in theory, but continue to be imagined concretely,
as a menacing, historical figure.13 In Lefort’s case, that other is,
a term to be taken literally . . . the representative of the forces deriving from the
old society (kulaks, bourgeoisie) and the emissary of the foreigner, the imperialist
world. Indeed these two representations converge, for it is always imagined that
the representatives of the old society are linked up with foreign centres. So it is
understandable that the constitution of the People-as-One requires the incessant
production of enemies.14
In regimes where the other looms large, ‘the campaign against the enemy is
feverish; fever is good, it is a signal, within society, that there [was] some evil to
combat’.15 In Lefort’s case, this then seems to be the root cause for removing the
figure of telos from the screen of our imagination: a belief that only through
scapegoating and violence can an openly purposeful political community
ibid 49.
12 13
Claude Lefort, The Political Forms of Modern Society: Bureaucracy, Democracy, Totalitarianism (MIT 1986).
14
ibid 298. [emphasis mine].

15
127
Constituting: Founding and Withstanding • 127

generate sufficient constituent enthusiasm. If so, our previous understanding
of the lefort’s vase must be slightly revised—existing not just as a figurative re-
minder that the meaning of democracy hinges on our constitutive indifference
towards what happens on the outside, but also as a figurative representation of
a wager about the consequences of the transparent representation of the con-
crete purposefulness of a constitutive act—a bet that making telos visible turns
fellow-citizens into comrade-witch hunters; into ‘constantly working . . . social
engineers’, all under the ‘happy banner of revolutionary optimism’.16
3. Constituting
founding and withstanding
In addition to Schmitt’s way of life and Lefort’s totalitarian adventure,
there exists another, more general and less obviously polemical, prompter.
Unlike the previous two, this one immunizes constituent power against doubts
about the purpose of the activity captured by its adjective, ‘constituent’. That
function is performed by constitution itself: a term capable of merging ‘the
extrinsic and intrinsic reference’ in a way that renders us indifferent towards
the spatiotemporal coordinates of political power.17 Even when the preambles
of actual constitutions evoke a very particular geography and very specific
historical events, constitution remains the vehicle of those events’ two-fold
deproblematization: of the capacity of constituent power to establish con-
stituted powers in a particular place; and of the nature of the act of constitu-
tion as thinkable exclusively in terms of establishment, entrenchment, and
foundation.
As an example of the way in which constitution works as a prompter that
distracts us from the problematic character of both assumptions, consider one
influential theoretical attempt to explain the meaning of ‘constituent’ with ref-
erence to its Latin etymology: the prefix that evokes togetherness (‘con-’) and
the exercise of agency that puts something ‘in place’ (‘-statuere’). Following this
view, advanced by Andreas Kalyvas, the concept of constituent power entails
a demand ‘that those who are subject to a constitutional order co-institute it’.18
Notice, however, that this answer hinges on a new variation of the by now fa-
miliar m+p trick, whose purpose is to reconcile the unbelievable but rhetorically
desirable with the logically impermissible but dramatistically necessary: unani-
mous co-institution within a specific location. The trick, as we saw in Chapter 3,
consists in the quiet insertion of place onto the scene of the constitutive act,
which, as we also saw, may be done in a number of ways: by announcing a
‘paradox’ in order to hide that the idea of self-constitution presumes bounded
space; by evoking the exercise of agency in a way that will distract us from
the location of the act (‘entering into congregation’); by inscribing territory
ibid 301.
16 17
Burke (n 1).
Andreas Kalyvas, ‘Popular Sovereignty, Democracy, and the Constituent Power’ (2005) 12[2] Constellations
18
223, 238.
128

into terms that do not evoke it (‘common law and the same legislature’); or by
relying on some other device from the toolkit of constitutional dramatism. In
Kalyvas’s case, the trick consists in quietly inserting place into the grammatical
tense of the verb used in the definition: ‘constituent power demands that those
who are subject to a constitutional order co-institute it’.19
Staying silent on the role played by the figure of place (while smuggling
it onto the scene of foundation) allows Kalyvas to have his theoretical cake
and eat it: to evoke the ideals of freedom and unanimity without raising sus-
picious questions about the practical manifestations of constituent power in
space and time. For our purposes the etymological part of his argument is even
more important. On closer inspection, the verb constituere has three, not two,
building-blocks: ‘co-’, which evokes concerted effort as the defining quality of
constitutive agency; ‘in-’, which evokes its locational specificity; and ‘-statuere’,
which evokes a very particular way of putting in place, not captured by other
verbs of emplacement. The peculiar character of the emplacement implied by
the word ‘constitution’ becomes immediately obvious once we ask what as-
pect of the meaning of constitution—as co-in-stitution—would be lost if we
replaced it with ‘coimposition’; a term that preserves both the element of to-
getherness (co-) as well as the element of emplacement (in-); but which trades
one Latin suffix (‘statuere’) with another (‘ponere’). In contrast to those who
participate in ‘coimposition’, those who take part in the activity of ‘constitu-
tion’ seem to intend to make whatever they intend to co-in-statuere—with-stand.
One of the most frequent outcomes of an effort to make something
with-stand—that is, to make durable, together—is a dwelling: a defensive
endurance-promotion instrument that enhances the capacity of that which
is being sheltered inside to withstand threats from the outside. To qualify as
‘constituent’, the power exercised in the context of dwelling-building must be
seen as the power that simultaneously situates constituted powers and makes
them capable of acting as powers that shelter constitutional enterprises from
what Arendt called ‘the ravage of time and circumstances’.20 On this view of
constituent power, its exercise seems to be the matter of destructing (clearing
ground), entrenching (setting the foundations), and, prospectively, shelter-
making (by erecting a defensive structure against the threats coming from the
outside) and home-building (by establishing a structure that fosters familial in-
timacy among those on the inside).
As Figure 4.1 demonstrates, however, one may also withstand non-
defensively––not by establishing solid foundations for a shelter that allows one
to hold ground against existential threats from the outside, but by continuing to
react adequately to changes on the ground in a wider environment.
ibid. In his revised account of constituent power, however, Kalyvas made explicit that co-institution
19
does not have to occur within a prefigured territorial referent. Andreas Kalyvas, ‘Constituent Power’ in
Political Concepts: Critical Lexicon, available at <www.politicalconcepts.org/constituentpower/> accessed 11
August 2016.
Hannah Arendt, On Revolution (Penguin 1963) 204.
20
129
Constituent Power as the Prognostic Inscription • 129
Figure 4.1 Constitution as foundation and constitution as making-withstand
To move beyond the constituent power of the people, then, is to imagine con-
stituent power in accordance with the diagram on the right: as a rebalancing
power that involves three kinds of constitutive powers: élan établissant (enter-
prising enthusiasm), force formante (forming force), and capacité accommodante
(response-ability, to borrow Hans Lindahl’s term). If the diagram on the left
evokes the joint work of laying the foundations for a ‘constitution’ the diagram
on the right evokes the events on a high-wire during a circus act. What allows
the actor on the wire to withstand are three constitutive powers working to-
gether: (1) his retrospective, ongoing, and prospective desire to withstand;
(2) the preserving force of other troupe members on which he relies; and, fi-
nally, (3) his capacity to be responsive to changes on the ground.
4. Constituent power as the prognostic inscription

Having embraced the traditional dramatistic evacuation of xenos from the
scene of constitution-making, contemporary constitutional theory makes the
idea of constituting, as a purposeful activity devoted to increasing the chances
of withstanding, unimaginable.
However, every (re)dramatization of constituent power—including the one
hazarded in the previous section—must be seen as the inscription of a particular
prognosis. As is the case with all polemical concepts (Kampbegriffe), the con-
ceptions of constituent power are also ‘more exactly anticipations (Vorgriffe)’,
which, ‘based on the experience . . . have to preserve or awaken new expect-
ations’21 or—as we have seen in the previous chapter—strategically banish the
unwelcome ones.
For some constitutional Vorgriffe— especially those that emerged in the
context of more ‘honest’ naturalistic allegories of early-modern constitu-
tional thought—this point is fairly obvious: if you do not leave the state of
war, for example, your life will be poor, nasty, brutish, and short. Insisting on
21

130

the anticipatory character of constituent power becomes far more theoretic-
ally (and perhaps practically) consequential in the context of contemporary
approaches to the concept of the constituent power of the people. In con-
trast to the Hobbesian scenes of the state of war—which immediately let us
know why we should leave it behind and incorporate into a political society—
contemporary scenes, such as those of the ‘empty place of power’, build on
anticipations that are less immediately apparent. To move beyond the contem-
porary style of wrestling with the problem of constituent power, we need to get
a better sense of what these are.
Sometimes, the inscribed Vorgriff can only be inferred from the tricks of a par-
ticular dramatist. As a quick illustration, consider once more the scenic choices
behind Kalyvas’s definition of constituent power. If, on the one hand, Kalyvas
wished it to evoke actual unanimity, he could have referenced ‘all those who
will be subject’, though making that point would, in that case, be superfluous
and trivial. If, on the other hand, he wished it to evoke unanimity as a con-
densed metaphor for something else—the desirability of widespread partici-
pation in constitution-making among the citizenry where everyone is treated
with equal concern and respect—he would have provoked us to ask: What is
the purpose of doing so by evoking concrete scenes if its price is a visual trick?
To answer this question, notice that Kalyvas’s scene of co-institution actually
merges two representative anecdotes whose rhetorical functions are at odds
with each other: one that evokes the normative ideal of widespread political par-
ticipation and another that lends symbolic dignity to the revolutionary over-
throw of extant constitutional order. Here, the trick of place is necessary to
sustain the perceptual credibility of both. Without it, it would become obvious
that other dramatizations of pouvoir constituant are equally possible: one in
which normative ideals guide popular revolutions, or another where the degree
of popular participation in constitution-making is not the criterion of constitu-
tional legitimacy. Though we may only speculate about the intended polemical
objective of this and similar dramatizations, in this case that objective seems
to be related with the hope of stimulating a more understanding attitude to-
wards extra-constitutional change not only in anti-democratic regimes but also
in liberal-democratic ones.
Whatever they are, all such objectives hinge on a rudimentary prognostic
calculus that is almost never explicitly put ‘on the record’ on the pages of a
theoretical text. By way of an example, consider Martin Loughlin’s account of
constituent power—introduced as a dispassionate contribution towards ‘under-
standing the nature and significance of [this] concept in contemporary consti-
tutional thought’,22 but ultimately revealed as a polemical intervention based
on a very concrete prognosis: the identification of ‘the most pressing issue
today’—the struggle between the ‘nobility’ and the ‘oppressed’—as the reason
why constituent power ‘must not disappear from constitutional thought’.23 To
go beyond constituent power as the object of theoretical discourse at this point
Martin Loughlin, ‘The Concept of Constituent Power’ (2014) 13 EJPT 218, 219.

22 23
ibid.
13

also means asking an un-theoretical question: if the most pressing issue today
was something else, does this mean that constituent power would have to dis-
appear from constitutional thought? More importantly: on what basis is it pos-
sible to claim that this concept is the right remedy for this pressing issue? Why
wouldn’t we—even if we agreed with Loughlin about which arena of struggle
to privilege—embrace Hardt and Negri’s multitude (for instance) as a more
appropriate emblem of ‘mobility, flexibility, and perpetual differentiation’,
none of which may any longer be adequately represented by the concepts of
constituent power?24
Once we ask this question, it will become even more obvious that different
theorists of constituent power literally look in different directions, and see dif-
ferent things. Sometimes the ‘circumferences’ of their gaze seem to encompass
the entire world. For Negri, for example, diverse struggles previously con-
ducted under the banner of peoplehood have today ‘become all but incommu-
nicable’,25 and ‘the concept of the People no longer functions as the organized
subject of the system of command’.26 To continue to postulate it would only
‘misidentif[y]‌and thus [mask] the enemy’.27 For Costas Douzinas, in contrast,
the alternative to the constituent power of ‘the people’ lies in a specific kind of
multitude: demos in the square. Again, what makes this empirically illustrated
but theoretically articulated alternative ‘superior’ to Negri’s is not a superior ar-
gument, but a different prognosis. In Douzinas’s case, predicated on a diagnosis
that ‘despite the hopes of Left internationalism and liberal cosmopolitanism,
effective politics still takes place at home’, and that ‘radical politics, faced with
a hostile international environment, can win victories only in its own polis’.28
These diagnoses and prognoses occur within a landscape defined by the
‘horizon of expectation’, on the one hand, and the ‘space of experience’ on the
other. Though the former may be more or less sharp, fading, or blurry, it seems
that it is never as confusing as the latter, which exists as,
a totality, within which many layers of earlier times are simultaneously present,
without, however, providing any indication of the before and after . . . To borrow
an image from Christian Meier, it is like the glass front of a washing machine, be-
hind which various bits of the wash appear now and then, but are all contained
within the drum.29
Meier’s metaphor of a washing machine, which allows us to detect the relevant
space of experience, also evokes this process as unavoidably unsystematic and
haphazard. While a theorist-imaginer might notice the red sock of Bolivarian
revolutions, a pink undershirt of protests against globalization, and a beige tank
Michael Hardt and Antonio Negri, Empire (Harvard University Press 2000) 344.
24
Reinhard Koselleck, ‘Crisis, Consciousness and Historical Construction’, Critique and Crisis: Enlightenment
25
and the Pathogenesis of Modernity (first published 1959, MIT 1998) 54.

Hardt and Negri (n 24) 344.
26 27
ibid 45.
Costas Douzinas, Philosophy and Resistance in the Crisis: Greece and the Future of Europe (Polity 2013) 157.
28
29
132

top of the struggle for the commons, he will not be able to relate them in any
systematic manner. Koselleck’s other remarks, however, suggest that there is a
system behind our imperfect attempts to follow the trajectory of the tumbling
experiences in Meier’s washing machine:
It is the tension between experience and expectation, which, in ever-changing
patterns, brings about new resolutions and through this generates historical
time . . . The substantial probability of a prognosis is not initially founded in one’s
expectations. One can also expect the improbable. The probability of a forecasted
future is, to begin with, derived from the given conditions of the past, whether
scientifically isolated or not. The diagnosis has precedence and is made on the
basis of the data of experience. Seen in this way, the space of experience, open
toward the future, draws the horizon of expectation out of itself. Experiences
release and direct prognoses. But prognoses are also defined by the requirement
that they expect something. Concern related to the broader or narrower field
of action produces expectations into which fear and hope also enter. Alternative
conditions must be taken into consideration; possibilities come into play that al-
ways contain more than can be realized in the coming reality. In this way, the
prognosis discloses expectations that are not solely deducible from experience.
To set up a prognosis means to have already altered the situation from which it
arises. Put another away, the previously existing space of experience is not suffi-
cient for the determination of the horizon of expectation.30
From this, it would seem that we ought to start from the spatiotemporally
underdetermined diagnosis, which ‘draws the horizon of expectation out of
itself ’, which is equally spatiotemporally under-determined. At that point we
begin fine-tuning the spatiotemporal image of our expectations, as concerns
‘related to the broader or narrower field of action’ enter our mind, and we
realize in the process that our expectations are not predetermined by the diag-
nosis of the space of experience with which we began. While Meier’s washing
machine evokes the image of tumbling spaces of experience—whose imagin-
ation we do not have much control over—pushing this metaphor a bit further
immediately challenges this conclusion and highlights the critical role of non-
theoretical, visual choices in theoretical accounts of constituent power.
Metaphorically speaking, we can choose the washing cycle; we can choose
which garments go in, and we have a choice of programmes and spin speed.
Less metaphorically: a theorist does not have to give ‘precedence’ to the diag-
nosis (ie start by inspecting the contents of the moving drum), but he can start
with an expectation of what garments he needs washed, proceed by making
a decision about the kind of machine to wash them in, how to wash them,
and when to check whether the cycle is over. For example, if your aim is to
contribute to a sense of hopefulness about emancipatory constitutional trans-
formations in the name of ‘the people’ in the world, your diagnosis will prob-
ably lump together the most momentous experiences over the last two hundred
ibid 262.
30
13

years, which are then placed in our imaginary drum in order to diagnose (and,
in effect, confirm) the investment of your own hope.
Spinning at high speed, these experiences might confirm our diagnosis of
them as ‘the great pivotal moments in the progressive liberation of humanity’.31
In contrast, a shorter washing cycle and a slower spin speed would allow us
to focus on the problematic cases that question the emancipatory expectations
from the idea of constituent power. By slowing down the imaginary drum, one
might reach the same conclusion as David Armitage, for whom,
at least since 1989, it has been much harder to view these revolutions without an
awareness of the appalling violence and human devastation that accompanied
them. Part of the revolutionaries’ success had lain in obscuring the fact that all
the major modern revolutions were, at their heart and for much of their course,
civil wars.32
Conversely, the pre-selection of a different set of experiences would prevent us
from ever entertaining this question. Against Armitage’s worries—successful
and relatively non-violent adjectival revolutions—the ‘Carnation’ revolution in
Portugal (1974), ‘Yellow’ in the Philippines (1986), ‘Bulldozer’ in Serbia (2000),
‘Orange’ in Ukraine (2003), ‘Tulip’ in Kyrgyzstan (2005), and ‘Jasmine’ in Tunisia
(2010)—show that, ‘of the 67 authoritarian regimes dismantled between 1972
and 2002, over 70 per cent were the result of non-violent uprisings’.33 So given
the small amount of violence in successful overthrows of oppressive regimes
worldwide, one could argue that it does make sense to diagnose the product-
ivity of the vocabulary of peoplehood in the arena of struggles for democratic
emancipation and to prognosticate their ongoing productivity.
As the second quote from Koselleck suggests, the morphology of prognosis
is even more complex. We prognosticate the general features of the future
world, the likelihood of obstacles and opportunities on the road towards the
desired outcome, and the chances of that outcome itself. In other words, our
pro tanto prognosis that informs our judgement (‘constituent power must not
disappear’34) will be the condensation of a number of prognoses at different
spatiotemporal slices, starting from the current space of experience and ending
with the exact location of the expected space of experience beyond the horizon.
Moreover, in directing our prognostic vision, we not only predict the likelihoods
of events ‘related to the broader or narrower field of action’ but also ponder the
‘alternative conditions’, which, Koselleck says, ‘also must be taken into consid-
eration’.35 If so, this redoubles the complexity of the already complex morph-
ology of our prognostic field. It is complex not only because of the composite
nature of our prognosis in this spacetime, but also because that prognosis is
reliant on the imagination of events and the projection of their likelihood in an
alternative, parallel universe.
David Armitage, ‘Civil War and Revolution’ (2009) 44[2] Agora 18, 21–22.
31 32
ibid.
Sharon Erickson Nepstad, Nonviolent Revolutions (OUP 2011) 4–5.
33 34
Loughlin (n 22).
Koselleck (n 21).
35
134

This, perhaps, is what Koselleck meant when he suggested that the space
of experience and the horizon of expectation ‘constitute a temporal dif-
ference in the today by redoubling past and future on one another in an un-
equal manner’.36 Against Koselleck, that same redoubling exists on the side of
past–present experiences. Recall Negri’s diagnosis from the beginning of this
section—in good part grounded in his assessment of the root causes of the
futility of activating constituent power of the people today on the basis of
one traumatic historical failure: the 1871 defeat of the Commune of Paris. On
a second look, Negri’s diagnosis is predicated on a prognosis he had to make
by imagining alternative scenarios in a parallel past universe. Even if the com-
munards of Paris managed to capture Versailles successfully in March of 1871,
and even if they succeeded in transforming France into a socialist federation
of communes as they intended, this would have simply provoked ‘an unending
international war’—Negri divines—as the Prussian and English ruling classes
would not have tolerated their success.37
5. Theorizing
moral hazards and polemical gambles
Gazing at theoretical accounts from the perspective of Meier’s washing ma-
chine has been useful for two reasons. On the one hand, it has provided us with
a better insight into the interplay between visual and polemical registers of
constituent imagination, and the ways in which that interplay affects the out-
comes of theoretical work. On the other hand, it has also allowed us to under-
stand scholars’ and strategists’ indifference towards the Blochean Vorgriff not
necessarily as the manifestation of their ‘nihilism of theoretical hopelessness’,
but rather as the outcome of their unsystematic diagnoses and prognoses about
the kinds of vision of constituent power that deserve to be broadcast into the
world. This raises a question that confronts all theorists of constituent power—
iconoclasts and iconophiles alike—where do theories of constituent power go
from here, once they confront the fact that they trade not only in polemical but
also in anticipatory concepts?
One possibility is to theorize constituent power in a way that makes it more
clear who are its presumptive targets and objectives. On this account, invoking
constituent power would still make sense in the polemical environments b1, b2,
and b3—discussed in Chapter 2—at the moment of s4. These are the struggles
whose objective it is to establish a new constitution after the deposition of a vi-
cious dictator, a corrupt ruling elite, or the withdrawal of imperial administra-
tion. The verdict on the advantages of using the concept of constituent power
ibid.
36
Michael Hardt and Antonio Negri, ‘Globalization and Democracy’ in Antonio Negri (ed), Reflections
37
on Empire (Polity 2008) 90. See similarly Scott Newton, ‘Post-War to New World Order and Post-Socialist
Transition: 1989 as Pseudo-Event’ in Fleur Johns, Sundhya Pahuja, and Richard Joyce (eds), Events: The Force of
International Law (Routledge 2011) 114.
135
Theorizing: Moral Hazards and Polemical Gambles • 135

might be different in the struggles that conform to the terms set by the binary
b4. These are the struggles over territorial sovereignty between national major-
ities and minorities, that often provoke external parties to get involved in the
conflict and exercise their constitutive power. One ‘solution’ to the moral risks
associated with the concept of constituent power, then, might then be to em-
brace the following formula explicitly: ‘yes’ to pouvoir constituant in democratic
struggles at s4, ‘no’ to nationalist struggles at s2 and s3. In doing so, we would re-
main firmly within the contemporary understandings of Sieyèsian constituent
power as the agency that pertains to a bearer defined as the territorially prefig-
ured ‘body of associates’. In embracing this figure of a sovereign people, we
would do so, however, not because such a people allegedly exhibits an ‘univer-
salist tendency’ as opposed to an ethno-nationalist conception of nationhood,38
but rather because of the content of their background prognostic judgement
about the acceptable degree of human suffering in democratic struggles at s4
and an unacceptable degree in national struggles over territory at s2 and s3.
Notice, however, that even this, more deliberately contextual, approach to
constituent power rests on a problematic assumption as it associates the situ-
ational ‘success’ of constituent power with the presence or the absence of a fa-
vourable condition: (national) homogeneity. Consider the destiny of constituent
power in relatively homogenous Egypt, for example. Irrespective of seemingly
not unfavourable conditions for its exercise in that context, the political vocabu-
lary of popular sovereignty proved singularly incapable of managing popular
expectations in a way that would contribute to the central objective of con-
stituent power at s4 in b1 and b3: the deposition of a semi-tyrannical, oligarchic
regime and the constitution of a democratic one. Though giving dignity to
irruptions, spontaneous creativity, or co-institution, the accounts of constituent
power have proved incapable of determining who is ‘the people’ of Egypt: is ‘the
people’ the mass that presented itself in Tahrir Square on 1 July 2013, demanding
the ousting of democratically elected President Morsi? Or the crowd that pre-
sented itself at Rabaa al-Adawiya Mosque on 14 August, forty-four days later,
demanding his reinstatement? Even if we agreed that constituent power only
speaks to democratic struggles at s4, we still could not have arbitrated between
Sisi’s ‘coup-o-lution’—which emerged through the Egyptian army’s coup d’état,
yet promised a new, inclusive round of constitution-making—and Morsi’s elect-
orally legitimate ‘demokratura’—the pouvoir constitué resulting from the pre-
vious round of the exercise of the pouvoir constituant, but which was apparently
bent on curtailing the political rights of ‘the people’.
The ‘irruptions’ of ‘constituent power’ in Syria in 2011 have been no different
in that regard. There, as in Egypt, the accounts of constituent power confront
the same question: Which crowd offered the best evidence of the will of the
For an exemplar of this proposition, see Ulrich K Preuss, ‘The Exercise of Constituent Power in Central
38
and Eastern Europe’ in Martin Loughlin and Neil Walker (eds), The Paradox of Constitutionalism 211, 227. For
the replication of this logic on a smaller scale in a way in which it accommodates substate nationalists, see
Stephen Tierney, ‘Beyond the Ontological Question: Liberal Nationalism and the Task of Constitution-
Building’ (2008) 14 ELJ 128.
136

people? The one in Damascus, Aleppo, and Daraa chanting: ‘The people want
the fall of the regime’ in March 2011? Or the one in Damascus three months later
chanting: ‘The people want Bashar Assad!’?39 Unlike Egypt, Syria puts the sens-
ibility of such a style of theorizing in even sharper relief. While Egypt stabilized
under a neo-military government, Syria spiralled into civil war. Instead of a
democratic revolution followed by a new constitution at s4, the constituent
struggle spilled onto s2 and s3, leading to the fragmentation of the Syrian terri-
tory and involving, in the process, various interested third parties helping one
group of partisans or another. What started as a democratic revolution has de-
veloped into a geopolitical and sectarian conflict, whose cost in human lives
numbers not thousands but hundreds of thousands.
Wouldn’t it be beneficial for constitutional theories, which otherwise re-
produce the ex nihilo effect in present times, to find a new way to inscribe the
possibility of such scenarios into their existing accounts of constituent power?
Against the backdrop of the conflict in Syria, why would anyone continue to
evoke transformational moments, occurring ex nihilo, suddenly, in the middle
of nowhere? Asking this alerts us to an objective problem in the theoretical
imaginations of constituent power and provides us with the contrasting back-
ground against which those imaginations can be seen in a more refined and
ultimately redeeming light. Pausing on Hans Lindahl’s influential account of
constituent power will help us clarify what is meant by that and lead us to the
second way in which imaginations of constituent power can be with more at-
tention to their polemical, visual, and affective dimensions.
Within the field populated by theoretical iconophiles and iconoclasts,
Lindahl can be described as a reluctant iconoclast. Instead of offering guidance
on concrete struggles or denouncing a particular enemy, his goal, in his words,
is to offer ‘conceptually and normatively defensible’ accounts of constituent
power.40 While he occasionally treats ‘community’ as the bearer of constituent
power, he is nonetheless clear that ‘in the precise sense’, constituent power is
‘an event, not the act of a collective subject’.41 What marks such an event as an
exercise of constituent power is the fact that it results from a seized initiative,
which ‘must succeed in representing its addressees as a group in a way that is
both viable as a future possibility and recognizable, albeit retroactively, as ar-
ticulating what they already share’.42 Moreover, to count as such, the seized
initiative must catch those who seized it completely by surprise: in it, they must
discover ‘ways of acting jointly [they] never had envisaged’.43 Seen in this way,
constituent power is a manifestation of ‘spontaneous creativity’ in an environ-
ment whose ‘merely material conditions’ of ‘formally productive activity’ must
‘resist characterization’.44
Anthony Shadid, ‘Thousands Turn Out for Assad’, New York Times (21 June 2011).
39
Hans Lindahl, ‘Possibility, Actuality, Rupture: Constituent Power and the Ontology of Change’ (2015) 22[2]
40
Constellations 163, 172.
ibid 168.
41
ibid.
42
ibid 170.
43 44
ibid.
137
Theorizing: Moral Hazards and Polemical Gambles • 137

At this juncture, one crucial point should not be lost from sight: while
Lindahl’s account of constituent power re-enacts the ex nihilo effects of early
modern and modern constituent choreographies, it also contains the traces of
Schmitt’s pluriverse. Even though constituent power results from ‘spontaneous
creativity’ in an environment that resists characterization, the collective that
emerges as its outcome ‘never entirely leaves behind its heteronomous origin’.45
Likewise, even though constituent power must be imagined as the seizure of
initiative within a passive environment, Lindahl finds a way to foreshadow the
costs of seizing it. Constituent power is never only a ‘project of love’;46 never
‘an innocent affair’!47 Thus described, its success depends on the willingness of
its addressees to see themselves as part of the past trajectory as they imagine a
future ‘possibility’, arguably a better and concrete one.48
Though Lindahl claims that his argument of constituent power is ‘concep-
tually and normatively defensible’ what interests us at this point is the practical
counsel his argument may offer to the eavesdroppers on the ground. Would
they conclude that it encourages them not to preoccupy themselves with mere
‘material conditions’ as they are about to daringly seize initiative? Or would
they conclude that Lindahl also asks of them (now as the victors) to begin ques-
tioning their self-image as a political community, constituted ‘only inconclu-
sively’? While he encourages the partisan challengers to ignore the demands
of others as they were about to seize the initiative and to bet on their passivity,
once challengers become victors Lindahl asks of them to be passive in turn, and
show ‘collective self-restraint’. While they were previously supposed to imagine
the field of struggle, as populated by passive others, they are now supposed to
remember them as ‘marginalized’ and ‘excluded’. Though vanquished, the ‘ex-
cluded’ won’t ‘simply disappear’ but are rather destined to be manifested ‘in the
guise of strange behaviour’ that the victorious partisans will not be able to pro-
cess and negotiate under the terms set by their own constituent imagination.49
While a fellow theorist might critique Lindahl’s account on ontological, nor-
mative, or some other disciplinarily self-disciplined grounds, a soldier fighting
on the side of the Free Syrian Army who accidentally overheard Lindahl’s signal
would rightly be confused:
—So are you saying that I should disregard the wider geopolitical environment
and seize the initiative against Assad, knowing that my victory will not be an in-
nocent affair—but that I should worry about that later?
Assad’s officers who overheard the same broadcast would probably be equally
perplexed—though for a different reason. We could almost hear them trying to
put two and two together:
—Wait a minute, why should we show self-restraint towards those who have oc-
cupied parts of Syria and constituted their authority there? Why shouldn’t they
show self-restraint first? Why would we bother with their past marginalization if,
ibid 168.
45 46
ibid 216. 47
ibid 172. ibid 169.
48 49
ibid.
138

under the territory they control now, they practise marginalization and exclusion
far worse than anything this region has seen in decades?
Lindahl’s account is not concerned with these questions. Nor is it interested
in a question that these two partisan eavesdroppers would be equally entitled
to ask:
—Do ‘initiative’ and ‘self-restraint’ have any meaning at all in our predicament?
This imaginary dialogue is intended as a reminder of a simple, but important
point. Every theoretical account of a particular proposition of peoplehood may
be interpreted as entailing more than just an aspiration to provide a ‘defensible’
argument. The broadcasted signal of that defence always travels together with
a range of encrypted encouragements and discouragements that aim to shape
the anticipatory consciousness of those who receive them in space and over
time. As sunlight is only a portion of the electromagnetic radiation emitted
by the Sun, so the ontological, normative, or functionalist ‘argument’ is only
a portion of the discursive ‘radiation’ broadcast by a particular theorist. This
field is multidimensional, but in Figure 4.2 it is portrayed as a three-dimensional
deictic cube: the spatiotemporal-personal field of partisan expectations:50
U
P*
O
P**
T
H
O-others, U-ourselves
T-there, H-here
P**-past, P*-present, F-future
Figure 4.2 Deictic cube
Depending on the content and the style of a particular broadcast this three-
dimensional field will always be inscribed with the conjurors’ encouragements
and discouragements. Those interventions my affect not only partisan actions,
such as claim-making and bet-placing, but also other mental operations, such
as her assumptions, as well as her expectant emotions, such as hoping, desiring,
and worrying. Finally, conjurors’ interventions may encourage or discourage
For the concept of a deictic field, which inspired the figure of a ‘deictic cube’, see William F Hanks,
50
‘Explorations in the Deictic Field’ (2005) 46[2] Current Anthropology 191.

139
Reconceptualizing: Polemical Clarifications • 139

the formation of particular propositional attitudes towards the claims of people-
hood that others make as part of the same constituent struggle.
What is more immediately important for the purposes of this chapter is to
notice that Lindahl—here as a stand-in for every theorist-conjuror—always has
the freedom to accentuate the aspects of his theoretical argument in a different
way, and in doing so encourage or discourage partisan hopes, assumptions,
claims, or wagers within a particular figuration of constituent power. In the
same way Sieyè could evoke the tension between his two accounts of a nation in-
stead of leaving it unaccounted for. Likewise, Schmitt could have explained why
the assembled ‘people’ is only ‘potentially’ a political entity (even though ‘the
people’ is, by definition, a political entity), just as Lefort could have evoked the
empty space of power by evoking Rubin’s vase and not by excluding the third
by constructing the binary between ‘the people’ as an ‘empty place of power’
and the totalitarian ‘People as One’.
6. Reconceptualizing
polemical clarifications
As a juridical term known mostly to continental European and Latin American
constitutional lawyers, constituent power is the predicate in a proposition
whose symbolical efficacy pales in comparison with the one in which the right
to self-determination features as the predicate itself. Does this mean that my
critique of Lindahl is unreasonable? That, despite my protestations to the con-
trary, he can afford not to worry about partisan eavesdroppers and their partly
genuinely bewildered, partly strategically ingenuous questions? That his real
audience are those whose imaginations have been properly formatted to de-
code his real message: constitutional lawyers, law professors, graduate students,
and no one else. That may be. But if that is the case, why don’t theorists says so?
One possibility is that the spatiotemporal frame of their prognostic imagin-
ation remains so wide that they are willing to gamble that at some point in the
future, there will be enough of those in the field of struggle who would profit
enough from their imaginations of the seizure of initiative, strange communi-
ties, and self-restraint, in such a way that would allow them to conclude that it
was for the better. To place this bet is to act as a particular kind of theorist—a
gambler-conjuror. Like Rousseau’s ‘barbarous philosopher’, such a theorist is
ridiculed by those who taunted him with invitations to descend to the battle-
field and read them his book.51 Unlike Rousseau’s philosopher, he doesn’t re-
coil from doing so. Instead, he accepts their mocking invitation, in the hope
that in ‘read[ing] his book’ he will also be able disperse the rhetorical weapons
that book contains across the landscape, to be used in some future, currently
hard-to-imagine, political battle. Though whimsical and speculative, this scen-
ario is probably the best way to rationalize the troubling indifference among
Jean-Jacques Rousseau. ‘The State of War’ in Victor Gourevitch (ed), Rousseau: ‘The Social Contract’ and
51
Other Later Political Writings (CUP 1997) 162.

140

the theorists of constituent power who conjure it with no regard for the conse-
quences of its possible uptake in different contexts.
Previous sections explored an alternative to this: a more contextual account
of constituent power. The alternative to that alternative is explored in the rest
of this section: a style of theorizing that insists on the scholarly nature of its
enterprise and on the exclusively juridical character of constituent power as the
object of its enquiry.
Once purified scholarly, says Mark Tushnet, this concept may still do ‘im-
portant work’ in helping us understand ‘why ordinary legislation must conform
to the constitution’, in solving ‘a puzzle about constitutional amendments ac-
complished by means short of convening a new constituent assembly’,52 and in
telling ‘us that the constituent power can be exercised in an originary manner
without facing preexisting legal constraints’.53 Who is meant by ‘us’ becomes
more apparent several pages later, as Tushnet moves to address the anxieties
provoked by the ideals of constituent power:
One might properly be nervous that references to ‘the’ constituent power might
convey a sense of national unity that belies the inevitable reality that a nation’s
polity will often be quite divided over fundamental issues of constitutional iden-
tity. Treating the constituent power as a concept referring to real people exacer-
bates that difficulty, and might promote a discourse in which opponents of the
majority are not merely losers but outsiders to the nation. Subjecting claims that
‘the people’ have acted to a retrospective test of success does incorporate an
empirical or real-world element into the analysis, but it also diffuses the possi-
bility that participants will properly make claims about what ‘the people’ want
in the revolutionary moment itself. Treating the concept as purely conceptual
has the advantage of separating the concept from our normative stance toward
constitutions.54
Notice, however, that being ‘properly nervous’ hinges on a specific assump-
tion: the capacity of the partisans on the ground to not only overhear theor-
etical debates about the meaning of constituent power but to also take them
seriously. If so, we are presented with an ironic conclusion: the purity of the
concept of constituent power, which is seemingly intended for the consump-
tion of legal scholars is—in this case at least—shaped by Tushnet’s imagination
of how non-professionals might (mis)understand its meaning. In other words,
Tushnet’s ‘pure concept’ is ultimately intended for the consumption of the
third audience—not ‘us’ and not the imaginary eavesdroppers. That, however,
only becomes apparent at the very end of his argument; at the moment when
explaining the meaning of the ‘pure concept’ of constituent power gives way to
speculating about its function: ‘to displace anxiety over direct exercises of phys-
ical power by offering a way of achieving revolution without physical force’.55
Mark Tushnet, ‘Peasants with Pitchforks, and Toilers with Twitter: Constitutional Revolutions and the
52
Constituent Power’ (2015) 13[3] ICON 639, 645.

ibid 646.
53
ibid 653.
54 55
14
Scripting: Schmittian Contamination • 141

Tushnet’s insistence on scholarly ‘purity’, to put it differently, is a polemical
stratagem. It is a way to lend intellectual dignity to a concept that has the potential to
relax the attitudes to revolutionary acts of constitution-making among those who
are tasked to defend constitutional status quo. It is an affirmation of constituent
power as the cure for juridical anxieties. That affirmation is not unqualified: ‘The
argument’s proper domain is limited to reasonably democratic but imperfectly
functioning democracies, where the imperfections are strongly entrenched in law
or practice—in law, when the imperfections are said to be unamendable, or in prac-
tice, when following the amendment rules would effectively preclude the imper-
fections “dis-entrenchment”.’56 This raises interesting questions. Against what kind
of ‘imperfections’ are we willing to encourage the deflation of anxieties about pos-
sible violence? Why would we be willing to endorse the deflation of these anxie-
ties if we thought that the extra-constitutional rectification of imperfections would
generate noxious political outcomes? If you are a socialist and an opponent of the
American hegemony, who reflects on constituent power by looking at Venezuela
in 1999, you will conclude that the ‘pure concept’ has indeed done some important
work by toning down any possible anxieties within the Venezuelan Supreme Court
about Chávez’s extra-constitutional pursuit of constitutional change. You will also
probably conclude that Tushnet’s implicit gamble was right: Chávez’s successful
seizure of the initiative produced no political violence. But if your gaze is now dir-
ected at Ukraine in 2014, you will probably change your mind. In that case, we may
have to ask what is meant by ‘reasonably democratic’. Or more precisely, what is
it in the character of being ‘reasonably democratic’ that enables us to defend the
vocabulary of constituent power as a device for ‘displacing anxiety over direct exer-
cises of physical power by offering a way of achieving revolution without physical
force’?57 That is to say, what else must we assume in order not to reach the opposite
conclusion encapsulated in competing visions of constituent power that see it not
as an anxiety-management technique but as the sheer ‘act of will’ after which ‘law
ends and pure politics (or war) begins’?58
7. Scripting
Schmittian contamination
If David Armitage is right, part of the answer lies in wider and deeper ideational
shifts that have contributed to the establishment of civil war and revolution
as two distinct concepts. Juxtaposed only from the eighteenth century onwards,
the former was envisioned as backward-looking, ‘senseless circling upon itself ’.
In contrast, the latter came to be seen as the noblest act of political emancipa-
tion; something that ‘open[s]‌up a new vista’. If so, the reason why events in
Ukraine, Syria, and Libya do not shake our confidence in constituent power
ibid.
56 57
Bruce Ackerman, We the People, vol 2, Transformations (Harvard University Press 1998) 11. For the implicit
58
refusal to base the account of constituent power on the prognostication of risks, see Joel Colón-Ríos, Weak
Constitutionalism: Democratic Legitimacy and the Question of Constituent Power (Routledge 2012).
142

of the people might also be explained by our unreflective acceptance of the
underlying revolution–civil war binary. And in turn: the way in which theor-
ists imagine the exercise of constituent power may also be seen as something
that keeps the dichotomy between the noble (revolutionary) and ignoble (frat-
ricidal) violence alive.59
In Sieyès’s case, its exercise is a reasonably seamless affair. As we saw earlier,
‘Nation’ begins exercising its constituent power as individuals assembled in local
parishes seek to give their union ‘consistency’. They then elect delegates for the
regional assemblies, to in turn elect the representatives, who, assembled in the
national constituent, adopt a new constitution. This happens over the course of
‘three epochs’, within which Sieyès condenses the state of nature, rudimentary
forms of political organization, and a spatially prefigured constitutional place of
France, both externally and internally. While the isolated individuals are the ones
who commenced this process, it is the nation, living under the same legislature
and organized within ‘forty thousand parishes’, that completes it. By imagina-
tively fast-forwarding entire centuries, Sieyès erases actual civil wars that have
happened between the second and the third epoch, which played a critical role
in establishing France as an entity capable of serving as a territorial container to
popular constituent power.60 Now turn your gaze to Schmitt. Though he builds
on Sieyès’s account, the visuals of constituent power evoked in Constitutional
Theory are radically different. Instead of a pyramidal trickling-up of the dislocated
impulses of constituent power, Schmitt offers us the image of ‘the people’ as a po-
tential political ‘entity’ engaged in an act of ‘acclamation’ ‘during street demon-
strations and public festivals, in theaters, on the running track, or in the stadium’.61
Notice, however, that what confronts us here are not simply two different the-
ories, but also two rather different cinematographies of constituent power. As he
fast-forwards its exercise of constituent power over the course of centuries, Sieyès’s
spatial zoom gradually increases to include the entire territory of France. In con-
trast, Schmitt’s recording session is short and his zoom extremely narrow: all we
take notice of are the moments of acclamation during street demonstrations.
For our immediate purposes, however, the following question is crucial: What
is the relationship between the spatiotemporally narrow frame of the presented
‘people’ in that instant and the spatiotemporally wide frame that allows us to de-
tect requisite ‘homogeneity’ in the entire state over time? Could it be that the scene
evoked by Schmitt is not a full ‘movie’ about the exercise of constituent power but
just, as one of its outtakes, cut short by Schmitt’s own visual choices? As Robin
Wagner-Pacifici remarked elsewhere in the context of a similar discussion: ‘There
is the sense that something may be happening. But is it really?’62 As William H
59
60
In that way, Sieyès managed to combine two different imaginations of progress: the smooth ‘legato’ transi-
tion between phases that blend into each other; and the abrupt, ‘staccato’ transition between discrete and for-
mally delineated periods. For the distinction between the legato and staccato visions of progress, see Eviatar
Zerubavel, Time Maps: Collective Memory and the Social Shape of the Past (University of Chicago Press 2003).
Carl Schmitt, Constitutional Theory ( Jeffrey Seitzer tr, Duke University Press 2007) 272.
61
Robin Wagner-Pacifici, What is an Event? (University of Chicago Press 2017) 55.

62
143
Scripting: Schmittian Contamination • 143

Sewell shows in his analysis of the event that became known as ‘the taking of the
Bastille’, the initial act of rebellion—the rupture in the spatiotemporal integrity
of the ancien régime—first needed to be provisionally solidified in its immediate
spatial vicinity and then extended across the entire territory of a polity for the
French Revolution to succeed.63
What prevented the taking of the Bastille from being understood, in its im-
mediate aftermath, as the act of the Parisian mob was the ritualistic ‘massing’
of large numbers of Parisians in discrete localities in Paris who took part in
the triumphal procession of the armed men that had taken the Bastille.64 This
initial spatiotemporal extension of the first revolutionary impulse generated
a ‘collective effervescence’, enabling the participants to see themselves as em-
bodiments of the sovereign will of the French people. As Sewell argues, these
initial, positive micro-cascades also enabled the anxious but sympathetic on-
lookers from the National Assembly in Versailles to understand the taking of
the Bastille as an act of ‘the people’ and not as an outburst of a criminal mob.
Furthermore, the centrality of Paris in French political life and its proximity
to the seat of government in Versailles enabled further smooth cascading of
revolutionary enthusiasm, triggering a ripple of further ‘municipal revolu-
tions’ across France in the weeks that followed.65 While noting that the en-
thusiasm for the Revolution was widespread and genuine, Sewell also insists
on a more granular account of its distribution in space and time. From that
perspective, contemporary accounts of constituent power that insist on ‘joint
action’, ‘shared intentions’, or ‘co-instituting’ look dubiously crude, leading
us to wonder what is the purpose of making them so. Though offering a his-
torical sociological account of revolutionary change, Sewell’s description is
very important for the practice of contemporary constituent imagination.
By describing a more nuanced picture—one of a deliberate spread of revo-
lutionary enthusiasm where ‘sectional assemblies coordinated their initiatives
and their policing efforts with other sections’, and rituals of ‘fraternization’
helped sustain existing ‘spatial chemistry’—Sewell offers us an opportunity to
see accounts of constituent power as hinging on undisclosed scripts of consti-
tutional change, built on the assumptions that constituent screenwriters rarely
expose to theoretical scrutiny.
By way of an example, consider again Schmitt’s claim that those who partici-
pate in the act of acclamation—‘during street demonstrations and public festi-
vals, in theaters, on the running track, or in the stadium’, ‘to the extent that [they
do] not only appear as an organized interest group’—are ‘at least potentially, a
political entity’. What this scene presupposes is the script of contamination.
According to this unstated script, the attitude that led the citizens to assemble in
a certain location must be imagined as contagious: capable of spreading across
the entire territory of a constitutional order; ‘infecting’ the entire ‘people’ with
63
William H Sewell, ‘Historical Events as Transformations of Structures: Inventing Revolution at the Bastille’
(1996) 25[6] Theory and Society 841, 845 passim.
ibid 876.
64
ibid 877.
65
14

the kinds of dispositions that make the successful exercise of constituent power
possible. If so Schmitt’s theory of constituent power (of the people) cannot be
separated from its invisible imaginative assumption: Schmitt’s optimistic screen-
play of constitutional transformation, without which an account of constituent
power would not make sense. From that angle, his remarks about the necessity
of homogeneity look different as well: less a celebration of ethno-nationalism
than a bet about the requisite quality and spatiotemporal distribution of mental
states that increase the chances of successful cascading.
There is another implicit message in Schmitt’s constitutional theory that might
illuminate why else Tushnet seems to think that jurists might do well to tone down
their anxieties about revolutionary change: if you are engaged in a revolution in a
homogenous country, you do not worry too much about civil war. Or, more ab-
stractly: given that your revolutionary efforts take place in a socio-psychologically
homogenous country, you should expect that the amount of human suffering will
be bearable in absolute terms. I say ‘absolute’ because a sovereign people is also
the protagonist in another script, one that is indifferent to the question of human
suffering in the abstract. Instead of encouraging revolutionaries to expect that the
amount of human suffering produced by their constituent power will be low, this
script encourages them to assume that whatever it ends up being, it will be worth it
regardless of the cost. It does so, however, under one condition: it requires would-
be revolutionaries to exercise their constituent power only after their patience with
the suffering oppression has been authentically exhausted. In that case, whatever
suffering ends up being unleashed by their constituent power will not be their fault.
As one of the members of the third estate proclaimed in the days following the fall
of Bastille:
The first blows struck by the people are due to the effervescence necessarily inspired
by the annihilation of despotism and the birth of liberty. It was scarcely possible that
a people which had just broken the yoke under which it had groaned for so long
would not immolate to its fury its first victims.66
For the most part contemporary theorists of constituent power don’t explicitly
tackle this implicit assumption. Nor do they confront the question of the changes
in the symbolical efficacy of another script of constitutional change that uses it as
its starting point.
8. Scripting
Lockean exhaustion
The lockean script rests on an assumption about the character of the con-
sciousness of those that end up establishing a new constitutional order in the
name of the people through a violent revolutionary act. Locke portrays them as
being prepared to endure ‘many wrong and inconvenient laws, and all the slips
of human frailty . . . without mutiny or murmur’, which, in the aggregate, leads
Sewell (n 63) 858.
66
145
Scripting: Lockean Exhaustion • 145

to the ‘slowness and aversion in the people to quit their old constitutions’.67 To
accept this assumption is to be led to believe that popular revolutions occur only
after ‘a long train of abuses, prevarications and artifices, all tending the same
way, make the design visible to the people, and they cannot but feel what they
lie under, and see whither they are going’.68 Put differently: what the Lockean
script of exhaustion asks of those who prepare to defy the authority of a con-
stitutional order in the name of the people is to do so only after re-enacting the
following scenes in sequence:
The main protagonist in the lockean script is neither the people as such, nor an
objectively oppressed people, more specifically, but an oppressed people led by
reasonably hopeless revolutionaries: those who were initially sober enough to realize
that the pace of change must be slow because their interests must be reconciled
with those of others who may have a stake in a current system; charitable towards
the failures of human nature to respond to injustice quickly; and hopeful about
the capacity of those who perpetrate injustices to be persuaded to see the error
of their ways, eventually. When such revolutionaries say ‘Enough!’, it is not just
because they speak for an oppressed people, but also because their human cap-
acity for suffering and hopefulness has been authentically depleted. That, at least,
is what they let the world know in the most famous record of the enactment of
that script: the American Declaration of Independence. Starting from Locke’s
assumption of how ‘mankind are more disposed to suffer, while evils are suffer-
able, than to right themselves by abolishing the forms to which they are accus-
tomed’,69 the signatories of the Declaration asserted that the revolution occurred
not only after a ‘long train of abuses and usurpations’ but also after their ‘patient
sufferance’.70 Only after the British remained ‘deaf ’ to the voice of suffering did
the American revolutionaries decide to exercise their constituent power.
This gives rise to a number of questions, which are almost never con-
fronted explicitly. Do those who implicitly embrace this script do so because
they think that this is the most effective way to accumulate popular energy
necessary for the success of the revolution? If so, how do they imagine that
energy: as the potential energy (dunamis) or as the energy needed to per-
form the constitutional transformation well (entelechy)? Or do they think
that following this script is advisable because its performance is likely to
corrode the resolve of those who fight to preserve constitutional status
quo? And if so, do they factor in the possibility that the defenders of the
regime might already be ‘in on’ the lockean script; that they too—just like
John Locke, Second Treatise on Government (CB Macpherson ed, first published 1690, Hackett Publishing
67
1980) 113.
ibid.
68
69
The Declaration of Independence (1776) <https://
www.archives.gov/
founding-
docs/
declaration-
transcript> accessed 10 November 2017.
ibid.
70
146

James MacPherson in 1776, or Bashar al-Assad in 2011—play their part in the
drama of popular sovereignty in full awareness of its underlying logic of
‘exhaustion’?
To be aware of that logic is to be able to turn it on its head. Accepting, for
the sake of the argument, the claim of the American revolutionaries that there
should be no ‘taxation without representation’, the British colonial secretary
James Macpherson was still able to assert that Americans had not yet exhausted
all available routes before asserting their sovereignty: ‘Had [they] instead
of flying to arms, submitted the same supposed grievance [like the counties
Chester and Durham in medieval times] in a peaceable and dutiful manner,
to the Legislature, I can perceive no reason why their request should be re-
fused.’71 More than two centuries later, Bashar al-Assad essentially made the
same argument. In a speech after the revolutionary events in early 2011, Assad
actually claimed that governments must meet the ‘needs of the society’ and
respond favourably when the people ‘demand their rights’. In fact, ‘It is natural
that the government should respond to these demands happily.’72 However, the
response should not come from the simple fact of ‘pressure’. Heeding unquali-
fied pressure would obliterate the distinction between ‘the inside’ and ‘the out-
side’ and thus render the sovereignty of the (Syrian) people meaningless. If ‘the
people get the government to bow under pressure’, Assad reasoned publicly,
‘it will bow to foreign pressure’. Instead of simply heeding the demands of the
groups that falsely impersonated the Syrian ‘people’, he called for ‘dialogue’,
pointing to the alleged sincerity of his reformist intentions. Simultaneously, he
enumerated reasons why these measures could not have been implemented
more quickly:
You know what happened in Lebanon in 2005, and later the war of 2006 and its
repercussions, and the war against Gaza at the end of 2008. So, the whole period
was that of continued pressure. What added to the problems was that we had
four years of drought which damaged our economic program. . . . I said that these
events made us change our priorities. Of course I am not justifying.73
While claiming not to be ‘justifying’, Assad further sought to pre-empt ob-
jections about the absence of political freedoms in Syria. In anticipating the
charges of hypocrisy, he claimed that the reason ‘we did not focus much on
political issues like the emergency law and the party law’ was that ‘when there
are human issues at stake, they cannot be postponed. We can postpone a party
statement for months or even years, but we cannot postpone providing food for
children for breakfast.’74
James Macpherson, The Rights of Great Britain Asserted against the Claims of America: Being an Answer to the
71
Declaration of the General Congress (T. Cadell 1776) 8.

72
Bashar al-Assad, ‘Speech by President Bashar al-Assad to the Syrian parliament on 30 March 2011 in response
to a wave of protests around the country’ (2011) <www.al-bab.com/arab/docs/syria/bashar_assad_speech_
110330.htm> accessed 5 January 2016.
ibid.
73
ibid.
74
147
Scripting: Lockean Exhaustion • 147

Like Macpherson, but in a more elaborate way, Assad was claiming not
only that the rebels did not represent ‘the people’, but also that even if they
did, the failure of the regime to respond to their political demands could not
count as the legitimate reason for their exhaustion of patience. Through his
reliance on the idea of the sovereign people—ex hypothesi resistant to the pres-
sure from the outside—the profession of political goodwill, and the explan-
ation of ‘objective’ difficulties, Assad sought to undermine the premises of
the lockean script without abandoning it. Likewise, the professed concern
for the epistemic quality of the state’s policies enabled him to dismiss the de-
mand for the acceleration of responsiveness as ‘purely technical’.75 Confronted
with the insurrectionary demands, the duty of the Syrian government, he
said, ‘is to provide the Syrian people with the best, not with the fastest. We
want to proceed quickly, but we do not want to be hasty.’76 From this perspec-
tive, not only will the government, based on the idea of popular sovereignty,
legitimately resist unqualified grassroots pressure, it also will not be rushed in
fulfilling even the demands of the people, with whom it may actually agree
in principle.
How useful, then, is the lockean script? As we can see, an oppressive re-
gime like Assad’s can start from Lockean premises and easily reach an anti-
revolutionary conclusion using the same vocabulary of popular sovereignty,
which should impel us to question its productivity and rethink the costs of
enacting it by revolutionary performers, more generally. On the one hand,
those who have authentically exhausted their patience with suffering will be
accused of feigning it. Those who have not will be tempted to do so, or to set
the stage for it, by provoking violence by the state. In the first case, the Lockean
script may in fact generate the surplus outrage among the supporters of the re-
gime. In the second case, it will act as a perverse incentive to generate internal
or external support for insurgent demands. In both cases, it may contribute
to—not diminish—human suffering. The root problem here is not that of sub-
terfuge and dissimulation, but of diagnostic imagination and its spatiotemporal
coordinates. Or, as Algirdas Greimas put it:
At what moment can we say that the patient ‘becomes impatient,’ that he ‘runs
out of patience,’ that he is ‘at the end of his patience’? This problem is that of the
introduction of discontinuity into the midst of duration, of segmentation into
slices of passional life that appears to us in its ordinariness to be an alternation of
tensions and relaxations.77
At a more general level, the same recalibrations of the spatiotemporal coordin-
ates of our mind’s eye that prefigure what counts as authentic and inauthentic,
legitimate and illegitimate in the context of impatience, are also at work in the
context of ‘Enough!’—one of the unsung master-tropes of political discourse,
ibid.
75 76
ibid.
Algirdas Greimas, ‘On Anger: A Lexical Semantic Study’ 154–55 quoted from Wagner-Pacifici (n 62) 69.
77
148

which, in this case, makes it possible for us to speak of impatience as legitimate,
justified, or excusable in the first place. As Jacques Lezra insightfully observed,
all ‘politics is concerned with what is or is not enough; it takes shape when
I judge something to be insufficient for something to obtain; and when I make
a claim based on this judgment’.78
The Lockean enough! is just one of the variations on a larger theme whose
prominence can be seen even though the protagonist in the lockean script is
not played by a liberal, reasonable revolutionary but by an ‘ancient reluctant
conscript’ who ‘stoically obey[s]‌orders and perform[s] tasks allotted him. But
only up to a point; it is he who finally says, “Enough”, and after the rulers have
disappeared into the morass of their own excesses, and it is he who builds on
the rubble and once more gets the whole thing going.’79 As is the case with most
theorists who are highly critical of the way in which Western constitutional im-
agination shapes our political expectations, it is hard to tell whether Tully has
no patience for democratic impatience, or whether he strategically chooses to
lend it dignity by using the subterfuge of cultural difference, diversity, and pol-
itical pluralism.
What remains unsaid by those whose imaginations revolve around the trope
of Enough!—a possibility that the dichotomy between the normality of pa-
tience and the legitimacy of, by its nature, exceptional exhaustion of patience
is itself a ruse—has most poignantly been expressed by someone whose im-
agination hasn’t been held captive to the scruples and preoccupation of the-
oretical conversations: that ‘freedom is always coming in the hereafter,’ that
‘ “the hereafter” is a hustle’, that there is nothing ignominious in saying: ‘We
want it now.’80 Today, the vocabulary of ‘indignation’ functions as the dom-
inant way of asserting the legitimacy of impatience. Against the backdrop of
the lockean script, ‘indignation’ presents itself as a way to foreshorten the
sequence: passivity ⇨ patient suffering ⇨ loss of hope ⇨ revolution. What
those who portray themselves as indignados seem to suggest is that the initial
infraction is outrageous enough to render the patience, suffering, and exhaustion
morally irrelevant in judging an act, which, if it transpires successfully, would
theoretically be described as the exercise of constituent power. The effectivity
of this vocabulary is still difficult to evaluate. There are good reasons to doubt
whether this way of saying enough! will ever be good enough from the perspec-
tive of the aspirations of those who, in recent times, made a conscious choice
to embrace it at the expense of more traditional scripts of popular sovereignty
and constituent power.
78
Jacques Lezra, ‘Enough’ in Political Concepts: A Critical Lexicon <www.politicalconcepts.org/enough-
jacques-lezra/> accessed 17 June 2017.
James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (CUP 1996) 27.
79
Jesse Williams, BET Humanitarian Award acceptance speech (26 June 2016). I transcribed this remark from
80
a video of his speech available at youtube.com <https://www.youtube.com/watch?v=jLbrhcoGzus> ac-

cessed 20 July 2016.
149
Imagining (Others): Beyond Reified Stratagems • 149
9. Imagining (others)

beyond reified stratagems
Beyond the meta-theoretical questions about the styles and rhythms of consti-
tutional theorizing, the previous section raised two specific, and for the most
part, theoretically ignored issues: the implicit calculus of suffering that the the-
orist of constituent power must perform as she interprets its meaning in this or
that way; and the symbolical efficacy of the language of constituent power (and
its vernacular variations); its capacity to alter the attitudes of those in power.
The two are intimately related: to presume the latter is to accept the former.
And, in turn, to question the latter is to take seriously the possibility that the
former may be unacceptable. For the most part, however, those judgements
remain hidden.
As an illustration of why theorists of constituent power ought to be more
open about how they imagine their relationship in concreto, consider not
only the happy ending presupposed by Schmitt’s scenario of contamination,
but one that might not have ended as tragically as it did, had the actor on the
ground had less faith in the symbolical efficacy of the people’s name. Ironically
enough, this tragic scene—the confrontation of the mayor of revolutionary
Marseilles with the commander of the pro-government forces—belongs to a
broader sequence of events that led to the unravelling of the Commune of Paris
in 1871, which, seen together through the rear-view mirror of our diagnostic
imagination, appear as the moment after which it became impossible to talk
soberly about the figure of the constituent power of people in the Western half
of the European continent without taking into account the likelihood of the
tragic scenes such as this:
‘What are your intentions?’ asked G. Cremieux [mayor of Marseilles], ‘We
want to re-establish order’. ‘What! you would dare fire on the people?’ cried
G. Cremieux and commenced haranguing, when the Versaillese threatened to
order his chasseurs to march on. [After returning from a meeting with General
Espivent] Cremieux found the chasseurs struggling with the crowd, who sought
to disarm them . . . Versailles chiefs, seeing their men waver, ordered a retreat.
The masses applaud, believing they would disband. Two infantry corps had al-
ready refused to march, and the Place de la Prefecture was filled with groups
certain of success. Suddenly, towards ten o’clock, the chasseurs debouched by the
Rues de Rome and De l’Armény. . . . The fusillade had lasted two hours, and no
reinforcement arrived in support of the Federals. Inexpugnable in the prefecture,
a solid square building, they were none the less vanquished, having neither provi-
sions nor sufficient munition.81
Most theorists keep their calculi of suffering and the visions of symbolic effi-
cacy of the concepts they theorize hidden from inspection. On the occasions
when they do appear in plain sight, as we saw earlier in this chapter, they act as
Hippolyte-Prosper-Olivier Lissagaray, The History of the Paris Commune 1871 (Eleanor Marx tr, Reeves and
81
Turner 1886) 175.
150

the catalysts of conceptual metamorphosis, helping the bearer of constituent
power to transform itself from the people into multitude (Negri), or from a
purely juristic concept into a purely polemical one (Tushnet). That, as we also
saw earlier, will coincide with the moment when xenos—internal or external—
finally steps onto the stage, either as the forces of international reaction that
would not have allowed the Commune of 1871 to succeed (Negri) or as the jurist
in service of the pouvoirs constituées, whose anxieties need to be reduced by a
juristically familiar revolutionary concept.
Perhaps the most dramatic example of such transformation occurs at the
moment when Schmitt’s partisan confronts not the interessierte Dritte that ‘be-
longs to his situation’ (and who implicitly has some understanding of his anti-
imperialist struggle), but rather the moment when he confronts his internal
other: the official of the order against which he is rebelling. Looking through
the eyes of General Salan, the commander-in-chief of the French forces in
Algeria in 1956, the war in Algeria is a struggle against criminals in the name of
the republic, not partisans in the name of the empire. Choosing to gaze at the
partisan through Salan’s eyes, Schmitt no longer sees him as superior side in a
polemical binary partisan–empire. Through those eyes, he appears as the occu-
pant of an inferior pole in another one; state–criminal. From the perspective
of that binary, there is no such thing as ‘telluric’ legitimacy’—only ‘republican
legality’ as ‘the one and only form of legitimacy in the republic’.82
From what we have seen in Chapter 3, however, this conclusion clearly
contradicts Schmitt’s other view, where the partisan’s political dignity as a ‘tel-
luric’ fighter for his land is upheld through a visual choice he made: a quick os-
cillation between two figures until they blur into a single image of a ‘situation’
in which the partisan ‘knows, and accepts that the enemy places him outside law,
statute, and honour’,83 but does the same ‘and declares the enemy a criminal
and all concepts of law, statute, and honour an ideological fraud’.84 From the
perspective of contemporary debates about constituent power, this raises a
broader dramatistic question about the relationship between the features of
the imagined scene in which the exercise of constituent power occurs and the
gaze of other.
From what we have seen, in order to survive as the polemically superior
figure, the partisan must not be gazed at through the eyes of other, even
though it may be portrayed as meeting his gaze. Contemporary accounts of
partisan constituent power—such as that of Emilios Christodoulidis—shun that
possibility. Instead, they prefer to attribute constituent power not to a concrete
agent, but to the capacity of an agency to cause a ‘rupture’ that establishes a
new place—‘a space for acting’—as a more effective remedy against the logic
of democratic capitalism.85
ibid 59.
82
ibid 20.
83 84
ibid.
Emilios Christodoulidis, ‘Against Substitution: The Constitutional Thinking of Dissensus’ in Martin
85
Loughlin and Neil Walker (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form
(OUP 2007) 192.
15
Imagining (Others): Beyond Reified Stratagems • 151

In the case of Christodoulidis, it is possible to notice a marked dramatistic
shift: ‘the people’ is de-agentified, and telos makes one of its rare appearances.
At the same time however, Christodoulidis keeps xenos safely away from the
scene of rupture. The question, however, is ‘what allows us to identify such an
event as “rupture”?’ The answer seems to come in the form of the scenic choice
Burke called ‘attitude’: a rupture will be of ‘such intensity that it can neither be
domesticated nor ignored’.86 But in this case, we must also ask: domesticated
where, and ignored by whom? While Christodoulidis’s account does not re-
spond to this question, the answer that suggests itself is fairly straightforward.
Speaking of ‘rupture’—noticing ‘rupture’—presupposes a concrete field of
struggle, populated by concrete agents who will not be able to domesticate
or ignore it. As a result, to evoke the superiority of someone’s ‘rupture’ that
‘carves out a space for acting’ against the comprehensive transformation of a
constitutional order in the name of a territorial ‘people’ is to evoke a terrain
of struggle within which such rupture occurs. That terrain may be evoked in
the abstract—but even there, it must be evoked as concrete. In Chapter 2, we
saw one way of imagining it, which set the stage for the discussion that fol-
lowed: Schmitt’s mobile partisans fight in and over concrete locations against
their enemies, and interested third parties who belong to ‘their situation’ have
the power to increase dramatically the chances of their success.
In contrast, the morphology of the field in which Christodoulidis’s partisans
seek to provoke a rupture is much less specific. In this case, it is left to our im-
agination to decide what these partisans fight about, where they fight, and on
the help of which xenos they must count. Or almost: rather than being com-
pletely evacuated from the scene of rupture, xenos appears as a particularly
impersonal figuration of the other: the system—something that partisans must
decide whether to ‘play’ or ‘confront’, as they choose among the options on ‘a
spectrum of possible political interventions in relation to law’.87 In another text,
it becomes more apparent that this dramatistic choice hinges on another, more
fundamental one in which system openly appears as an agent, set on protecting
its ‘institutional achievement’ against the ‘unbearable complexity’ of social life
through the creation of a self-referential legal order.88 In that image, however,
system is the ‘agent of reduction’ of complexity, and its purpose is to contribute
to the ‘impoverishment of the imagination of conflict’, not to its enrichment.89
That agent, however, can be de-agentified and reassembled into a different one,
in a different scene. That this is a matter of dramatistic freedom we saw in
Section 4, where Tushnet chose to treat as the agents not the system but the jur-
ists who act in its name, who, if Tushnet is right, are perfectly capable of coping
with some ‘erosion’ of expectations and are able to lower their anxieties by im-
agining radical conflict as an exercise of popular constituent power.
ibid 195.
86
ibid 23.
87
Emilios Christodoulidis, ‘The Inertia of Institutional Imagination: A Reply to Roberto Unger’ (1996) 59[3]
88
MLR 366, 383.
ibid 387.
89
152
10. Bloch’s vorgriff
a way of seeing
To go beyond the constituent power of the people is to go beyond the style of
theory in which a reified stratagem offers itself as an allegedly ‘superior’, or
even ‘correct’ theoretical interpretation of a constitutional concept. That, as we
saw at various places in Chapters 2 and 3, is especially likely to happen in a scene
in which constituent power irrupts with nothing and no one around. In such
cases, the tasks of empty places (Lefort), or the environments devoid of actors
capable of producing constitutionally relevant consequences (Lindahl) are to
produce conceptual binaries—democracy–totalitarianism as with the former;
or initiative–passivity, as in the case of the latter—that, in turn, discourage us
from recognizing disturbing conceptual continuums (between revolutions and
civil wars) as well as from awakening to our implicitly presumed conceptual
seesaws (such as the one in which, when symbolic efficacy goes up, the tally of
suffering goes down, and vice versa).
Were the figures of telos and xenos allowed to fill up this void, they would
not only alert us to the disturbing possibility that revolutions may always fade
into civil wars—or risk acting on a belief that the governors and the governed
have the same reverent awe for the social imaginary of popular sovereignty—
but would also allow us to ask a number of questions that the theories of con-
stituent power discourage, but which are pertinent nevertheless: What is the
purpose of your revolution? How is your attempt to reconstitute a polity as an
ethno-nationalist hegemony compatible with your revolutionary aspirations?
Do we want a revolution if its success means the intervention of a powerful
state and a civil war? Why not use the opportunity to federate with our neigh-
bours as a means to form a powerful force for social justice in the world? Do
we want to believe those who raise the spectre of civil war when there are
armed peasants on one side and paramilitaries sponsored by powerful interests
from abroad on the other? On what basis do you anticipate that the rupture
won’t be possible to ignore? Do you, by claiming this, also implicitly suggest
that it is reasonable to expect the kind of cascading of initial revolutionary im-
pulse, presumed by the Schmittian script of contamination? As Henry Hale
explains in the context of a different debate, making that assumption is not
unreasonable: ‘When the initial event is especially vivid and information on the
true strength of a regime is scarce, the event can serve as a powerful reality-
simplifying heuristic that can lead people to overestimate the vulnerability of
their own authoritarian regimes and evoke powerful emotions that prompt co-
ordinated action that cold-blooded calculation would not have produced.’90
The problem, however, is not only that the fascination of contemporary
constitutional theory with the Schmittian conjurations of creatio ex nihilo ig-
nores this secular explanation of the practical benefits of thinking in terms of
Henry Hale, ‘Regime Change Cascades: What We Have Learned from the 1848 Revolutions to the 2011
90
Arab Uprisings’ (2013) 16 Ann Rev Pol Sci 331, 334.

153
Bloch’s Vorgriff: A Way of Seeing • 153

the ‘irruption’ of constituent power, but also—and much more perniciously—
that it ignores the conclusions of those who have studied them empirically.
From their perspective, it is highly unlikely that the vision of a ‘democratizing
regime change cascade’ has support in the facts on the ground.91 This ‘sobering
conclusion’ will remain ignored as long as we continue to refrain from asking
more un-‘respectuous’, theoretically unsanctioned questions, such as for ex-
ample: what kind of an expectation can be said to unite a motley assemblage
of fictive and real-life participants in the exercise of constituent power—from
Hobbes’s covenanters (as they approach the site of institution), Sieyès’s iso-
lated individuals (as they sought to give their union consistency), Schmitt’s
masses (as they engaged in the act of acclamation in the city square), and
Arendt’s revolutionaries (as they joyously acted in concert in their townships),
to the East Germans declaring, ‘We are one people’ in 1989, the Tunisians
proclaiming ‘The people wants to topple the regime!’ in 2011, or Ukrainians
demanding that the president step down in 2014. Were they expecting myriad
mutually incomparable outcomes? The answer offered in this chapter was, at
its base, very simple: though they may be provoked by desperation, indigna-
tion, frustration, or exhaustion, at a certain point all of those who will end up
lending support to the act of constitution will do so because they will hope
that doing so will be for the better.
Without the vision of that moment as more than just a constitutional
moment—but a turn for the better, we wouldn’t have been able to: (1) plur-
alize constituent power; (2) reveal the scripts that quietly shape our attitudes
towards exercising it; and (3) underscore the quiet prognostic calculations that
theorists must make before they go on to insist that constituent power is this
instead of that. Finding a way to inscribe these elements into the scenes of con-
stituent power without diminishing the dignity of extra-constitutional turns for
a concrete better, however is easier said than done—especially if ‘inscription’ is
understood as literally as possible: not just as an affected way in which theorists
refer to the factors that shape the meaning of a particular concept, but rather as
the features of that concept that provide it with the kind of evocative force that
cannot otherwise be provided by the texts that record it (which, in the case of
our memories, naturally fades as they unfold).
This confronts us with a particular problem of representing the work of
three constitutive powers as concretely purposeful and always in part exer-
cised by agents who need not always be collegial in helping the purposive pro-
ject withstand. What compounds our problem is also the question of how to
represent the exercise of their constitutive power, while at the same time rep-
resenting the temporal dimension of that exercise—the dimension which we
must envision somehow if we wish to identify one particular constitutional
‘moment’—in the sequence of successive events—as a turning point for the
better. None of this is a problem for those who imagine the exercise of con-
stituent power as the scene of foundation—neither for those who ignore the
ibid 349.
91
154

flow of time as they imagine the stark contrast between inside and outside (as
in scheme 1 in Figure 4.3, below) nor for those for whom time flows around
the shelter-dwelling—whose constitutional status can be discerned only in
virtue of its capacity to withstand the ‘ravage of time and circumstances’ (as
in scheme 2).92 Nor do the questions above pose a problem for those who
imagine the moments of constitution on the scene of navigation. There, the
image of a boat sailing ‘on the open sea’ evokes the external environment not
only as dangerous, but also as non-negotiable. Thus imagined, the ship of the
state moves forward with the flow of time, but not necessarily for the better
(as represented in scheme 3), even though the scene in which we encounter it
neatly packs together the sense of inevitability, the necessity of good-faith co-
operation, and the excited anticipation of homecoming.93 In contrast, scheme
4 offers the diagram that summarizes the aim of this chapter: the scene of
constitution beyond the figures of the people and its constituent power.
(1) (2) (3) (4)

Figure 4.3 Constituent power in space and time
In offering the pictorial condensation of the spatiotemporal, purposive, and en-

vironmental dimensions of the concept of constituent power at the same time,
scheme 4 allows us to reckon with each of them individually, without losing
sight of the others. Or, put differently, it allows us simultaneously to reckon
with constituent power in its three guises, as:
(1) The cause of turn for the better: the moment that breaks the arrow of
time into two trajectories, worse-before and better-after (represented by
the black circle at the bottom end of the square);
(2) The configuration of three more specific constitutive powers: the energy
needed for the pursuit of a purposeful constitutional project; the force that
helps that project endure; and the capacity for responsiveness inscribed in
the constitutional set-up of this project, whose combination increases the
probability that this set-up will withstand (represented by the grey edge on
the left side of the black circle, two white circles, and the grey edge at the
bottom of the black circle, respectively); and
Arendt (n 20) 204.
92
For a well-known example, see Jon Elster, ‘Constitution-Making in Eastern Europe: Rebuilding the
93
Boat in the Open Sea’ (1993) 71[1–2] Public Administration 169. See also Jürgen Habermas, ‘Constitutional
Democracy: A Paradoxical Union of Contradictory Principles?’ (2001) 29 Political Theory 766.
15
Bloch’s Vorgriff: A Way of Seeing • 155

(3) The Blochean Vorgriff: an anticipation of the catalytic effect of a con-
crete hope on the power of constituent power (represented by the hope-
generating ‘wishful picture’ in the upper-left corner of the square).
Finally, the double frame—which appears to break the trajectories of worse-
before and better-after—serves to remind those who are rightly critical of
the spatiotemporal insensitivity that plagues contemporary accounts of con-
stituent power not to overreact and embrace the other extreme instead—the
spatiotemporal hypersensitivity of those who, such as Friedrich Kratochwil,
reject the idea of turning points altogether, as something that allegedly must
be envisioned as ‘beginning from scratch’ from an ‘absolute point of view’,94
dividing the flow of time into a mythical ‘before’ and ‘after’. While Kratochwil
claims that our expectations about such turnarounds will end up being ‘futile’,
notice how this only gives rise to a follow-up question: futile when?
As the double frame reminds us in scheme 4, the temporal frame for
evaluating the productivity of a turning point is a matter of imaginative
choice, as is, after all, the very image of a turning point. Not only are we not
compelled to imagine them as beginnings from scratch (one of the turning
points in writing this book has been a realization that the theories of con-
stituent power ignore the question of turning points), but we are also at lib-
erty to choose among a variety of world pictures, where embracing one that
allows for turns for the better will be a matter of poetic vision of the world,
not acquired wisdom or ontological naivety. Whatever the choice, it will al-
ways be prefigured in part by the hopefulness of one’s gaze, which, if Bloch
was right, will also depend on the evocativeness of a wishful image that, in
turn, may either extend or foreshorten the temporal frame of our expect-
ations. Either way, the verdict on ‘futility’ will depend not on what Kratochwil
says, but on who you are: a Zhou Enlai or a John Maynard Keynes—the pa-
tient one, who says, ‘It is too early to tell’, or the impatient one, who refuses
to wait knowing that ‘in the long run, we are all dead’.
Friedrich Kratochwil, The Status of Law in World Society: Meditations on the Role and Rule of Law (CUP
94
2014) 69.
157
 5 
Nephos, Scopos, Algorithm
Beyond Self-Determination (I)
1. Self-d etermination

five ways beyond
The modern social imaginary is a repository of flattering propositions. Perhaps
the most flattering is that which encourages us to think of ourselves not only
as capacious enough to create a new political order for ourselves without an
interruption from the outside, but also as morally entitled to do so—as the
holders of the right to self-determination. Though this idea has transformed
the political map of the world in the last century, there has been no shortage
of arguments denouncing it as conceptually incoherent, sociologically naive,
analytically imprecise, imaginatively stultifying, and, on top of that, politically
perverse: ‘ridiculous’ for encouraging us to forget that the people can only ever
be self-determining once ‘somebody’ determines the terms of its existence as
the people; toxic for providing the intellectual ‘opium of the masses’, ‘excit[ing]
its addicts to a frenzy of destruction’;1 and, ultimately, useless—incapable of
providing us practical guidance on how to resolve our conflicts over territorial
sovereignty.
Together, these charges present a powerful case for leaving the vocabulary
of self-determination behind. Set against the backdrop of the discussions in
the previous chapters, however, they raise questions that suggest we pause
before we do so. Instead of simply rejecting the right to self-determination be-
cause its ‘focus on bounded groupness’ prevents it from capturing nuances on
the spectrum between ‘reification and fluidity’,2 we should ask: what are the
presumed advantages of relying on analytically imprecise concepts? Instead
of treating its obsession with groups as an obstacle to our imagination that
discourages us from obtaining a ‘richer vocabulary for conceptualizing so-
cial and cultural heterogeneity and particularity’, we should also ask: What
Elie Kedourie, ‘Introduction’ in Elie Kedourie (ed), Nationalism in Asia and Africa (Frank Cass 1970) 146–47.
1
Rogers Brubaker, Ethnicity without Groups (Harvard University Press 2004) 62.

2
158
158 • Nephos, Scopos, Algorithm: Beyond Self-Determination (I)

purpose would this new vocabulary serve?3 Instead of simply accepting that
the imaginary behind it, which stimulates our ‘reckless confidence in our
moral righteousness’,4 must be abandoned in favour of a more fluid vision of
political community, we should consider whether that could be done without
delegitimizing political desires to form new territorial communities, which
have thus far relied on that vocabulary.
Finally, instead of simply accepting that our indifference towards the per-
formative contradiction at the root of the idea of a self-determining people
is not simply symptomatic of our ostrich-like desire to escape reckoning
with the constituent power of those other than (our) people, we should ask
whether this dogged preference for un-seeing indicates our deep awareness
that there is something about our expectations that is not ridiculous at all. To
do so, we should neither ignore the performative contradictions, nor divinize
them as inevitable but generative ‘paradoxes’ of constitutionalism. Instead,
we should recognize them for what they are: the attempts to hide the fact that
the figurative intermediaries, which the theorists of peoplehood emplace in
the position of the bearer of constituent power, or the holder of the right to
self-determination, cannot perform the role that they have been assigned to
‘[transport] meaning or force without transformation’.5 Wherever the figures
of people find themselves in such roles they always exist as false intermedi-
aries: ‘defining [their] inputs’ is never ‘enough to define [their] outputs’: be
that the content of a new constitutional order, or the location of the right to
self-determination.
Later in the chapter, we shall return to the situations in which the holders
of the right to self-determination reveal themselves as false intermediaries.
Right now we should start our discussion from the scenes in which those
holders present themselves as furtive mediators: the figures that ‘transform,
translate, distort, and modify the meaning or the elements they are supposed
to carry’,6 but may neither be acknowledged as such, nor be allowed to fully
disappear from the scene of self-determination. Unlike the false intermedi-
aries, which generate the ‘paradox’ of circularity, these furtive mediators
generate the ‘paradox’ of transubstantiation. While the paradox of circularity
turns the figure of demos into ouroboros—a mythical self-constituting snake
biting its own tail—the paradox of transubstantiation turns ethnos into a
communion wafer, to be magically transformed into demos, the supreme
deity of contemporary normative theory.
While political theorists mostly focus on the paradox of circularity, the
paradox of transubstantiation is no less problematic. Although what it evokes
is envisioned as a collective subject that survives the ‘success’ of its demand, the
ethnos never gets to enjoy it. While the symbolical sphere of new states will
ibid 59.
3
Bernard Yack, Nationalism and the Moral Psychology of Community (University of Chicago Press 2012) 10.
4

5
ibid.
6
159
Self-Determination: Five Ways Beyond • 159

often record the past aspirations of an ethnos as the holder-claimant, the identity
of the new holder, demos, will be qualitatively different. For that demos to prop-
erly exercise its right, the ethnos must be relegated to the history of constituent
struggles. However we record it visually, this move from ethnos to demos will
always serve three rhetorical purposes: to give democratic credentials to ethnic
nationalism; to enhance the symbolical efficacy of popular sovereignty; and––at
the same time––to diminish liberal and republican anxieties provoked by their
symbiotic relationship. In the latter regard, transubstantiation ought to be seen
as symptomatic of unstated assumptions and expectations, which may be repre-
sented formulaically: an inescapable personal over-inclusivity in the formation
of a polity + the need to represent citizens’ political equality + the desire to
maintain the credibility of the idea of collective self-government = a qualitative
change in the way we envision the identity of a constitutional subject.
From this perspective, it would seem that ethnos functions as a vanishing
mediator—a ‘catalytic agent, which permits an exchange of energies between
two otherwise mutually exclusive terms’; between the pre-institutionalized field
of political struggle to the institutionalized space of political cooperation. While
such ‘bearers of social transformation’ must be forgotten ‘once that change has
ratified the reality of the institution’,7 notice how ethnos never really vanishes
even after having achieved transubstantiation into Demos. In that regard, ethnos
is more of a metaphorical snail than a metaphorical caterpillar. While the latter
is a true vanishing mediator—disappearing after the job is done—the former
leaves the viscous trail of itself in the text of the constitution as a reminder of
its spectral presence.8
What disrupts its vanishing act? One answer is offered by Slavoj Žižek.
Following Žižek, vanishing must not happen, because that would also be the
‘moment when the subject ‘posits his presuppositions’, ‘the very moment of his
Fredric Jameson, ‘The Vanishing Mediator: Narrative Structure in Max Weber’ (1973) 1 New German
7
Critique 52, 80.
8
In most cases, constitutions record the miracle of transubstantiation in the transition between their pre-
ambular and normative parts. The Croatian constitution, for example, begins its preamble with one con-
ception of the collective political subject, and ends with another, only to further modify it in the normative
text of the Constitution itself. The preamble begins with ‘the historical right of the Croatian nation to full
sovereignty’ which is confirmed in a sequence of relevant historical episodes that serve as a springboard to
assert ‘the inalienable and indivisible, non-transferable and perpetual right of the Croatian nation to self-de-
termination and state sovereignty, including the inviolable right to secession’. As we approach the end of the
preamble a strange thing happens, however: the Croatian nation, which has had ‘the inalienable right to state
sovereignty’ doesn’t actually consummate it by creating an independent Croatian state. Rather, Croatia is
impersonally ‘hereby established’ as a state where the Croatian nation’s right to state sovereignty is diluted as
Croatia is ‘the nation state of the Croatian nation and the state of the members of its national minorities’. But
the vanishing act of the Croatian nation is still not complete, and for that we need to continue reading further.
In Article 2, we learn that the bearer of sovereignty is ‘Croatia’ itself, and in Article 1, that ‘power’ belongs to
the people as a ‘community of free and equal citizens’. The Croatian nation and its self-determination have
transmogrified into ‘the people of Croatia’ vested with sovereign power. The metamorphosis described above
is a rhetorical formula that enables nationalism and popular sovereignty to consummate their political mar-
riage. ‘Historical Foundations’, The Constitution of the Republic of Croatia, Croatian Parliament <http://www.
sabor.hr/Default.aspx?art=2406> accessed 22 August 2014.
160

effacement as subject’.9 To posit presuppositions, in the terms used in this book,
would be to reveal the derivative character of the figure of a sovereign people—
not a god-like sovereign, but the result of the impersonal work of frame(work).
Here, the failure to vanish is symptomatic not only of a desire to preserve the as-
sociation with the god-like figure of a sovereign people (capable of establishing
order ex nihilo), but also of the activity of the subterranean anxious loop of
popular sovereignty—the phenomenon that could explain not only what makes
the figures of demos and ethnos antagonistic, but also why they need to remain
antagonized. From the perspective of that loop, the origin of both ‘paradoxes’
is the same: a desire of those who invoke the name of the people to convey
three messages at the same time: that the formation of this polity occurred
in conformity with the Kelsenian ‘tendency’ (ethnos); that the degree of that
conformity cannot be further improved; and that doing so should not even be
discussed as a possibility (demos).
Without the ‘paradoxes’ to conceal it, Kelsenian ‘tendency’—an aspiration
to achieve ‘maximum possible [individual] freedom’10 through the forms of
democratic decision-making that make the ‘[a]‌ccord between the individual
will and the will of the state . . . easier’11—would reveal itself for what it is: the
common denominator of all interpretations of the right to self-determination,
including those otherwise incompatible ones. I will defend this suggestion
against more specific objections later in this chapter, but at this point a quick
imaginative visit to a parallel universe will help us realize how intuitive this
suggestion really is.
In that universe, the formation of new states typically commences when
more than 50 per cent of the left-handed citizens of the entire state (who are
otherwise a small minority) petition the state’s organs, demanding the dissol-
ution of the existing states and the formation of new ones (s1). In such cases,
most constitutions will direct the president of the republic to switch on the
central computer that will randomly determine the number, size, and position
of seven new—obligatorily hexagon-shaped (s2)—sovereign states (s3) to be cre-
ated out of the existing one. After the central computer blurts its answer, most
constitutions will require that national parliaments rubber-stamp the formation
of new states, and dissolve the existing ones accordingly.
At this point, our question is simple: Is there something in all this-world
accounts of self-determination that they share, and that makes them, in con-
trast, incommensurable with the bizarre self-determination in this parallel
universe? Or, put differently: is there something in the normative theories of
the right to ‘self-determination’ (whether they imagine their holder as the
nation, the people, or some other collectivity) that makes them part of the
Slavoj Žižek, For They Know Not What They Do: Enjoyment as Political Factor (Verso 1991) 190.
9
10

11
ibid 87.
16
From Emblematic Holders to Fuzzy Ensembles • 161

same family even though they are otherwise considered to be irreducible to
one another?
That something cannot be the fact of the majority vote because the red-
haired and the left-handed constituencies also use the same decision-making
procedure. It also cannot be the arbitrariness imposed by the computer
blurting out the parameters of new political constellations: a number of the-
ories of self-determination rely on arbitrarily imposed administrative bound-
aries of states and substate units. Finally, the difference cannot lie in the
corporate identity of the ultimate decider, as the national assembly in our
bizarro universe, just like in the real one, enacts the computer’s ‘verdict’ in
the name of some ‘people’.
Before answering what separates these two universes of self-determination,
notice what they share. Irrespective of the red-haired and the left-handed, ‘self-
determination’ in that universe is not unlike the one in ours—in both cases,
what is necessary for its ‘exercise’ is the pre-selection of politically relevant facts,
their factual determination, and the programming of procedures and outcomes
that follow from them. In both universes, the right to self-determination can be
seen as the algorithm that determines the outcomes at s1, s2, s3, and s4 on the
basis of inputs gathered in conformity with pre-determined criteria. From that
perspective, what separates the two universes are not their respective attitudes
towards democracy, majoritarianism, sovereignty, or authority.
What divides them, instead, is the importance they attribute to the Kelsenian
‘tendency’. The bizarro universe is indifferent towards it. Ours is not. Irrespective
of who is imagined as its holder, the successful application of the vocabulary
of the collective right to self-determination in a territorial conflict in this world
always results in an increase in allegiances within the spacetime of reconstitution.
2. From emblematic holders to fuzzy ensembles

That is not how theorists understand the right to self-determination. In their
imagination, the holder of the right to self-determination exists as a collective
person capable of aspiring, willing, claiming, and exercising. On a closer look,
the theoretical commitment to this vision is only skin-deep. Consider, by way
of example, Margaret Moore’s definition. According to Moore, the right to
self-determination belongs to a group whose members (a) ‘share a concep-
tion of themselves as a group’; (b) ‘share aspiration to exercise collective self-
government’; (c) have ‘a history of joint action’, manifested in the ‘history of
cooperative practices’; and (d) have the ‘capacity to be self-governing’.12 A group
will be considered a ‘people’, according to Moore, when a˄b˄c are a ‘large ma-
jority’ of ‘the people’.13 While Moore does not specify the criteria for the mem-
bership in this wider ‘people’, it is reasonable to assume that its members may
be all those who satisfy at least one of the criteria (a), (b), and (c). The complete
Margaret Moore, A Political Theory of Territory (OUP 2015) 50–51.

12 13
ibid 35.
162

definition of Moore’s ‘people’, understood as the holder of the right to self-
determination, may therefore be expressed in the following way:
If so, ‘the holder’ of the right to self-determination is not ‘the people’ but some-
thing else: a set—an ensemble comprised of member elements that have con-
formed to the prescribed criteria. Though somewhat less precise, David Miller’s
understanding of ‘nations’ is not much different. On the one hand, Miller claims
that nations are communities bound by mutual commitments, extended in his-
tory, marked by their active character, connected to a particular territory, and
marked off from other communities by their distinct public culture, and who
‘do things together’.14 On the other hand, Miller argues that nations cannot
achieve their self-determination through actually practising their collective self-
determination. Instead—notice the passive voice—the ‘interest’ in collective au-
tonomy is (impersonally) ‘satisfied’, ‘provided there is a genuine convergence in
aims and interests between the population at large and those making decisions
on their behalf ’.15 In both cases, these criteria are scalar: in Moore’s case, ‘a
large majority’ of a b c must be a˄b˄c; in Miller’s case, the convergence must
˅˅
be ‘genuine’ among the population ‘at large’.
Notice, however, that all such ensembles exist along the figurative fuzziness-
scale between the non-fuzzy, crisp sets such as Sieyès’s ‘body of associates’
(where ‘associates’ either belong or don’t belong to the ‘same legislature’) to, on
the other side the fuzziest set we’ve encountered so far: Kelsen’s ‘ocean of psy-
chic happenings’. Given that Kelsen did not indicate its membership criterion,
determining its composition and edges vis-à-vis other sets is almost impossible
as ‘communit[ies] of will, feeling or thought’ rise ‘like waves in the sea and after
a brief space [are] lost again in an ever-changing ebb and flow’.16
Between that ocean, on the one hand, and the demos-like crisp set of the
‘body of associates’, on the other, there is a number of more or less fuzzy en-
sembles: from those such as Moore’s and Miller’s holders of the right to self-
determination, to fuzzier ones such as ‘political entity’ from Schmitt’s The
Concept of the Political (whose threefold criterion defines its members as those
whose attitudes towards its separate existence are intense, oriented toward the
‘most extreme possibility’, and organized within the ‘totality of men’ capable of
engaging in a mortal combat)—to even fuzzier ones, such as Chantal Mouffe’s
‘collective political identity’ (whose members exhibit ‘multiple and competing
forms of identifications’).17
What makes Moore’s, Miller’s, Mouffe’s, Schmitt’s, Kelsen’s sets fuzzy are the
degrees of membership, implicit in their membership criterion: to be identified
David Miller, On Nationality (OUP 1995) 27.

14 15
ibid 90 (emphasis mine).
Hans Kelsen, ‘The Conception of the State and Social Psychology—With Special Reference to Freud’s
16
Group Theory’ (1924) 5 International Journal of Psycho-Analysis 1, 9–10.

Chantal Mouffe, The Challenge of Carl Schmitt (Verso 1999) 51.
17
163
Nephos: Kelsen’s ‘Ocean’ as a Political Aerosol • 163

(more or less), with a collectivity (Mouffe); to be (more or less) oriented to-
wards the ‘most extreme possibility’ (Schmitt), and so on. Notice, however,
that while all the sets above are fuzzy, not all of them are partitioned into
‘granules’: ‘clump[s]‌of points (objects) drawn together by indistinguishability,
similarity, proximity or functionality’.18 So while both Schmitt’s ‘entity’ and
Mouffe’s ‘collective identity’ are fuzzy sets, only the former is also a granulated
one. While we know that members in Mouffe’s fuzzy set may be only more or
less identified with it, we know that the Schmitt’s membership-g ranule ‘consists
of a collection of membership functions’—intensity, orientation, and subjec-
tion—that are themselves graduated.
In all such cases, the decisions about granulation and graduation are made
in the context of other scopic, scenic, and dramatistic choices about how to
stage the scene once it has been vacated by its main actor. What confronts us
in the next section is a more practical task of how to determine the degree of
fuzzification and granulation that does not undermine the intelligibility of the
theoretical and folk imaginations of the right to self-determination, but which
nonetheless remains capable of nudging them towards new ways of resolving
conflicts over territorial sovereignty—by moving away from disputes about the
identity of the holder of the right to self-determination, and towards disputes
about the extent and manner in which a constitutional order ought to conform
with the Kelsenian ‘tendency’. The figure tasked with contributing to this effort
is nephos—neither ethnos nor demos in particular, nor a collective or commu-
nity in general, but rather a fuzzier and more granular substrate of them all.
3. Nephos
Kelsen’s ‘ocean’ as a political aerosol
nephos is a fuzzy set. The fuzziness it conjures, however, is different from the
kind evoked by Kelsen’s ‘ocean of psychic happenings’ in which ‘communities
of will’ emerge ‘like waves in the sea’, only to quickly dissipate as part of its
‘ever-changing ebb and flow’. Rather, the fuzziness of nephos is akin to the
fuzziness of actual clouds: uneven, changing, and sensitive to one’s way of
seeing. Unlike the sets we’ve encountered thus far, nephos is capable of evoking
a wide range of cloud-like phenomena—from more stable and nation-like cu-
mulonimbi to more diffuse and harder to identify political cirri.
To imagine such formations as cloud-like political formations is to open up
the possibility of imagining conflicts over the identity of the holders of the
right to self-determination in the same way as we experience our ‘conflicts’
over the features of the clouds in the sky: prefigured not by our willingness to
be honest about the features that define their cloudness, but by our imminently
contestable imaginations. Where I see a rabbit among the shape-shifting clouds,
you see an elephant; they, a laughing silhouette; and someone else, something
Lotfi A Zadeh, ‘Toward a Theory of Fuzzy Information Granulation and its Centrality in Human
18
Reasoning and Fuzzy Logic’ (1997) 90 Fuzzy Sets and Systems 111.

164

else altogether. To imagine political ‘communities’ in this way is to be reminded
of two things: of their inherent fuzziness and fluidity on the one hand, and of
their granularity on the other. From the perspective of the latter, nephos, unlike
Kelsen’s ocean, is an aerosol: defined not by its metaphorical cloudness but by
the attributes of the miniature granules that comprise it. The set you end up
seeing as ‘the people’ will depend on the granule you imagine as its element.
For normative theorists who envision demos as the holder of the right to self-
determination, that granule is the ‘citizen’. For those who attribute that right to
ethnos, that granule is a co-national or, in the case of more nuanced theories
such as Moore’s, a ‘member’.19 In the case of nephos, that granule is a moder,
defined by the three dimensions of her political attitude: qualitative, intentional,
and aspirational. In what follows, I discuss them in turn.
From the perspective of the first dimension, every political attitude has at
least three aspects: intensity, resilience, and viscosity. Though early modern
and modern theorists occasionally made reference to the first—as with Locke,
who imagined the participants in the social contract as those who ‘like[d]‌
one another so well’,20 or Schmitt, who defined ‘political friendship’ among
partisans as ‘intense’—contemporary theorists mostly ignore the intensity
of the agents’ attitudes when they evoke the moments of ‘co-instituting’ or
‘seizing initiative’. The same is the case with resilience—the capacity of pol-
itical attitudes to remain unaltered over time. In contrast to theorists of the
right to self-determination who attribute it to a territorial people and who
ignore the question of resilient attitudes altogether, theorists who attribute
it to quasi-ethnic communities presume a strong correlation between felt
national identity on the one hand, and the resilience and intensity of the al-
legiance to a territorial polity on the other.
Although the ebb and flow of political partisanship in Western democracies
often affects the degree to which one identifies with a particular people, theor-
ists have not considered it to be a factor capable of undermining the resilience
of one’s attachment to that people’s territorial polity.21 In the debates about the
right to self-determination, this phenomenon seems largely irrelevant because
we imagine the viscosity of political allegiances among fellow citizens in a cer-
tain way; as undisturbed by the temporary, democratically sanctioned, shifts
in political power. In the arena of struggles for territorial self-determination,
drawing attention to this phenomenon seems largely irrelevant because we
assume, in many cases rightly, that partisan polarization follows clearly iden-
tifiable national lines. As we will see later in the chapter, however, there are
19
For other possibilities, see Rawi Abdelal, Yoshiko M Herrera, Alastair Iain Johnston, and Rose McDermott,
‘Identity as a Variable’ (2006) 4[4] Perspectives on Politics 695. See also Thomas C Davis, ‘Revisiting Group
Attachment: Ethnic and National Identity’ (1999) 20[1] Political Psychology 25. For a general critique of identity
‘as ideology’, see Siniša Malešević, Identity as Ideology: Understanding Ethnicity and Nationalism (Palgrave 2006).
20
John Locke, Second Treatise on Government (CB Macpherson ed, first published 1690, Hackett 1980) 57
[emphasis mine].
See Cameron D Anderson and R Michael McGregor, ‘Explaining Stability and Change of Territorial
21
Identities’ (2016) 22 Nations and Nationalism 84.

165
Nephos: Kelsen’s ‘Ocean’ as a Political Aerosol • 165

conflicts—especially those in which it is partisan constitutional visions that
shape fluid national identifications instead of the other way around—that make
this assumption not only factually wrong, but also politically misguided. Before
we return to this issue later in the chapter, we need to turn our attention to
intention—the second dimension of the political attitudes that allows us to im-
agine nephos as a fuzzy set comprised of three classes of moders: performers,
supporters, and cheerleaders.
Performers are what Raimo Tuomela calls ‘we-moders’—those who ‘nor-
mally identify with the group and recognize the group reason as authoritative’
and ‘function together uniformly for shared group reasons’.22 As we saw in
Chapters 2 and 3, most early modern, and a number of contemporary, con-
stitutional theories focus exclusively on performers and imagine moments of
constitution-making in we-mode only. Compelled to imagine the holders of
the right to self-determination over a longer period of time and not just as they
present themselves in moments of ‘seizing initiative’ or ‘co-instituting’ allows
normative theorists to relax this assumption and imagine performers (Moore’s
a˄b˄c) as a large subset in a broader people—or, in some cases, even abandon it
altogether by imagining ‘[t]‌he members of the group [as having a] desire or . . . a
significant interest in the group as politically autonomous’.23 Such members
may be not only performers but also supporters.
Supporters are ‘pro-g roup I-moders’. In contrast to performers, they exhibit
‘individualistic reasoning that may occasionally involve a thin we-notion, but
not the full “togetherness-we” ’.24 With the help of the notation used to analyse
Moore’s image of the holder of the right to self-determination, they would be-
long to the subset (a b c–a˄b˄c). Among the fuzzy members in a nephos, sup-
˅˅
porters are those who see themselves as members of a community entitled to
self-determination, yet who have never engaged in joint activity in the pursuit
of that goal, nor do they intend to do so in the future, except perhaps spasmod-
ically and spontaneously. In other words, while a performer will join a party
and take part in protests as part of a plan she is aware of, a Supporter will watch
television, engage in random acts of vandalism, or rush to the demonstrations
in the main square because seeing his Performer neighbour do it stirred his
otherwise vague patriotic feelings. When he joins performers and other sup-
porters in such events, he will share the stage not only with them, but also with
cheerleaders.
Cheerleaders are the third class of moders, who share neither the ‘we-in-
tentions’ of the first, nor the vision of the collective’s political subjectivity of
the second. What cheerleaders cheer for—when they support the projects that
theorists describe under the rubric of self-determination—are the political pro-
jects of or for a polity, not of or for the entity imagined as its collective author.
Although they may not care about the ideals of collective self-government more
likely to be found among performers and supporters, they may nonetheless
Raimo Tuomela, Social Ontology: Collective Intentionality and Group Agents (OUP 2013) 11.
22
Cara Nine, Global Justice and Territory (OUP 2012) 16.

23
Tuomela (n 22) 24.
24
16

share their enthusiasm for the project served by ‘self-determination’, if for a dif-
ferent reason. Sometimes that attitude will be clearly represented in a vocabu-
lary that defies the expectations of Western theorists who think that making a
political claim that involves many people can only be intelligible from the per-
spective of a ‘We’, first-person plural.
As Danilyn Rutherford’s ethnographic research of political mobilization in
West Papua demonstrated, this may be nothing but their cultural bias: West
Papuans see no problem in demanding the independence of West Papua from
the perspective of the third-person singular, claiming that Papua ‘deserves inde-
pendence’,25 not that ‘we’, the people of Papua, demand independence in the
name of our right to self-determination. Similar discursive slides—away from
the we-perspective of a personified subject of the right to self-determination,
to the it-perspective of a personified polity as the intended outcome of the
exercise of that right—may also be observed in other locations in which
cheerleaders’ attitudes make scant references to the ideals of popular self-
government.26 Predictably, a survey conducted after the Brexit referendum
showed that many of those who voted to ‘leave’ the European Union were
animated neither by a ‘shared aspiration’ for more self-government, nor by a
belief that the political position of Britain in the EU undermined the capacity
of the British people for self-government, but by concerns about the economy
and immigration. Even those who justified their ‘leave’ vote on the basis of a
claim that ‘the decisions about the UK should be taken in the UK’ did so on
the basis of a principle closer to subsidiarity or all-affected interests than to
collective self-government.
As we have seen earlier, normative theorists stylize such aspirations as aspir-
ations to be collectively self-governing. In doing so, they impute those aspirations
to the individuals envisioned as acting jointly in the pursuit of that goal—an ac-
tivity that pre-qualifies them for membership in the people—a particular kind
of group entitled to self-determination. The problem with such stylizations, ac-
cording to Rogers Brubaker, is not only their sociological naivety, but also their
analytical imprecision, which results from using the same categories for a var-
iety of phenomena on a spectrum between ‘reification and fluidity’.27 Against
Brubaker, however, the problem with such stylizations is not that they stymie
our ‘sociological and political imagination’.28 What makes them problematic
is not their analytically flawed ‘identitarian focus on bounded groupness’, but
their specific, easily identifiable, practical failures, such as their inability to en-
courage those who invoke their nation’s right to self-determination to under-
stand that right less literally.
25
See Danilyn Rutherford, ‘Why Papua Wants Freedom: The Third Person in Contemporary Nationalism’
(2008) 20[2] Public Culture 361 [emphasis mine].
26
At this point, I can only offer unreliable anecdotal evidence based on comparing the results of two Google
searches: 42,000 hits for ‘ “Britain has spoken”+Brexit’ in contrast to 24,000 hits, cumulatively, for two phrases
(‘ “the British people have spoken”+Brexit’ and ‘ “the people of Britain have spoken”+Brexit’).
Brubaker (n 2) 62.
27 28
ibid 48.
167
Granular Attitudes: Kelsen’s ‘Torment’ as Bloch’s ‘Contradictions’ • 167
4. Granular attitudes

Kelsen’s ‘torment’ as Bloch’s ‘contradictions’
In order to provoke estrangement from the images which the vocabulary of
the right to self-determination habitually conjures among those who fight over
it on the ground, this chapter has proceeded from the assumption that the best
way to resist the power of captivating images is to confront them with different,
ideally more captivating ones—beyond the people. Nephos—as a figure that
appears beyond it—has been intended to be useful not only analytically and
prescriptively, but also polemically. In that latter regard, nephos presents us with
an opportunity to analyse the slice of political reality that the figures of col-
lectives, communities, and territorial and non-territorial peoples discourage us
from seeing: the dynamic of the formation of collective ‘identity’; the spread
of political attitudes; and the ‘feedback loops’, ‘tipping points’, and other pro-
cesses and events that otherwise remain under the radar of the imaginations
castigated by Brubaker.29 At the same time, nephos provides us with a useful
backdrop against which we may be even more precise about the blind spots that
plague contemporary theories of the right to self-determination.
The problem, as we will see in the sections that follow, is not only that they
offer normative guidance in a far more restricted set of cases than they other-
wise assume, but also that they continue encouraging us to envision constitu-
tional struggles as a matter of sentimental attachments, cultural anxieties, and
participatory urges—even when there is good reason to believe that in many
actual cases, they exist only as second-order public manifestations of more
mundane, undignified, but politically consequential attitudes: fantasies about
geopolitical realignment that bring immediate economic improvement; outrage
caused by the symbolical desecration of familial, not national, political ideals;
grudges over being a ‘sucker’ who conforms to universally applicable standards
of behaviour while others ‘escape the dictates of that standard’;30 or retaliatory
spitefulness (caused by those grudges) which, at the moments of majoritarian
decision-making, manifests itself in a conscious embrace of the possibility that
its outcomes may be for the worse.
To keep ignoring those attitudes by continuing to fantasize about ‘joint
action’, ‘co-institution’, ‘self-constitution’, or ‘shared aspiration’ is to be taken
aback once again the next time these attitudes show their constituent power in
ways that do not conform to our ideals of self-determination. Finally, to keep
subsuming them under the rubric of ‘populism’ is not only analytically impre-
cise, but probably an act of political self-harm as well. To diminish this possibility,
we need to refine the picture of nephos that has emerged thus far: the picture
of a fuzzy and granular cloud-like formation of performers, supporters, and
See also Eric Kaufmann, ‘Complexity and Nationalism’ (2017) 23[1] Nations and Nationalism 6.
29
William E Connolly, ‘Agonism and Liberalism’ in Samuel A Chambers and Terrell Carver (eds), William
30
E. Connolly: Democracy, Pluralism and Political Theory (Routledge 2007) 160.

168

cheerleaders, whose intentions shift between we-, pro-g roup, and pro-project
modes, always fluctuating in their intensity, resilience, and viscosity.
What this picture fails to represent is the existential dimension of those
attitudes—the force that drives them and that explains why they do or do not
fluctuate, and when they do, why they do so in the way they do. To represent
this dimension, we will need to move beyond its chastened portrayals in con-
stitutional and normative theory. The scenes these theories evoke, as we have
seen in Chapter 3, feature individuals whose attitudes are driven by nothing
in particular; that is, by nothing in particular apart from their aspiration to es-
tablish a new constitutional order, or as we have seen in this chapter, by their
shared aspiration to be self-governing. To better represent the aspirational
side of their attitudes we will also need to move beyond Kelsen’s impover-
ished vision of them as ‘tormented’; implausibly yearning to re-enact their
‘original instinctual freedom’.
As do the visions of other normative and constitutional theorists, Kelsen’s
vision excludes resentments, geopolitical fantasies of easy political gain, not-
necessarily-nationalistic score-settling urges, or intimate cynical dismissals of
the ideals of popular self-government. To reinscribe these on to the scenes of
the conflicts over the right to self-determination, we need to further refine the
picture of nephos and transform the two-dimensional matrix that has thus far
allowed us to record those attitudes in their intentional-qualitative fluidity into a
three-dimensional one. Rather than abandoning Kelsen’s idea of ‘torment’, this
means making it more granular with the help of Ernst Bloch’s ‘nonsynchronous
contradictions’—his name for the ways in which an individual experiences her
torment as situated in time and place. What defines them, for Bloch, is not an
abstract, backward-looking yearning for lost original freedom, but rather two
binaries that define four concrete modalities in which that torment manifests
itself in time and place.
The alternatives in the first binary define the diagnostic basis of our tor-
ment the cause of the ‘upsetting contradiction’ may either be something that
‘doesn’t suit’ (uncomfortable shoes, for example); or something that is ‘amiss’
(nice new pair we saw in the shop window yesterday).31 The alternatives in
the second binary define the way in which these attitudes orient themselves
temporally: as a yearning for something in the past or as a yearning for some-
thing in the future. Together, the two dichotomies give rise to four types of
situational torment, felt by four kinds of moders. Instead of using Bloch’s
complicated nomenclature, I will call them committed, departed, defeated,
and frustrated.
The committed are those who belong to the category that Bloch called ‘class-
conscious revolutionary proletarian’—tormented not by a ‘perishing remnant
nor even an incomplete past’, but by the ‘impeded future’ of a better world.32
Ernst Bloch, ‘Nonsynchronism and the Obligation to its Dialectics’ (1977) 11 New German Critique 22, 31.
31
ibid 33.
32
169
Granular Attitudes: Kelsen’s ‘Torment’ as Bloch’s ‘Contradictions’ • 169

The torment of the departed is equally future-oriented, but for different
reasons. While the committed find something ‘amiss’ in their situation—the
absence of a better world—the departed are those whose current situation
‘doesn’t suit’ because it ‘impede[s]‌technical benefaction’ they would otherwise
enjoy given the knowledge, power, and capital they have already amassed.33
What impedes them is the ‘collective character of the productive forces devel-
oped within capitalism’, which determines ‘the private character of their antip-
athy’.34 The departed are those whose power already allows them to evacuate
themselves from the world of sovereign peoples, whether at the private level,
by building bunkers in New Zealand that would allow them to survive a global
nuclear war, or at the public level, by financing seasteading projects that bring
privately owned city-states closer to reality. In contrast to both, the defeated
are an ‘after-effect of older relations’—either as their ‘declining remnants’, or
as the fragments of an ‘uncompleted past’.35 They are the ones whose feeling
that something is ‘amiss’ cannot be remedied, even in principle: they are mem-
bers of social orders, professions, and minorities whose longing for the past
state of affairs is genuine and unattainable.
The most politically consequential among the four, the frustrated are those
whom constituent power theorists like to ignore: the ‘immiserated middle strata’
whose torment is caused by something that ‘doesn’t suit’ and whose political at-
titudes, ‘for a long time merely embittered, today [appear] as pent-up anger’.36
Like the defeated, they also look to the past for solace, but unlike the defeated,
their sense of longing for the past is weaker and their frustration with the present,
stronger.
Finally, this quartet ought to be complemented by the figure that Bloch did not
anticipate: the distracted—those tormented by nothing, or nothing in particular;
those ‘no longer mobilized by the prospect of a sudden transformation’;37 the citi-
zens content to leave action ‘for another day’, happy to enjoy ‘commodified oppor-
tunities’ provided by contemporary neoliberalism.38 In each case, the torment that
defines these figures will also affect the intensity, resilience, and viscosity of their
political attitudes, as well as the activist intention that will determine whether the
committed, departed, defeated, frustrated, and distracted act as performers,
supporters, or cheerleaders.
The matrix at Figure 5.1 is the snapshot of a dynamic image that represents
the changes within the configuration of political attitudes within a particular ag-
gregate that captures their distribution along the intentional and aspirational di-
mensions (x and y axes), as well as their contingent quality at any period in time
(represented by the three-part circle on the right side of the diagram).
ibid 35.
33 34
ibid. ibid 31.
35
ibid 35.
36
Pierre Rosanvallon, Counter-Democracy: Politics in an Age of Distrust (CUP 2008) 181.

37
Max Haiven, ‘Finance as Capital’s Imagination? Reimagining Value and Culture in an Age of Fictitious
38
Capital and Crisis’ (2011) 29[3] Social Text 93, 104.

170
DISTRACTED
DEPARTED
DEFEATED
rigidity intensity
FRUSTRATED
viscosity
COMMITTED
PERFORMERS SUPPORTERS CHEERLEADERS

Figure 5.1 The matrix of moders’ political attitudes
Once projected geographically and over time, the swarming totality of polit-
ical attitudes that this grid allows us to detect will present itself as nephos: a
semi-inert aerosol, an ensemble of moders, purposefully extracted from what
Cornelius Castoriadis called the ‘magma of social significations’.39 Like ethnos,
but unlike demos, it is a fuzzy, not a crisp set of members. Unlike ethnos, nephos
is a fuzzy set whose degree of granulation will allow us to detect more precisely
the problems that ethnos-based conceptions of the right to self-determination
are either indifferent to or unable to solve.
Like Kelsen’s ocean of psychic happenings, nephos aims to estrange us from
the focus on ‘groupness’ implicit in the right to self-determination, but, unlike
it, it provides us with more analytical precision about the fluctuations of the
‘psychic happenings’ that comprise it. In that regard, it not only corrects Kelsen’s
simplistic vision of ‘torment’, but also alerts us to the need to regranulate our
vision of political attitudes in a way that would make the Kelsenian ‘tendency’
analytically sustainable in the way we intended it: as an implicit aspiration served
by otherwise incommensurable visions of the right to self-determination. Until
we do so, Kelsen’s argument will be seen only as a confused mixing of apples
and oranges under the rubric of the ‘torment of heteronomy’. The main aim
of this regranulation is to set the stage for a new template of conflict-resolution
that transcends the need to invoke rights to self-determination in a particular
way: by making the categorical understanding of conflicts over territorial sov-
ereignty seem stranger, while at the same time making the distributional under-
standing of those conflicts seem more familiar.
Envisioning nephos beyond demos and ethnos is the first step in that dir-
ection. The second is to attempt to provoke a departure from the image of
See Cornelius Castoriadis, The Imaginary Institution of Society (Kathleen Blamey tr, first published 1975,
39
MIT 1998).
17
Scopos: Polemical Space Beyond the Place • 171

a bounded spatial referent, which these two figures have to presume in order
to be considered holders of the right to self-determination. What this referent
conceals is the textured morphology of humiliation and dispossession: banlieus,
rust belts, inner cities, zones of corporate predation, and a variety of internal
peripheries—the twilight zones of collective self-government, whose presence
in the public consciousness is spasmodic and inconsequential. With these zones
relegated to the periphery of our imaginations of popular sovereignty, it be-
comes much easier to ignore the striking disconnect between the actual pref-
erences of the vast majority of those governed by institutions in the name of
the people to whom they notionally belong and the political outputs of those
institutions, reprogrammed to serve not the welfare of the people, but wealth
defence, the unacknowledged imperative of contemporary oligarchic dem-
ocracies.40 One way to challenge them is to deprive them of the vocabularies
they rely on, and that distract those who use them from confronting the geog-
raphies of indignity hidden behind the superficial allegories of constitutional
self-government. To do that, we need to move beyond, or, more precisely, to
fuzzify and granulate not only the figures of collective subjectivity that have
prevented us from doing so, but also the place in which we imagine peoples
governing themselves. That is the objective of the section that follows.
5. Scopos
polemical space beyond the place
Normative theories shape nephoi into demoi or ethnoi (or other similar figures),
vesting them with rights to self-determination over discrete places. Though
clouds do not stand in place, theorists gaze at these cloud-like phenomena with
a confidence similar to that which guided Mr Palomar in his attempt to detect
regularities in the ebb and flow of the waves as he gazed at them from the sea-
shore. Like Mr Palomar, contemporary theorists know that
isolating one wave is not easy, separating it from the wave immediately following,
which seems to push it and at times overtakes it and sweeps it away; and the other,
equally complex ones that the wave itself originates [and that] to understand the
composition of a wave, you have to consider these opposing thrusts, which are
to some extent counterbalanced and to some extent added together, to produce a
general shattering of thrusts and counterthrusts in the usual spreading of foam.41
Some of them, as we will see later in the chapter, proceed in a manner similar to
Mr Palomar, who ‘tries to limit his field of observation’ by way of an arbitrary
convention, deciding to take a ‘square zone of, say, ten meters of shore by ten
meters of sea’ as a spatial referent that allows them to ‘carry out an inventory
of all the wave movements that are repeated with varying frequency within a
given time interval’. Even those who do not rely on that technique do assume,
See Jeffrey A Winters, Oligarchy (CUP 2011).

40
Italo Calvino, Mr Palomar (William Weaver tr, Harcourt Brace 1985) 3–4.

41
172

like Mr Palomar, that ‘some forms and sequences . . . are repeated, though ir-
regularly distributed in space and time’, which, in turn leads them to believe
that they will be able to stop ‘as soon as [they notice] that the images are being
repeated’, confident that they have seen ‘everything [they] wanted to see’.42
In reasonably assuming that our sense of place and space hinges on our cap-
acity to detect ‘a repetition that is governed by a structural law of successions’,43
they set aside the possibility that gazing at these repetitions a bit longer dis-
closes a different structural law and a different space, or indeed a number of dif-
ferent simultaneous structural laws, altogether. Such space is ‘constructed out
of interrelations, as the simultaneous coexistence of social interrelations and
interactions at all spatial scales, from the most local level to the most global’.44
Such space, to put it differently, cannot be captured in an ‘objective snap-
shot’,45 within which it would become possible to identify a particular, rightful
place of self-determination as a location normatively shielded from subsequent
political contestation. As Doreen Massey argued, any such snapshot would only
capture a time slice—pockmarked with ‘holes . . . disconnections, [and] tentative
half-formed first encounters’—of a more expansive spacetime.46 While I do not
follow Massey’s argument all the way, building on her insights helps us realize
that the place normative theorists identify as the location of the territorial right
is prefigured by what I will call chronoscope: an image of space as the necessary
product of the viewers’ contingent visual choices and affective imaginations.
That chronoscope is not a specific location that normative theorists identify
as the object of territorial right itself. Rather, its role is to set the stage for the
identification and invocation of exact places within a normative argument. As
part of the claim of the right to self-determination, that place is, in turn, best
seen as a crypto-scope—scopos, in short—whose function is to bracket, conceal,
or deny the prefigurative role of the chronoscope and normative theorist’s con-
stituent imagination.
To illustrate what I have in mind, I will start with the example Moore herself
uses in her attempt to demonstrate the intuitive appeal of the idea of territorial
rights. Her account begins in 1609 with the voyage of the Third Supply relief
fleet sailing from Plymouth, England, to Jamestown, Virginia. The voyage did
not go as expected; a powerful storm caused one of the ships to capsize on
an uninhabited island. After the shipwreck, the crew and the passengers built
a small settlement on the land, later to be known as the island of Bermuda.47
The absence of political history that would compel us to start from pre-existing
territorial claims enables Moore to outline the architecture of a territorial right
ibid.
42
Ernesto Laclau, New Reflections on the Revolution of Our Time: A Critical Examination of Social Struggle in the
43
Context of Late Capitalism (Verso 1990) 41.

Moore (n 12) 80.
44
Arun Saldanha, ‘Power-Geometry as Philosophy of Space’ in David Featherstone and Joe Painter (eds),
45
Spatial Politics: Essays for Doreen Massey (Blackwell 2013) 50.

Doreen Massey, For Space (SAGE 2005) 107.
46
Moore (n 12) 13.
47
173

in clear terms. At its base are the individual residents of Bermuda and their
moral rights of residency. Their moral force stems from the relationships, plans,
commitments, and attachments they have developed by residing in a particular
place. At the next level, Bermudans—as a community—have the right of occu-
pancy over a particular land. The moral force of occupancy rights stems from
the interest that communities have in retaining control over their physical en-
vironment, its character, and its institutional structure, given the importance
of land in the formation and perpetuation of individual identity, as well as the
importance of land for the group as the location of its collective project. While
not amounting to the right of territorial sovereignty, occupancy rights entail
a certain ‘right to control the land or geographical area’.48 They are, nonethe-
less, a necessary condition for territorial rights in the context of political self-
determination. Such territorial rights can be held only by the special type of
collective we discussed earlier: ‘the people’.
Moore uses this example not because it helps her eschew the problems the
colonial encounter would have otherwise created for her account, but because it
allows her gradually to complicate it by introducing possible real-life scenarios.
The first concerns an imagined attempt by the Spanish to settle on the opposite
side of Bermuda, soon after the English settlement. In this scenario, the land
they have set their eyes upon is uninhabited and distant from the original English
settlement. Moore asks if ‘a small village on one part of the island constitute[s]‌
occupancy of the whole island’.49 By asking this question, Moore is keenly aware
of the complex patterns of human settlement, as ‘people settle first and primarily
along the coast and along major rivers, as often the interior is thick jungle or forest
or desert unsuitable for human habitation’.50 For Moore, this does not mean that
the original English settlers would not have occupancy rights over uninhabited
land, but only that they would need to pass the ‘test’ of occupancy: ‘whether the
location is central to the aims and projects and relationships of the group’.51
In the second scenario, Moore asks a different question: ‘What if the occu-
pants of the Spanish ship do not seek to settle as a community—so it is not a col-
onization project—but seek to be admitted as individuals’ into the community
of English settlers? Moore uses this example to argue that communities’ right
of occupancy must also include the right to exclude. As she argues:
Control over many aspects of one’s collective life—education policies, health
care policies and services, and so on—are impacted by issues connected to demo-
graphic balance, between rural and urban communities, for example, the rate
and flow of migrants, and the kinds of migrants that one accepts. At some level,
then, it would be difficult for political communities to make collective choices
without some capacity to make choices over this vital component of many dif-
ferent policies. Indeed, it is hard to see how a political community could exercise
significant control over the collective conditions of their existence if they lacked
this kind of control. If members of the group collectively lack this power, they
also lack the ability to exercise robust forms of self-determination.52
ibid 40.
48
ibid 119.
49
ibid.
50 51
ibid 120. ibid 197.
52
174

In building towards the idea of chronoscope, we should further complicate
Moore’s two scenarios. We should do so, however, not by introducing more
actors, irreconcilable worldviews, or wider geopolitical considerations but by
imagining concrete conversations between the claimants of territorial rights in
the scenes set by Moore herself. The first such conversation is between Admiral
Sir George Somers, the founder of the colony of Bermuda, and the leader of
the Spanish fleet, Captain Martín Jesus Hevia.
Somers:
Captain Hevia, our scouts saw you making preparatory work for settling on St David’s Island [to the south
of the original English settlement] and saw you frequently roaming in its interior. Even though we have only
settled at St George Island, we have planned to settle on St David’s Island as well over time. In fact, having
unfettered access to its natural bounty is critical for our survival as a community. The extent of your roaming
makes us believe you plan to use this island not only exclusively for yourselves but also as the base for infil-
tration and further conquest.
Hevia:
Señor Somers, rest assured! We are not colonizing St David’s Island. Rest assured! Our settlement is restricted
to only the southernmost tip of the peninsula in the Castle Harbour, which we will use as a base of the
Spanish merchant fleet.
Somers:
But you are exploring the island’s interior, hunting game, and cutting down trees on a regular basis.
Hevia:
Señor, this is not the case. Our scouts venture outside of our settlement only when our supplies are low and
only to the extent necessary to replenish them.
* * *
The second conversation takes part at the scene set by Moore’s second scenario.
This time the conversation occurs between Somers and Colonel Cuellar, the
representative of the individuals who wish to join the English settlement.
Somers:
Colonel Cuellar, I’ve been informed that you wish to join our settlement. I am sorry to inform you that we
cannot grant you this request. We find your customs reprehensible, and while we wish you the best, we can-
not accept the possibility you will put our way of life in jeopardy.
Cuellar:
But, Señor Somers, we live in poverty on our island, and the number of prospective settlers is only a fraction
of your settlement––it is hard for me to imagine that we would ever endanger your way of life or your collect
ive self-government. In any event, we are ready to learn English and your mores and live at the outskirts of
your existing settlement if necessary.
Somers:
This is out of the question! We have dedicated the outskirts for the expansion of our settlement and have
intentions to build a place of worship there!
Cuellar:
But we will, if it dispels your anxiety, move further away. This land is vast and bountiful, and we are ready to
colonize the uninhabited plains in the south.
175

Somers:
What blasphemy! One of our first battles against the invaders took place on these sacred plains.
Cuellar:
We do not mean to offend. We would, of course, never settle on the sacred place of the battle itself but rather
in the valley adjacent to it.
* * *
In different ways, both examples reveal the registers that remain obfuscated be-
hind the idea of the spaces as three-dimensional objects of territorial rights. The
first conversation shows that the invoked locations are not simply three-dimen-
sional snapshots of a physical terrain but rather the perceived configurations of
interaction in spacetime. However, what will appear as a normatively relevant
configuration of interaction does depend not solely on Moore’s test but also
on the unproblematized elements in Somers’s and Hevia’s scopic regime. The
English leader is able to construct the Spanish settlement as a challenge to the
occupancy of the entire St David’s Island because his imaginative gaze captures
it in its totality. On the other hand, Hevia is able to reject his claim by narrowing
down the zoom of his gaze: he zooms in on only the tip of the peninsula instead
of on the entire island. The rest of the conversation reveals other parts of their
respective scopic regimes: not only is the zoom of Somers’ lens wider, its ex-
posure is longer. By using a longer exposure, replenishments of supplies do not
appear as isolated events in a sequence of photographs but rather as a discern-
ible pattern of sinews stretching across the entire island within a single picture.
The complications I have introduced are still relatively simple; however,
I hope they illustrate my main point: the space as a three-dimensional location
is a chronoscope, the product of a particular scopic regime.53 Such chronoscopes
enable antagonists to nominate a particular place within a space as a legitimate
object of their political claim. In such a claim, ‘place’ figures as a scopos—the
piece of Earth’s surface unrelated from the ways of seeing that make possible
its identification. As such, it plays a similar role to that of nations and peoples: it
reduces the amount of cognitive work involved in presenting one’s claim as
intelligible and legitimate. Whether it is invoked as part of a demand for pol-
itical change or as part of a demand for the preservation of the status quo, the
function of ‘place’ in a political argument is to prevent a background set of as-
sumptions, hopes, wagers, and anxieties from becoming the object of political
contestation. In imaginatively carving out new spaces ‘at the outskirts’, ‘further
away’, or ‘adjacent’, Cuellar has found ways to not ask questions such as the
following and, in doing so, hide that his demand hinges on answering them in
a particular way:
53
Those who problematize the role of space from the perspective of socio-legal studies will notice its similar-
ities with the idea of the chronotope. Mikhail Bakhtin, The Dialogic Imagination: Four Essays (Michael Holquist
tr, University of Texas Press 1982).
176

‘Why do you care about your way of life so much? On what evidence do you
base your claim that control over the land is important for the individual sense
of identity? If there is a part of your “community” where individuals don’t care
that much, can we go there to settle? Why is the idea of “robust self-determin-
ation” so important to you in a situation where we, your neighbours, live in
ignominy on our island? Why are you so anxious about your identity, if we are
willing to learn English and accept your customs?’ By responding that the settle-
ment is limited to only the tip of the peninsula, the conversational implicature
of the Spanish captain’s claim is that the English are not legitimately affected by
the project of that settlement. Equally, in finding another ‘there’ in the histor-
ical plains, the Spanish representative is implicitly claiming that the English do
not have a reason to be hurt or humiliated by their project.
From that perspective, the scopos is always a polemo-scopos: a particular rhet-
orical strategy that simplifies the complexity of ethico-political reasoning.
Though my imagined conversation remains within Moore’s imaginary uni-
verse, the logic behind it informs the spatial aspect of many strategies of re-
sistance today—from the occupations of public spaces to factory repossessions,
‘tent embassies’,54 or various ‘free republics’55 whose aim, in the latter case, is
not to form a new territorial unit but to demand responsiveness from the state
(figuring in such cases as the internal other) towards their socioeconomic aspir-
ations. Against that backdrop, normative theories of self-determination present
themselves not simply as ideologically liberal—which they more or less readily
admit—but also as hostile to the ‘strategies of rupture’ (discussed in Chapter 4)
that may involve unauthorized occupation of public space and need not neces-
sarily be antiliberal in their orientation (which is what probably worries most
normative theorists). By the same token, however, imagining space as ‘essen-
tially disrupted’, a ‘sphere of multiple possibilities’, and ‘always under construc-
tion’, as suggested by critical geographers, must not be seen as an ontologically
superior account of space but rather as a polemical construction, advanced for
a particular purpose.

the geography of failure (i)
Setting the imaginary holders of the right to self-determination against the
backdrop of nephos—as a fuzzier and more granular set from which they were
‘extracted’—allows us not only to compare the ways in which normative and
other theorists do the work of ensemble-making, but also to detect the blind
spots in their vision more readily. The first blind spot concerns the class of
conflicts over territorial sovereignty that call for normative guidance but that
Andrew Schaap, ‘The Absurd Proposition of Aboriginal Sovereignty’ in Andrew Schaap (ed), Law and
54
Agonistic Politics (Ashgate 2009) 209.

See eg Massimo Zucchetti, ‘The Turin–Lyon High-Speed Rail Opposition: The Commons as an Uncommon
55
Experience for Italy’ (2013) 112[2] South Atlantic Quarterly 388.

17
Self-Determination: the Geography of Failure (I) • 177

cannot be modelled along the lines proposed by the theories that most directly
speak to the social imaginary of the right to self-determination: either because
they attribute it to demos—a circularly defined crisp set—or because they pre-
sume a (quasi-)ethnos—a fuzzy set calibrated to include only resilient and vis-
cous performers and supporters—and exclude all others whose attitudes are
more fragile, volatile, and liquid. By way of an example, consider two cases that
make this prescriptive failure fully obvious: Montenegro, in which this failure
has not been politically consequential, and Ukraine, in which the political price
and moral hazard of theorists’ insistence on the general applicability of their
accounts of self-determination is fully manifest.
While normative theorists who attribute the right to self-determination to
a non-territorial people readily acknowledge that the national identities of its
members are not perfectly solid, they assume that those identities are not ‘infin-
itely malleable’,56 a striking shift in national identifications among the citizens of
Montenegro between 1991 and 2003 gives rise to a challenging question: What is
the relevance of the language of the right to self-determination in the conflicts
in which those ‘identities’ reveal themselves as even more malleable than typic-
ally anticipated? In 1991, more than 60 per cent of the citizens of Montenegro
self-identified as ethnically Montenegrin. In 2003, that number fell to 44 per
cent, and the number of Serbs, numbering 15 per cent in 1991, rose to 35 per cent,
staying more or less on the same level in 2005, the year in which Montenegro be-
came an independent state following a sovereignty referendum in which 55 per
cent of its citizens voted in its favour. Praised as a political success story of how
to achieve independence without communal violence, the political dynamic be-
hind Montenegro’s independence hasn’t been problematized as the conceptual
challenge for the theories of the right to self-determination.
Nonetheless, that challenge is twofold. On the one hand, against theorists
who treat national identity (Miller), or the patterns of joint action (Moore) as
constitutive of the identity of the people—and, indirectly, of the range of le-
gitimate constitutional aspirations, which it may pursue by exercising its right
to self-determination—the case of Montenegro suggests otherwise. Instead of
being constitutive of constitutional aspirations, minoritarian national identities
in Montenegro were constituted by the perceived shifts in majoritarian consti-
tutional vision: away from political union between Serbia and Montenegro, and
towards the independent statehood of Montenegro. Put differently, the transi-
tion from Montenegrin to Serb national identity between 1991 and 2003 would
probably not have occurred if the support for a federal constitutional arrange-
ment among those who continued to feel Montenegrin remained at the same
level as it was in 1991, when—in another referendum on the political status of
Montenegro—60 per cent of its citizens decided to preserve federal constitu-
tional arrangement with Serbia.
On the other hand, this transformation also makes it either conceptually im-
possible, or morally unsavoury to speak about referendums as the most intuitive
Margaret Moore, The Ethics of Nationalism (OUP 2001) 14.

56
178

institutional device for exercising the people’s right to self-determination. In
this context, Moore’s criterion for membership in the people—‘shar[ing] a con-
ception of themselves as a group’—would end up disenfranchising more than a
quarter of Montenegro’s population which, between 1991 and 2003, changed its
mind about whether or not they see themselves as the members of that group.
One response to this challenge is to qualify the criteria of legitimate people-
hood, as did Moore, by stipulating that ‘the people’ as the ‘fundamental holder’
of the right to territorial self-determination may only exercise their right if ‘[it]
aim[s]‌to [erect] a political authority that subjects everyone to the same rules
[under which] no agent is dominating another’.57 This, however, immediately
poses a question: ‘What is left for the initial quasi-ethnic “people” to do—as the
holder of this fundamental right—after the moment of founding a new consti-
tutional order?’ The answer seems to be ‘nothing much’—unless we accept that
the logical consequence of the failure of this quasi-ethnos to transubstantiate
itself into a ‘civic’ demos is a constitutionally entrenched hierarchy of political
dignity: a political order in which one group of citizens exists as political land-
lords, and another as ‘political tenants’, closer in spirit to an apartheid than to
a liberal-democratic state. Another response to this challenge is to claim—with
no evidence to the contrary—that all those who participated in the 2005 refer-
endum have demonstrated in deed that they share the conception of themselves
as a group. Though possible, such an answer would be too laconic, especially in
the light of other examples, where the interaction between fluid national iden-
tities and discordant constitutional visions led to civil war.
Consider Ukraine. In the 1991 referendum the voters from the eastern part
of the country—whose ethnic and linguistic identity is often described as the
hybrid of Russian, Ukrainian, and ‘Soviet’—overwhelmingly supported the in-
dependence of Ukraine.58 That support was neither intense, nor resilient, nor
viscous, as the aftermath of the Maidan revolution made painfully obvious.
Rather than cascading from Kiev to the periphery of Ukraine and contamin-
ating the political attitudes across Ukraine with a pro-revolution content, as
envisaged by the Schmittian scenario of contagion, the attitudes in the eastern
part of the country quickly coalesced around a reactive political project that
involved territorial autonomy or even secession, turning previously lukewarm
pro-Ukrainian cheerleaders into more intense pro-Russian supporters and
even performers.
So the same, age- old question that could conveniently be ignored in
Montenegro––Who is the people here?––in Ukraine becomes politically and
morally urgent (at least for a normative theory that wants to be of even the
most modest practical relevance). Should the historically fluid and ambivalent
Moore (n 12) 62.
57
See Sven Holdar, ‘Torn Between East and West: The Regional Factor in Ukrainian Politics’ (2004) 36[2] Post-
58
Soviet Geography 112, 120. On the fluid political identities in Eastern Ukraine, see Taras Kuzio, ‘Nationalism,
Identity and Civil Society in Ukraine: Understanding the Orange Revolution’ (2010) 43 Communist and Post-
Communist Studies 285, 291.
179
Self-Determination: the Geography of Failure (II) • 179

‘identity’ of those in the east of Ukraine now disqualify them from having the
legitimacy of their territorial claims recognized even in principle (given their
inability to demonstrate the past track record of ‘cooperative practices’ about
the project they pursue now)? Or should the actual track record of ‘shared as-
pirations’, and ‘joint actions’— oscillating between Soviet Union, Ukraine,
Russia, and nothing in particular—disqualify those who claim that the right of
the Ukrainian people to self-determination stretches over the entire territory
of Ukraine? On the one hand, theories that attribute self-determination to a
demos—a territorial people—provide a straightforward answer to these ques-
tions. Their problem, as we will see later, is that the circularity at their base
makes the answer they provide unjustified. On the other hand, theories that
attribute self-determination to a quasi-ethnos—Moore’s people or Miller’s
nation—and which otherwise aspire to provide non-circular, sophisticated, and
defensible answers remain paralysed: capable neither of justifying the extent of
pro-Ukrainian territorial aspirations nor the pro-Russian claims of those who
deny them.

the geography of failure (ii)
From the perspective of normative theories of self-determination, Ukraine might
look like a ‘hard case’. It is not. Even if we pretended that the transformation of
political attitudes in the east of the country is nothing but the effect of sinister
Russian interference, this still would not help us determine who does have a moral
right over that part of Ukraine’s territory. More importantly, to treat the crisis
in Ukraine as a hard case would obfuscate the fact that external actors—be they
the Russian, American, Chinese, or European xenoi—exercise their constitutive
powers in ways that not only affect the attitudes of those on the ground, but also
prefigure the normative content of the right to self-determination in a concrete
case. The name Schmitt gave them in Chapter 3 was interessierte Dritte—‘interested
third parties’, who ‘belong’ to the ‘situation’ of the Partisan. Described by the lan-
guage of actor-network theory, but in the context of normative theories of self-
determination, such external agents are better seen as the ignored localizers: those
who have ‘deserted the scene because they [have] let objects carry their action in
absentia’,59 but whose prefigurative work in defining the place of the place of the
people’s territorial right remains a theoretical blind spot.
These localizers are ignored for a reason. To acknowledge their prefigura-
tive role in determining the place of the place is to further complexify already
highly complex normative theories of self-determination and render their prac-
tical applicability even more specious. As an illustration, consider an incident
that occurred in Kosovo in 2009, which arose after Kosovar Serbs, living in the
enclaves across its territory, refused to pay their electricity bills, since they were
issued by the Kosovo Energy Corporation, a public company owned by an
Latour (n 5) 195.
59
180

entity they didn’t recognize as a sovereign state. Paying, from their point of
view, would have legitimized the attempts of the Kosovar government to ex-
tend their sovereignty over the entire territory of Kosovo. From the perspective
of the Kosovar government, the question was simply that of the customers’
failure to meet their contractual obligations. Since the citizens failed to pay for
their outstanding electricity bills, it was within the authority of KEC to discon-
tinue supplying them with electricity until they did pay.60
What does this incident tell us about the capacity for self-determination?
With a steady electricity supply, the ‘collectives’ living in those enclaves would
be more ‘capable’ of exercising their territorial rights. Without it—in Moore’s
account—they would have no territorial rights because they would not have
even qualified as their holders to begin with.
What should the powerful states behind the international forces stationed in
Kosovo have done in this case? Should they have stood aside, treating these ac-
tions as justifiable means of encouraging Serbs to abandon their claims of terri-
torial self-determination over those localities, in the name of allowing Kosovar
Albanians to establish themselves as a ‘people’ ‘capable’ of exercising their ter-
ritorial self-determination over the entirety of the territorially integral—and
thus presumptively viable—Kosovo? Or should they have helped those ‘com-
munities’ become capable holders of territorial rights by putting pressure on
the Kosovar government to accept alternative constitutional arrangement?
According to Moore, external others have ‘third-party duties to ensure that
the group is provided with the means to exercise effective governance, if these
duties could be discharged without perpetrating injustice’.61
Such qualification generates an interesting ‘paradox’, however: to postulate
such duty is not only to hold powerful states morally bound to act in a certain
way but also to impose a side constraint on the exercise of the right to self-
government of their own peoples. In exercising their judgement, their repre-
sentatives would not be free to assess the acceptable degree of military risk in
peace missions, the prudential preference for a particular type of post-conflict
constitutional settlement, or a number of other considerations that usually fall
under the rubric of ‘national interest’. Since it moves beyond the vocabulary
of peoplehood, this book does not consider such restrictions problematic or
illegitimate. The problem, however, is that even with such restrictions in place,
the external other still has wide discretion in how it chooses to exercise his
‘third-party duty’ in a way that prefigures the normative content of the par-
tisans’ territorial right. So, even with the ‘third-party duty’ in place, the vocabu-
lary of territorial rights offers no guidance about how to resolve this conflict.
Whether Serbs in Kosovo, in the localities where they lived, have a right to a
UN Security Council ‘Briefing Security Council, Special Envoy Says Recent Dynamic Period for Kosovo,
60
United Nations Mission “Rife with Challenges and Milestones”, Mainly Stable’ (23 March 2009) Press Release
SC/9623 <www.un.org/press/en/2009/sc9623.doc.htm> accessed 20 October 2017.
61
Moore (n 12) 52. Miller satisfies himself with an observation about the importance of their role ‘in propel-
ling the two sides to make concessions that once made may produce a reasonably stable outcome’. David
Miller, ‘Debatable Lands’ (2014) 6[1] International Theory 104, 115.
18
Self-Determination: the Geography of Failure (II) • 181

recursive secession from Kosovo, a right to a federal unit within an independent
Kosovo, a right to a regional autonomy within Kosovo existing in a confederal
relationship with Serbia, a modest right to municipal autonomy, or none of the
above only marginally depends on the content of their ‘territorial right’ and far
more on the judgement of the external other about how much political power
should it expend to make them viable as a ‘community’ capable of some form
of ‘self-determination’.
If so, determining the content of the right to self-determination in a concrete
case—even as a prima facie right—would have to be inordinately complicated. Even
if we accepted the existence of third-party duties as the elements that qualify its
exercise, determining the content of the right to self-determination would have to
rest on a sequence of additional practical judgements such as: (1) the willingness
of the external other to perform its duty impartially; (2) its capacity to contribute
to conflict resolution by influencing the behaviour of the partisans on the ground;
and, last but not least, (3) its willingness and capacity to enforce the post-conflict
settlement. Notice how different assessments lead to different substantive under-
standings of the right to self-determination. If, for example, we assess (1) and (2) as
high, there will be less reason to rush with reaching a new post-conflict settle-
ment. In that case, there will be more reasons to slow down the process of polity
formation, to increase the cognitive effort at gathering more relevant evidence, and
to propose more complex, fairer constitutional settlements. In such a case, what
will end up being recognized as someone’s ‘territorial right’ under a post-conflict
constitution will probably look dramatically different from a situation in which,
for example, we assess (1) as ambivalent, (2) as negative, and (3) as vacillating. In
this instance we might be more inclined to support a post-conflict settlement that
would quickly bring the conflict to an end, which would minimize the possibility
for the self-serving interference of external others and would not require their
excessive involvement in enforcing it.
Some normative theorists have tried to systematize these judgements even
further, and provide an analytic of ‘political feasibility’ that would be useful in
determining, in our case, the extent of the third-party duties and, by implication,
the capacity of ‘the people’ to exercise its right to self-determination.62 When
encountering ‘temporary deficits of accessibility’ of certain institutional arrange-
ments, for example, we are told that our judgement about what is accessible—
and, ceteris paribus, feasible—ought to ‘adopt a transitional standpoint from
which [to] envisage trajectories of reform dissolving constraints in order to intro-
duce progressively the institutions that would implement the principles’.
The objection to this argument is easy to predict: the choice of a standpoint,
however, is a matter of . . . standpoint—not a matter of normative argument.
Depending on where you stand—as Schmitt lyrically explained in Chapter 2—
a different horizon will present itself and, with it, a differently curved trajec-
tory. Finally, the feasibility judgement does not take into consideration the
Pablo Gilabert and Holly Lawford-Smith, ‘Political Feasibility: A Conceptual Exploration’ (2012) 60 Political
62
Studies 809.
182

gross disparities in the capacity to generate accessibility. If so, the accessibility
judgement, whatever it is, ought to be differentiated as well, depending on the
addressee of the demand to make something ‘feasible’.
8. Imagining denominators

beyond transubstantiation
There is an algorithm behind every right to self-determination; a protocol
that shapes our expectations about what counts as the legitimate trigger of
spatiotemporal reconstitution (s1), whether and how to draw boundaries of the
reconstituted space (s2), what political status to assign to a new unit, and what
should be the constitutional arrangement within new and old polities, and who
should be involved in determining it (s4). The algorithm may do so with more
or less precision, and, in doing so it may also prescribe the temporal sequencing
among the decisions to be taken at each of the stages. In order to encourage
specific expectations at s1–s4, all such algorithms must rely on specific regimes
of cognitive economy that calibrate the degree of effort necessary for obtaining
relevant evidence of the facts considered to be ‘normatively’ relevant.
Starting from these assumptions, the aim of this section is more practical: to
move beyond the seeming irreconcilability of the two dominant visions—
ethnos- and demos-based—of the right to self-determination on the ground.
Before that, a quick reminder of what these two approaches have in common,
and of what separates them from the perspective of our benzene-like ‘mol-
ecule’ of sovereign peoplehood: while both presume the same subject of pro-
positions 1, 2, 3, 5, and 6 in the same way in the abstract, they cannot agree who
is the subject of proposition 3 in a concrete conflict.
So far, the strategy of normative theories of self-determination has been to
offer qualified moral support for a certain class of projects and an explanation
to those on the other side as to why they should stop resisting the ‘approved’
projects, in principle, Kelsenian ‘tendency’ to the surface in a dialogical manner.
In order for that ‘tendency’ to emerge as the algorithmic common denomin-
ator to a variety of different understandings of the right to self-determination,
the proponents of a particular version of that right would need to imagine a
dialogue with a particular kind of kind of antagonist: a xenos who is not only
powerful enough to frustrate the success of their struggle, but who is also able
to challenge the moral grounds of that struggle in a way that prevents the par-
tisans of self-determination from reaching for the justifications of that right
that build on the (otherwise obscured) ‘paradoxes’ of transubstantiation and
circularity.
When it comes to the proponents of the ethnos-based account of self-
determination, that objection is simple: every constitutional order must impose
coercive constraints on the behaviour of its citizens. Imposing unequal con-
straints on them—by allowing ethnic partisans, a minority within a polity, to
secede unilaterally, that is, extra-constitutionally—would violate political and
legal equality—an ideal that must be upheld today, irrespective of its violations
183
Imagining Denominators: Beyond Transubstantiation • 183

yesterday.63 Though that was not his intention, Kelsen’s 1928 essay offers an ele-
gant response to this objection without resorting to an argument about moral
value or moral partiality or national self-determination. As he argued in On
the Essence and Value of Democracy, equality should not be seen as a side con-
straint on the operation of the tendency towards unanimity but rather as its
epiphenomenon: an ideal that is legitimate only as the corollary of individual
‘freedom’ and the imperative of its ‘maximization’. In Kelsen’s words:
We cannot conclude positively, from the purely negative presumption that one
person is worth no more than another that the will of the majority should prevail.
If one attempts to derive the majority principle only from the idea of equality,
it does indeed have that purely mechanical, even senseless, character . . . That
equality is naturally assumed to be a basic hypothesis of democracy is shown by
the fact that not only this or that person is to be free, because this person is not
worth more than that one; instead, as many as possible are to be free.64
Notice however that even if Kelsen’s association of political equality with
‘freedom’ is wrong, ‘maximizing’ freedom through the formation of new states
would still be equality-neutral, as long as the new state continued to uphold the
same ideal. The problem however is something else. As we saw earlier, Kelsen
referred to this maximization both negatively and positively: both as the most
efficient way to alleviate the backward-looking ‘torment’ of heteronomy—
caused by individual desires to retrieve their ‘original instinctual freedom’—
as well as the unsurpassable way to maximize individual ‘autonomy’ and
‘self-determination’.
So what exactly ought to be maximized or minimized? The answer to that
question is not clear at all. When it comes to their attitudes towards specific
constitutional projects, which ones should count from a Kelsenian perspec-
tive: intense political attachments, resilient ones, rigid ones, or some combin-
ation thereof ? Those of performers only? Or of all moders, irrespective of the
character of their intentionality? These questions must be answered because
one might argue that by using a different yardstick of maximization, most mi-
nority nationalist demands would actually increase, not decrease, the torment
of heteronomy over the reconstituted territory. For example, the defenders of
the constitutional status quo could argue that the desires of the majority for
the preservation of territorial integrity will experience ‘torment’ because the
object of their desire is the preservation of the state, whose essence is insepar-
able from its existing boundaries. Since their accounts presume the existence of
territorial rights over specific places, normative theorists of self-determination
do not need to confront this question. We don’t have that luxury. Having almost
Philip Pettit, On the People’s Terms: A Republican Theory and Model of Democracy (CUP 2012) 161–63.
63
64
Weimar: A Jurisprudence of Crisis (University of California Press 2000) 87. Elsewhere, Kelsen describes the idea
of equality as the individual’s second-best objective in the absence of the unattainable mastery over the other.
Hans Kelsen, ‘God and the State’, Essays in Legal and Moral Philosophy (Peter Heath tr, D Reidel 1973) 66.
184

turned the subjects and the objects of the right to self-determination into thin
air, we must confront it explicitly.
9. Imagining denominators

beyond circularity
Moving beyond the vocabulary of self-determination requires an act of imagin-
ation the objects of which are not just collectivities and their rights, but also the
‘identities’ of their members. To move beyond the people is to transition from
identity to identification: from nationalist or civic allegiance to constituent at-
tachment more broadly understood to—a common denominator, that is, that
unites different visions of self-determination. To move beyond that vocabulary,
in other words, is to discover the scales of attachment-satisfaction behind the
binaries of rights-holders. One can get to that point by following a number of
different paths. Though the directions provided by Bernard Yack ultimately lead
elsewhere, his critique of the right to self-determination is to the point:
The right to national self-determination presents itself as a first-order right, a
principle that we can rely on to establish minimally acceptable criteria for a le-
gitimate division of the world into different political communities [but that]
in reality, it merely gives its blessing to a host of competing arguments about
second-order rights, rights derived from claims about homelands, long-standing
residency, unjust occupation, unfair treatment, and so on.65
At this point, however, we part ways with Yack. While he is right to claim that
the theories of self-determination indeed do nothing to alleviate ‘the discom-
fort and dangers that accompany our efforts to apply it as a standard for the
division of the world’s populations and territories’, Yack may only claim that
they inadvertently end up failing to provide us with ‘any’ standard for resolving
conflicts over territory on the basis of a particular scopic regime that allows
this impossibility to appear before our eyes. We saw what this means earlier. If
you chose to see circularity and un-see transubstantiation, you would conclude
that self-determination does, in fact, provide us with the standard for resolving
national conflict. Likewise, if you chose to ignore the inconvenient fuzziness in
the national identities in Montenegro and Ukraine and gaze somewhere else,
your verdict would remain the same. And, in reverse, if you managed to un-see
the circularity that haunts a demos-based vision of self-determination, while
focusing on the performative contradictions of Miller’s and Moore’s, your con-
clusion would be diametrically the opposite.
The question, then, is not whether the right to self-determination provides us
with a practical standard—because in the abstract, it may or may not, depending
on one’s way of looking at things—but rather how to nudge those in the con-
flict towards looking at things in the way that would make that standard, at least
for them, possible. As in the previous section, this compels us to ask the same
Yack (n 4) 243.
65
185
Imagining Denominators: Beyond Circularity • 185

question, only this time directed at those who embrace a demos-based vision of
the right to self-determination: How would you justify the right of your terri-
torially defined ‘people’ to self-determination without falling into the paradox
of circularity? Or, more specifically: If all of a sudden your state, together with
your fellow citizens, finds itself incorporated within a state that treats all of its
citizens as justly as your state now treats yours, how else could this imaginary
annexation be contested, without resorting to the circular vocabulary of terri-
torial peoplehood or to a higher norm of international law?
This imagined scenario plays an important role in Anna Stilz’s defence of the
‘residual’ moral right of a territorial people to re-establish the territorial integrity
of its state. Though Stilz expends great effort to show how this right arises from
the ‘history of political cooperation’ among the members of a territorial demos—
who, on her account derive ‘relational value’ from having participated in it—her
attempt proceeds with no consideration for the paradox of circularity that plagues
all theoretical accounts that assign rights, powers, authority, or sovereignty to a
territorial people.66 Though unsuccessful, Stilz’s attempt is still very useful as it
confirms our intuitions about the kind of a figure that we must imagine in order
to find a way to justify our anti-annexationist intuitions without succumbing to
the ‘paradox’ of circularity. While Stilz nowhere mentions the alternative to the
figure of a territorial demos, another look at the ‘relational value’ she posits as the
source of the ethical force of the right to self-determination reveals that she attri-
butes it not to the corporate ‘people’ but to ‘the participants’.
The visual granularity that hides behind the casual transition between the
first to the third-person plural, allows us to see the political effects of annex-
ationist changes in a different light. After the moment of annexation, the re-
spect for the ‘relational values of . . . shared histories of political cooperation’
decreases in comparison to the territorial status quo ante. Or, to further simplify,
a greater number of the people in the territory of reconfigured states are now
forced to live in a political community to which they have no allegiance. In
order to make that claim, however, the advocates of the demos-based account
of self-determination must rely on the same assumptions about the characteristics
of attachment relied upon by the partisans of ethnos-based self-determination.
Most importantly, they must be willing to assume—the way the partisans of
ethnic self-determination already do—that the attachments of the population
of the rump state towards that state will not be diminished because of the
changes in the shape of its territory. This bet seems highly intuitive: there is no
reason to doubt that after the secession of Norway from Sweden in 1905, the
Swedish remained attached to Sweden, just as the Czech continued to identify
with the Czech Republic after the dissolution of Czechoslovakia in 1993, or the
Serbs with Serbia, after the secession of Kosovo in 2008.
While this makes the Kelsenian ‘tendency’ more palatable as the common
denominator between two categorically opposed visions—and as something
that might nudge those who embrace them to reimagine their conflict in
Anna Stilz, ‘Nations, States, and Territory’ (2011) 121[3] Ethics 572, 595.
66
186

distributional terms—it also reveals a conceptual problem that we must address
before moving on. To be able to treat the Kelsenian ‘tendency’ as the imperative
inscribed in both the demos-and the ethnos-based visions of self-determination,
we need to make sure that the granule of a moder’s attitude—the metric they
both use when they progressively re-aggregate political attitudes in conformity
with that tendency—is the same. This means that in order to escape the prob-
lems with self-determination we identified earlier, we must regranulate our
nephos so that it registers constituent allegiances, or attachments: the attitudes
which exist in all three intentional modes and five existential states, which in-
clude all who are currently governed by a constitutional order in question, and
which are much more resilient when it comes to the purpose of a particular
constitutional project than to its spatial configuration and personal composition.
More specifically, we must make a twofold assumption: first, that a moder’s at-
tachment to a constitutional project includes a cluster of variations in which this
project exists within different boundaries and with a different political status,
and second, that the intensity of attachment to one of these variations is not
negatively correlated with the resilience of the attachment to the entire cluster.
From now on, the Kelsenian algorithm—or, in short, k-algorithm—will be
the name of the algorithm whose application to territorial conflict leads to an
increase in allegiance among the population of the territory whose integrity is
being challenged. Diagrammatically, it can be portrayed as in Figure 5.2.
S1
S2
S3
A
S4
S5
Figure 5.2 Kelsenian algorithm
From the perspective of the first four stages, incommensurable accounts of

self-determination present themselves not as incompatible accounts but as vari-
ations in the regime of cognitive economy and the degree of responsiveness to
187
Imagining Denominators: Beyond Circularity • 187

shifting desires, encoded within an individual algorithm. For example, in the
case of the ethnos-based right to self-determination, the content of the algo-
rithm can be described as providing directives to the internal other in this way:
At s1: open the process of reconstitution upon the detection of the request
from a sufficient number of those claiming that the territorial status quo vio-
lates the allegiance among the group they claim to represent. The evidence
needed at this stage: the petitioners’ culture or language must differ from that
of a majority. At s2 and s3: be tendentially responsive towards the demand of the
petitioners and comply with their request if the project demanded by the pe-
titioners has the ‘capacity’ to be governed democratically; if those demanding
it have a special interest in the place over which they intend to exercise polit-
ical control; and if there is sufficient support among those that they identify as
sharing their specific aspiration (as a particular constitutional bundle of s2+s3).
If so, at s4: facilitate the constitutional change that would give effect to S2+S3.
In the case of the demos-based right to self-determination the same sequence
reads as follows: At s1, s2, and s3: do not frustrate the attempts of authorized
organs of the substate unit to establish the aggregate degree of allegiance
(A) towards the wider state within that unit, and determine the level of support
towards the proposed project (B). At s4: if A>50 per cent and if B>50 per cent,
accommodate the substance of that demand and restrict the jurisdictional reach
of the federal order accordingly.
While refracting normative prescriptions that inhere in the vocabulary of the
right to self-determination through the lenses s1, s2, s3, and s4 sacrifices the con-
textual sensitivity of normative theories, it compensates for that sacrifice by al-
lowing both ethnonationalist radicals and their hypocritical civic-minded opponents
to see themselves as engineers who struggle, together, over how to fine-tune the
operation of the k-algorithm. Notice however that the way in which our s1–s4 spec-
troscope allows them to see themselves in that role is not by decreeing that they see
themselves as engineers, or as nationalists, or constitutional patriots, but by showing
them how they may see themselves as both. Looking at how the white light of their
moral intuitions refracts through the four lenses of our spectroscope, will allow
them to see its specific frequencies, which are otherwise lost in the debates about
power-sharing, post-conflict constitution-making, or consociational democracy.
Unlike the right to self-determination, the parameters of this protocol may
be fine-tuned, recalibrated, and negotiated not only more innovatively but also
less conflictually, given the new distributional vision of an otherwise categorical
territorial conflict. Finally, unlike other conflict-resolution templates on offer—
whose persuasiveness suffers due to their inability not to collapse into moral
shaming, prudential intimidation, or geopolitical resignation—Figure 5.2 com-
pels those who are suspicious of such claims to take a hard look at their own self-
righteous confidence about the true meaning of the right to self-determination.
By way of example, consider the claims of those who invoke the right to self-
determination of ‘the people’ of a regional substate unit.
At S2 and S3 they usually justify their claims by referring to a vision of a wider
state, from which they want to separate, as a ‘compact’ or a ‘union’ among
18

immanently sovereign constituent units. Notice how radically different this claim
appears through the lens of our spectroscope. Behind the simple claim—that the
‘will’ of the regional ‘people’ ought authoritatively to determine the content of
S2 and S3—we can now detect the broadcast of one wager, one evaluation, and
one commitment. The wager: the ‘will’ of the majority of that people can serve
as the reliable evidence that the amount of allegiances among the citizens of
the entire state will increase if the ‘will’ of the regional majority is respected. The
evaluation: the ideal of increasing that allegiance is served well enough by the pro-
ject of the regional majority, and it ought not be approximated further. The com-
mitment: the attempts to contest the wager and the evaluation will be rejected as
a matter of principle. That, after all, is the meaning of the ‘will’ of ‘the people’.
10. Normative theory and its ‘red-h aired man’

Normative theorists don’t see themselves as being in the business of cognitive
estrangement. What they claim to offer is normative ‘guidance’ by appealing to
‘reasons’ that are ‘accessible to all’, as something that could ‘confirm or sensibly
revise our considered convictions about specific cases’.67 In doing so, they readily
accept that they cannot offer precise answers about how to resolve a particular
conflict, even though they argue that their theories may usefully identify the
location of the rightful ‘heartlands’68 of the holder’s territory. But even on this
more modest understanding of their professional role, the accounts of the right
to self-determination they propagate are highly problematic. In many cases of
territorial conflict, determining the location of heartlands is politically inconse-
quential, either because the legitimacy of the demand for territorial self-deter-
mination is most often denied in principle, or because the source of the conflict
is the exact shape of the claimed territory, not the right to self-determination,
which is accepted by all antagonists as a matter of principle.
Instead of determining heartlands first and then engaging in the sophisti-
cated acts of balancing prima facie territorial claims, the conflict could be
quickly, elegantly, and completely resolved in a way that does not rely on the
vocabulary of rights.
Consider, for example, the technique proposed in the inter-war period by the
eminent expert on self-determination plebiscites, Sarah Wambaugh. Though in-
tended to resolve national conflicts over territory, her two-step proposal conforms
to the underlying logic of k-algorithm, and not any particular understanding of
the right to self-determination. The first step consists in delineating the area that
emerges as the overlap between competing territorial claims. What incentivizes
the parties in the conflict not to make expansionist territorial demands under
Wambaugh’s proposal is their selfish self-interest—that is, their anticipation of
ibid.
67
ibid 112. For a more general account of the intended audiences and the purposes of normative political
68
theory, see Andrea Sangiovanni, ‘Normative Political Theory: A Flight from Reality?’ in Duncan Bell (ed),
Political Thought and International Relations: Variations on a Realist Theme (OUP 2009) 220–22.
189
Normative Theory and its ‘Red-Haired Man’ • 189

the second step: the democratic vote on the future political status of the area
thus defined. To make expansionist claims, under this model, is to act counter-
productively: the further the reach of nationalist territorial ambitions, the greater
the number of those who will probably vote against it, and, as a result, the greater
the chance of losing the entire area in question. Against Miller’s and Moore’s
accounts, this approach has a threefold advantage. It diminishes the epistemic
complexity of the conflict by offering a clear procedure for adjudicating territorial
disputes. By doing so, it encourages the antagonists to calibrate their strategy in
a way that fosters the success of their claim without attempting to undermine the
success of their opponent’s claim. Finally, it enables them quickly to determine
both their ‘heartland’ and the final boundary between them.
Even so, normative theorists argue that the vocabulary of territorial rights
can be useful in offering a general blueprint for resolving territorial con-
flicts in more complex cases, such as in demographically mixed areas, or in
multinational states. The problem with the normative vocabulary of self-
determination in such cases is that it does not provide us with a non-arbitrary
starting point that would help us determine which territorial claim is founda-
tional, and which one is derivative. In Miller’s case, for example, even if we
could establish with certainty the fact of the material improvement and the
symbolic marking of the land—and even if we ignored the subtle but de-
cisive way in which external actors’ preferences determine the content of that
right—we would not be able to decide which modality of the reconciliation
between competing territorial rights to privilege. In the context of the former
Yugoslavia, for example, it is unclear whether Croatians should have enjoyed
territorial self-determination as a federal unit within Yugoslavia and not as an
independent state (because the contours of their occupancy rights would have
rendered their independent polity discontinuous and therefore dubiously ‘vi-
able’), and it is unclear whether the Serbs in Croatia should have enjoyed their
own nested autonomy (within a Croatia as a federal unit within Yugoslavia) or
an enhanced autonomy within an independent Croatia.
The conflicts in Yugoslavia in 1991, or in Ukraine in 2014, or in Spain in 2017,
did not emerge because competing territorial claims were not recognized in
principle, but because the antagonists could not agree which modality of their
reconciliation was warranted under the guise of the right to self-determination.
In such cases the ‘guidance’ that normative theory offers will most likely be
superfluous. What normative theorists disregard—in other words—is the re-
markable capacity of those on the ground to zero in on the contradictions,
unsubstantiated assumptions, and casual prognostications that all theories must
rely on—but which those on the ground have no reason to take seriously unless
it’s in their interest. Put more polemically: the circularity that was allowed to
remain concealed on the pages of a reputable academic journal in the United
States would rightly stand no chance in a heated argument, during a protracted
constitutional conflict, somewhere in Bosnia.
Even if they chose to play by the rulebook provided by normative the-
ories of self-determination, nothing in those theories would motivate those
190

who most directly challenge the constitutional status quo on the ground (in
Bosnia, Ukraine, or elsewhere) not to fabricate or manipulate the requisite
evidence, nor would it motivate those who ought to accept such evidence
to want to do so. Instead of providing imaginative resources that would en-
courage them to reflect on their motives without the banisters provided by
the theories on ‘unity’, so ‘pleasing to the eye’ (Fanon), normative theorists
inform them that their attitudes must be judged as morally illegitimate and
politically irrelevant. And this is where an otherwise inspiring critique of self-
determination by Ronald Beiner goes wrong, even though his eloquent ques-
tion seems to be on point:
why, if philosophers . . . are anxious about the right of self-determination get-
ting out of hand, [do] they think it’s reasonable or prudent to continue speaking
of a ‘right’ of self-determination[?]‌ . . . [W]hy [do they] see fit to continue using
the language of a ‘right’ of self-determination—with its universalistic-sounding
associations—rather than a commitment to ad hoc consideration of the pros and
cons of greater communal autonomy in this or that case? Why start off with the
presumption of legitimacy, which is what the ‘right’ announces, and then worry
about how to limit and qualify exercise of the right?69
A simple answer to this question is that normative theorists cannot conceive of
doing so because they have not seen themselves as Beiner saw them: as anxious
practitioners of constituent imagination who always have more imaginative
freedom than they would like to admit. Instead of embracing its potential, they
double down on their polemical quietism—declaring themselves to be ‘dan-
gerous’ actors70 who sometimes even have to keep quiet about the underlying,
perilous truths.71 But what are those perilous truths? In what way, more specif-
ically, is not speaking them for the better? For whom, when, and where—again
more specifically—are those truths perilous? We could continue asking these
questions but what is more important is to stress that they cut across the axis
ideal–real that defines most of the meta-theoretical soul-searching that is cur-
rently going on in normative political theory. What these questions allude to
is neither the dignity of the struggles in the real world as such, nor the futility
of normative theorizing, but rather to what might be missed by keeping one’s
theoretical imagination in the safe orbit of the ideal–real dichotomy. To depart
from it would require not only a more active exercise of one’s imagination as
imagination, but also putting that imagination on the record.
This never happens perhaps because theorists fear that if they reveal the
constitutive contribution of non-theoretical considerations to their theoret-
ical arguments, they might become too ‘circumspect in promulgating [their]
Ronald S Beiner, ‘National Self-Determination: Some Cautionary Remarks Concerning the Rhetoric of

69
Rights’ in Margaret Moore (ed), National Self-Determination and Secession (OUP 1998) 174.
Burke Hendrix, ‘Political Theorists as Dangerous Social Actors’ (2012) 15[1] Critical Review of International
70
Social and Political Philosophy 41.

See Robert Jubb and A Faik Kurtulmus, ‘No Country for Honest Men: Political Philosophers and Real
71
Politics’ (2012) 60 Political Studies 539.

19
Normative Theory and its ‘Red-Haired Man’ • 191

philosophy’.72 The immediate question is, of course, ‘So what?’ What is the
virtue of not being circumspect in promulgating one’s philosophy, especially
if the assumptions of an un-circumspect theory rest on performative contra-
dictions and cultural assumptions that are extremely easy to detect, unpack,
and contest anyway, and that immediately undermine the normative theory’s
undeclared (but more than obvious) ambitions of general applicability? (Miller,
to be clear, made this claim in the context of a different argument, responding
to a theoretical complaint within his own discipline. The wager behind that
complaint, however, is probably more general.) If so, we might pause to ask
a follow-up question as well: Why would the attempts of such circumspect
philosophers necessarily ‘destroy’ the attachments of those on the ground, as
he claims? And why would the task of a theorist, circumspect or not, be to
offer an argument that would ‘seek to preserve them’ instead of encouraging
them to give those attachments another look? A simple answer to this question
shouldn’t be overlooked. What theorists of self-determination seem to worry
about is not only the risk of becoming unable to argue their point forcefully, but
also the damage that transcending the social imaginary of popular sovereignty
offers nothing but a ‘very impoverished and empirically odd view of the social
world’, devoid not only of the peoples, but of ‘collective agents or collective
identities’ in general.73
But why would that view have to be ‘impoverished’? Put more precisely, what
is it that we imagine when we postulate the ‘richness’ or the ‘poverty’ of a ‘so-
cial world’? The world itself ? Some disembodied and abstracted ‘social’? Or,
something more specific, but still desperately general, such as Schmitt’s ‘way
of life’? Which brings us to the question, which cannot be properly explored in
this book. If it is true, as WJT Mitchell argued, that images ‘do not merely re-
flect the values consciously intended by their makers, but radiate new forms of
value formed in the collective, political unconscious of their beholders’74 what
deserves to be confronted more systematically is not only the vocabulary of
popular sovereignty, but also the complex relationship between a variety of im-
ages that define the morphology of social imaginary.
Some of those images, as we’ve seen earlier in the book, are inscribed in the
theoretically staged scenes of collective willing, joint acting, and shared aspiring.
Others, however, are more unassuming. Some of them are austere mental pic-
tures of the structures of conceptual molecules, of the ‘endoconsistency’ of
the ‘atomic’ propositions that comprise them, and of the schemas of separation
that establish the relationship between these ‘molecules’ and the background
picture of the world. These pictures are the ones that theorists simply take for
granted, even though they prefigure the meaning of other pictures that more
directly shape the imaginability of the abstract notions of collective identity or
constitutional subjectivity. Those unexamined mental schemas may or may not
reinforce another kind of mental image, which is equally ignored, but which is
David Miller, ‘Nationality: Some Replies’ (1997) 14[1] J App Phil 69, 71–72.

72
Moore (n 12) 84.
73
WJT Mitchell, What Do Pictures Want?: The Lives and Loves of Images (University of Chicago Press 2005) 105.
74
192

perhaps even more responsible for our casual references to ‘world-views’, ‘life-
worlds’, or the ‘ways of life’, as well as for our tendency to treat those terms
loosely, mostly as the undeclared synonyms of ‘culture’ and ‘ideology’. These
are the pictures of the quotidian: the images of the situations from daily life—the
enjoyable occasions of getting along, which have very little to do with the way
in which we imagine cultures, religions, or ideologies in action.
In other words: behind the claims of peoplehood there is a particular
cofiguration of both kinds of picture, which quietly shapes our poetic attitudes
towards political concepts as normative, and other theorists.75 Though both kinds
of image are important, this book is primarily concerned with the former, less
situationally ‘rich’ images. Though it may be argued that their symbolical effi-
cacy has never been great, and that it has even more diminished with the ‘in-
creased saturation of political life with spectacles’, the remarkable persistence
of the visions of ‘our’ lands, ‘our’ states, and ‘our’ constitutions—which we
may use however we want, self-determining that we are—would suggest that
these less visible ‘mirages’ (as Fanon called them) still ‘stand at the interface
of most fundamental social conflicts’, as the ‘active players in the game of
establishing and changing values’.76 Though it may be that a theorist will refuse
to inspect them out of a reflectively embraced, non-negotiable embrace of sup-
plementary concepts such as nationalism, liberalism, capitalism, socialism, or
cosmopolitanism, it may also be that he will refuse to inspect them because he
fears that in doing so the object of his undisciplined gaze might vanish before
his eyes. Just like Daniil Kharms’s ‘red-haired man’ in his famous Blue Notebook
No 10—who not only didn’t have any eyes or ears, but was called red-haired only
‘theoretically’—a sovereign people would also soon reveal itself as a figure that:
couldn’t speak, since he didn’t have a mouth. Neither did he have a nose. He
didn’t have any arms or legs. He had no stomach and he had no back and he had
no spine and he had no innards whatsoever. He had nothing at all! Therefore
there’s no knowing whom we are even talking about. In fact it’s better that we
don’t say any more about him.77
As we’ve seen earlier the red-haired men of theory never really vanish. What
prevents them from vanishing is the imagination of those who have quietly
accepted that the figures of popular sovereignty must on occasion look empir-
ically odd in order to keep our world morally familiar.
As Pierre Schlag argued, ‘to generalize the point: normative prescription is largely already a matter of
75
aesthetic pre-scription’. Pierre Schlag, ‘Pre-figuration and Evaluation’ (1991) 80[4] Calif L Rev 965, 968. And
also, ‘if we want to be serious about evaluation, we have to be serious about trying to understand our own
pre-figurations––the pre-figurations that shape our selves, our thinking, and our intellectual and political
orientations.’ And this is why this book doesn’t side with already existing critiques of normative thought.
Pierre Schlag, ‘Normativity and the Politics of Form’ (1991) 139[4] U Penn L Rev 801.
Mitchell (n 74).
76
Quoted from Neil Cornwell, The Absurd in Literature (Manchester University Press 2006).
77
193
 6 
The Nomos and the Gaze
Beyond Self-Determination (II)
1. International jurists and their mental maps

To declare the idea of a self-determining people ‘ridiculous’ requires an act of
imagination. What it requires is the image of a particular ‘somebody’, an actor
who—before the people may actually decide—decides who the people are. To
reject the ridiculousness of that idea requires an act of imagination of a dif-
ferent kind: one that allows us either to un-see that ‘somebody’, or to claim
that seeing that figure undermines neither the intelligibility nor the appeal of
the vocabulary of the right to self-determination. What this requires, in turn,
is not only a visual choice that allows us to see demoi and ethnoi instead of
nephoi—or discrete locations as the objects of their territorial rights instead
of fuzzy and contestable patterns of spatiotemporal interaction. What it also
requires is a particular picture of the world, which for the most part, remains
in the background: not invisible, but expectable; not unimaginable as such, but
imaginable in one way only.
Though we all have them, we never picture our world pictures. When they
do appear before our eyes they always do so in a chastened form, denying that
they have any connection with the ‘whole of meaning-relations’ that coexists
‘with the things, events, and acts that populate it’.1 What enables them to deny
that connection are their names: graphs, charts, maps. The ubiquitous political
maps of the world are no exception in that regard. Inscribed by a particularly
‘deep connection between . . . images and political authority’,2 they often make
a sovereign state look intelligible and desirable, not meaningless or ridiculous.
Yet, their features are rarely on the minds of those who, in the name of a par-
ticular people, take sides in violent conflicts over land and sovereignty. If WJT
Mitchell is right, their subtle power should not be dismissed. Like a number of
other pictures, they ‘stand at the interface of most fundamental social conflicts’,
and have the capacity to be ‘active players in the game of establishing and chan-
ging values’. In most cases, the recognition of that capacity comes after the fact,
1
Hans Lindahl, Fault Lines of Globalization: Legal Order and The Politics of A-Legality (OUP 2013) 263.
2
Jordan Branch, The Cartographic State: Maps, Territory and the Origins of Sovereignty (CUP 2014) 165.
194
194 • The Nomos and the Gaze: Beyond Self-Determination (II)

most likely as the outcome of reckoning with the traumatic failure of one’s pol-
itical aspirations. ‘I smarted under nationalist humiliation’, Partha Chatterjee
writes, describing his initial reaction to the Indian defeat in the Sino-Indian war
of 1962,
but when the scales of adolescence fell off my eyes, I realized we had been
fighting not over territory—after all, the land in question was up in the mountains
and completely uninhabited—but over its representation. We had been fighting
over maps. The image wielded far greater power over our imaginations and pas-
sions than the real thing.3
In Benedict Anderson’s imagination, this image was not just a map, but a map
that looks like a ‘jigsaw puzzle’.4 Having originated in the practice of the late
colonial map-making where every metropole used a specific ‘imperial dye’ to
colour its colonies, it represents each political unit as a monochromatic ter-
ritorial ‘logo’—a ready-made object of emotional investment, a ‘detachable
[piece]’ worth dying for.5
But that logo can also be seen, and then understood, differently. As we
heard earlier, ‘much as the nature of shapes changes under different geom-
etries, so do perceived patterns change under different orderings; the pat-
terns perceived under a twelve-tone scale are quite different from those
perceived under the traditional eight-tone scale.’6 Which brings us to the
question: What might we see once we started playing with the parameters
of our scopic regimes, once we became attuned not only to the historical
contingencies that made our current maps of the world the way they are,
but also once we begin thinking beyond the map as the medium of polit-
ical mediation? As for Mr Palomar, here is how Italo Calvino answers the
question of
What does he see? He sees the human race in the era of great numbers, which
extends in a crowd, levelled but still made up of distinct individualities like the
sea of grains of sand that submerges the surface of the world. He sees that the
world, nevertheless, continues to turn the boulder-backs of its nature indifferent
to the fate of mankind, its hard substance that cannot be reduced to human
assimilation. He sees the forms in which the assembled human sand tends to
arrange itself along lines of movement, patterns that combine regularity and
fluidity like the rectilinear or circular tracks of a rake. And between mankind-
sand and world-boulder there is a sense of possible harmony, as if between two
nonhomogeneous harmonies: that of the nonhuman in a balance of forces that
seems not to correspond to any pattern, and that of human structures, which as-
pires to the rationality of a geometrical or musical composition, never definitive.7
3
Partha Chatterjee, Lineages of Political Society: Studies in Postcolonial Democracy (Columbia University Press
2011) 154.
4
Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (first published
1983, Verso 2006) 175.
ibid.
5 6
Nelson Goodman, Ways of Worldmaking (Hackett 1978) 13.
7
195
International Jurists and their Mental Maps • 195

To look at the world as Mr Palomar is to be able to imagine not only its two
sides, but also its two sides as (in principle) analytically separate. One side reveals
a schmittian pluriverse of struggle, made of various configurations of consti-
tutive powers, and nothing else. The other side reveals a kelsenian universe: an
ocean of psychic happenings, ‘the assembled human sand’—as Calvino poetic-
ally called it—which ‘tends to arrange itself along lines of movement, patterns
that combine regularity and fluidity’.
In contrast to Mr Palomar, we recoil from imagining this k-universe. Instead,
we rather elect to remain faithful to the a-puzzle—Anderson’s jigsaw puzzle-
like map of sovereign states—and to the horizon of popular expectations that
it makes possible. We do so not simply because we find the images such as
Palomar’s too allegorical or incomprehensible, but also because we intuitively
comprehend them as meaningless. There is no meaning in the universe of
conspiring to accommodate every mindless desire broadcast from Calvino’s
‘mankind-sand’, just as there is no sense in the Schmittian pluriverse in which
those desires are being ground into dust by a ‘world-boulder’ of constitutive
power. What doesn’t occur to us, however, is that we might imagine the rela-
tionship between these two pictures differently.
For that, however, we need not some other, master-picture, but what WJT
Mitchell called ‘metapicture’: the pictorial representation of ‘discursive, con-
textual self-reference’, whose ‘reflexivity depends upon its insertion into a
reflection on the nature of visual representation’—a picture, that is, that in rep-
resenting something specific also serves as the ‘instrument of understanding’
of pictures in general, and which, as a result, ‘call[s]‌into question the self-
understanding of the observer’ as well.8 Lefort’s vase is, potentially, one such
picture. Wittgenstein’s rabbit-duck is another. But as Mitchell warns, ‘pictorial
self-reference is . . . not exclusively a formal internal feature that distinguishes
some pictures, but a pragmatic, functional feature, a matter of use and con-
text’.9 What makes them functional is their multistability—a feature that al-
lows a viewer to oscillate between individual pictures: the silhouettes and the
vase, the duck and the rabbit. These pictures, in Bruno Latour’s terminology
are ‘oligopticons’—not superior, but possible ways of representing the world.
In contrast to their cousins, panopticons, they
see much too little to feed the megalomania of the inspector or the paranoia of
the inspected, but what they see, they see it well—hence the use of this Greek
word to designate an ingredient at once indispensable and that comes in tiny
amounts (as in the ‘oligo-elements’ of your health store). From oligoptic[ons],
sturdy but extremely narrow views of the (connected) whole are made possible—
as long as connections hold.10
8
WJT Mitchell, Picture Theory (University of Chicago Press 1994) 57. ibid.
9
10
196

In order to be seen properly, such images must not only be enframed as broadly
as possible, in 2D, but must also evoke depth, akin to the images in ‘those
Omnimax rooms’ where we watch movies in 3D. One benefit of such images,
says Latour, is that they remind us that theories may be not only be read but also
seen. In previous chapters we’ve seen a number of such ‘movies of . . . theories’,
mostly trailers that evoked the scenes of covenanting, acclamation, or delega-
tion. In looking for a way to de-centre the juridical imaginations that sustain the
vocabulary of the right to self-determination, another metaphor might be even
more apt: a kitschy wiggle image—akin to those found on cereal boxes, post-
cards, CD covers, or rulers used by schoolchildren in geometry classes. In our
case, it might allow us to convince international lawyers temporarily to distance
themselves from their terminology by flipping back and forth between different
visualizations of the imagined holders of the right to self-determination—now
demoi, now ethnoi, now nephoi, now something else altogether.
According to Latour, such images don’t only ‘collect, frame, rank, order,
[and]organize. . . they [also] prepare us for the political task ahead’.11 What is
that task? If it is true that invoking the will of the people is the anticipatory
way of talking about the world, the telos of self-determination must also be
the telos for the world—beyond those quietly supported by the monochro-
matic surfaces inscribed in some a-puzzle. To most international jurists who
focus on the right to self-determination, that picture is just one of the possible
maps of the world. To them, it displays a particular territorial configuration
of political power, and beyond that, nothing in particular. The claim of this
book is different. What this a-puzzle conceals is a particular kind of algorithm
that governs recursive production of sovereign statehood, globally, and whose
asymptotic ‘tendency’ towards global unanimity seems to be too obscene to be
discussed openly. Where it leads is the most delirious of all k-universes: a world
in which the ‘original instinctual freedom’ of all is fully satisfied; a world where
everyone everywhere gets everything they want all the time.

beyond the jigsaw puzzle
The kelsenian universe is not a cause for celebration but for reckoning. In re-
vealing a universe of shifting desires beneath the world of sovereign states, it
allows us to ask not only whether it is possible to accommodate those shifts dif-
ferently (something to be explored in Chapter 7), but also whether it is possible
to desire differently, in a direction that is outward-not inward-, and forward-
not backward-looking. To allow this image to appear as translatable from the
perspective of those still invested in the Andersonian one, we must start from
its characteristics as the medium that conveys a particular message, which—as
is the case with every message (as Marshall McLuhan reminds us)—consists in
ibid 189.
11
197
Self-Determination: Beyond the Jigsaw Puzzle • 197

‘the change of scale or pace or pattern that it introduces into human affairs’.12
At a higher level of generality, that medium is a fully opaque surface capable
of offering only an ambiguously mimetic global snapshot of the configur-
ation of sovereign peoples’ territories, not a purposeful representation of the
effects of their reconfiguration over time.13 Put differently: though we know
that the jigsaw puzzle map of the world somehow reflects the realities on
the ground, it still tells us nothing about the nature of the monochromatic
‘logos’—whether they are the creations of earthly creators, or the works
of inscrutable framework—nor does it allow us to glean the content of the
protocols of transformation that regulate how frame enframes demoi, ban-
ishes ethnoi, and transforms nephoi into the seamless bounded surfaces of
sovereign nation-states.
In contrast, a different kind of medium allows us to get a better sense of what
that criterion is. That medium is not a non-transparent surface but rather the
screen of a particular imaging device, an instrument equipped with a screen
capable of presenting us with a more dynamic picture. Instead of human-like
demoi and ethnoi, this instrument scans nephoi for their cloud-like substrates;
vaporized political aerosols, hovering in different constellations over Kelsen’s
global ocean of psychic happenings. Before our scanner generates the snapshots
of the k-algorithm in operation, we must inject the moders’ mental states with
a contrasting ink akin to that used in MRI scans, which will detect a very specific
political attitude: constituent allegiance towards a polity that governs them.
With the help of this ‘ink’, our scanner will be able to detect how dark pixels
(ignored attachments) transform into bright ones (satisfied allegiances) in real
historical time, in parallel with the changes in the shapes of political bound-
aries altered in the name of ‘the people’ that cross the chronologically ordered
a-puzzles.
From the perspective of the latter, the exercise of the right to self-determination
is an act of carving out a new piece of puzzle. Within that a-puzzle, the identity
of the collectives authorized to perform this carving depends on the historical
period that we use as the frame of reference to observe it. Set against the back-
drop of this image, these eras do not seem to have much in common—except
for the fact that old states die and new states are born. The dynamic picture of
the k- universe that emerges on the screen of our scanning device is different.
Instead of only being able to detect the senseless reconfiguration of political
boundaries that gradually leads to the proliferation of the pieces of the jigsaw
puzzle, we would notice what accompanies this proliferation every time it occurs
in the name of the people: an increase in the number of white pixels, and a gradual
brightening of the overall image.
Marshall McLuhan, Understanding Media: The Extension of Man (first published 1964, MIT 1994) 8. I thank
12
Nikolas Rajkovic for drawing my attention to McLuhan’s remark.

See also Vasuki Nesiah, ‘Placing International Law: White Spaces on a Map’ (2003) 16 London J Intl L 1, 29.
13
For a contextual critique of the top-down gazes of international jurists, see Luis Eslava, Local Space, Global
Life: The Everyday Operation of International Law and Development (CUP 2015).
198

Gazing at that picture, the k-algorithm will present itself not only as the
phenomenal ‘truth’ beneath competing understandings of the right to self-
determination in a particular conflict (as I argue in the previous chapter) but
also as the truth of the application of the right to self-determination, over time,
globally.14 Against those who suggest that ‘the concept of self-determination has
often been nothing more than the external layer of the driving forces of change in
totally different natures which have come to surface with irresistible force’,15 the
Kelsenian algorithm presents itself as the common phenomenological denominator
that unites: the American Revolution (1776), the plebiscites in post-revolutionary
enclaves in France (1791); the interwar plebiscites after the end of the First World
War (1919); the self-determination based on uti possidetis during decolonization
(1955–89); the reunification of Germany (1990); the dissolutions of Yugoslavia and
the Soviet Union (1991); the independence of Kosovo (2008); the independence
of South Sudan (2010); and all other instances of territorial changes that inter-
national jurists see as effected under the name of self-determination. The histo-
gram at Figure 6.1 is a pictorial summation of that process.
1
3
5
4 5
5
1 2 3 4 5
Figure 6.1 The global histogram of self-determination
14
For sophisticated alternative approaches to Kelsen’s contribution to international law and theory see
Nathaniel Berman, ‘A Perilous Ambivalence: Nationalist Desire, Legal Autonomy, and the Limits of the
Interwar Framework’ (1992) 33 Harv Intl LJ 353; Jochen von Bernstorff and Thomas Dunlap, The Public
International Law Theory of Hans Kelsen: Believing in Universal Law (CUP 2010); and, especially, Mónica García-
Salmones Rovira, The Project of Positivism in International Law (OUP 2015) that argues that Kelsen considered
international law as essential for the pursuit of ‘the promise of democracy of absolute atomistic freedom.
The latter is achieved ideally through formal law. The (international) legal theory aimed at the ideal, at the
illusion of grasping legally the individual interest’ (131).
15
Peter Hilpold, ‘The Right to Self-Determination: Approaching an Elusive Concept through a Historic
Iconography’ (2006) 11 ARIEL 23, 48.
19
Self-Determination: Beyond the Jigsaw Puzzle • 199

From the perspective of Figure 6.1, what prevents international jurists from
envisioning the right to self-determination as an algorithmic inscription of
Kelsen’s ‘tendency’ is not just the medium of the map as such. It is also
their more specific ‘time maps’, which allow them to preserve their vision
of self-determination through the acts of ‘mnemonic editing’,16 which op-
erate at two different spatial scales: the global and local, both of which slice
the temporal continuum of self-determination into discrete periods and, in
that way, create qualitative discontinuities between them. In the case of the
former, this is achieved by slicing the global temporal continuum of self-de-
termination into different ‘eras’ during which self-determination existed: as
a political principle that benefits ethnic nations (1918–39); as a legal right
that vests in territorial peoples of the administrative units of former em-
pires (1945–89); and, most recently, as a demising ‘hopelessly confused and
anachronistic’17 ‘lex obscura’,18 ‘frustratingly ambiguous’,19 and ‘increas-
ingly at war with itself ’.20
When it comes to the local scale of mnemonic editing, jurists ‘edit’ the
temporal continuum of a regional conflict about self-determination by slicing
it into discrete occasions of self-determination, exercised by discrete peoples.
As with their mnemonic editing at the global scale, this allows jurists to con-
tinue ignoring the incremental advance towards the Kelsenian horizon with
each recursive application of the ideal that Jennings found ridiculous: letting
the people decide. In such cases, the jurists continue to ‘loom larger than local
events’, but continue to do so from a vantage point that is not only ‘unique’,
as Annelise Riles argued, but which is also unique in a particular way: narrow
in its circumference, and diagonal in its orientation.21 The diagram at Figure
6.2 makes this even more explicit, demonstrating that the interpretation of
the right to self-determination as something that may be exercised by the
manifestation of the will of a particular collective, requires a way of ‘looming
larger’ which is not fully top-down, but always (as scheme 2 demonstrates)
sideways.
Eviatar Zerubavel, Time Maps: Collective Memory and the Social Shape of the Past (University of Chicago Press
16
2003) 4.
Gerry Simpson, ‘The Diffusion of Sovereignty: Self-Determination in the Post-Colonial Age’ (1996) 32
17
Stanford J Intl L 255, 257.

James Crawford, ‘Right of Self-Determination in International Law: Its Development and Future’ in Phillip
18
Alston (ed), Peoples’ Rights (OUP 2001) 10.

James Summers, ‘Internal and External Self-Determination Reconsidered’ in Duncan French (ed), Statehood
19
and Self-Determination: Reconciling Tradition and Modernity in International Law (CUP 2014) 229.

Gregory H Fox, ‘Book Review: Self-Determination in the Post-Cold War Era: A New Internal Focus?’ (1996)
20
16 Melbourne J Intl L 733.
Annelise Riles, ‘The View from the International Plane: Perspective and Scale in the Architecture of
21
Colonial International Law’ (1995) 6 L & Critique 39, 48.

20
T1 T1 T2 T1 T2
(1) (2) (3)
Figure 6.2 The right to self-determination, top-down, and sideways
As Kenneth Burke reminds us—and as Figure 6.2 demonstrates—‘the nar-

rowing of the circumference encourage[s]‌ . . . the stress upon “efficient cause” ’
of an act in question.22 From the perspective of the gaze represented in scheme
2, the efficient cause of the transition from t1 to t2 is ‘the will’ of the people
(of a cylinder-shaped unit) which in all such cases is best understood as a force
that makes the juridical status-elevator that may go up or down in the context
of s3: upgrading the status of a unit (eg from that of a federal unit to that of
a sovereign state), or downgrading, or even extinguishing it (eg from that of
an independent state to a juridical non-existence, following a referendum on
annexation). In contrast, had we gazed at these cases of popular decision-
making through an expanded circumference and from the top-down perspective
as depicted in scheme 1 we would immediately have realized that heeding the
‘will’ of the people of one segment of a constitutional space reconstitutes it
in its entirety. From that perspective, the effective cause of the act of the ‘will
of the people’ would have transformed itself into the ‘final cause’ of the act
of spatiotemporal reconstitution: an increase in the aggregate degree of con-
stituent identifications that has occurred between t1 and t2.
From the perspective entailed in schemes 1 and 3, ‘the people’ and its ‘will’ are
juridical constructs intended to contribute to the approximation of the ideal, im-
plicit in the ways in which we think about the spatiotemporal reconfiguration of
democratic constitutional orders. That ideal is not self-determination, but rather
the overall increase in constituent allegiances, understood as satisfied identifi-
cations with a particular constitutional order. Seen in that light, every assertion
of the existence of a particular ‘people’, and every manifestation of its ‘will’ is
a furtive judgement about which spatiotemporal configuration of jurisdictional
Kenneth Burke, A Grammar of Motives (University of California Press 1969).

22
201
Self-Determination: Beyond the Hovering Gaze • 201

authority better contributes to that ideal. The purpose of mediating that judge-
ment via the vocabulary of the will of the people is to diminish the anxieties that
inadvertently follow such judgements. Without the vocabulary of peoplehood,
such judgements would reveal themselves as what they are: inconclusive and
therefore contestable verdicts about what degree of increase in satisfied constitu-
tive attachments is good enough. The vocabulary of self-determination prevents
this, potentially paralysing contestation by mobilizing the secular-theological
aura of incontestability, inherent in the social imaginary of popular sovereignty.
Put differently: serving the Kelsenian ‘tendency’ furtively—hiding the aggre-
gative effects behind the imagery of popular ‘will’ and its binary choices—is
what keeps the majoritarian forms of the alleviation of the ‘torment of heter-
onomy’ effective. In order to keep it so, international jurists turn the holder of
the right to self-determination into a figurative zombie: an emblem of an actual
anthropomorphic community capable of willing and deciding, which, on closer
inspection, turns out to be nothing but the ensemble of members, constituted in
conformity with the criterion of membership, itself defined in conformity with
the overarching telos of international legal order.

beyond the hovering gaze
So far, we have been able to identify a particular ‘way of seeing’, to use John
Berger’s phrase, that allows international jurists to un-see the image that pre-
sents itself on the screen of our global MRI scanner of political attitudes. What
makes this way of seeing possible, however, is not only the image of the visual
medium (the Andersonian jigsaw puzzle) but also a largely implicit image of
‘self-determining’—evoking not just the determining ‘selves’, but also the acts
the activity of lifting, upgrading, or ‘plucking out’ the already detachable ter-
ritorial logos from their constitutional place. As we will see in this section, that
way of seeing is not the only one that allows international jurists to un-see
the patterns that appear on the screen that represents the correlation between
the flux in political attitudes in nephoi and the reconfigurations of territorial
boundaries that respond to them by capturing them anew.
Another way of seeing that allows international jurists to remain blind to
this pattern actually demands of them not to gaze sideways at the acts of self-
determination, which, in turn, allows them to impute not the efficient, but ra-
ther a different final cause to every successful application of that right.
What allows them to un-see progressive re-aggregation as the final cause of
self-determination is a particular scopic regime that allows them to impute pur-
poses to status upgrades, while at the same time ignoring the fact that every
act of a status upgrade is also an act of boundary reconfiguration. What they
envision in this case, from their top-down perspective, are not schemes 1, 2, and
3 from Figure 6.2, but rather schemes A and B from Figure 6.3. What they do not
envision is scheme C, which appears once we have directed our gaze sideways
but tried to imagine the nature of the change from t1 to t2 without recourse to
the right to self-determination. What scheme C represents are what Chapter 2
20

called the five stages of determination—five occasions for normative prescription—
that remain ‘squished’ under the top-down gaze of an international lawyer who
collapses them into a single moment of self-determination. The difference be-
tween schemes A and B on the one hand, and scheme C on the other, is akin to a
difference between not having the opportunity to analyse the light spectrum of
a ray of light and being able to do so with the help of a spectrometer that allows
us to refract its different prescriptive ‘wave-lengths’ that otherwise, through the
single lens of ‘the right to self-determination’, appear as nothing but white light.
S3
S2
S1
T1 T2
T1 T2
T1 T2 T1 T2
(A) (B) (C)
Figure 6.3 Self-determination as refracted through the stages of determination
As in optics, chemistry, astrophysics, and other scholarly fields, the choice be-
tween the two is practically consequential. By way of illustration, consider
first Martti Koskenniemi’s interpretation of the right to self-determination
as a ‘remedial’ right. In an oral argument before the International Court of
Justice during the Kosovo Advisory Opinion proceedings, Koskenniemi argued
that the right to self-determination only ever entailed the right to form an in-
dependent state in the instances where the parent state was either unwilling
or unable to offer ‘effective guarantees for protection’ to all of its citizens.23
Gazing from above allowed him to notice only the issue of status-determination
(s3) and, in doing so—construct the lineage of the right to self-determination,
which unites political justification for the formation of the United States (1776)
(as part of its political pre-history), the rejection of the secession of the Aaland
Islands on behalf of the Committee of Rapporteurs (1920) (as part of its legal
history), and the contemporary interpretation of the right to self-determination
Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of
23
Self-Government of Kosovo (Public Sitting) CR 2009/30, 62.

203
Self-Determination: Beyond the Hovering Gaze • 203

by the Supreme Court of Canada in Reference re Secession of Quebec (1998) (as
supporting evidence of the correctness of the trajectory he identified).
In the same submission—in which he articulates the (always) remedial char-
acter of self-determination and argues that the ongoing oppression of Kosovo
Albanians has justified piercing the veil of Yugoslav sovereignty (s1)—Koskenniemi
simply postulated the existence of the bearer of the right to self-determination—
‘the people’ of Kosovo—as the collective person whose ‘will’ ought to determine
Kosovo’s political future (s3). In Chapter 5, I have already discussed the performa-
tive contradictions entailed in such understanding of self-determination. In the
context of our discussion here, however, it is more important to notice the echo
of the constitutional imagination problematized in Chapter 2: in attributing the
right to self-determination to a territorial people, Koskenniemi politically de-
problematized the constitutive role played by the Contact Group for Kosovo—
whose setting of the parameters at s2 and s3 in 2005 effectively brought ‘the people
of Kosovo’ into life first as a political, and then as a juridical fiction.
Now consider the opinions of the Badinter Committee, and the imaginative
choices that prefigured its interpretation of the right to self-determination as
something that has no meaning at s2, and only—a contrario—at s3. When asked to
clarify the meaning of the right to self-determination in the context of the crisis
in Yugoslavia in 1991, the Badinter Committee (seemingly) declined to answer
who has a right to self-determination: the peoples of the constituent republics
or the Yugoslav ethnic nations designated as the bearers of self-determination in
the Yugoslav constitution. Famously, the Committee noted that Yugoslavia was in
the process of dissolution, but that ‘international law as it currently stands does
not spell out all the implications of the right to self-determination’.24 In letting s1
take care of itself (the process of polity formation being triggered by the unrav-
elling dissolution of Yugoslavia), the Committee embraced the principle of uti
possidetis juris at s2, warning that ‘Whatever the circumstances . . . the right of
self-determination must not involve changes to existing frontiers at the time of in-
dependence.’25 In doing so, the Committee prefigured the identity of ‘the people’
at s3, stipulating the need to conduct a popular referendum as a condition for the
international recognition of Yugoslav republics as independent states.26
In dismissing s1 as the stage of polity formation at which self-determination
might also offer a prescriptive message in the context of Yugoslavia, the
Committee set the stage for the construction of the alternative lineage of
self-determination; the one that unites the prehistory of self-determination in
Latin America in the 1800s and the exercise of the right to self-determination
in Africa during decolonization in the 1960s with the dissolution of Yugoslavia
in 1991. Relying on the understanding of uti possidetis offered by the International
Court of Justice (ICJ) in Burkina Faso v Mali—which itself relied on the discus-
sion of the role of uti possidetis in Latin America—the Committee argued that
‘Opinion No 2 of the Arbitration Commission of the Peace Conference on Yugoslavia (11 January 1991)’ in
24
Snežana Trifunovska (ed), Yugoslavia Through Documents (Springer 1994) 474.

ibid.
25 26
‘Opinion No 4’, ibid 486.
204

it is ‘logically connected with the phenomenon of obtaining independence
wherever it occurs’.27 ‘Its obvious purpose’—the Committee argued, quoting
the ICJ decision—‘is to prevent the independence and stability of new States
being endangered by fratricidal struggles’.28 Given its role in violence minimiza-
tion everywhere, uti possidetis, ‘though initially applied in settling decolonization
issues . . . is today recognized as a general principle [of international law]’.29
What sustained collapsing S1–S4 into S3 was the narrow spatiotemporal zoom
and the blurred focus of Badinter’s juridical imagination. As ICJ recounted in
the Frontier Dispute Case, uti possidetis was initially used to ‘scotch any designs’
that European colonial powers might have had with respect to ‘uninhabited or
unexplored lands’ following the decolonization of Latin America in the early
nineteenth century.30 Likewise, its application in Africa in the 1960s was ‘often
seen as the wisest course, to preserve what has been achieved by peoples who
struggled for their independence, and to avoid disruption which would deprive
the continent [—not individual colonies—] of the gains achieved by much sacri-
fice’.31 In both cases, however, uti possidetis could work as a violence-minimizing
tool because it was embedded in the wider political project of pan-continental
political emancipation. Only in that context could the ICJ state that its ‘obvious
purpose [is] to prevent the independence and stability of new States being
endangered by fratricidal struggles’.32 In other words, the residual fraternity
against the larger antagonist outside the immediate theatre of struggle is what
made it possible to assume that uti possidetis will be taken seriously as ‘the wisest
course’, as the ICJ called it. In contrast, Yugoslav ‘nations’ fought exclusively
against each other, in part exactly because they stopped seeing extra-Yugoslav
powers as actors that might ‘scotch’ their collective designs. An imaginable
wider spatiotemporal zoom—a perspective that would have embedded uti
possidetis in the wider theatre of continental territorial reconfigurations—would
have made its applicability in the former Yugoslavia more questionable.
By the same token, a sharper focus on the patterns of political interaction
within the wider nephoi would have counselled against the straightforward ex-
tension of the lineage of uti possidetis from Latin America, through Africa, and all
the way to Yugoslavia and beyond. As Anderson argues in Imagined Communities,
what set the stage for the application of uti possidetis in Latin America was a
particular structuration of the routes of political ‘pilgrimages’ undertaken by
peripheral Latin American officials. In nascent nation-states in Europe, diverse
officials from the peripheral corners of the state would encounter each other
on their official pilgrimages to the metropolis, and in doing that, over time,
they would synchronize and mutually reinforce their constituent attachments
around the same political object. In Latin America, in contrast, the ultimate des-
tination of that pilgrimage was the capital of the imperial administrative unit,
which predetermined the identity of the ‘travelling companions’ that would
Case Concerning Frontier Dispute (Burkina Faso/Republic of Mali) [1986] ICJ 554, 565.
27
ibid.
28
ibid.
29
ibid para 23.
30
ibid para 25 [emphasis added].
31 32
ibid.
205
Kelsenian Symptoms: Statism and Cosmopolitanism • 205

get to share ‘the sense of fellowship’ and ‘the shared fatality of trans-Atlantic
birth’.33 Seen through this lens, the ICJ’s assumption about the capacity of uti
possidetis to prevent ‘fratricidal struggles’ would have confirmed the conclu-
sion from above: the only way in which this principle can be understood in this
role is by treating it as a proxy for actual fraternity, ‘the sense of fellowship’ as
Anderson called it, and a shared regional sense of common fate. From that per-
spective, the insistence on its application in the context where no such sense of
fate exists would also have appeared in a different light: not as the incarnation of
the ‘telos’ of international legal order but rather as what Vasuki Nesiah called
the ‘embodiment of imperial power’, intent—after the end of cold war—on
projecting it most efficiently by outsourcing some of its exercise to select par-
tisans on the ground.
4. Kelsenian symptoms

statism and cosmopolitanism
Inscribing the Kelsenian ‘final cause’ into the vocabulary of peoplehood is an
act of imaginative speculation about empirical reality—an act that postulates
a correlation between the changes in the political attitudes on the ground and
the effect that the spatiotemporal changes of jurisdictional authority in the
name of self-determination have on those attitudes. Though speculative, this
proposition seems highly intuitive. There is no particular reason to doubt that
once American colonists seceded from Britain in 1776, or Norwegians from
Sweden in 1905, or Kosovo Albanians from Serbia in 2008, or South Sudanese
from Sudan in 2010, that the aggregate degree of allegiances among the former
increased, and that the aggregate degree of allegiances among those who re-
mained governed by the British Empire, Sweden, Serbia, and Sudan, respect-
ively, remained the same. At the same time, inscribing this final cause into
the vocabulary of peoplehood is also an act of imaginative speculation about
what it is that international jurists consciously, semi-consciously, or uncon-
sciously suppress as they continue zombifying the holders of the right to self-
determination in the way just described. The aim of the rest of this section is
to bring this final cause to light in the juridical world pictures from which it is
explicitly banished: the statist-pluralist of Brad Roth and the global constitu-
tionalist of Anne Peters. For this claim, like for the one in the previous section,
I have no proof, only circumstantial evidence, which—in the context of Roth’s
and Peters’s accounts of the right to self-determination—consists in rhetorical
surplus in the case of the former, and in an inexplicable argumentative U-turn
in the case of the latter.
For Roth, the right to self-determination is the manifestation of the valuable
telos of international legal order, which, since 1945, has remained faithful to
‘bounded pluralism’, an overarching systemic ideal of respectful accommodation
of ideological differences among the plurality of juridically co-equal sovereign
ibid.
33
206

states.34 For Peters, contemporary international legal order serves the interests
of ‘humanity’, not bounded pluralism. As the trustees of humanity, states have
a fiduciary duty to protect the well-being and human rights of the populations
they govern. Under this scheme self-determination only ‘technically’ belongs to
collectives; its true bearers are individuals, entitled to take part in democratic
decision-making of the legitimate states to which they belong as citizens.35
Like Peters, Roth is happy to treat the right to self-determination as an
international legal terminus technicus that has no family resemblance with the
vernacular understandings of peoplehood, rights, self, and determination—
a metaphorical ‘entitlement’ not to an existential political choice to be left
alone, but rather to have that choice validated by means of a quasi-medieval
ordalium: ‘a right of territorial populations to be ruled by their own thugs and
to fight their civil wars in peace’.36 While it ‘logically includes an authority . . . to
overthrow any existing domestic order by any means’, that authority can end
up being exercised by successful rebels, a military junta, citizens engaged in
general strike, or some constellation thereof. Unlike Peters’s ‘remedial’ account
of self-determination—which kept a limited role for it in the context of terri-
torial conflict at S1 (the formation of an independent state ought to be triggered
once it becomes manifest that the state has forfeited its duty as a trustee of hu-
manity), S2 (the boundaries ought to follow previously drawn internal adminis-
trative lines (uti possidetis), and S3 (an oppressed population should end up in an
independent state in which they form a majority)—Roth completely deactivates
self-determination from the field of territorial struggles. For him, present-day
international law structures the emergence of new states in an ‘ad hoc’ fashion,
through the combination of effectiveness, international legal principles that
curtail external intervention, and peremptory norms of international law.37
Peters’s and Roth’s interpretations of the right to self-determination couldn’t
be more different—in the eyes of an international jurist. Trained to stay ‘down-
cast’, focused on texts, such eyes are trained to detect all the details—as long
as they are interpretively relevant. Those that are not—such as Roth’s slips of
tongue and Peters’s rhetorical U-turns—will be dutifully ignored. The contours
of the k-universe will appear if we don’t ignore them, but rather approach
them as possible symptoms of a sympathy, which—as we will soon see—both
Peters and Roth share. In Roth’s case, that sympathy emerges from the pattern
that can be detected in his scattered lateral remarks. For the sake of the argu-
ment, consider the following five.
First, in the context of the post- 1945 application of the right to self-
determination, Roth refers to decolonization as the remedy to the international
order’s ‘original sin’.38 Second, though he argues that there are no shared under-
standings about the ‘assumption of popular sovereignty’ across ideological
Brad Roth, Sovereign Equality and Moral Disagreement: Premises of a Pluralist International Legal Order
34
(OUP 2011).
Anne Peters, ‘Humanity as the A and W of Sovereignty’ (2009) 20 Eur J Intl L 513, 541.
35
Roth (n 34) 81.
36
ibid.
37 38
ibid 184.
207
Kelsenian Symptoms: Statism and Cosmopolitanism • 207

divides within existing states, he suggests that the proponents of radically dif-
ferent ideologies within them ‘may hold common understandings of a constitu-
tional compact that is binding by virtue of express, tacit, or imputed consent’.39
Third, while he defends international order’s strong built-in bias for the pres-
ervation of territorial status quo, he nonetheless entertains the ‘hope’ that
‘[c]‌ollectivities encompassing the permanent populations of existing territories
regard themselves, or will come to regard themselves, as “nations”.’40 Fourth, he
also claims that ‘[t]he effective control doctrine can be interpreted to embody
respect for the self-determination of diverse political communities as to which
empirical investigation to ascertain public opinion is most often impracticable’.41
Finally, even in cases where populations have grudgingly ‘made their peace with
an unwanted regime’, Roth claims that they may still ‘plausibly prefer’ and ‘de-
mand’ the respect for the international subjectivity of the existing state.42
Superficially, these five remarks neither support nor undermine Roth’s cen-
tral argument. A symptomatic pattern emerges once we consider the ques-
tions they provoke. For example, what makes colonialism the ‘original sin’ of
international order? That is to say, if colonialism is the original sin of inter-
national order, what should have happened differently at the origin of inter-
national order, so that there would be no sin? If colonization itself is wrong,
and not simply the socioeconomic deprivation it has caused, then the original
sin consists in the destruction of pre-existing polities that had perforce violated
the constituent attachments of the pre-colonial, pro-‘original’ polities’ moders.
Could it be that the answer lies in Roth’s ‘hoping’ that the distinct collectivities
encompassed within existing states will voluntarily change their mind and de-
cide to belong, after all, to existing territorially incorporated ‘nations’? Then
again, why would Roth hope for that? That is, why would he hope for that un-
less voluntary allegiance—the more of it the better—is a good thing to achieve,
after all? Of course, Roth will never be caught saying so. In fact, his entire vision
of the right to self-determination hinges on denying that any such claim may
intelligibly be made from the perspective of international law. Rather than the
repository of normative prescriptions, the right to self-determination is another
way of speaking about the privilege that international law assigns to intra-state
thugs to fight their ‘civil wars in peace’. Put formulaically: the principle of ef-
fectivity = internal (self-determination). If so, the peoples vested with that right
are nothing but the technical terms in the vocabulary of international lawyers.
As such, they cannot be seen as subjects worthy of ‘respect’, something that
Roth, against the spirit of his argument, associates with the essence of the prin-
ciple of effectivity.
In Roth’s case, the sympathy for the Kelsenian devil is in the details of his
argument. In Peters’s case, it becomes visible if we stay attentive to the unex-
pected jolts in the trajectory of her argument about the recent developments
of the uti possidetis juris principle. In the first part of it, we detect nothing
suspicious. Since she argues that states are ‘trustees of humanity’ and that
ibid 274 n 14.
39 40
ibid 24. ibid 204.
41
ibid 205.
42
208

self-determination only technically belongs to the collectivities, her claim that
‘[t]‌he exact lines of the boundary do not matter anyway’ is entirely consistent
with her overarching account of the telos of international legal order.43 Within
this scheme, uti possidetis offers a ‘usefully false’ fiction of political homogen-
eity. The alternatives, which ‘take into account ethnicity, culture, and language,
[seem] problematic because [they draw] on factors which are suspect under
international law and are in potential conflict with the international legal pro-
hibitions on discrimination’.44 Soon enough Peters changes her mind, and pro-
gressive reaggregation abruptly emerges as the desirable principle of boundary
drawing. The stage for this volte-face is set by her sudden refusal to tolerate the
hypocrisy of the otherwise useful fiction of uti possidetis that reveals itself when
uti possidetis is combined with a referendum among the population it has helped
single out as the unit of self-determination. At that point, Peters realizes that
‘even if “ethnicity” is not used as a formal criterion for drawing the boundary
line, it pops up and becomes decisive through the referendum’.45
Recognizing that the application of the popular ‘will’ in a unit identified by
the application of the uti possidetis principle most often results in the ethno-
national hegemony of the majority nation, Peters shifts gears and embraces the
Swiss model of cascading referenda as a more fitting tool for determining the
shape of the boundaries. Under the Swiss model, referenda on the status of a
polity are held first in the first-order substate territorial entity. Depending on
the result, they are then iterated within the smaller-scale units that have voted
differently from the majority in a wider unit. This process can be recursively
applied even further: within smaller-scale units within the second-order unit of
referendum, for example. The result of this iterative process conforms to the
k-algorithm: the final shape of the political boundary improves the aggregate
satisfaction of constituent attachments across the entirety of the reconstituted
territory.
In embracing the substantive outcome of the improvement in allegiances,
however, Peters grounds it neither in the respect for constituent attachments
nor in Kelsen’s maximizing ‘tendency’, but rather in more objective criteria
such as ‘the needs of the local population’ and ‘the well-being of human be-
ings affected by drawing a boundary’.46 But this introduces a tension in her ar-
gument: if the well-being or the needs of a local population are the criteria of
boundary drawing, it is not clear why consulting them should be a means of
establishing their content. Even if locals are more knowledgeable about their
local needs, from this it does not follow that they ought to have a (comparatively
stronger) say about an issue (the shape of an entire territory) that has supra-
local ramifications. At best, they should have a say in crafting the boundaries
of sub-cantonal, local units that cater to local needs. If so, the best defence for
Anne Peters, ‘The Principle of Uti Possidetis Juris: How Relevant is it for Issues of Secession?’ in Christian
43
Walter, Antje von Ungern-Sternberg, and Kavus Abushov (eds), Self-Determination and Secession in International
Law (OUP 2014) 120.
ibid.
44
ibid 131.
45
ibid.
46
209
Oscillating Gaze and the Structure of Legal Argument • 209

Peters’s criteria—in the context of the iterative referendums that she ends up
proposing—is that individuals themselves remain the best judges of the sources
and content of their well-being. Understood in such a way, however, ‘well-
being’ encompasses not only material but also affective needs and ceases to be
an objective category. Used as a justification for the individual participation in
a recursive referendum, objective well-being becomes indistinguishable from
subjective constituent attachments.
Approached individually, Peters’s and Roth’s accounts of self-determination
could not be more different. Approached comparatively and symptomatic-
ally they reveal a shared sympathy for the Kelsenian ‘tendency’. Though their
understanding of self-determination could not be more different, they seem to
share similar sympathies towards territorial reconfigurations of sovereign states
in conformity with k-algorithm. If so, the world-views of global constitution-
alism and bounded pluralism might not be as distant as it seems at first glance.
This conclusion also has a broader, perhaps even more relevant implication for
how we see the relationship between statist pluralism (Roth’s ‘bounded’ plur-
alism) and cosmopolitanism (Peters’s global constitutionalism) in general. Thus
far, we’ve been used to seeing them as the poles in a polemical binary, which are
irreducible to each other. What the preceding discussion suggests is something
else. The axis in which they exist as the opposite poles stands in an orthog-
onal relationship with another, non-binary one. That axis plots not the political
ideals, such as statism or cosmopolitanism, but rather the way in which their
institutional mechanisms conform with the aspirational ideal inscribed in the
picture of the Kelsenian universe. Once compared with an eye to how these
mechanisms regulate the shifts in the political allegiances on the ground, there
is nothing in pluralism or cosmopolitanism that would make them immanently
democratic, or anti-democratic. Further implications of this conclusion will be
explored in Chapter 9.
5. Oscillating gaze and

the structure of legal argument
Bounded pluralism and global constitutionalism are ideologies—supplemen-
tary concepts, as Reinhart Koselleck called them—that shape our pictures of
the world. Those pictures are fuzzy, and the perspectives from which they are
looked at are not fully clear. The picture of the world governed by the k-algo-
rithm permits us to reinterpret the perpetual reconfigurations of Andersonian
monochromatic ‘logos’ in a new way. That way of seeing, however, must
itself be imagined. In order to detect the conformity of territorial reconfig-
urations with the Kelsenian algorithm, an international jurist needs to keep
hovering above the surface of the globe and look at it through a special im-
aging device: a gigantic MRI scanner capable of scanning the changes in the
political attitudes in the global ocean of psychic happenings. The purpose of
imagining this device is not only heuristic; it is also rhetorical, as it serves as a
reminder of the constitutive role of vision in noticing, seeing, and un-seeing
210

patterns that are inescapable elements in the juridical ways of world-making.
Many international jurists are keenly aware of that, yet they still remain in-
capable of fully discerning the Kelsenian contours in their maps of the world.
This suggests that there must be something more than their scopic regimes, or
their reluctance to emancipate their downcast eyes from the captivity of inter-
national legal texts.
As Koskenniemi’s 1994 account of self-determination demonstrates, the
heightened sensitivity of such jurists to the visual framing of territorial
conflict is no guarantee that they will also notice the Kelsenian pattern be-
neath the application (or invocation) of self-determination at different spatial
scales. ‘What appear as “minorities” from an extensive gaze (when focusing
on “Yugoslavia”) will turn themselves into majority populations once one’s
focus is closer (on “Croatia”, say)’, says Koskenniemi.47 Strangely enough, this
doesn’t lead him to abandon the ideal of self-determination, but rather to af-
firm it, irrespective of the constitutive dependency of legal interpretation on
a concrete spatiotemporal frame of a jurist’s mind’s eye. Irrespective of the
immanent variability of these Burkean ‘circumferences’, self-determination
ought to be affirmed, he says, because ‘most people, when they think about the
matter, will probably see it as a good idea’.48
Attention: Koskenniemi affirms self-determination not as a right that belongs
to a people, or to the peoples of the world, but as something that does justice
to what most people in the world—‘the assembled human sand’, in Palomar’s
imagination—upon reflection, embraces as the criterion that ought to govern
its territorial reconfigurations. If so, we must pause to ask, ‘what prevented
Koskenniemi from pushing his moral intuitions further in that direction? Would
he have recognized the ‘tendency’ that governs the work of self-determination
across the totality of its visual frames, had he chosen to linger over the rav-
aged landscape of the Yugoslav conflict a bit longer and inspect the changes
in the constituent attachments of those on the ground with the help of our
imaginary scanning device?’ Had he done so—as we saw earlier—he would
have detected the application of the Kelsenian algorithm, both retrospectively
and prospectively. Retrospectively, he would have noticed that the aggregate of
satisfied constituent attachments increased after the ‘peoples’ of the Yugoslav
republics exercised their ‘self-determination’. Prospectively—once he extended
the spatiotemporal frame of his analysis into the future—he would have ob-
served that aggregate satisfaction increased even more with the Dayton peace
agreement in 1995 and with the independence of Kosovo in 2008. Though pos-
sible, it is unlikely that Koskenniemi failed to detect this tendency because of
the failure of his visual imagination. Rather, it is much safer to assume that it
was another image that prevented him from seeing it.
Koskenniemi doesn’t give a name to this image. Nor does he draw atten-
tion to it as an image. The image in question is what Koskenniemi refers
ibid 260.
47
ibid [emphasis added].
48
21
Oscillating Gaze and the Structure of Legal Argument • 211

to as ‘the structure of international legal argument’. For our purposes, that
image is best visualized as a diagram. In contrast to the picture of the map
of an actual territorial conflict—which Koskenniemi implicitly had in mind
when he referred to ‘an extensive gaze’ ‘focusing’ on ‘Yugoslavia’—the pic-
ture of the diagram of international legal argument, features not one, but
two surfaces. Those surfaces must be visibly detached from each other, and
situated so that they mirror each other. Without them being positioned in
this way, Koskenniemi wouldn’t have been able to claim that what prevents
the discourse of self-determination from offering a ‘substantive resolution’ to
territorial conflict is international legal argument itself, which ‘attempts to
preserve the descending and ascending perspectives within itself ’.49 It is the
necessity of oscillating vertically between the two perspectives as depicted in
Figure 6.4 that explains our inability to commit to one among manifold pos-
sible circumferences we may choose from horizontally, once we gaze at the
picture of a particular territorial conflict.
K L
Figure 6.4 Top-down-bottom-up legal argument visualized
That conclusion, however, is the work of Koskenniemi’s imagination. In

order to demonstrate how an international jurist can always choose to look
at the structure of legal argumentation differently, it pays off to give closer
attention to how Koskenniemi describes what we see from above and what
ibid 226.
49
21

we see from below. On the one hand, once we ascend to the top and then
look down
we seem incapable of conceptualizing the State or whatever liberties it has
without reflecting on the character of the social relations which surround it. The
sphere of liberty of a member of society must, by definition, be delimited by the
spheres of liberty of the other members of that society. But the delimitation of
freedoms in this way requires that we do not have to rely on the self-definition of
the members of their liberties. In other words, a State’s sphere of liberty must be
capable of determination from a perspective, which is external to it.50
On the other hand, once we descend to the bottom and look up, we will soon
realize that ‘we cannot derive the State completely from its social relations and
its liberty from an external (and overriding) normative perspective without
losing the State’s individuality as a nation and the justification for its claims
to independence and self-determination’.51 These conclusions are not inevit-
able. They follow from Koskenniemi’s way of seeing. Had he wanted, he could
have easily reimagined the structure of the international legal argument that
would have allowed him to detect the contours of the universe governed by
the Kelsenian algorithm. What prevented him from doing so, more specifically,
is a particular kind of gaze that: (1) doesn’t continue to hover above the upper
surface long enough to detect how the world reconstitutes itself in conformity
with the ‘tendency’ inscribed in the Kelsenian algorithm; (2) doesn’t keep the
image of that picture in the mind long enough, so that it is ready to detect it
again looking from the bottom up; and, (3) instead of looking around from the
top down—which, as we saw above, allows Koskenniemi to envision ‘the social
relations which surround’ the state as constitutive of it—does the same from the
bottom up. Had he done so, he might have concluded that the strong sense of
the ‘State’s individuality’ is nothing but the consequence of a successful trick,
a ex nihilo stage effect, conjured by the generations of theorist-dramatists as
part of their attempts to stage the individuality of the state by suppressing
the possibility that it might be created in conformity with the frame, or what
Koskenniemi calls ‘overarching normative perspective’.
The conclusion is simple: international jurists have more freedom in
choosing how to look at the practice of legal argumentation than they wish to
admit, or care to contemplate. Since even Koskenniemi admits that we ‘seem’
incapable of imagining otherwise, there is no reason not to believe that, as else-
where, the same saying applies: where there is a will, there is a way. So while
it is possible to imagine these two planes constitutively dysmorphic—in which
case it would be impossible to do anything but to acknowledge the co-equal
validity of two perspectives—it is also possible to imagine their dysmorphism
as superficial, or collapse the two planes into a single one, or preserve them as
50
Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (CUP 2005) 225
[emphasis added].
ibid.
51
213
A Quiet Calculus: Others in Other Universes • 213

separate for the sake of preserving a particular self-understanding of political
community.
So the same dark dots—which Koskenniemi’s gaze (k) from the bottom-up
envisions as the treacherous symptoms of the solipsistic ‘individuality’ of sover-
eign states become black holes, in the eyes of Ernesto Laclau (l), for example.
For him, they exist as the testaments to the fact that I—as the people—‘am
penetrated by a constitutive lack’, that ‘the universal is part of my identity as far
as my differential identity has failed in its process of constitution’.52 In order to
be able to reach this conclusion, however, the upper plane—and the top-down
perspective that goes with it—must be preserved. Only then will it be possible
to claim two things at the same time: (1) that ‘there is no particularism, which
does not make appeal to such principles in the construction of its own iden-
tity’,53 yet to resist collapsing it into the universal, and to instead claim (2) that
the ‘universal is the symbol of a missing fullness and the particular exists only
in the contradictory movement of asserting at the same time a differential iden-
tity and cancelling it through its subsumption in the non-differential medium’.54
This conclusion is only compelling if we embraced Laclau’s (implicit) com-
mitment to the very idea of ‘identity’. Without it, there is no one to ascribe ‘the
lack’ to: had you decided to look beyond ‘identity’—and instead of the bodies
of demoi and ethnoi recognize the contours of the fuzzy nephoi—you would
be able to notice that even in Laclau’s case it is possible to see symptoms of a
suppressed k-universe, in the curious slips of the tongue that refer to an iden-
tity which is ‘not fully achieved’.55 At that point, you would be able to ask: How
can something that has an essence, the substance that makes it unique, be less
than fully achieved? What is it that frustrates its full achievement? For an anti-
nationalist, this question makes no sense. For a nationalist, the answer to that
question lies in the ideal of ethnic purity. The problem with an international
jurist is not that he pretends not to be interested in acting as an arbiter between
the two. His problem is that in keeping this pretence, he discourages everyone
else from giving a new answer to the question of what ‘fully achieved’ means.
Kelsen knew it: it is unanimity, the maximization of individual freedom that
reached its asymptote—the disappearance of the ‘torment of heteronomy’.
6. A quiet calculus

others in other universes
In using their expert knowledge to interpret the norms of international law,
jurists are imaginers, conjurors, and world-makers only in so far as they are car-
tographers. The maps they make are ‘transitory, fleeting, contingent, relational
and context-dependent’, ‘never fully formed’, and ‘never complete’ attempts to
resolve ‘relational problems’.56 Though those maps don’t represent the peoples
Ernesto Laclau, Emancipation(s) (Verso 1996) 28.

52
ibid 26.
53
ibid.
54 55
ibid.
Rob Kitchin and Martin Dodge, ‘Rethinking Maps’ (2007) 31[3] Progress in Human Geography 1, 10.
56
214

themselves, we know that the territories they represent belong to them. The
way in which these jurists imagine the relationship between that cartography
and the right to self-determination depends critically on another picture of the
world, which is not structured as a map. That picture is a landscape, and the
figures that inhabit it are not only those that international jurists recognize as
the peoples, or would-be peoples (such as national liberation movements or op-
pressed minorities). In addition to these agents, this landscape is also populated
by the norms that we would have, from the perspective of Chapter 3, other-
wise attributed to frame, such as the principles of effectivity, territorial integ-
rity, non-intervention, and sovereign equality. Within that landscape, staged by
international jurists, the figure of other appears only as the accidental conse-
quence of theoretical exegesis and legal interpretation. By way of an example,
consider what must be presumed in order to accept Nehal Bhuta’s interpret-
ation of the right to self-determination.
As with Roth’s, Bhuta’s account preserves the distinction between its ‘in-
ternal’ and ‘external’ aspects, where the former entitles ‘the people’ to ex-
ercise its constituent power at S4 and practice self-government at S5 without
interference from the outside. According to Bhuta, the internal right to self-
determination is essentially a ‘contrastive concept’. It is ‘a straightforward ex-
tension of the concept of external self-determination’, which entitles the people
to restore its sovereignty—at S3—should it be subject to ‘military occupation
or other forms of ‘alien domination’.57 In contrast to Roth who extrapolates
this distinction directly from ‘bounded’ pluralist character of international legal
order, Bhuta derives it from the logic of state-formation. For Bhuta, that (onto)
logic is Schmittian—indifferent to normative ideals, and driven by the necessity
to ‘imbricate’ states with concrete power, in what is essentially an ‘aleatory pro-
cess’ of state-formation.58 In practice, this means that the outcome of struggles
at S4 ought to be determined by those who wield actual power in the field of
struggle. As a result, any attempt to disrupt this logic by introducing the tem-
plates of constitutional change whose aim is to impose the non-local standards
of legitimacy would fail at its primary task: ordering. According to Bhuta, inter-
national law knows this. This is why it has continued its ‘silence’, choosing to
perpetuate the ‘internal’–‘external’ binary, without attempting to extrapolate
from it the standards of post-conflict constitution making, which might be ap-
plicable at S4.59
Notice however, that Bhuta reaches this conclusion on the basis of a gaze
focused on the conflict in Iraq, and whose circumference excludes everything
else outside the Middle East.60 As Burke keeps reminding us, however, ‘one
Nehal Bhuta, ‘New Modes and Orders: The Difficulties of a Jus Post Bellum of Constitutional
57
Transformation’ (2010) 60 U Toronto LJ 799, 818.

ibid 853.
58
ibid 849.
59
60
Burke’s description of the ways in which monographic terms shape our imagination is a schematic simpli-
fication, as he readily admits. Neither can theorizing ever fully escape the conformity with the monographic
logic, implicit in the aboutness of every theory, nor is every theorist of peoplehood preoccupied with con-
forming with the dictates of two formulas.
215
A Quiet Calculus: Others in Other Universes • 215

has a great variety of circumferences to select from as characterizations of
a given agent’s scene’, and every such selection will end up having ‘a corres-
ponding effect upon the interpretation of the act itself ’. In other words, had
Bhuta decided to look elsewhere his figure of the other might have looked
different. In fact, Schmitt’s work is the best testament to that. In contrast to
Bhuta’s Schmitt, the Schmitt from the Theory of the Partisan fully embraces the
fact that the other—that, is interessierte Dritte—f ully belongs to ‘the situation
of partisan’. If we followed this Schmitt we might wonder why we should
assume—if some measure of the constituent participation of the other is in-
evitable wherever there is a conflict over the right to self-determination—that
constitutional order will be more securely established if that other partici-
pates indirectly and furtively.
While Roth doesn’t give an answer to this question, he adds additional nu-
ance to Bhuta’s vision (in which the other exists as the parody of Rousseau’s
Lawgiver: not a supremely wise and capable inventor of nations, but rather
hapless, hubristic, and incompetent). Roth’s description is important as it re-
minds us not to exaggerate the sinister character of this figure. While not as
invested in the success of our self-government as Rousseau’s lawgiver, this
figure is not completely malevolent either. What makes the effects of its con-
stituent interventions so tragic is something more mundane: its opportunism.
Following Roth, we would recognize this other in ‘powerful states’—that is, in
the behaviour of their leaders—who remain highly sensitive to the short-term
(dis)advantages of such interventions—at home, and abroad. Since they fear
backlash at home, they will be likely to rely on ‘cut-rate and irresolute methods
that leave the situation worse off than it was before the action was under-
taken’.61 If so, Roth concludes, ‘fighting civil wars in peace’—may sound ‘harsh’,
but the alternative is even harsher.
What Roth seems to suggest—but does not quite say explicitly—is that the
alternative, in comparison, is likely to produce more human suffering.62 As is the
case with other prognoses we’ve encountered earlier in the book, this verdict re-
lies on a particular diagnostic space of experience. Though its temporal extent
is uncertain, that space is global: ‘history of intervention thus far provides little
reassurance that the world’s poor and weak stand to gain from the removal of
legal obstacles’.63 As always, such conclusions are constitutively immune to con-
trary examples that might open up the possibility of alternative historical tra-
jectories. To Roth, however, they are nothing but ‘happy incidents’—‘accidental
confluence[s] of the intervener’s interests with those of the population of the
target state’.64
Roth (n 34) 127.
61
Brad Roth, ‘The Virtues of Bright Lines: Self-Determination, Secession and External Intervention’ (2015)
62
16[3] German LJ 384, 413.

Roth (n 34) 15.
63
ibid 153.
64
216

As we saw in Chapter 4, however, the structure of prognostic imagination is
always more complex than that. It is an outcome of the visual choices made not
only in this world’s space of experience, but also of the visual choice made by
imagining corresponding alternative scenarios in a parallel one. So for example,
though admitting that humanitarian intervention is ‘fraught with problems of
factual uncertainty’, Thomas Franck has assumed that the NATO intervention
in Kosovo ‘saved many lives that would otherwise have been lost’.65 In rejecting
Franck’s argument as ‘both impractical as well as legally unsustainable’, Danilo
Zolo questions Franck’s cross-universe calculus by using a past spatiotemporal
slice in this universe, comparing the number of civilians killed in Kosovo before
the intervention with the large number of civilians killed after the intervention
began.66 From this, he infers that the increase in human suffering ought to be
attributed to NATO’s intervention, not Milošević’s brutality.
Of course, the spatiotemporal reframing does not have to stop there. Zolo’s
frame can also be contested by constructing a different time map through the
process that Zerubavel called ‘mnemonic pasting’: pointing, in this case, to
Milošević’s ruthless tactics over the longer time span, elsewhere, against which
it was reasonable to assume that he would escalate the conflict anyway. This
kind of mnemonic pasting is, for example, responsible for Martti Koskenniemi’s
qualified defence of intervention: ‘with the experience of passivity in Kigali
[1994] and in Srebrenica [1995] Western European officials had to take action
[in 1999]’.67 At its base, then, defending the juridical binary between interven-
tion and non-intervention is necessary predicated on the imaginings of alterna-
tive political universes whose spatiotemporal limits can be manipulated at will,
which in turn subtly shapes the expectation of the outcomes of alternative pol-
itical scenarios in the parallel time frame.68 While this in principle opens inter-
national jurists’ accounts of the right to self-determination to the charges of
political bias and arbitrariness, the main locus of interpretive battle is elsewhere.
7. Legal interpretation as anxiety management

From what we’ve seen so far, juridical accounts of the right to self-determination
arise from a variety of ways in which jurists practise their visual imagination: by
imagining a particular figure of external other; by imagining alternate uni-
verses in which certain scenarios occur or don’t occur; by gazing at the doctrinal
history of self-determination; by focusing on one stage of constituent struggle
and not on another; by calibrating their zoom and focus so that they see one
telos behind a legal principle and not another; and by—as we also saw earlier
Thomas Franck, ‘Humanitarian Intervention’ in Samantha Besson and John Tasioulas (eds), The Philosophy
65
of International Law (OUP 2010) 531, 552, and 546 respectively.

Danilo Zolo, ‘Humanitarian Militarism?’, ibid 555.
66
Martti Koskenniemi, ‘ “The Lady Doth Protest Too Much”: Kosovo and the Turn to Ethics in International
67
Law’ (2002) 65 Modern L Rev 159.

Zerubavel (n 16) 4.
68
217
Legal Interpretation as Anxiety Management • 217

in this chapter—meta-gazing at the anatomy of legal argumentation that is be-
hind every particular interpretation of the right to self-determination. But as
we’ve also seen earlier in the book, the practice of visual imagination is insep-
arable from its affective dimension. In choosing to envision something instead
of something else, all jurists manage their own, and some among them hope to
manage others’, anxieties. In this section, we will explore the symptoms, ther-
apies, and side-effects of the one anxiety that preoccupies jurists’ imaginations
the most: that of fragmentation.
By way of an introduction, consider the account of Jure Vidmar, who attri-
butes the right to self-determination to ‘the peoples’ of the units whose ‘his-
torical pedigree’ has been ‘firmly established’.69 Very quickly, however, this
‘pedigree’ reveals itself not as something that can be determined objectively,
but rather as an outcome of arbitrary curating exercise—a portfolio of cherry-
picked snapshots where each individual unit appears at its politically autono-
mous best.70 Though such cherry-picking may be an outcome of Vidmar’s
polemical intent, it is better seen as a symptom of an underlying anxiety of
fragmentation. The formula on which it relies, r+r—referent (unit with ‘pedi-
gree’) + referendum—may be understood in two ways: as cognitive therapy
for the anxiety of fragmentation, and as a symptom of the anxiety of compli-
city. The former offers a message of relaxation: Don’t worry, the degree of terri-
torial fragmentation rendered legitimate by the right to self-determination belonging
to the people of a unit with ‘pedigree’ is modest! There are only so many such units
around the world. The latter obliquely gestures towards that which ought to be
accepted as good enough—not only among ‘the people’ vested with the right to
self-determination—but also among the entire population of the reconstituted
territory.71
This formula is an echo of constituent choreographies we’ve encountered
earlier in the book, including its most popular version among international jur-
ists: referent (uti possidetis) + collective ‘will’. What needs to be emphasized
at this point, however, is that an important part of the rhetorical force of this
formula doesn’t come from the legal argument itself. Instead, as we will see in
Jure Vidmar, Democratic Statehood in International Law: The Emergence of New States in Post–Cold War Practice
69
(Hart 2013) 220.
70
In the case of Bosnia and Herzegovina, for example, Vidmar treats its relatively autonomous existence in
the Austro-Hungarian Empire, and later in communist Yugoslavia, as the manifestation of the historical pedi-
gree of its autonomy. Within this scheme, the fact that Bosnia and Herzegovina as an autonomous unit did
not exist during the Kingdom of Yugoslavia (1918–41) is of no significance. The judgement of what counts as
historically relevant is turned upside down in the case of Slovenia. While Vidmar writes that ‘[T]‌he territories
settled by the Slovenes and Croats . . . were part of the Habsburg monarchy’, he omits that Slovenia had no
distinct administrative personality whatsoever. In fact, those with historical pedigree were the centuries-old
administrative units such as Carniola, southern Carinthia, Lower Styria, the Princely County of Gorizia and
Gradisca—not Slovenia. Only in the Kingdom of Yugoslavia were Slovenian lands administratively united
in the entity of Dravska banovina—a fact Vidmar highlights affirmatively as an exemplar of the pedigree of
Slovenia’s autonomy.
71
For the vocabulary of ‘good enough’ as a technique of anxiety-management, see Nomi Maya Stolzenberg,
‘Anti-Anxiety Law: Winnicott and the Legal Fiction of Paternity’ (2007) 64[3] American Imago 339, 343.
218

the rest of this section, it hinges on three specific rhetorical devices: excluded
middle, epistemic scepticism, and moral shaming. The first was prominently on
display in the way the Committee of Rapporteurs dismissed the demands of the
Aaland islanders to separate from Finland and join Sweden in 1920. In a move
echoing the positions of Badinter and Vidmar, the Rapporteurs upheld the ter-
ritorial integrity of Finland as a matter of its long-lasting constitutional pedi-
gree as an autonomous unit within the Russian empire. Unlike Badinter, the
Rapporteurs delved deeper into conceptual issues. They interpreted the impli-
cations of the idea of the consent of the governed in a black-and-white manner,
and in that way excluded the possibility of using ‘consent’ as a regulatory ideal
in the context of S1, S2, and S3.
To concede to minorities, either of language or religion, or to any fractions of a
population the right of withdrawing from the community to which they belong,
because it is their wish or their good pleasure, would be to destroy order and sta-
bility within States and to inaugurate anarchy in international life; it would be to
uphold a theory incompatible with the very idea of the State as a territorial and
political unity.72
Notice, however, that the force of this conclusion rests on the implicit under-
standing of consent (‘wish’, ‘good pleasure’) as the sole source of state legit-
imacy. Within such a scheme, consent resembles a power switch. Existing only
in ‘on’ and ‘off ’ modes, it is capable—if recognized as authoritative—of immedi-
ately shutting down a state’s authority over those who have revoked it. Compare
this with the possibility that will emerge from our discussion the Secession
Reference in Chapter 7: there, the demand for territorial reconfiguration is not
seen as the manifestation of momentary, legitimate refusal to continue obeying
existing constitutional order, but rather as a relevant signal that the pattern of
allegiances has changed, which, in turn, ought to make a constitutional order
tendentially responsive towards a demand better to align itself with them. In that
case, as we will see in that chapter, the lack of response to the revocation of alle-
giance would corrode a polity’s overall legitimacy over time, not immediately des-
troy it. Equally, being responsive to radical demands for secession, by opening
the process of polity formation, would not compel state officials to accede to
independence at any cost.
Reluctant to offer authoritative interpretations of statehood and consent—
in part, perhaps, because the currency of consent has itself lost much of its
political purchase—contemporary jurists have kept the anxieties of people-
hood suppressed in a different way. Rather than simply arguing that valuing
‘consent’ leads straightforwardly to fragmentation, or that the very concept
of ‘statehood’ makes the idea of consent unintelligible, they have (merely)
expressed their scepticism about the existence of universally shared criteria
for S1, S2, and S3. What makes such doubts rhetorically appealing is the false
‘Report presented to the Council of the League by the Commission of Rapporteurs’, League of Nations
72
Council Document B7, 1 [emphasis added].

219
Legal Interpretation as Anxiety Management • 219

portrayal of the actual claims of the right to self-determination. Vidmar,
for example, claimed that ‘one needs to keep in mind that mono-ethnic na-
tion states, the borders of which everyone perceives to be just do not exist
in reality’,73 as if this is ever the actual position of those who demand some
form of territorial self-determination. By the same token, in provisionally im-
agining the ‘coherence’ of ‘affective communities’ as the potential criterion
of boundary drawing, Roth immediately adds that due to such communities’
spatial incongruity, imposing coherence could be done only by ‘grotesque
means’.74 As with Vidmar, this judgement relies on imputing maximalist goals
to the advocates of ‘coherence’ without pausing to consider that ‘coherence’
may be a matter of degree; a goal that may also be pursued non-violently.
Finally, international jurists manage their anxieties of peoplehood by pre-
ventive shaming. Those who demand territorial reconfiguration as a matter of
legal right are portrayed as either insensitive to the ‘grotesque’ violence; child-
ishly stubborn in their refusal to submit to a reality where not everyone can get
what he wants (as with Roth and Vidmar); simply obtuse (as Jan Klabbers seems
to suggest) for not realizing that the application of self-determination in terri-
torial conflict ‘re-create[s]‌the familiar problems’; or, ultimately, naive in their
‘false hopes’ of ‘communitarian paradise’.75
What is important to notice at this point is not only the imaginative tricks
used to support those verdicts, but also their exaggerated advantages and un-
intended ironies. Klabbers, for example, suggests that beyond the ‘false hopes’
it provokes, there is a more appealing vision of self-determination—vested in
‘churches, social classes, migrant workers, and dispersed peoples’, that endows
them with ‘the right to be taken seriously’ whenever their interests end up
being affected by the constitutional order in which they find themselves.76 The
problem with this suggestion is simple: liberal-democratic constitutions already
take all of them seriously by allowing them to contest the outcomes of the
democratic decisions made on behalf of the entire ‘people’. If it is to mean any-
thing over and above what such constitutions already enshrine, Klabbers’s right
to be taken seriously would have to rely not simply on the reinterpretation of
the third proposition of peoplehood, but also on the reimagination of the scenes
evoked by the first, second, fourth, and fifth.
The problem with Roth’s implicit moral reprimand is different. Rather than
stimulating appetite for ‘grotesque means’, k-algorithm provides only the gen-
eral criterion for s1, s2, and s3. Its specifics are contestable—and of necessity deny
the existence of a ‘sovereign’ that is ‘authorized’ to apply them unilaterally. At s2,
for example, the algorithm doesn’t counsel how exactly to draw the boundary
around the collective ‘self ’ but prescribes that it should be done so that the ag-
gregate amount of allegiances increases in relation to the territorial status quo
Vidmar (n 69) 234.
73
Roth (n 34) 24.
74
Jan Klabbers, ‘The Right to be Taken Seriously: Self-Determination in International Law’ (2006) 28 Human
75
Rights Q 186, 204.
ibid 203.
76
20

ante. If so, it is worth considering the possibility that it is the jurist’s refusal to
contemplate the criteria of boundary-drawing—hidden behind the figure of ‘the
people’ (which he claims to exist only as a fiction anyway)—that helps keep the
vocabulary of sovereign peoplehood and its pliability to ethno-nationalist ap-
propriation alive. Which raises an interesting question: unless international jur-
ists believed in the power of the figure of a sovereign people, why wouldn’t they
trust that the partisans on the ground are capable of realizing that no one can
be considered ‘sovereign’ or authorized to decide how to apply the algorithm
of allegiance? Could it be that ‘the people’ that figures in their accounts is not
really dead in the jurist’s own imagination—but is rather a ‘zombie’ that ‘stalks
and threatens’ his own mind? 77
8. Legal interpretation as hope management

To embrace k-algorithm is to see functions where others see essences. This
applies not only to the struggles over political sovereignty, but also to the as-
sertions of professional authority. Were jurists to accept that every act of legal
interpretation that identifies the holder of the right to self-determination as A
or B could also be seen as serving an undeclared function X or Y, they would
legitimize questions that they might otherwise safely ignore: What are the
hidden functions of their professional activity? Are they comfortable with their
effects, and why? Though similar in many respects, jurisprudence and religion
are different in that regard, as jurists don’t completely close the doors to such
questions. Unlike priests, who cannot afford to admit that angels exist only in
the mode of ‘as if ’, many jurists have no problem accepting that the entities
they consider to be the holders of the right to self-determination are nothing
but fictions, specialized terms that can be properly used only by the competent
speakers of international law .
Such admissions, as Pierre Schlag argued, generate a certain ‘authority def-
icit’.78 The measure of that deficit, however, is not the distance between the fic-
tional world of ‘as if ’ and the real one, but rather between the declared function
of fictions, and the disappointed expectations of those who confront the effects
of their application in practice. One way for jurists to minimize this deficit, in
the context of self-determination is to continue making subtle allusions to the
impossibility of transcending the essence of the figure of a sovereign people,
even if, on their own admission, that figure exists only as a fiction. Without
doing so, as we saw a moment ago, jurists’ attempts to stoke anxiety in their
audiences would be much more difficult.
Another way to reduce this authority deficit is by resorting to the tech-
niques of hope management. The first among them is hope-triage: a decision to
For the figure of the zombie in American constitutional law, see Sanford Levinson, ‘The Twenty-First
77
Century Rediscovery of Nullification and Secession in American Political Rhetoric: Frivolousness Incarnate

or Serious Arguments to Be Wrestled With?’ (2014) 67 Arkansas L Rev 17, 27–28.
Pierre Schlag, The Enchantment of Reason (Duke University Press 1998) 112.
78
21
Legal Interpretation as Hope Management • 221

abandon hope about the practical potential of the vocabulary of self-
determination in a particular context, with the (intended) effect of helping it sur-
vive as a legal norm that can continue being interpreted authoritatively in a dif-
ferent one. Consider again Klabbers’s account of self-determination. Though ‘the
right to be taken seriously’ is justified by Klabbers as a more ethically appropriate,
and as a less philosophically naive interpretation of its content, those justifica-
tions couldn’t have become legally relevant without Klabbers’s antecedent loss
of hope. Similarly to the revolt of an exhausted Lockean revolutionary we en-
countered in Chapter 4, ‘the right to be taken seriously’ is an act of the revo-
lution in the juridical imagination of a jurist who has concluded that enough
is enough: the ICJ missed ‘four occasions’ between the mid-1970s and the mid-
1990s to offer an authoritative interpretation of self-determination, but in each
case didn’t have ‘anything very substantive [to say] about self-determination’.79
The jurist can also decide otherwise, which brings us to his second technique,
hope-reinvestment, which allows him to stay hopeful about the specific futures
of the right of self-determination. In contrast to Klabbers, Christian Walter
hasn’t lost hope even after the ICJ missed the fifth occasion to say something
substantive about the meaning of the right to self-determination. What kept
Walter’s hope alive after the fifth occasion—the ICJ’s sidestepping of self-deter-
mination in the Kosovo Advisory Opinion—was a combination of a short-span
diagnosis and a long-term prognosis. The former was political: by opting for
‘judicial minimalism’ as an ‘adequate response to the concrete factual and legal
problem’, the ICJ ‘factually and politically’ strengthened the political position of
Kosovo Albanians, while at the same time keeping the Pandora’s box of similar
demands closed.80 Its capacity to satisfy short-term political hopes was in turn
based on a long-term act of imagination of a world in which the practices of
international law operate. Like the history of the world itself, the development
of international law is ‘a continuous process’ that sustains hope that there will
be ‘further [interpretive] rendezvous’ in the future.81
The third choice is similar in that it keeps hope in the vocabulary of the right
to self-determination alive be evoking hopes about the project of international
law in general. When it comes to Roth’s ‘bounded pluralism’, that hope is sus-
tained not by imagining new interpretive developments that could progressively
clarify the meaning of the right to self-determination, but by successfully over-
coming chronic disappointments with the capacity of international law to make
a tangible difference in the territorial conflicts on the ground. ‘[U]pholding
standards of juridical inquiry’—even when our ‘hopes for the law’ end up being
periodically ‘frustrated by the reality’—is not the only recipe for managing this,
more pervasive, lack of faith about the prospects of international law, however.82
A variation of this technique is offered by Koskenniemi where the relationship
Klabbers (n 75) 197.
79
Christian Walter, ‘The Kosovo Advisory Opinion’ in Christian Walter, Antje von Ungern-Sternberg, and
80
Kavus Abushov (eds), Self-Determination and Secession in International Law (OUP 2014) 26.
ibid.
81 82
Roth (n 34) 38.
2

between the character of legal argumentation and a sense of hopefulness works
in reverse: from ‘downgrading the expectations of certainty [and toward] a re-
vision of the concept of legal knowledge which the international lawyer can
hope to attain’.83 What keeps the language of the right to self-determination
alive in this case (against Koskenniemi’s suggestions to the contrary, elsewhere)
is a hope in the project of international law sustained not by overcoming, but
rather anticipating and preventing disappointment.
The fourth technique of managing hope consists in imagining the detri-
mental consequences of its loss. Peters’s account of remedial right to self-deter-
mination relies on this technique. Before such consequences can be imagined, it
is first necessary to imagine a wider discursive field in which they would occur,
and in which international lawyers must operate. In Peters’ imagination, this
field is inhabited by the jurist who must make the choice of whether or not to
stay hopeful, and two other figures: a strict doctrinal lawyer, and a legal nihilist
who confront him with the choice of how to respond to ‘the developments’ in
the law of self-determination. Siding with the former, she would risk remaining
silent before egregious violations of morality. Siding with the latter, she would
succumb to ‘resignation towards power politics’.84 In order to escape the former,
the jurist should embrace a view of the right to self-determination as ‘evolving’.
The reason she shouldn’t lose hope instead and simply ‘refrain from upholding
the rule’ is ‘because others will do the rest anyway’.85
The forced nature of this conclusion is most visible in the very context that,
according to Peters, makes it logically inevitable. Initially defended as a matter
of neither law nor power, Kosovo’s independence was justified on the basis of
a context-specific, moral, and prudential judgement: an ‘unusual combination of
factors’.86 These factors included the history of ethnic cleansing in Kosovo, the
context of the Yugoslav break-up, the prior constitutional set-up of the socialist
Yugoslavia, the needs of regional stability, and the alleged political unviability
of other options. Those who practised such judgement were neither strict
doctrinalists nor legal nihilist, nor the exegetes of the right to self-determination
as an evolving legal norm. Incidentally, among the unusual factors that featured
in this judgement was exactly what Peters’s account of self-determination tried
to suppress: the increase in allegiance, as an ideal of reconstitution at S2 and S3.
While judiciously omitting references to the right to self-determination of ‘the
people’ of Kosovo, those who invoked the unusual factors in its stead were al-
ways careful to draw attention to the fact that the ‘vast’ majority of people ‘in’
Kosovo had desired the change in its political status.87
Koskenniemi (n 50) 537.
83
Anne Peters, ‘Crimea: Does “the West” now Pay the Price for Kosovo?’ (EJIL: Talk! 22 April 2014) <http://
84
www.ejiltalk.org/crimea-does-the-west-now-pay-the-price-for-kosovo/> accessed 27 September 2017.

ibid.
85
ibid.
86
James Dobbins, ‘Majority Rule That Respects Minorities’ (Rand Corporation, 11 June 2005), <http://www.
87
rand.org/commentary/061105IHT.html> [emphasis added].

23
Beyond (the Jurists’) Self-Determination? • 223

Like anxiety management, hope management is a term that seeks to gen-
erate a degree of cognitive estrangement about something that is, at is base,
a fact of life—not only inevitable, but also often desirable, and in some cases
very much desirable. In the context of this inquiry, to emphasize it is to point
not only to the fact that as a method of ‘radical temporal reorientation of
knowledge’88 it also functions as the practice of political and disciplinary (dis-)
empowerment, but also to point to one of the root causes for the absence of
‘analytical progress’ in international law.89 Rather than interpretive silver bul-
lets, or conceptual clarifications, the only things that has the capacity to give
semblance of analytical progress are homologous expectant emotions and com-
parable scopic regimes. Still, those who invite jurists to consider leading a ‘less
solipsistic’ affective life seem to ignore just how reliant that life is on the invisible
geometry that quietly prefigures the admissible patterns of their legal argumen-
tation.90 While bringing it into the open cannot hope to provoke a more radical
estrangement from the legal(istic) imaginary of self-determination—the loss
faith, as Kennedy says, can never be a theoretical conclusion—doing so could
still be a welcome irritant to jurists, as a profession.91
9. Beyond (the jurists’) self-d etermination?

To look beyond the people and its right to self-determination makes no claims
on the hopes and anxieties of others. What it demands is that they be put in the
open, and in a sharper relief. What it requires is not that international jurists
concede that they practise their imagination all the time, but that they permit
others to practise it with them.92 Which brings us to a question: what would
it take to encourage them to see themselves as part of a picture that they—
just like the artist in Velázquez’s Las Meninas—paint themselves? Rather than
through a painting, this chapter attempted to do so through a series of dia-
grams that illustrate ‘hybridized form[s]‌of knowledge in which a user’s im-
agination intertwines with the world of fact’,93 and which, in doing so, provoke
those who confront them ‘to bridge the empirical and the affective’ in order to
create more ‘coherent fictional worlds’.94
What, however, allows jurists to remain indifferent to this possibility are not
only their unexamined pictures of the holders of the right to self-determination,
but also one other picture, which we haven’t represented diagrammatically: an
Hirokazu Miyazaki, The Method of Hope: Anthropology, Philosophy, and Fijian Knowledge (Stanford University
88
Press 2005) 5.
See Hilary Charlesworth, ‘International Law: A Discipline of Crisis’ (2002) 65 Modern L Rev 377, 384.
89
Gerry Simpson, ‘The Sentimental Life of International Law’ (2015) 3 London Rev IL 3, 28.
90
Duncan Kennedy, A Critique of Adjudication: (fin de siècle) (Harvard University Press 1998) 312–13.
91
For international law as ‘an act of imagination and argument by analogy’ see David Kennedy, A World of
92
Struggle: How Power, Law, and Expertise Shape Global Political Economy (Princeton University Press 2014)
John Bender and Michael Marrinan, The Culture of Diagram (Stanford University Press 2010) 82.
93
ibid 82.
94
24

‘invisible college’, which, though not territorially integral, is the site of sover-
eignty of their own professional ‘people’. Impossible to locate precisely, since it
exists ‘dislocated throughout the world’, this invisible college is the homeland
of the people of international law. Imagined as invisible—whether as a civic
‘people’,95 or an ethnonational community of ‘native language-speakers’,96 it
allows them to imagine themselves as the conscience juridique of everyone else.97
This, of course, is an exaggeration. Like the ‘peoples’ on the ground, the people
of international lawyers is nephos—a fuzzy set of diverse moders—not a demos
or an ethnos. Some of those lawyers are more willing to picture their ‘com-
munity’ as nothing but a bunch of people with ‘projects’, while others, just like
the true partisans of peoplehood on the ground, remain highly intolerant of
permeable borders, shared jurisdictions, and complex power-sharing regimes
between themselves and the adjacent disciplinary fields.98
The similarities don’t stop here. As is the case with ‘real’ peoples, to imagine
a disciplinary people as a self-constituting entity serves to diminish the anxie-
ties of those who might feel them otherwise. On the ground, to ‘abolish’ the
figure of other —that was Lefort’s hope at least—reduces the risk of treating
each other as second-class citizens, traitors, or internal enemies. It is the same
with the people of international law. Without the figure of a (constitutive)
other to threaten the integrity of their community, ‘[n]‌one of the participants’
competence [will be] put to question by the fact that they support opposite
positions’.99 Properly assured about their co-equal membership in the ‘we the
people’ of international law, jurists will also be less anxious about celebrating
their heterodox identities. Being ‘a player in the game’,100—who must reject the
‘academic’s easy moralism’ and ‘shallow and egoistic cynicism’, and who suffers
through ‘painful bracketing of [his] private faith’—can be broadcast only before
the live studio audience of the invisible college and no one else.101
For the sake of the integrity of the invisible college, such confessions must be
kept private. Imagine if, for some reason, partisans of peoplehood managed to
locate the invisible college, climb over its stone walls, and overhear Koskenniemi
admit being a ‘player’ in the game (whose job as a jurist always involves agon-
izing over whether or not to ‘reimagine the game’ and ‘reconstruct the prizes’).
Would they have ever taken seriously his performance before the International
Court of Justice in the Kosovo case, where he emphatically insisted that the
Gleider I Hernández, ‘The Responsibility of the International Legal Academic: Situating the Grammarian
95
within the “Invisible College” ’ <https://ssrn.com/abstract=2613508> accessed 29 October 2017.

96
Oscar Schachter, ‘The Invisible College of International Lawyers’ (1977–78) 72 Northwestern UL Rev 217.
97
Martti Koskenniemi, ‘Law, Teleology and International Relations: An Essay in Counterdisciplinarity’ (2011)
98
26 International Relations 3, 20. In between, there is a number of other, more or less granular figurations. In
some, jurists are organized into a ‘federated guild’. Jean d’Aspremont, ‘Send Back the Lifeboats: Confronting
the Project of Saving International Law’ (2014) 108 American J Intl L 680, 687–88. In others, they belong to
a more amorphous ‘bunch’ of ‘people with projects’. David Kennedy, ‘When Renewal Repeats: Thinking
Against the Box’ (2000) 32 NYU J Intl L & Politics 335, 466.
99
ibid 561.
100
ibid 289.
101
25
Beyond (the Jurists’) Self-Determination? • 225

character of the right to self-determination has been nothing but remedial all
along? This, of course, will be perceived as a problem only by those who think
that international jurists care (or ought to care) if their arguments reach those
who will then discuss them in their own dialect of self-determination. But just
how realistic are such scenarios?
In that regard, I can offer only very crude circumstantial evidence of that pos-
sibility, based on a simple three-step experiment. The first step was to conduct a
Google search of the term ‘Badinter’s Commission’ in Serbo-Croatian (Badinterova
komisija), which yielded 11,000 results in the languages of the former Yugoslavia.
The second was to search the same term in Serbo-Croatian on Google Scholar,
which yielded seventy-one entries. Finally, the third step was to return to the gen-
eral search page and look for that term in conjunction with the most common
expletive verb used in Serbo-Croatian. That search yielded an impressive 1,000 or
so entries. A number of them were links to veteran and other discussion forums
where the Commission’s legal findings were used as a premise in heated political
and moral debates about the fairness, justice, and sensibility of the terms of the
dissolution of Yugoslavia. Two decades on, these opinions continue to generate a
variety of emotional responses on the ground—from vindication and righteous-
ness on the one hand, to indignation, cynicism, and contempt, on the other. To
recognize them as worthy of being addressed, however, would not only lead to a
‘less solipsistic’ affective life of international jurists,102 and not only an expansion
of their ‘spatial literacy’, but also to a radical transformation of their professional
‘self-identity’, which would no longer be able to ignore the awareness of how their
practice appears to others.
From the perspective of such partisan eavesdroppers—the ones who con-
tinue hurling insults at Badinter’s Opinions across manifold internet websites
in the former Yugoslavia long after international jurists stopped obsessing
about them—legal interpretations will always appear not as exercises of pro-
fessional competence and political impartiality, but rather as ‘exercises in dupli-
city’,103 whose ‘performative legal trick[s]‌’104 always end up creating ‘winners’
and ‘losers’.105 Once envisioned, the subject of such an unflattering verdict
might prove catalytic for the emulsification of the disciplinary community that
dwells in the invisible college in the same way in which the figure of xenos
proved catalytic for the emulsification of political subjectivity of the peoples in
‘real’ life—provoking the transformation of that college into a ‘dialogical web’
that includes not only those who speak the language of international law, but
also all those ‘who conceive themselves’ as ‘peacemakers’ in a wider field of
struggle.106
What would these more self-reflexive and honest dialogues in this dialogical
web sound like? Perhaps surprisingly, a thought-provoking example is offered
by one of the canonical texts in the international legal history of the right
Simpson (n 90) 28.
102
Christine Bell, On the Law of Peace: Peace Agreements and the Lex Pacificatoria (OUP 2008) 231.
103
ibid 236.
104
ibid 234.
105
ibid.
106
26

to self-determination. The same Opinion of the Committee of Rapporteurs
that definitionally excluded the secession of the Aalands also gives a good ex-
ample of what such a less obviously solipsistic, affective life might look like.107
After having narrated the political history of the region and the contemporary
political developments, the Rapporteurs have put themselves in the shoes of
the Aalanders. Rejecting the demands of Aalanders for self-determination,
the Rapporteurs anticipated the charges of hypocrisy, admitting that self-
determination was indeed ‘used to the advantage of several nationalities in
the treaties which ended the great war’.108 Imagining Aalanders as the audi-
ence of overhearers, they paid respect to them as a ‘gallant little race’ whose
‘ardent desire, the resolute [“unanimous”] wish’,109 has in them aroused ‘lively
sympathy’,110 and the awareness of their inevitable ‘disillusionment [that] will
be anything but great’.111 The sympathy, however, did not alter their verdict.
The Aalanders’ demands for ‘self-determination’ were dismissed not only as
a matter of doctrinal analysis (self-determination is not part of positive inter-
national law at the moment) but also by the imagination of political effects of
such a secession. Finland is not only too useful in the anti-Bolshevik struggle
against ‘Russian hordes’, but Finns themselves are also imagined as ‘vindictive’
and could be expected to unleash their wrath against 300,000 remaining Swedes
in mainland Finland if the Aalands are allowed to secede. In sum, the tapestry
of the Rapporteurs’s argument—woven out of juridical exegesis, conceptual
fiats, geopolitical calculations, fragmentation anxieties, and political sympa-
thies—can be read both as a charity-seeking admission of their own fallibility as
arbiters and as an insultingly cynical judgement about the utility of satisfying
the allegiances of some and not of others.
Flattering, strategic, nonchalant, pragmatic, brazen, calculating, empathetic,
explicit: what kind of jurists were the Rapporteurs? What would a ‘commu-
nity’ made of present-day Rapporteurs look like? As a Schmittian interessierte
Dritte? Or perhaps as a Greek chorus playing different roles in different dramas
of constitution-making—sometimes pretending to speak with full authority,
other times deliberately speaking nonsense, or offering sage advice?112 Once on
the stage—whatever the answer—its members would find it harder to evade
the question of purpose. The question of the meaning of someone else’s right
to self-determination would become the question of their own telos for the
Earth.113
The Aaland Islands Question (On the Merits): Report presented to the Council of the League by the
107
Commission of Rapporteurs’, League of Nations Council Document B7, 1, 21.

ibid.
108
ibid 28.
109
ibid 31.
110
ibid.
111
Simon Goldhill, ‘Collectivity and Otherness—The Authority of the Tragic Chorus: Response to Gould’
112
in MS Silk (ed), Tragedy and the Tragic: Greek Theatre and Beyond (Clarendon 1998) 253. See also John Gould,
‘Tragedy and the Collective Experience’ ibid 233.
For a measured critique of the anti-teleological imaginations of contemporary critical international legal
113
scholars, see Rose Sydney Parfitt, Conditional State(ment)s: Modular History, Legal Subjectivity and the Distribution
of Wealth, Power and Pleasure (CUP 2018).
27
Tipping the Scales: from Apology to Utopia(s) • 227
10. Tipping the scales

from apology to utopia(s)
The image of self-constitution—as is the case with ‘real’ peoples on the
ground—allows international jurists to keep the question of their own com-
munal purpose vague and open-ended. What keeps their telos open-ended, in
Koskenniemi’s case at least, are two kinds of oscillation. The first is the oscilla-
tion of a professional gaze: having committed to memory the possibility of as-
suming both the top-down and bottom-up vantage point in constructing a legal
argument, this gaze proves incapable of committing to either. The second is the
oscillation in the political attitude that sustains that professional gaze. Here, the
oscillation occurs between the poles of apology and utopia, each of which may
equally lend support to both the top-down and the bottom-up perspectives on
the character of international legal argument. But just as the first kind of oscil-
lation depends on a commitment not to collapse two planes into one, the oscil-
lation between the polemical poles of apology and utopia hinges on a quiet act
of inclining the playing-field in favour of the former.
Though seemingly a symmetric counterconcept (in Koselleck’s termin-
ology), apology–utopia is anything but. In contrast to Bloch’s wishful image
of utopia—existing as a concrete ‘Not-Yet’—there is nothing attractive in the
portrayal of utopia’s abstract attributes by Koskenniemi. Concrete and affirma-
tive with Ernst Bloch, with Koskenniemi utopia vegetates as another name for
the ‘ “moralistic” nature of the law’;114 the lack of responsiveness to the ‘social
context’;115 naive commitment to natural justice;116 the unrealistic assumption
about shared values;117 the absence of procedure, therefore destined to irrele-
vance;118 and the dubious indifference towards power politics.119
Koskenniemi’s utopia— abstract, naive, moralistic, unresponsive, unreal-
istic, ignorant—rigs the game in favour of the partisans of the apology. By
allowing them to respond to radical demands by qualifying them as ‘utopian’,
Koskenniemi legitimates their refusal to confront them as concrete alternatives.
The rhetorical consequence of that is not trivial. Without ‘utopian’ (as defined
by Koskenniemi) as a conversation stopper, the apologists could not escape
the question: Why (exactly) not? Notice however that what really banishes this
question from adult political discourse is another polemical dichotomy, this
time not between a simple utopia and a simple apology, but between some-
thing else: a realistic utopia and its unnamed inferior counterpart, which
Koskenniemi alludes to when he critically reflects on the failure of aspirations
to impose blueprints for ‘the government of the whole world’, ‘in the name
of humanity’.120 Against such unsavoury alternatives, realistic utopia must
begin with ‘the critique of present institutions’, ‘highlight the contingency and
114
ibid 41.
115
ibid 148.
116
ibid 52.
117
ibid 172.
118
ibid 195.
119
Martti Koskenniemi, ‘The Subjective Dangers of Projects of World Community’ in Antonio Cassese (ed),
120
Realizing Utopia: The Future of International Law (OUP 2012) 1.

28

contestability of global institutions and their distributionary consequence’,121
and target ‘the structures . . . that decide on the distribution of material and spir-
itual values today’. The purpose of doing so is ‘cosmopolitan’ but ‘open’—‘to
be constructed at each moment anew by real human beings themselves, as an
offshoot of their freedom’,122 prefigured only by the commitment to ‘the maxi-
mization of freedom tomorrow’.123
But what if we already live in that world? What if our current a-puzzle more
or less faithfully reflects the state of psychic happenings in our k-universe? If
Koskenniemi’s international lawyer doesn’t believe that this is the case—that
is, if he believes there is no strong correlation between the current political or-
ganization of the world and the asymptotic movement towards the ideal of the
‘maximization of freedom’—what is then the content of ‘freedom’ he would
like to see maximized? Put differently: What is the purpose of the freedom he
wants to see ‘maximized’, but which our current international order could not,
in principle, maximize already? If there is an answer to this question, it must
come in the form of the disclosure of a concrete telos for the world. It cannot
come in the form of an empty affirmation of cosmopolitan purposes as ‘open,
to be constructed at each moment anew’.124
The roots of this ‘open’ are the same as the roots of Lefort’s ‘empty’. As in
the case of Lefort’s ‘empty place’, the polemical dimension of Koskenniemi’s
‘open purpose’ cannot be understood without taking into account the rhetorical
equivalent of Lefort’s ‘people as One’, the figurative representation of totalitar-
ianism. In contrast to Lefort, Koskenniemi—and with good reason—doesn’t
give a name to that figure. Had he done so, his ‘realistic’ utopia would reveal
itself as a misnomer for an anti-totalitarian form of government, very similar to
liberal democracy. In that case, however, we would be left bereft of an answer to
an important non-juridical question: Is there any meaning to forward-looking
realism that doesn’t collapse into the fears provoked by a backward-looking gaze
at the horrors of totalitarianism? The object of that gaze can only be gleaned
from Koskenniemi’s asides on ‘what Vladimir Zinoviev once [satirically] called
the “radiant future”—a future that would never arrive but for which the pre-
sent would nevertheless be sacrificed’.125 It is this radiant future—casually
mentioned, pondered meditatively, and tucked away in a chapter in an edited
volume—that acts as the inferior pole to realistic utopia—a tipping point, stra-
tegically positioned, somewhere between the poles of utopia and apology. It is
here that diagrams prove their mettle as the devices that allow us to represent
more economically what is the medias res: a scholar’s diffuse anxiety about the
return of totalitarianism, styled into an ironic figure, but in such a way that it
doesn’t disturb the semblance of the formal symmetry between the apology
and utopia, but is in fact existing as an affect that constitutes the apology–
utopia polemical binary as an asymmetric counterconcept (Figure 6.5).
ibid.
121
ibid 12.
122
ibid.
123
ibid.
124
ibid, quoting Alexander Zinoviev, The Radiant Future (Random House, 1980).

125
29
Tipping the Scales: from Apology to Utopia(s) • 229
U A
RF
RU
Figure 6.5 Polemical balance of apology and utopias
As was the case with all the diagrams so far, the purpose of Figure 6.5 is to
short-circuit the professional modes of anxiety-management, and in doing so,
encourage those who manage them as professional scholars to attempt ‘to
bridge the empirical and the affective’ not only differently, but also deliber-
ately, mindful of the questions that a partisan eavesdropper might have asked
if she had a chance: How relevant today is the experience of actually existing
socialisms (1917–89), which Koskenniemi’s jurist privileges in his diagnosis of
the toxic effects of unrealistic utopianism? What other ‘lessons in the history of
utopianism’ have impelled him to form a negative opinion of the mindset that
finds it ‘necessary to break some eggs in order to make an omelette’? Finally,
what horizon of expectation allows Koskenniemi’s jurist to prognosticate that
the metaphorical eggs will be broken by pursuing once again, concrete (e)uto-
pian projects for the world?126 Captive to the traumatic historical memory of the
twentieth century, jurists remain reluctant to confront these questions directly,
or at least less anxiously. It is that unwillingness—not the grammar of a legal
argument—that defines the imaginative horizons of international law.
John Haskell, ‘From Apology to Utopia’s Conditions of Possibility’ (2016) 29 London J Intl L 667, 671. See
126
also, Akbar Rasulov, ‘The Concept of Utopianism in Contemporary International Law’ in Jean d’Aspremont
and Sahib Singh (eds), Fundamental Concepts of International Law (Edward Elgar 2018).
231
 7 
Territorial Isomorphs
Beyond Foundational Authority
1. Territorial isomorphs and Sierpinski recursion

Devoid of sovereigns, peoples, constituent powers, and collective rights for self-
determination, kelsenian universe is the work of imagination. To Mr Palomar,
its surface reveals the ‘lines of movement, patterns that combine regularity and
fluidity like the rectilinear or circular tracks of a rake’.1 To us, the surface of the
same assembled human ‘sand’ appears differently. Instead of tracks of a rake,
the kaleidoscopic pattern of recursively replicating isomorphic polities looks
more like the famous work of Jean Nouvel; the shape-shifting glass-clad curtain
wall of the Institut du Monde Arabe.
The units inscribed on its surface are politomorphs—not monochromatic
pieces of a jigsaw puzzle. Instead of ‘peoples’ exercising their ‘rights’ to ‘self-
determination’ over ‘their’ territories, this kaleidoscope presents us with the
random, uneven, and contentious sequences of reiterating k-algorithms.
Whatever their outcomes—territorial autonomy, a federal unit, or an inde-
pendent state—these reiterations always result in territorial polities governed,
at least notionally, in the name of some people.
To those who believe in the essences of political communities, these units
will be nothing but kingdoms, republics, provinces, or municipalities. To those
who ask how these units respond to the shifting tides in the global ‘ocean of
psychic happenings’, they will appear as territorial isomorphs.
The k-universe they inhabit is itself an occasion for reckoning: What is
the telos that these isomorphs pursue? How many aspirations do their k-
algorithms seek to accommodate, and how fast? Rather than echoing or
replicating existing debates, these questions stand in an orthogonal relation-
ship to the binaries such as universalism–pluralism, cosmopolitanism–statism,
global constitutionalism– constitutional pluralism, or civicism– ethno-
nationalism. Beyond the imagery of joint action, self-determination, and con-
stitutional foundation on which they all rely, a new panoramic scene in which
t-isomorphs replicate recursively allows us to imagine their purposes more
1
23
232 • Territorial Isomorphs: Beyond Foundational Authority

specifically and deliberately. To do so we need not abandon the imagery of terri-
torially integral ‘isomorphic envelopes’ (as counselled by Appadurai), nor do we
need to move beyond the territorial aspirations of national self-determination
(as suggested by Yack). To envision proliferating t-isomorphs instead of sover-
eign, presumptively perpetual, states, nephoi instead of ‘peoples’, and the exer-
cise of self-determination as the recursive iteration of k-algorithm, might open
up space for different political strategies and language games. Instead of pro-
voking oppression, feigning being oppressed, performing exhaustion with op-
pression, proving the exclusivity of claims to land by concocting ‘evidence’, or
imputing unethical selfishness to dangerous radicals, we might begin to argue
about what we hope for, what we worry about, and why we don’t trust each
other when we propose different templates for the resolution of constituent
struggles at s1–s4.
In this chapter I propose sierpinski recursion (s-recursion) as a tem-
plate that might help us do so more explicitly. Through a broader and longer
spatiotemporal frame, the logic that seems to govern the replication of ever-
smaller triangles within the famous Sierpinski gasket in Figure 7.1 also seems to
underlie the reproduction of familiar constitutional forms in some notorious
conflicts on the ground (otherwise seen as demonstrating the impossibility of
finding a compelling definition of the right to self-determination).
Figure 7.1 Sierpinski gasket
To notice something like it in action, recall what Burke said about the relation-
ship between the scopes of our mental circumferences and our interpretations
of the scenes on the ground. The narrower the circumference the higher the
likelihood of identifying an efficient cause at play. And vice versa: the wider the
circumference the higher the likelihood of identifying not an efficient but a final
cause.2 In case this Aristotelian terminology of causes is still too abstract, think
of the ants. If you focus only on one little pine-needle-carrying ant, you’ll be
more likely to describe it with some reference to its wilful agency. While you
might still refer to such ants as ‘attempting’, ‘persevering’, or ‘succeeding’, a
more panoramic scene that would appear if you expanded your circumference
would encourage you to start considering how different patterns in their behav-
iour relate to the effects of their agency on the ground: the construction of an
anthill. Most theorists gaze at one little people-ant at a time. Patterns similar to
s-recursion would begin to appear at the moment their circumferences became
wide enough to capture metaphorical anthills.
Kenneth Burke, A Grammar of Motives (University of California Press 1969) 79.

2
23
Territorial Isomorphs and Sierpinski Recursion • 233

As an illustration, imagine the former Yugoslavia 1991– 2008 as one of
them. Instead of a sequence of isolated dissolutions, civil wars, peace settle-
ments, insurrections, and further secessions, what appears within this broader
spatiotemporal frame is the recursive iteration of k-algorithm on a ‘time re-
lease’. Most t-isomorphs that have emerged during that period mirrored (to an
extent) the plural constitutional character of the ‘original’ 1991 Yugoslavia it-
self: in 1992, the two-member Federal Republic of Yugoslavia; in 1994, the twelve-
canton Federation of Bosnia and Herzegovina; in 1995, the two-entity Bosnia
and Herzegovina; in 2006, quasi-Serbian federacy with autonomous Vojvodina;
in 2008, an independent but decentralized Kosovo—a crypto-federacy in statu
nascendi under the plan of the UN’s Special Envoy, Martti Ahtisaari. Added to
that, the same would have been the result of the conflict in Croatia had the
local Serbs accepted the 1994 peace plan that would have transformed Croatia
into a quasi-federal two-part state featuring an autonomous Serb Krajina.3
Interestingly, this plan envisaged the recursive application of the Russian doll
logic of k-algorithm all the way: within the Serb autonomy within Croatia,
Croatian municipalities would in turn enjoy their own territorial autonomy.
From the perspective of consociational theory, the fragmentation of the
former Yugoslavia into isomorphic Russian dolls on a ‘time release’ might
be seen as necessary means to end local conflicts by compensating politically
significant national communities for their new minority status. From the per-
spective of normative theory, the same arrangements could simply be seen as
possible ways to reconcile competing territorial rights of different communities,
depending on the circumstances of each conflict. From the perspective of inter-
national law, some of these arrangements might be seen as the consequences
of its erroneous interpretation, as the pieces of evidence that international
law continues to evolve towards the ‘remedial’ concept of self-determination,
or as the ways in which ‘hybrid’ conceptions of self-determination ended up
being applied in different cases.4 From the perspective of k-algorithm, how-
ever, the entire sequence appears to be governed by the same Kelsenian ‘ten-
dency’, moving, if not towards unanimity, then towards the increase in degree
of overall constituent attachments from the perspective of the totality of post-
Yugoslav political space.
Here, s-recursion is neither an accurate re-description of the pattern noticed
in the dissolution of Yugoslavia, nor is it the alternative to diverse vocabularies
of the right to self-determination, but rather the condensation of the ironic logic
behind that dissolution. It is an alternative, among other templates of reconsti-
tution that are, explicitly or implicitly, on offer. What it offers is a temporally
staggered process of reconstitution where the improvement in allegiances does
not occur in a single instance of popular ‘willing’, but over time, and through
the recursive application of schematic constitutional arrangements.
3
For the Z-4 Plan for Croatia, see Draft Agreement on the Krajina, Slavonia, Southern Baranja and Western
Sirmium (Z-4 Plan), 18 January 1995, liv.ac.uk/library/sca/owen/boda/sp10a.pdf [on file with the author].
4
See generally Christine Bell, On the Law of Peace: Peace Agreements and the Lex Pacificatoria (OUP 2008).
234

What that means in concrete terms depends on the starting point from which
the template of t-isomorph seeks to contribute to an increase in allegiances,
as well as on the character of the demand that s-recursion aspires to accom-
modate. In the context of the demands for secession from unitary states, for
example, the first ‘round’ of recursion is directed inwards—towards the replica-
tion of territorial polities, the outcome of which is the transformation of sov-
ereign states into federations or federacies. In the context of the demands for
secession from federal, or federal-like states, s-recursion mandates the recursive
replication of territorial polities both outwards and inwards. Outwards, it coin-
cides with the ‘upgrade’ in the status of federal units to that of sovereign states.
Inwards, within the ‘upgraded’ units, it results in the replication of the forms of
territorial government that may mirror—depending on the aspirations of ‘new’
minorities—the constitutional arrangements in a wider state, before the upgrade.
The purpose of s-recursion is both practical and rhetorical. In offering a
new template of conflict-resolution, it also serves to provoke the antagonists to
consider the possibilities they might otherwise ignore. In contrast to the picture
they may articulate with the help of the vocabulary of self-determination, s-re-
cursion invites them to consider the possibility that an increase in allegiances
is an ideal shared by them all; that they might be sharing the same underlying
anxieties of territorial fragmentation; and finally, that the telos of their ‘self-
determination’ may always transcend those offered by the demos–ethnos
binary. In contrast to the theories of self-determination, which are happy to
perpetuate the ideals of political ‘ownership’ (even at the price of a performa-
tive contradiction, as we saw in Chapter 5), the visuals of s-recursion confront
them with a question: have you claimed your ‘right’ to sovereign statehood just
because other ‘nations’ have their own ‘states’ or because there is something in
your current constitutional situation that prevents you from achieving your pol-
itical aspirations specifically?
2. ‘A measure of my own gestalt ’

four laws of grouping
S-recursion is an institutional response to the anxious loop of popular
sovereignty—the subterranean force that discourages theorists from openly dis-
cussing alternative ways of complying with what Kelsen called ‘tendency to-
wards unanimity’. In critiquing this reluctance, Chapter 6 focused on the false
binaries and exaggerated scenarios that international jurists smuggle into their
text-centric interpretations of the meaning of the right to self-determination.
What Chapter 6 did not discuss were the assumptions that need to be made in
order to offer a non-nihilistic alternative to the ways in which jurists wrestle
with the anxious loop hermeneutically. Put differently: what is it in my way of
seeing that allows me to assume that drawing a boundary around clusters of al-
legiances is not such a terrifyingly complex thing as most international lawyers,
and many normative theorists, continue to believe? What allows me, in other
words, to think that we can determine our own political ‘Gestalt’—against
235
‘A measure of my own Gestalt’ • 235

Schmitt’s protestations in Chapter 3—in the context of the struggles over ter-
ritorial sovereignty, even without the figure of enemy? The answer lies not in
some other arbitrarily defined Gestalt, but in four underlying laws of visual or-
ganization that allow us to perceive ‘cohesive perceptual units with figure-like
qualities,5 and that postulate that:
Objects that are close to one another tend to be perceptually grouped together
(law of proximity); that objects that are similar tend to be grouped together (law
of similarity); and that items that form a closed figure tend to be grouped to-
gether (law of closure), as are items that continue in a common direction with the
fewest sharp deviations (law of good continuation).6
The wager behind s-recursion is that these laws hold a sufficiently strong sway
over our visual imaginations—strong enough, that is, to alleviate the interlocked
anxieties looping underneath the ideals of popular self-determination. Behind
this wager are three further hypotheses:
(1) After having unmasked the circularity involved in the assertion of the rights
of a territorial people to territorial self-determination, the principle of ‘simi-
larity’ will bear more weight in determining the spatial shape of the ‘group’
than the principle of ‘proximity’. In that case, the principle of proximity will
itself appear as a proxy for not wanting to talk about whose patterns of daily
life legitimately or illegitimately affects whom, when, and how.
(2) The failure of antagonists to identify the same spatial shapes of relevant
‘groupings’—irrespective of the fact that they both automatically use the
same four principles—can only in smaller part be attributed to the fact that
different principles can conjure different, dissonant Gestalts.
Here, my intuition is that there is no significant difference between the antag-
onistic visual images of groupings generated by the principles of closure and
similarity. Irrespective of the intensity of their antagonism, and the justification
behind their territorial aspirations, it seems to me that the antagonists generally
don’t have a problem realizing that ‘their’ national land is discontinuous, pock-
marked by enclaves, or that they exist in enclaves themselves.7 This, if true, ex-
plains why the work of normative theory to justify the heartlands of ‘national’
territories is largely superfluous. As I argued in Chapter 5, those who compete
over the extent of territorial sovereignty generally don’t disagree over its rough
contours. However,
(3) what renders the gestalt principles of grouping politically (and rhetorically)
inoperative seems to be the confusion introduced by the principle of good
continuation.
5
Stanley Coren and Joan Girgus, ‘Principles of Perceptual Organization and Spatial Distortion: The Gestalt
Illusions’ (1980) 6[3] Journal of Experimental Psychology 404.
6
ibid.
7
For the subordinate role of the principle of proximity, see Philip T Quinlan and Richard Wilton, ‘Grouping
by Proximity or Similarity? Competition between the Gestalt Principles in Vision’ (2002) [31] Perception 799.
236

While good continuation allows us to read triangles into the configurations of dis-
connected lines, or Dalmatian puppies into the constellations of disjointed blots,
when it comes to spatial discontinuities between antagonized nephoi that ceases
to be the case.8 In those cases, however, the law of good continuation becomes
an unreliable guide to our imagination—not necessarily because we are aggrand-
izing nationalists who only pretend they need sovereignty over certain locations
in order to achieve ‘good continuation’, but because we hope and worry about
different things. The reason why I don’t want your secessionist entity to become
independent is not necessarily because the vocabulary of self-determination has
so successfully prefigured the content of my ‘popular’ expectations, but because
I worry that such secessionist entity cannot be trusted not to undermine the
(viability) of the object of my allegiance further down the line. While the laws
of ‘proximity’, ‘similarity’, and ‘closure’ cannot persuade the parties to reach a
grudging visual consensus about the locations of their conflicting nephoi, they
must be presumed in order to bring the workings of the invisible affective loop
into the open, and to give a chance to the circulating anxieties to be crystallized
as more specific fears, regrets, and disappointments which otherwise remain lost
in the cacophony of self-righteous legal interpretations.
When it comes to expanding our moral imaginations, however, what first
comes to mind is something else: personal and communal narratives—not
graphs, maps, pie charts, and diagrams. Our indifference towards these vis-
uals may be mistaken—especially in the context of conflicts over territorial
sovereignty. Driven by conflicting ‘stories of peoplehood’, those who take part
in them cannot but resort to rudimentary litanies in order to endow their
claims with legitimacy. What makes these tallies of constitutional grievances
so powerful is not (only) the pride of those who believe in them—or the cal-
culus of those who fabricate them—but also the kind of thinking which Rudolf
Arnheim called ‘intellectual’; one that ‘strings perceptual concepts in linear
succession . . . cuts one-dimensional paths through the spatial landscape intel-
lectually . . . dismantles the simultaneity of spatial structure [and] transforms
all linear relations into one-directional successions’.9 It is the perspectival lin-
earity of that form of thought that makes other, inconvenient narratives (lest
they enjoy massive media support) so easy to dismiss as irrelevant: either as in-
authentic, or as exceptional, or simply as dishonestly partial. In contrast,
the principal virtue of the visual medium is that of representing shapes in two-
dimensional and three-dimensional space, as compared with the one-dimensional
sequence of verbal language. This polydimensional space not only yields good
thought models of physical objects or events, it also represents isomorphically
the dimensions needed for theoretical reasoning.10
8
Even in such cases, as Merleau-Ponty argued, ‘ “good form” is not achieved because it would be good in it-
self in some metaphysical heaven; rather, it is good because it is realized in our experience’, Maurice Merleau-
Ponty, Phenomenology of Perception (Taylor Carman tr, first published 1945, Routledge 2012) 17.
Rudolf Arnheim, Visual Thinking (University of California Press 1969) 246.
9
10
ibid 232.
237
Beneath the Source of Ultimate Authority • 237

Making it very clear that things could be done differently, this space also offers
an environment for a more sincere conversation, and an opportunity to look for
new institutional solutions for old conflicts by asking different questions. Given
that we can agree on this much about the shape of our proto-polities, what pre-
vents us from embracing one vision of its good closure over another? What
would it take to accept one vision of good closure rather than another, given
that both our visions are ultimately governed by k-algorithm? What can I do to
respond constructively to your fears, hopes, and disappointments?
3. beneath the source of ultimate authority

In accepting the propositions of peoplehood we are far more likely to look at
those questions cynically and strategically. To increase the chances of doing
otherwise, in this book we move beyond them, one by one, keeping in mind
that the ‘endoconsistency’ of their configuration may itself be imagined dif-
ferently. Consider Kelsen’s account of popular sovereignty. As a positivist who
derived the ultimate authority of a constitutional order not from the will of ‘the
people’ (proposition 4) but from the basic norm, he would have remained un-
able to rethink the function of ‘the people’ as the constitutional subject of self-
government (proposition 5) had he imagined their relationship as inextricably
intertwined, instead of modular and re-configurable. By imagining their rela-
tionship in this latter way Kelsen was able to say something substantive about
the people’s ‘will’, which he otherwise might have found irrelevant, uninter-
esting, or too uncomfortable to consider.
Not worrying about the possibly adverse consequences of his positivist ap-
proach to the source of constitutional authority allowed Kelsen to come up
with a conceptually innovative interpretation of the meaning of popular sov-
ereignty. If so, Kelsen the Conceptual Innovator offers an important lesson to
those who exhort others to appreciate the importance of legal and political
imagination. Their calls will be in vain as long as prospective (re)imaginers
continue to ignore the ways in which different registers of their constituent
imagination affect each other. Kelsen’s second message is addressed to those
who ponder whether they should respond, and how best to address the topics
which, in theoretical conversations, have the status of paradoxes, antinomies,
and puzzles. Rather than exhausting ourselves in trying to resolve them, the
lesson offered by Kelsen’s approach to popular sovereignty is instead to try to
imagine what those who take ‘puzzles’ seriously expect. Or, as Kevin Olson re-
marks in a similar context, ‘instead of seeking to locate political normativity in
revolution, archê or new beginnings we should bring that very impulse under
critical scrutiny.’11
Consider Hannah Arendt’s celebrated account of authority. In On Revolution,
Arendt notices the ‘undiscriminating and blind worship’ with which the people of
Kevin Olson, Imagined Sovereignties: The Power of the People and Other Myths of the Modern Age (CUP 2016) 171.
11
238

the United States have looked upon their ‘constitution’.12 This sentiment of ‘rev-
erent awe’, Arendt speculates, is ultimately derived not from the ‘thing’ of the con-
stitution itself but from the memory of the historical snapshot of the founding
event. What has ‘shielded both event and document against the onslaught of
time and changed circumstances’, says Arendt, is ‘the remembrance of the event
itself—a people deliberately founding a new body politic.’13 While this remark
gives us a sense of how authority works psychologically (by generating reverent
awe) it also attunes us to the ‘technological’ aspect of the vocabulary of constitu-
tional authority—unable to function, according to Arendt, without a constitution
which is: (1) capable of being visualized, and (2) evocative enough to provoke the
recollection of something else: the scene of foundation. Both hinge on Arendt’s
prognosis that ‘the authority of the republic will be safe and intact whenever con-
stitutional questions in the narrower sense of the word come into play.’14
But what is meant by ‘narrower sense’? We do not have an indication of what
Arendt means here, though it is fair to assume that those questions are not ones
of the life and death of a constitutional order. In fact, when the ‘onslaught of
circumstances’ did, in the end, pose a profound challenge to the authority of
the republic, the rhetorical power of ‘the act of foundation’ proved powerless to
preserve the spatiotemporally extended ‘reverent awe’ that it had allegedly gen-
erated. The alleged remembrance neither prevented conflicts over the source of
ultimate constitutional authority (the South Carolina Nullification Crisis, 1830),
nor did it prevent its destruction when a new constellation of ‘elementary re-
publics’ founded a new body politic in 1861.
If so, what is the purpose of conjuring the acts of foundation, the irruptions
of sovereignty, or the ideal conditions for the formation of self-governing pol-
itical communities? Put differently, why not follow Kelsen (the Legal Positivist)
and divorce the source of legal authority from the function(s) of popular
sovereignty?
Predictably, a thoughtful rejection of this view comes from an anti-positivist.
For Ronald Dworkin, for instance, the ‘personification’ of a political commu-
nity (and, ceteris paribus, the people) is a matter of moral necessity—the only
way to explain why legal officials have a duty to act impartially, and why or-
dinary citizens ought to ‘treat relations among themselves as characteristically
not just spasmodically governed by these standards’.15 The ‘expressive value’ of
the political community is ‘confirmed when people in good faith try to treat one
another in a way appropriate to common membership in a community . . . and
to see each other making this attempt’.16 In other words, the picture of polit-
ical community is a talisman that offers protection against the official deceit,
corruption, vindictiveness, and partiality.17 It is the only lens—to use a different
metaphor—through which to imagine civic solidarity.
Hannah Arendt, On Revolution (Penguin 1963) 204.

12
13

14
Ronald Dworkin, Law’s Empire (Belknap 1986) 175.

15 16
ibid 190. ibid 188.
17
239

Though they discuss different concepts in different contexts, both Dworkin
and Arendt anticipate specific occasions in which the authority of constitu-
tional order may end up being questioned, undermined, or destroyed. The
occasions they anticipate are also different, but that, precisely, is the point.
On the one hand, Arendt postulates the usefulness of constitutional imagery
in preserving the authority of the republic itself, presumably in the context
of collective challenges to its integrity or existence. On the other, Dworkin
can be interpreted as embracing the imagery of the people as the source of
that authority in the context of ongoing ‘horizontal’ relationships among
fellow citizens, and their ‘vertical ‘interactions with legal officials. This point
may be further generalized: however they conceptualize the sources of con-
stitutional authority abstractly, theorists seem to be able to do so only by
imagining the occasions in which the manifestation of that authority may
matter, specifically.
To move beyond proposition 4—the people is the source of ultimate au-
thority—hardly makes sense without first making that picture more explicit.
In this chapter, the name given to that picture is the matrix of authority-
challenges—more concrete but typical occasions that generate authority prob-
lems, and which, once plotted as in Figure 7.2, become part of a bigger picture
that shows how we imagine their aggregate distribution at different points
in time. What defines its four quadrants in Figure 7.2 are two binaries. The
first emerges from Arendt’s approach to authority and distinguishes between
existential and non-existential authority challenges. The second implicitly
challenges the thrust of Dworkin’s argument by proposing a distinction be-
tween ethical and epistemic authority-challenges. The matrix that emerges
as a result features the following four combinations: ethical–existential (I),
epistemic–existential (II), ethical non–existential (III), and epistemic non–
existential authority–challenges (IV).
Figure 7.2 The matrix of authority-challenges

240

The purpose of this matrix is to stimulate speculation. What it suggests, for
example, is that the need to ‘ground’ political authority through an act of foun-
dation will probably make much more sense to those who imagine authority-
challenges as predominantly nesting in quadrants III and I not II or IV. This, of
course, rests on the assumption that those who might pose an ethical but not
existential challenge to the authority of a constitution—think for a moment
of militant anti-abortionists, antifascist activists, or radical environmentalists—
are also those who will be more likely to respect it were they offered a story
that connects them to its imaginary collective author. Similarly, those worried
that external threats—in quadrant I—might nudge legal officials to discriminate
against potential ‘internal enemies’ and would be more likely to embrace an
account of constitutional authority that derives it from the ‘will’ of the entire
people.18
In turn, the need for such foundational images would seem to wane if one’s
imaginary matrix featured a crowded quadrant IV. For example, it is hard to im-
agine that anti-vaccination conspiracy theorists would be impelled to conform
with the state’s health regulations just because such regulations are ultimately
traceable to the will of a sovereign people. By the same token, a compelling
foundational story seems pointless on the occasions that belong to quadrant
II. In the context of a global pandemic of cataclysmic proportions as in World
War Z, or an alien invasion as in Independence Day—the movies rightly teach us
that the bearer of the ultimate political authority ought to be Brad Pitt or Jeff
Goldblum (or their hero–scientist equivalents)—whose expertise turns them
into ultimate authorities when it comes to global salus populi—not some other,
constitutionally duly authorized dramatis persona.
As was the case with nephos in Chapter 5, the sum of authority-challenges—
represented above as the sum of overlapping grey circles—may be further
fuzzified and granulated by introducing additional criteria of membership,
the frequency of a particular authority-challenge, its infectiousness, and so on.
Whatever aggregate clouds of authority-challenges appear as the result of that
process, their images will always remain highly sensitive to the mental ‘circum-
ferences’ of those who imagine them. Constitutional theories—as with most
bodies of scholarly thought—restrict the range of the imaginable circumfer-
ences by relying on ‘conceptual supplements’—‘monographic terms’ in Burke’s
terminology—which, as Koselleck suggested, act as the mediators ‘between the
political tasks of the day and the general philosophical apprehension of the
world’. From a scholarly perspective, relying on them comes naturally, as they
help organize and stabilize intra-disciplinary conversations around a number
of immovable binaries—pitting foundational constitutionalism against consti-
tutional pluralism, cosmopolitan pluralism against national pluralism, consti-
tutionalism against radical pluralism, or the normative against the sociological
vision of political legitimacy.
Or it may not. Korematsu v United States, 323 US 214 (1944).

18
241

At the same time, however, these binaries also seem to distract those who
claim to be interested in the functional contribution of the vocabulary of au-
thority from imagining its nature systematically and explicitly. Consider Martin
Loughlin’s criticism of constitutional pluralism, for example. Loughlin claims
that constitutional pluralism lacks a ‘robust narrative’ of political authority,19
but offers no specifics about the nature of that robustness, its features, or the
occasions that call for its loud and public broadcast. Put differently, robustness,
like the concepts of functionality, capacity, and viability, is a relational category:
what is an elaborate, solemn story from the perspective of the majority is an
insulting omission of multi-generational oppression, from the perspective of
the minority.
The ‘robustness’ of a narrative is not a quality that can be supplied by theory,
but is rather the stage effect of essentially theatrical political performances.
In performing, the actors on stage don’t simply assert or challenge authority,
but also look at things in a certain way, follow unwritten scripts of constitu-
tional change (such as the Lockean and the Schmittian scripts, discussed in
Chapter 4), and interpret the ‘foundational documents that set out the most
transcendent terms of a particular worldview’.20 By allowing supplementary
concepts to guide their diagnostic judgements constitutional theorists remain
indifferent to the ‘situational lives’ of these foundational texts. In doing so,
they miss an opportunity to speak to constitutional moments that call for the
alternatives to the discourses of ultimate constitutional authority. Though
theorists imagine these moments as nation- wide, ‘macro’ events— which
may be described, following Bruce Ackerman, as the instances of ‘higher law-
making’—the everyday political existence of these texts call for a different kind
of gaze. That gaze is more micro-than macro-scopic: oriented neither towards
the events captured by the naturalistic allegories of the social contract, nor
by the secularized theological imagery of irrupting constituent power, nor
by any other theoretical dramatization of revolution, constitution-making, or
state-formation.
What those dramatizations miss are stand-offs, the situations that, however
un-constituted in the end, always produce constitutive effects: a constituent as-
sembly (if the dictator ultimately agrees to leave the presidential palace), the
preservation of the territorial integrity and national unity (if a rebellious en-
clave decides to surrender), or a ‘pacted transition’ towards a new socio-political
order (if a weak government and an insufficiently strong opposition come to
their senses). Imagining stand-offs is an occasion for professional self-reflection,
as it raises questions that seem irrelevant from the macroscopic perspective of
constitutional moments.
On a smaller scale, the questions about the constituent power of the
people turn out to be, in part, questions about the ‘hermeneutical power’ of
Martin Loughlin, ‘Constitutional Pluralism: An Oxymoron?’(2014) 3[1] GlobCon 9, 24.

19
Robin Wagner-Pacifici, Theorizing the Standoff (CUP 2004) 191.

20
24

theorists21—notionally semi-detached expert-critics of the judicial and political
interpretations of constitutional ur-texts. Should they continue to lend intel-
lectual credibility to the ‘air of fatalism’ that defines the manner in which de-
fenders of the constitutional status quo invoke the authority of texts? Or could
they, as Wagner-Pacifici suggests, act less as the experts in interpretation and
more as the facilitators of improvisation? While the former arbitrates between
legal and illegal and between the more and the less legitimate, the latter would
seek to help those locked in a conflict find ways to make the political and con-
stitutional categories they take for granted ‘subsidiary to the recombinatorial
principles of improvised action’.22
What keeps those who theorize and interpret claims of ultimate authority
indifferent towards these possibilities? Is it the looping anxieties that simmer
under the vocabulary of popular sovereignty, provoked, perhaps, by the kinds
of authority-challenges represented in the lower left quadrant in the matrix
represented in Figure 7.2? Or could it be that their continuing embrace of
the ‘paradoxes’ of constitutionalism, self- constituted collective-identities,
or robust authority–narratives may have less to do with the fears of civil
wars, secessions, and general strikes and more with the underlying, if under-
articulated, diagnostic judgement about the low probability of those occa-
sions, and the high importance of finding appropriate imaginative responses
to frequent authority problems in the lower left quadrant? If so, this might
explain why theorists of peoplehood often appear not to care about the per-
ceptual flimsiness of their arguments—and, as a result, their motivational
impotence—in conflicts over territory. Their reasoning seems to conform to
the following logic: since civil war is not likely to happen very often anyway,
we can afford to ignore the futility of imagining the people as the ultimate
source of constitutional authority in those contexts. While theorists may af-
ford to ignore the fluctuations in the relative size of the four quadrants, the
officials tasked with defending their constitutional order against existential
threats do so at their own peril. In grounding their rejection of nationalist
aspirations towards secession in the letter of the constitution authorized by a
territorial people, they would be using the vocabulary of authority designed
with different purposes in mind.
4. the final say
münchausen and his trilemma
Any rudimentary narrative that retrospectively concatenates (re)founding
events must ultimately choose between the options presented by münchausen’s
trilemma that claims that the retrospective chain of authorization must end
Jeffrey Alexander, ‘Iconic Power and Performance: The Role of the Critic’ in Jeffrey Alexander, Dominik
21
Bartmański, and Bernhardt Giesen (eds), Iconic Power: Materiality and Meaning in Social Life (Palgrave
Macmillan 2012) 33.
Wagner-Pacifici (n 20) 221.
22
243
The Final Say: Münchausen and his Trilemma • 243

either in circularity, an arbitrary cut-off, or in an infinite regress.23 The first
insults the challenger’s intelligence, the second rhetorically reproduces the
founding heteronomy it otherwise wishes to conceal, and the third prevents the
departure from the status quo by deferring the answer to the question of au-
thority in perpetuity. And as we have seen in Chapter 6, skipping registers and
deriving the authority of the polity from a higher norm of international law
will not do the trick either: Vidmar’s stereoscopic conjuring of ‘historical pedi-
gree’, for example, is nothing more than a cherry-picked portfolio of appealing
snapshots of autonomous collective subjectivity over time.
What allows us to depart from the understanding of ultimate authority in-
formed by münchausen’s trilemma is the paralogical character of the templates
used to resolve existential constitutional conflicts over territorial sovereignty.
The ethico-political potential of s-recursion stems not from its political or
moral superiority but from the way it embeds itself among different algorithms
of polity formation. Instead of claiming legitimate authority, those who ad-
vocate a particular course of action can now ask the following question: How
would you rather argue, negotiate, and resolve conflict over territory, given that
all templates can be seen as variations of the k-algorithm, and given that they
all create different constellations of winners and losers?
Even if left unanswered, this question is useful in reimagining the claim of
ultimate authority: not as the claimant’s assertion of his right to act on his in-
terpretation of the constitutional ur-text in question, but rather as an implicit
refusal to imagine the character of a conflict over the locus of ultimate con-
stitutional authority as distributional—not categorical. Put differently, to claim
ultimate constitutional authority is an implicit recognition of the authority of
this trilemma, and of the limits it imposes on our constituent imagination.
Recognizing the way in which arbitrary cut-offs, circularities, and infinite re-
gresses structure our imaginings of the ways in which we may resolve political
conflict might be especially beneficial in liminal situations; especially during
constituent stand-offs.
Münchausen’s trilemma is a metapicture. As a figurative condensation of the
impossibility of foundational authority, its task is to nudge the antagonists both
to ‘carry out and reconfigure’ their unstated ‘aesthetic and narrative expect-
ations’—from each other, and, in doing so, also rethink specific calculations and
bets that inform them. In providing assistance to the parties, theorist-imaginers
would act not only as hopeful expert-improvisers, but also as the holders of
‘surplus authority’—ad hoc third parties who ‘intermittently and temporarily
imagine modes of being beyond those that are inscribed in the organizations
and structures of the involved parties’.24 The nature of that authority is per-
haps best captured by Arendt in an account of authority that transcends her
earlier preoccupation with the preservation of ‘reverent awe’ for existing con-
stitutional orders. In that account, she characterizes the authority as ‘an advice,
Hans Albert, Treatise on Critical Reason (Princeton University Press 1985) 19.

23
Wagner-Pacifici (n 20) 208.
24
24

which one may not safely ignore’.25 What gives strength to this advice is not
the intrinsic worth of ‘liberty’ or some contingent act of foundation, as Arendt
suggests elsewhere, but the warning about the unreliability of political expect-
ations. By warning that action ‘almost never achieves its purpose’,26 and that
there is ‘nothing more difficult to carry out, nor more doubtful of success,
nor more dangerous to handle’ than to try to establish new political orders,27
Arendt’s authority offers a pointed intervention in the structure of popular ex-
pectations described in Chapter 2. Understood as something that makes a par-
ticular ‘advice’ worthy of consideration, this concept of authority cannot clarify
which demands can and which demands cannot be made in the name of the
people. Nor does it denigrate hope for a radically better political future, or chal-
lenge assumptions about the spatiotemporal integrity of the imaginary entities
in whose name the constitutional status quo is challenged. Instead, it encour-
ages those who are about to embark on a new course of action to reconsider
the bets they are relying on.
All this of course confronts us with the rhetorical registers of the theorists’
imaginations of ultimate authority which have thus far remained in the back-
ground, but which, ultimately, determine the sensibility of individual theories
of ultimate constitutional authority. It may be that very little of what has been
said so far will make sense to a theorist whose vision of a meaningfully recep-
tive audience includes fellow theorists, the judges on the bench of the European
Court of Justice or the Supreme Court of Canada, graduate students, and in-
tellectually inclined litigators. The vision of audience embraced in this book
is broader: it includes not only the presumptive addressees and auditors, but
also those who might overhear and partisan eavesdroppers. The argumenta-
tive blind spots—which theorists are too polite to point out during the course
of their debates—will from the perspective of eavesdroppers appear like highly
dubious assumptions, which they are simply expected to embrace without
protestation.
To be more precise, whenever theorists argue about foundational authority,
they ask eavesdroppers to adopt at least one of the following four attitudes,
even if that might damage them politically:
(1) To treat arbitrary or imagined facts (eg the act of foundation) as inevitable
paradoxes or aporias (eg of constitution)—even when the behaviour that
theorists anticipate as something calling for the acceptance of those facts
or contradictions cannot, in a given case, be imputed to them;
(2) to forget that concepts such as democracy, popular sovereignty, or consti-
tutional authority are, on their own, scale-agnostic, but to pretend they are
scale-biased, which means to be willing to ignore the contestable nature of
concepts, arguments, or interpretations that support them, especially those
Hannah Arendt, ‘What is Authority?’ in Between Past and Future (Penguin 1968) 123.
25
Hannah Arendt, The Human Condition (first published 1958, University of Chicago Press 1998) 184.
26
Arendt (n 26) 141.
27
245
Varieties of (Un)responsive Foundationalism • 245

that assert the nature of constitutions (as the acts of the people, or as pacts
between peoples) and states (as ‘unitary’, federal-like, or ‘unions’).
(3) to presume the existence of sociological facts at a certain scale (mostly na-
tional or sub-national) as decisive; or to treat as irrelevant the existence or
emergence of competing sociological facts at other scales (both national
and sub-national, as well as supra-and sub-sub-national);
(4) to adopt a ‘narrow’ circumference when considering the questions of com-
munal (in)justice, and to accept the need to act morally symmetrically that
follows from that gaze—which means setting aside moral asymmetries
that conforming to this demand creates from the perspective of a ‘wider’
circumference.
More generally, eavesdroppers are expected to adapt their expectations to the-
ories based on undeclared and situationally unnecessary assumptions, highly
disputable factual judgements, unverifiable prognostications, or simply the pre-
occupations a particular theorist really had in mind when she put forward a
particular theory of constitutional authority. If so, theorists of popular sover-
eignty might find it useful to pause and reconsider the value of their enduring
preoccupations with eternally recurring questions: What is the people? Who is
the holder of the right to self-determination? When can constituent power be
legitimately exercised? Where is the legitimate site of popular self-government?
Rather than ending ongoing theoretical conversations, setting these questions
aside might give rise to new, more situationally aware lines of inquiry. What
that entails in the context of four influential approaches to constitutional au-
thority is explored in the sections that follow.
5. The varieties of (un)responsive foundationalism

Though only recently christened as ‘foundational’, foundational constitu-
tionalism is one of the most important building blocks of the modern liberal-
democratic ideology of popular sovereignty. In helping to organize different
propositions of peoplehood into one coherent whole, it encourages us to under-
stand constitutional transformations in terms of acts of foundations, constitu-
tional modifications in terms of error-corrections, isomorphic replications in
terms of state secessions, and purposeful disruptions in terms of popular re-
volutions. In the eyes of those captivated by imagery organized by foundational
constitutionalism, we govern ourselves collectively in conformity with the ideals
of political equality. In their vision, there is no room for the alternate reality of
constitutional if-then protocols that belong to the family of k-algorithms.
From the perspective of those algorithms, however, foundational constitu-
tionalism is not only a concept that supplements our understanding of popular
sovereignty in a particular way, but is also an internally diverse category that,
when it comes to territorial conflict, presents itself in three specific guises,
defined by the different degrees of responsiveness they show towards the de-
mands of those on the ground: namely, unresponsive, quasi-responsive, and
246

responsive foundational constitutionalism. While all three imagine the people
as the source of ultimate constitutional authority, they have radically different
implications in the context of the conflict over territorial sovereignty.
Unresponsive foundational constitutionalism relies on the image of the
people as a perpetual collective body. While highly correlated with the unitary
character of a polity in question, this image transcends the binary between uni-
tary and non-unitary states. In the American context, for example, the Supreme
Court of the United States implicitly affirmed this image in a landmark decision
in Texas v White, which characterized the United States as an ‘indestructible
union made of indestructible states’.28 Rather than some version of k-algorithm,
the Grundnorm of the American constitution is:
An overriding principle of constitutional and national self-preservation that op-
erates as a meta-rule of construction for the document’s specific provisions and
that may even, in cases of extraordinary necessity, trump specific constitutional
requirements. The Constitution is not a suicide pact; and, consequently, its provi-
sions should not be construed to make it one, where an alternative construction
is fairly possible.29
What is important to notice for our purposes, however, is that the image of
peoplehood that unresponsive foundational constitutionalism relies on is even
more radical than the one conjured by Michael Paulsen’s affirmative view of
the constitutional taboo of national ‘suicide’. Under this template, ‘the people’
should be seen not only as a collective actor who ought to exist in perpetuity30
but also as an actor that endures while keeping its political body intact. Instead
of Texas v White, a better example is Kesavananda Bharati v State of Kerala, where
the Supreme Court of India decided that: ‘The power to amend the Constitution
does not include the power to alter the basic structure or framework of the
Constitution’, part of which, according to the court, was the territorial integrity
and national unity of India.31 A similar commitment to unresponsive founda-
tional constitutionalism can be discerned in the constitutional texts and juris-
prudence of Algeria, Angola, Benin, Burkina Faso, Burundi, Cameroon, Cape
Verde, Chad, Comoros, Congo, Côte d’Ivoire, Djibouti, Gabon, Equatorial
Guinea, Guinea-Bissau, Madagascar, Mali, Rwanda, São Tomé and Príncipe,
Somalia, Azerbaijan, Kazakhstan, Moldova, Romania, Tajikistan, Timor-Leste,
El Salvador, Honduras, Portugal, and Turkey.
Though some of these countries feature a strong commitment to ignoring
(or criminalizing) challenges to the perpetual spatiotemporal integrity of their
peoples, that commitment is ineluctably fluid, capable of changing irrespective
Texas v White 74 US 700 (1869).

28
Michael Stokes Paulsen, ‘The Constitution of Necessity’ (2004) 79 Notre Dame L Rev 1257, 1257.
29
On the idea of perpetuity as the result of ideational mutations in the medieval understanding of time, and
30
as the conceptual prerequisite for the emergence of the modern idea of state, see Jens Bartelson, A Genealogy
of Sovereignty (CUP 1999).
31
For an argument that Texas v White allows for a consensual secession from the United States, see Vicki
Jackson, Constitutional Engagement in a Transnational Era (OUP 2010) 244.
247

of any prior textual commitments. Consider, for example, the way in which
the Spanish constitution calibrated the extent of its responsiveness to the se-
cessionist aspirations of Catalan sovereigntists. At first glance, the text of the
Spanish constitution indeed seems to be ‘designed to make secession almost im-
possible’.32 In section 1, the constitution states that ‘National sovereignty belongs
to the Spanish people, from whom all State powers emanate’, and in section 2,
that: ‘The Constitution is based on the indissoluble unity of the Spanish Nation,
the common and indivisible homeland of all Spaniards’. On the other hand,
in a judgment delivered in early 2014, the Spanish Constitutional Court seems
to have subtly rejected the idea of the Spanish people as a collective sovereign
which must remain spatiotemporally integral in perpetuity:
Any approach that intends to change the very grounds of the Spanish constitu-
tional order is acceptable in law, as long as it is not prepared or upheld through
an activity that infringes democratic principles, fundamental rights or all other
constitutional mandates, and its effective achievement follows the procedures
foreseen for constitutional reform, given that these procedures are inexcusable.33
The character of foundational constitutionalism revealed in this judgment
makes it radically different from its Indian or Ukrainian counterparts. That dif-
ference can be approached, as previously discussed, through the metaphors of
suicide and mutilation, from the perspective of constitutional doctrine (the pres-
ence or absence of the basic structure doctrine), or from the perspective of eth-
ical values and prudential concerns that these doctrines serve.34 What is more
productive for our purposes, however, is to reinterpret these ‘characterological’
differences in the family of foundational constitutionalism from the perspective
of the analytic of the (first) four stages of polity formation. From that perspec-
tive, the decision of the Spanish Court can be seen as the manifestation of the
commitment to a particular algorithm of polity formation.
By not denying the legitimacy to secessionist aspirations—while upholding
extant constitution (and its amending formula)—the Court provides us with
a more precise prescription at the moments s1, s2, and s3. By allowing the as-
semblies of self-governing communities (such as Catalonia) to trigger the pro-
cess of constitutional amendment (Article 87 in conjunction with Article 165), it
portrays the Spanish constitution as, in principle, as responsive to the demands
for national self-determination, including secession. That responsiveness at s1,
however, does not mean that the Spanish constitution embraces k-algorithm
Pau Bossacoma and Hèctor López Bofill, ‘The Secession of Catalonia: Legal Strategies and Barriers’ in
32
Xavier Cuadras Morató (ed), Catalonia: A New Independent State in Europe?: A Debate on Secession within the
European Union (Routledge 2016).
33
Constitutional Court Judgment 42/2014 (Tribunal Constitucional de España, 25 March 2014) <https://www.
tribunalconstitucional.es/ ResolucionesTraducidas/ S TC%2042- 2 014E(2)%20%20DECLARACION%20
SOBERANISTA%20%20SIN%20ANTECEDENTES.pdf> accessed 24 February 2018. See also Víctor Ferreres
Comella, ‘The Spanish Constitutional Court Confronts Catalonia’s “Right to Decide” (Comment on the
Judgment 42/2014)’ EUConst 571, 581.
See generally Yaniv Roznai and Silvia Suteu, ‘The Eternal Territory?: The Crimean Crisis and Ukraine’s
34
Territorial Integrity as an Unamendable Constitutional Principle’ (2015) 16[3] German LJ 542.

248

at s2 and s3. Instead, Sections 167 and 168—requiring different parliamentary
supermajorities for different categories of constitutional change—reveal its
commitment to a different algorithm of progressive re-aggregation. What is
being progressively re-aggregated at s2 and s3 are not allegiances but first-order
preferences of the representatives of all people, formed during the process of a
constitutional amendment. In keeping the constitution responsive to the desires
of the Catalan minority at s1, the Spanish Court provides no incentive to status
quo majorities to take the substance of its demands about s2 and s3 seriously,
in practice.
Why does this make the Spanish constitution quasi-responsive? In contrast to
other constitutions that subscribe to some form of the basic structure doctrine
that protects the territorial integrity of a country in perpetuity, or in contrast
to other constitutions that do not allow sub-state units to trigger the process of
constitutional change, the Spanish constitution is certainly more responsive to
radical demands for the reconfiguration of its spatiotemporal integrity. What
makes it appear as quasi-responsive is a comparison with the third, tendentially
responsive, member of the foundational constitutionalist family: the constitu-
tion of Canada.
Like India’s unresponsive, or Spain’s quasi-responsive foundational consti-
tutionalism, Canada’s responsive foundational constitutionalism relies on the
image of a sovereign people as the fountain of ultimate constitutional au-
thority. According to the Supreme Court of Canada in Reference re Secession of
Quebec: ‘The Constitution is the expression of the sovereignty of the people of
Canada’.35 As with the Spanish Constitutional Court, the Canadian Supreme
Court asserts that: ‘It lies within the power of the people of Canada . . . to
effect whatever constitutional arrangements are desired within Canadian ter-
ritory . . . including, should it be so desired, the secession of Quebec from
Canada’.36 Unlike the Spanish Court, however, the Canadian Court envisions
the Canadian constitution as capacious to accommodate—in a forthcoming
manner—national aspirations for a territorial reconfiguration, even for seces-
sion37. While the Spanish constitution allows legal and political officials to ig-
nore Catalan attempts to trigger constitutional change that contravene the
modality provided by Articles 87 and 166, the Canadian constitution imposes
the duty on ‘all participants’ in the federation to negotiate, in good faith, the
Quebecois plebiscitary demand for secession, under the condition that such
preference is manifested as a response to a ‘clear question’ by a ‘clear majority’
of voters in a province-wide referendum. In other words, at s1, the responsive-
ness of the Canadian constitution is more sensitive as it registers not only the
Reference re Secession of Quebec [1998] 2 SCR 217 para 85.

35
ibid.
36
37
Constitutional theorists have not explicitly articulated this form of foundational constitutionalism as a
distinct theory, though they have theorized the practical and normative merits of entrenching the seces-
sion clause in the constitutions of liberal democratic states. Miodrag Jovanović, Constitutionalizing Secession
in Federalized States: A Procedural Approach (Eleven International 2007). See also Wayne Norman, Negotiating
Nationalism (OUP 2006). For an early discussion of the relationship between constitutionalism, democracy,
and secession, see Cass R Sunstein, ‘Constitutionalism and Secession’ (1991) 58[2] U Chi L Rev 633.
249

impulses it has anticipated in its text but also other impulses, such as the ones
manifested in a provincial referendum. At s2, s3, and s4, this responsiveness is
enhanced by stipulating a certain kind of behaviour expected from all partici-
pants in negotiation.
The focus on the doctrinal and textual differences, however, makes it
easy to remain insensitive to a principled difference between the two orders.
From a doctrinal point of view, what generated the ‘duty to negotiate’ was
not the Supreme Court’s commitment to a particular idea of progressive re-
aggregation. Rather, it was its historical excavation of four unwritten consti-
tutional principles— democracy, federalism, constitutionalism and the rule
of law, and the protection of minorities—whose interplay legitimizes the de-
mand for the secession of Quebec and generates the reciprocal duties to nego-
tiate on behalf of all participants in the federation. On a closer look, however,
three of those four principles do nothing to generate the responsiveness to the
Quebecois demand to secede. The principle of federalism, for example, is jus-
tified as a vehicle of collective self-government capable of accommodating na-
tional diversity where different but equally legitimate majorities coexist at the
central and substate levels.38 Nothing in federalism explains what would jus-
tify the triggering of a constitutional process that might sanction the departure
from the existing, federal status quo. Equally, constitutionalism and the rule of
law are justified by their role in structuring the exercise of democratic will and
by providing a stable set of rules that enables purposive, predictive behaviour,39
and additionally, do not explain why an entire constitutional order would have
to respond to a radical demand for its reconstruction—especially in a way that
goes beyond what has already been entrenched in that constitution’s amending
formula. The same applies for the principle of the protection of minorities.40
What opens the conceptual space for a more radical responsiveness is a more
granular vision of ‘the consent of the governed’ as the ideal behind the Canadian
‘understanding of a free and democratic society’.41 Shifting the focus from the
third-person singular (the people) to the third-person plural (‘the governed’)
allowed the Court to make the decisive leap in bringing responsiveness into
the spotlight: ‘The continued existence and operation of the Canadian constitu-
tional order cannot remain indifferent to the clear expression of a clear majority
of Quebecers that they no longer wish to remain in Canada’.42 The system, the
Court concludes, ‘must be capable of reflecting the aspirations of the people’.43
But what could ‘reflecting’ possibly mean in a situation where, notionally,
sovereignty belongs to the entire people of Canada, where different segments
of that people disagree about secession, and where both ‘popularly elected
levels of government are equally legitimate’, each in its own sphere? These ut-
terances make sense only if we reintroduce the idea of constituent attachments
and understand ‘the consent of the governed’ as another name for them. In
the light of the discussion in Chapter 4, the ‘capacity to reflect the aspirations’
Secession Reference (n 36) para 43.

38
ibid para 53.
39
ibid para 79.
40
ibid para 67.
41
ibid para 92.
42 43
ibid.
250

should be seen as the capacity to respond tendentially towards changes in the ag-
gregate satisfaction of constituent attachments.44 The system, in other words,
must be capable of adjusting itself so that it increases that aggregate in relation
to the status quo ante. The only way in which we may understand the duty to
negotiate—as something that exists over and above regular channels of consti-
tutional change—is if we postulate the existence of a meta-norm of tendential
responsiveness (a responsiveness of a constitutional order towards achieving
the increased satisfaction of the constituent attachments) behind the interplay
of the four unwritten principles of the Canadian constitutional order. In other
words, in addition to the processual duty at s2, s3, and s4, mentioned above,
the Canadian version of responsive foundational constitutionalism embraces
k-algorithm as a material norm of its spatiotemporal reconfiguration.
This puts in perspective not only the vocabulary of peoplehood but also other
familiar concepts of constitutional law. For example, federalism can be seen as
another cognitive therapy for the anxieties of peoplehood on the one hand, and
as a mechanism of pre-emptive quality control in the process of polity forma-
tion on the other. At s1, it modulates the size of the grassroots impulse that merits
triggering constitutional change. Irrespective of its general duty not to be indif-
ferent, it provides the Canadian constitutional order with a plausible deniability
that may be useful in different situations: participants in the federation would
supposedly not be obliged to be responsive and to enter into negotiations if, say,
3,000 disgruntled residents of Wasaga Beach or Collingwood, Ontario, sought
independence from Canada, or if 2,000,000 Torontonians demanded fiscal de-
volution. But it would have to be responsive if roughly 3,000,000 Quebecois (or
Ontarians or British Columbians) demanded secession. The Canadian constitu-
tional order cannot remain indifferent to such demands, not just because of
the abstract value of democracy but also because of the size of the democratic
impulse and the radicalism of its object. In other words, the role of federalism
at s1 is that of cognitive therapy for the anxieties of peoplehood exacerbated
by a more open recognition of the fact that the Canadian constitutional order
‘cannot remain indifferent’.
On the other hand, federalism acts as a pre-emptive assurance of the inter-
national viability of a new state and the rest of Canada at the ‘end’ of the ne-
gotiation at s2, s3, and s4. Whether or not their boundaries end up altered in
the process (as the Supreme Court obliquely hinted they might in the case
of Quebec), federal units are generally large, territorially contiguous political
spaces that possess prima facie viability as future independent states. In sum,
the federalism in the Secession Reference is important not because it is ‘feder-
alism’ per se, but for the purposes it serves in responding to the deeper anx-
ieties of foundational constitutionalism. How it does this, within the domain
of responsive foundational constitutionalism, is by keeping its function hidden
For a more elaborate defence, see Zoran Oklopcic, ‘The Anxieties of Consent: Theorizing Secession be-
44
tween Constitutionalism and Self-Determination’ (2015) 22[2] IJGR 259.

251
Para-Constitutionalism: Between Vague and Strange • 251

through recourse to Canada’s unique constitutional history, as authoritatively in-
terpreted by the Canadian Supreme Court.
In the context of our discussion, the Canadian example is important because
it shows us two things: that it is possible to imagine a radically responsive foun-
dational constitutionalism, and what the cost structure is behind its capacity for
doing so. Though a responsive constitutional order has the potential to accom-
modate practically the desires of both first-and second-order minorities, it can
do so only at the expense of suppressing the importance of its own Grundnorm: k-
algorithm. In the Canadian case, that suppression has been achieved through
an ‘excavation’ of the four unwritten principles from Canada’s constitutional
history. In a different constitutional order, suppression might be achieved in a
different way. The benefit of that suppression, internally, lies in the ability of a
radically challenged constitutional order to continue its active effort to increase
the degree of satisfied constituent attachments with less anxiety about the po-
tential consequences of that effort: territorial fragmentation, and political dom-
ination. From the perspective of comparative constitutionalism, however, that
solution comes at a price: by finding an untapped reservoir of responsiveness
in its constitutional roots, responsive foundational constitutionalism just made
itself a bit more inert and less capable of travelling abroad.
6. Para-c onstitutionalism

between vague and strange
From a political point of view, the Secession Reference has been an ambivalent
success. On the one hand, it was embraced by both pro-federalist and pro-
sovereigntist forces in Canada and has contributed to the general relaxation of
the political climate in its aftermath.45 On the other hand, the government of
Quebec did not abandon its principled stance about the right of ‘the people
of Quebec’ to determine the terms of its secession from Canada unilaterally.46
While it contributed to the removal of the secessionist project from the fore-
front of Canadian constitutional politics, the Secession Reference did not remove
the principal cause of conflict: the locus of ultimate constitutional authority. In
the light of our discussion in Chapter 5, this should not come as a surprise: by
continuing to invoke the sovereignty of the Canadian people, the Court could
not shake off the spectre of circularity that continued to haunt the invocations
of ultimate authority in all variations of foundational constitutionalism.
Chapter 4 already presented the contours of para-constitutionalism as its
alternative. For Hans Lindahl, as we saw there, the collectivity that acts as a
constitutional subject is always over-and under-inclusive, and owes its bound-
aries not to an act of self-constitution but to external others.47 As a result, the
Sujit Choudhry, ‘Referendum? What Referendum?’ (2007) 15[3] Literary Review of Canada 7.
45
ibid 8.
46
Hans Lindahl, Fault Lines of Globalization: Legal Order and the Politics of A-Legality (OUP 2013) 162.
47
25

awareness of these initial impurities in the act of foundation generates the de-
mand on the part of a self-constituting collective to show collective self-restraint
in the way it confronts radical political demands it cannot otherwise find con-
stitutionally intelligible.48 As in that chapter, we may ask what the criteria are
behind a ‘strangeness’ that would prevent us from concluding that an adequate
degree of collective self-restraint has already been shown towards the demands
of the Quebecois ‘people’ in 1867, when Quebec became a co-equal member
in the Canadian federation?49 To demand Canada show self-restraint in its re-
sponse to the demand for secession—and to not demand the same from Quebec
vis-à-vis Canada, as Lindahl suggests—is to implicitly affirm the legitimacy of
the extant spatial division between the inside and the outside of Quebec vis-
à-vis the Canadian state. Upholding that concrete division, however, does not
follow from Lindahl’s constitutional ontology of collective subjectivity but ra-
ther from a concrete norm: Articles 48 and 49 of the Treaty of the European
Union (in the context of the EU) and the principle of uti possidetis juris (in the
context of Quebec and Canada).50
This stance has concrete distributional consequences. A para-constitutionalism
sympathetic towards the aspirations of the Quebecois would validate the uni-
lateral secession of Quebec from Canada (satisfying the demands of Canada’s
first-order national minority) while leaving second-order minorities, such as
First Nations or Anglophones in Quebec without equally powerful arguments
with which to challenge the unilateral act of the secession of Quebec. Even if
we assume that the demand for collective self-restraint is itself recursive, the
question remains as to why the second-order minorities would have to wait for
the first-order minority—in our example, the people of Quebec—to satisfy its
political demands first.
At this point, para-constitutionalism confronts a trilemma. First, it could let
the first-order challengers, the Quebecois, become independent and keep ‘their’
unit within its provincial borders, thus effectively deferring the constitutional
conflict over territorial integrity, this time between an independent Quebec
and its ‘new’ national minorities. In that case, a former second-order minority,
such as the James Bay Crees or Anglophone Canadians in Quebec, could con-
tinue to challenge the territorial integrity of now independent Quebec, but the
likelihood that Quebec would pay serious attention to them would be gravely
diminished. Second, para-constitutionalism could demand that Quebec’s se-
cession be temporarily frustrated until the various competing assertions of ‘self-
determination’ and ‘territorial rights’ be reconciled. To reconcile them before
the exit, however, would perforce strengthen the claims to ultimate authority of
the organs of the Canadian federation. In that case, recognizing the multiplicity
ibid.
48
For a similar challenge to Lindahl, see Sofia Näsström, ‘What Bounds A-Legality?’ (2014) 16[2] Etica &
49
Politica/Ethics & Politics 973, 979.

50
Hans Lindahl, ‘Recognition as Domination: Constitutionalism, Reciprocity, and the Problem of Singularity’
in Neil Walker, Stephen Tierney, and Jo Shaw (eds), Europe’s Constitutional Mosaic (Hart 2011) 205.
253
Constitutional Pluralism: Hermeneutics as Anxiety-Management • 253

of competing ‘strange’ demands (from Quebecois, Anglophone Quebecker,
First Nations) and the refusal to privilege the immediate satisfaction of either of
them would necessarily diminish the incentive on behalf of the federal govern-
ment to address the Quebecois demand to secede in the spirit of good faith.51
Finally, para-constitutionalism may retreat from its tacit embrace of legal norms
and remain fully agnostic about the content of collective self-restraint. What
would suffer in that case is its rhetorical potential effectively to challenge the
template of foundational constitutionalism. Without some indication about the
parameters that ought to guide the exercise of collective self-restraint, it would
mean everything and anything to anyone.52 In fact, by demanding self-restraint
without specifying the criteria for it at s1, s2, s3, and s4, para-constitutionalism
would increase the possibility of a stand-off, with the attendant risks.
Irrespective of the choice, then, these options reveal a deeper point not only
about para-constitutionalism, but also about conceptual innovation in constitu-
tional theory in general: whatever its modalities and objects, the estrangement
from the figure of ‘the people’ (or a collective political subject, in general) will
always stand in some concrete relation to the risks of political stalemate and con-
flict on the one hand, and to the distribution of political dignity among concrete
political projects on the ground, on the other. From that perspective, the tri-
lemma of para-constitutionalism reveals itself as a more basic dilemma: to rele-
gate para-constitutionalism to a vague ethos, or to accept its inescapable role
as an algorithm of allegiance. Instead of objecting to para-constitutionalism
as such, these questions gesture towards the orthogonal register of cross-
theoretical and cross- disciplinary comparison and evaluation: rather than
seeing constitutional, normative, or international legal theories of peoplehood
as simple contributions to fields, traditions, or debates, they can be analysed ac-
cording to how they calibrate the relationship between cognitive estrangement,
the degree of open-endedness of its prescription, and the specificity and distri-
bution of its ‘dignifying’ rhetorical effects on the ground.
7. Constitutional pluralism

hermeneutics as anxiety-m anagement
To speak of such ‘rhetorical effects’ assumes that those on the ground remain
within reach of the signals of various theoretical broadcasts. It also assumes
that at least some of them who are within reach might be interested enough
to leave whatever they were doing and actually tune in. These theoretically un-
ratified audience-members are partisan eavesdroppers. While most theorists
ignore such partisans, they don’t refrain from asking us to imagine them when
it suits their theoretical argument. When it comes to constitutional pluralism,
visualizing what such eavesdroppers might (over)hear plays an important role
Secession Reference (n 36) para 96.

51
52
For a related critique of Lindahl’s self-restraint as a concept that proposes ‘a utopia of non-relation’, see
James Ingram, ‘Limits of Law, Limits of Legal Theory’ (2015) Contemporary Political Theory 10, 15.
254

in the attempts to demonstrate its inferiority or superiority vis-à-vis its theoret-
ical rivals. In some accounts, it is ourselves who are asked to imagine ourselves
in specific situations, and observe the logical consequences that follow from it.
It’s that simple:
If we are within the national jurisdiction, then national monism is correct. If we
are within the EU’s jurisdiction and institutions, EU monism is correct. So there
are hierarchies in both legal orders. None of them is pluralist. These are two in-
consistent hierarchies and we accept them both, depending where we happen
to be.53
Earthlings in Pavlos Eleftheriadis’s imagination, in Miguel Maduro’s we are pro-
moted to extra-terrestrials:
So just imagine you’re a Martian, looking down on Earth, and you look into na-
tional constitutional courts and you hear what they’re saying and then you look
into Luxembourg at the Court of Justice and you hear what they’re saying . . . you
can’t make any sense of it, you can’t reconcile it. They all think they’re sovereign,
they all think they’re supreme.54
Aside from the question of how the legal hierarchies which both Eleftheriadis
and Maduro must presume actually look like—what is more important for our
purposes in this chapter is to notice is what both of them ask of our mind’s
eye: not to remain transfixed at one scene, but to oscillate between two jurisdic-
tional perspectives without reconciling the images these perspectives reveal into a
single, coherent one. We can see this particularly well in slow-motion: Martians
spotted the national courts from above, flew their space ship over the capital of
an EU member state, descended to hear what its constitutional court has to say,
and then flew over to Luxembourg to do the same with the European Court
of Justice. In other words, Martian visitors ended up suffering from cognitive
dissonance, not because of their inability to integrate competing juridical per-
spectives within a single and cogent theoretical argument, but because Maduro
directed them to take two separate snapshots of the situation on the ground,
instead of taking one panoramic visual record which would have revealed the
scene of a EU-wide judicial ‘dialogue’.
And in turn: what makes Neil Walker untroubled by these inconsistencies
is not simply his scepticism about the possibility of finding an ‘Archimedean
point . . . from which [to] evaluate the strength and validity of the different, and
in some respects contending, authority claims’, but rather his particular way
of looking at the same institutional facts on the ground. Instead of descending
from above, and then oscillating between incommensurable perspectives, he
continues to hover over the global scene of juridical conflicts, long enough at
least to conclude: ‘So, that’s the world in which we live. Competing conceptions
of sovereignty over overlapping areas of jurisdiction . . . is one major change
Pavlos Eleftheriadis, ‘Pluralism and Integrity’ (2010) 23 Ratio Juris 376.

53
Quoted from Shavana Musa and Eefje de Volder, ‘Interview with Professor Neil Walker: Global
54
Law: Another Case of the Emperor’s Clothes?’ (2012) 17 Tilburg L Rev 135, 136–37 [emphasis mine].
25
Constitutional Pluralism: Hermeneutics as Anxiety-Management • 255

that has taken place’.55 Notice, however, that this overlap also requires an act of
imagination which is both optical as well as kinetic—not only a panoramic gaze
that hovers over a global legal landscape, but also a gaze capable of ‘squishing’
the three-dimensional hierarchical protrusions that define that landscape’s
morphology. What emerges from those acts is a unified, flattened surface,
ready to become the medium of smooth juridical communication among co-
equal entities in the world of constitutional pluralism. As Cormac Mac Amlaigh
explains,
Constitutional Pluralism effectuates a shift from this Westphalian hierarchical
ordering of the interaction between legal orders by collapsing the ‘verticality’
of traditional thinking about the relationships between legal orders to one of
a ‘horizontality’. Constitutional pluralism encourages us to think about the re-
lationships between state and suprastate law in a heterarchical rather than hier-
archical way; that is as operating side-by-side without the presumptive authority
of one over the other.56
In Walker’s more recent work on ‘global law’, such constitutional pluralism is
just one among several other ‘normative patterns’ that emerge through the
‘weaving’ of background ‘meta-principles’. Visually represented by the figures
of ‘pyramid, umbrella, vessel, chain, segment, flow and thread’ they
creat[e]‌and amplif[y] both new territorially unbounded commonalities and
new territorially unbounded differences in respect of interests, identities and
values . . . whether by focusing on difference and particularity and so either con-
necting or delimiting the transnational fragments . . . or by focusing on new forms
of general normative leverage and so either fashioning hierarchies or denoting
commonalities . . . [they] supplement one another [or] challenge and provoke
each other in a relationship of productive tension.57
Like para- constitutionalism and foundational constitutionalism, constitu-
tional pluralism is the eye of the beholder.58 But when it comes to the nor-
mative patterns of constitutional pluralism, some figurations of underlying
meta-principles seem more important than others. It is the (contested) pyra-
mids of authority, the (desirable) umbrellas of nation’s self-determination,
and the (indispensable) vessels of popular self-government that define the im-
aginary of constitutional pluralism, not chains, flows, and segments. Even if
it’s true, as Mac Amlaigh argues, that constitutional pluralism collapses ‘ver-
ticality’ into ‘horizontality’, this still says little about the import of consti-
tutional pluralism for the reconfiguration of the spatiotemporal patterns of
Neil Walker, ‘The Idea of Constitutional Pluralism’ (2002) Modern L Rev 317, 338.
55
Cormac Mac Amlaigh, ‘Pluralising Constitutional Pluralism’ in Nicole Roughan and Andrew Halpin (eds),
56
In Pursuit of Pluralist Jurisprudence (CUP 2017) 68.

Neil Walker, ‘The Gap between Global Law and Global Justice: A Preliminary Analysis’ in Roughan and
57
Halpin (eds) (n 56) 224.

See more generally, Maksimylian Del Mar, ‘Legal Reasoning in Pluralist Jurisprudence: The Practice of
58
the Relational Imagination’ in Roughan and Halpin (eds) (n 56). See also Michael Giudice, Understanding the
Nature of Law: A Case for Constructive Conceptual Explanation (Edgar Elgar 2015) 194.
256

authority which we encounter on that single horizontal surface. What we
encounter on that surface from the perspective of this book, however, are not
sovereign states and sub-state autonomous units, but t-isomorphs, perpetu-
ally reconfiguring in conformity with k-algorithm. From that perspective,
both the politically motivated juridical tropes of constitutional pluralism and
a more detached academic theory of constitutional pluralism have the cap-
acity to function as the functional equivalents of vocabulary of the people’s
right to self-determination.
Consider the concept of ‘union (state)’ in British constitutional discourse,
which, in a single word summed up the expectations that the Scottish
sovereigntists had from the British government, in the prelude of the 2014 inde-
pendence referendum: at s1, to be responsive to Scottish demands to open the
process of the constitutional transformation of the United Kingdom; at s2, to
respect Scotland’s territorial integrity; at s3, not to interfere in the majoritarian
decision of the Scottish ‘people’ about its international political status; and at s4,
not to use institutional options at its disposal to delay Scotland’s acquisition of
the attributes of a sovereign state in the eyes of international law.
‘Union’, in other words, is the emblem of constitutional pluralism in practice.
While theories of constitutional pluralism withhold their judgment about the
validity of competing interpretations of the acts of constitution, they nonethe-
less tip the scales in favour of those who challenge the interpretation of the
defenders of status quo: at s1, by asking them to commit to an open-minded pol-
itical dialogue over the substance of otherwise constitutionally impermissible
requests; at s2 and s3—and in contrast to unresponsive and quasi-responsive
foundational constitutionalism—by asking them not to act in ways that would
result in regressive re-aggregation of constituent attachments (eg by unilaterally
revoking or restricting the scope of sub-state autonomy); and finally, at s4, by
asking them to refrain from dictating internal constitutional arrangements of
those units—which, according to some scholars amounts to respecting the con-
stituent power of their demoi.
As the repository of under- specified normative prescriptions, constitu-
tional pluralism is also one of the cognitive-behavioural protocols of anxiety-
management. We have encountered some of them earlier in the book. As
we saw in Chapter 5, self-determination theorists combat the anxiety of
fragmentation by restricting the number of possible holders of the right to
self-determination to ‘nations’. Attributing the right to trigger territorial frag-
mentation to those duly authorized holders, they inadvertently speak to our
worries about the frequency of proliferation of ever-smaller, potentially vicious,
and anti-democratic territorial polities. In defining those nations with recourse
to the criteria that can be satisfied only with considerable difficulty, they also
address the worries about the scale of territorial fragmentation: once a ‘na-
tion’ has obtained its polity, its presumed internal cohesion gives us a reason
to believe that further territorial fragmentation is removed from the agenda,
at least within the foreseeable future. What their protocols cannot hope to al-
leviate, however, is the anxiety about the scope of potential fragmentation. It
257
Radical Pluralism: (Why Not) Beyond Constitutionalism • 257

is obvious why: to accept that every nation in principle has a right to territorial
self-determination is to accept the possibility that its exercise may lead to terri-
torial fragmentation not only in a concrete conflict but also wherever there are
presumptive ‘communities’ that conform to the requisite criteria of nation-
hood or peoplehood.
How different is constitutional pluralism in that regard? Like the (quasi-) na-
tionalist accounts from Chapter 5, constitutional pluralism alleviates not only the
anxieties about the scale (‘Now every village will want to become an independent
state!’) and frequency (‘Now we will be confronting demands for secession all the
time!’) but also about the scope of imagined fragmentation (‘If we agree to your
bid for independence, there will be two hundred states in Europe!’). In contrast
to the theories of the moral right to self-determination, constitutional pluralism
is a theory, which, in embracing this moral right also has the means to alleviate
anxieties about this right’s infectious potential not only at home but also abroad.
For example, it is one thing to claim that the Slovenians or the Scottish have a
right to self-determination (which implies that self-determination is a right with
universal reach, from which, at least in principle, no multinational polity is ex-
empt), and quite another to invoke a juridical interpretation of the Constitution
of 1974 (Slovenia) or the Act(s) of Union of 1707 (Scotland) as vesting a right in
‘Slovenia’ or ‘Scotland’ to unilaterally dissolve their constitutional bonds with
Yugoslavia or the United Kingdom. In both cases, turning political conflict over
s1–s4 into a hermeneutical one scales down the anxieties of the onlookers as they
now may be assured that the ethical and political substance of the political claims
of the Slovenians or the Scottish will not migrate as easily. Also, by entailing
that dissatisfied minorities first work towards reconstituting the existing state in
a way that will constitutionally immemorialize their subjectivity, and only then
allowing them to use that achievement as a springboard for more radical claims,
constitutional pluralism’s reliance on constitutional (con)text presents itself as
a way to offer assurances that the frequency of territorial fragmentation, inter-
nationally, won’t be accelerated.
8. Radical pluralism

(why not) beyond constitutionalism
Though responsive foundational constitutionalism, para-constitutionalism, and
constitutional pluralism differ in the way they understand the relationship be-
tween collective political subjectivity and ultimate authority, they remain united
in their embrace of constitutionalism. In contrast, Nico Krisch’s radical plur-
alism rejects constitutionalism as a discourse that ‘stabiliz[es] and immuniz[es]’
existing social structures and helps perpetuate the hegemony of powerful
groups, insulating their political vision from the demands for radical political
change.59 By rejecting constitutionalism, Krisch’s radical pluralism also rejects
Nico Krisch, Beyond Constitutionalism (OUP 2011) 79 and 259 respectively.

59
258

its vocabulary. The people dissolves into the practice of public autonomy, and
its constituent power survives only as a pouvoir irritant of the ‘broader pouvoir
constitué of global governance’.60 Finally, instead of an image of authority as
derivative from the will of an identifiable collective actor, Krisch invites us to
see it as ‘liquid’. ‘Deformed more easily and . . . thus more difficult to grasp’, li-
quid authority does not flow from a single source. Instead:
The (conscious or unconscious) recognition of such authority can flow from
many sources: it can result from rational calculus, normative internalization
or a mere acceptance as ‘normal’. It may be based on an attitude or act of the
individual subject, such as delegation; but often recognition will bear a social
dimension––authorities are typically recognized as such through a social practice
that does not necessarily reflect the particular attitude of the individual actors
that become their subjects.61
By estranging us from the vocabulary of peoplehood, radical pluralism, none-
theless, continues to offer a set of criteria that can be used in judging the legit-
imacy of s1, s2, s3, and s4. In contrast to para-constitutionalism, another radical
departure from foundational constitutionalism—where the ‘strangeness’ of
communities calls for vague ‘collective self-restraint’ in addressing radical pol-
itical demands—the criteria offered by radical pluralism are more fine-g rained.
While Lindahl’s ‘collective self-restraint’ takes into account only the intentional
dimensions of constituent attachments (assuming that the only relevant moders
are the ‘we-moders’), Krisch’s radical pluralism takes into account also the di-
mensions of resilience and intensity, as the affirmative judgement of the ‘prac-
tices of public autonomy’ will depend on the ‘strength of its social grounding of
the participatory practices that support it’.62 Most importantly, a new ‘practice
of public autonomy will be legitimate not simply if it expresses the “attitudes
or will” of those who engage in it, but also if those involved demonstrate an
appropriate level of other-awareness by seriously considering the outsiders’ de-
sires to be included in their project.’63
In the context of the conflicts over territorial sovereignty, these cri-
teria raise two questions. On the one hand, stipulating that an ‘inability
to provide an account of the “balance” ’ between self-regarding and other-
regarding concerns will count as evidence against the existence of ‘the
practice of public autonomy’ opens the question of the constituent involve-
ment of Schmitt’s interested thirds. In grounding the judgement of the
legitimacy of the practices of public autonomy in a comparatively more
onerous regime of cognitive economy, this requirement makes radical plur-
alism more prone to strategic exploitation on behalf of interested external
Nico Krisch, ‘Pouvoir Constituant and Pouvoir Irritant in the Postnational Order’ (2016) ICON 16 <http://
60
papers.ssrn.com/sol3/papers.cfm?abstract_id=2430128> accessed 30 October 2017 (forthcoming).

Nico Krisch, ‘Liquid Authority in Global Governance: An Introduction’, unpublished paper 5 [on file with
61
the author].
Krisch (n 59) 101. [emphasis mine].
62
ibid.
63
259
Abstract Theories as Problem-Solving Templates • 259

others.64 Like radical pluralism, s-recursion rejects the prepacked and
de-contested regime of the cognitive economy behind the rights to self-
determination, but in doing so seeks also to reduce the possibility of strategic
exploitation of the conflict’s epistemic complexity by offering a version of k-
algorithm as a relatively simplified regime of cognitive economy. On the other
hand, in keeping the idea of the practice of public autonomy closely aligned
with the idea of collective self-government, the solutions offered by radical
pluralism remain inaccessible to non-liberal democratic and non-republican
visions of constitutional enterprise. In other words, constituent attachment to
a political project is irrelevant if it is not supported by ongoing, active political
involvement, most akin to a typical liberal-democratic polity. Radical pluralism
would have a difficult time justifying, for instance, the constitutional demands
of hereditary chieftaincies of Aboriginal peoples, or the existence of Islamic
states that do not subscribe to the idea of collective self-government.
Where does this leave us with respect to the concept of constitutionalism? What
is left of the normative core of constitutionalism, once we have re-envisioned
its different versions as the forms of desire-and anxiety-management? If consti-
tuting is an act that radically improves the chances that a purposive institutional
framework will withstand, why should this be taken as a presumptive good, in the
absence of a collective identity—be that as a people, or some other imagined pol-
itical community? Shouldn’t we want only worthy purposeful projects to with-
stand? Shouldn’t we want new polities to be formed around ever more purposeful
enterprises? Why help extant ones withstand by constituting them? To envision a
polity (political community, the people) as the epiphenomenon of a project pre-
cludes us from taking what would otherwise be an easy way out, which would
be to claim that the value of constitutionalism lies in its capacity to ‘[lower] the
normative horizon, [thereby] protect[ing] the polity from the pursuit of truth,
whose intellectual and moral exigencies are too taxing’ to bear.65 Instead, the con-
stitutionalism affirmed in this book, hinges on a twofold belief: the first, that it
takes time for purposeful projects to show their worth, and second, that creating
structures that offer systematic reminders of that fact is a worthy endeavour itself.
That constitutionalism is not only catachrestic, as Spivak suggested, it is also meli-
oristic: an instrument for the pursuit of the better.
9. Abstract theories as problem-s olving templates

As an institutional renegotiation of the anxieties of peoplehood, s-recursion
belongs to a family of templates that includes accounts of the right to self-
determination and a number of constitutional theories that so far have not
For a worry that the openness to radical democratic contestation of established norms might turn inter-
64
national politics into ‘a marketplace in which he who yells loudest gets what he wants’, see Tom De Boer, ‘The
Limits of Legal Pluralism’ (2012) 25 LJIL 5–6.
Graham Walker, ‘The Constitutional Good: Constitutionalism’s Equivocal Moral Imperative’ (1993) 26[1]
65
Polity 91, 99.
260

considered themselves to be in the business of conflict-resolution at stages s2
and s3. Seeing them in that light is useful not only because it expands the array of
available templates but also because it raises other general issues. Seen as a tem-
plate, responsive foundational constitutionalism confronts us with the question
of the productivity of conceptual innovation. Para-constitutionalism confronts
us with political implications of prescriptive (im)precision. Constitutional plur-
alism does the same, but more specifically it compels us to accept the inevitable
role of all constitutional imagination in the (re)distribution of political dignity
among different nationalist projects of ‘self-determination’.
All of them attune us to the trade-offs involved in imagining collectives, the
outcomes of their struggles, and the kinds of signal these images send into
the world. Para-constitutionalism presents us with an image of a people-like
collective that remains haunted by its strangeness. In contrast, constitutional
pluralism presents us with a far more conventional image of the constitutional
subject. Radical pluralism goes furthest: instead of seeing those subjects as sov-
ereign peoples, it ‘de-agentifies’ them, to use Burke’s term, and invites us to
recognize them as patterns of agency; the practices of public autonomy. The
benefit of the perspective of s1–s4 is that it allows us not only to see these forms
of estrangement as algorithms of polity formation but also to map the varieties
in the relationship between the specifics of those algorithms at s1–s4 and the
nature of that estrangement. Rather than re-narrate the specifics of that rela-
tionship in each particular case, at this point I offer its schematic description in
Figure 7.3.
What bears mentioning, however, is the correlation between the degree of
the anxieties implicit in these algorithms and the way the algorithms manage
them. The high and moderate anxieties of foundational constitutionalism and
constitutional pluralism lead them not only to stay committed to the figure of
people but also to manage the people through the medium of constitutional
hermeneutics. As we have seen in Section 4, the assurance that conflicts over
territorial sovereignty will not result in sprawling fragmentation comes from
the interpretation of the meaning of the relevant constitutional texts; be they
the Constitution of Spain, the Acts of Union 1707, or the Canadian constitu-
tional jurisprudence that allowed the Supreme Court of Canada to unearth four
unwritten principles. On the other hand, the visual conjuring of a collective
as ‘strange’ (para-constitutionalism) and of authority as ‘liquid’ (radical plur-
alism) directly confronts the audience with their anxieties, but in contrast to the
former, offers no assurances about how to contain the phenomenon that is at its
root: the possibility of uncontrolled territorial fragmentation.
By explicitly contemplating the possibility of sprawling territorial fragmen-
tation at s2 and s3 in graphic terms—but without suppressing the anxieties it
generates through definitional fiats—s-recursion has allowed the antagonists
to negotiate with themselves the degree to which they are willing to go, and
the price they are willing to pay, in pursuing their project of political sover-
eignty and territorial integrity. Similarly, in keeping with the principle of no
imaginative taxation without conceptual representation, s-recursion does not
261
Figure 7.3 Constitutional theories as problem-solving templates

26

conceal the politically contestable distributional effects entailed in its ‘brand’
of estrangement. In comparison to constitutional pluralism, it satisfies the de-
mands of first-order minorities more quickly and reliably, but it also gives more
democratic intelligibility—and as a result, political dignity—to the territorial
demands of second-order minorities-within-minorities. It does so without con-
cealing the fact that its institutional prescription is predicated on the concrete—
and contestable and subjective—level of the anxiety of fragmentation. Hereby,
the challengers to extant territorial status quo are offered an understanding of
their new status as a trajectory of moral principles and external side-constraints
whose reconciliation is always contingent, and not based on a purportedly ‘cor-
rect’ understanding of who gets to be ‘the people’ and who, in turn, a ‘mi-
nority’. Instead of celebrating, tolerating, or delegitimizing nationalist struggle
over territory, s-recursion offers an ironic distance from nationalists’ or statists’
own vocabulary. Under the frame of s-recursion, nationalists do not have to
prove, provoke, or feign their own oppression; provide ‘evidence’ of their na-
tionhood and territorial ‘rights’; or present a compelling textual interpretation
of their constitutional subjectivity. In doing so, as demonstrated in Chapter 5,
s-recursion responds to three important jeopardies—cruel righteousness, anx-
ious predation, and capillary humiliation—that are endemic side effects of the
nationalist dependence on the vocabulary of peoplehood.
10. Sierpinski recursion and symbolic reflection

The nationalist vocabulary of self-determination does not exhaust itself in
the demands for the redistribution of territorial sovereignty that would turn
the national minorities of yesterday into the national majorities of tomorrow.
Nationalists do not want to simply imprint the map of the world with their
nation’s likeness. They also wish to imprint that likeness onto the polity they
have created in its name. In other words, the vocabulary of national self-
determination implies the right to create a ‘home’ for one’s nation and to create
it where the nation will feel at home. At this point, it is important to emphasize
that while this book has systematically undermined the vision of a polity as
an ownership of national majorities, there is nothing in the images of nephos,
scopos, and k-algorithm that undermines the legitimacy of the aspirations of
those majorities to shape the outlook of the public sphere in conformity with
their constituent attachments.
Instead of offering a new template for the symbolic accommodation of
majoritarian and minoritarian ‘identities’, the virtue of these images lies in
their capacity to see three dominant modes of representing the ‘ownership’
of a public sphere in a way that complicates the influential binary between
mimetic and aesthetic modes of political representation.66 Recall the MRI
scanner from Chapter 5. As we saw there, the scanner generated two dynamic
See Frank Ankersmit, Political Representation (Stanford University Press 2002). For a rare argument that
66
emphasizes the importance of visual representations in the construction of alternative understandings of

263
Sierpinski Recursion and Symbolic Reflection • 263

images allowing us to reimagine both self-determination and the relationship
between ‘self-determination’ and the symbolical ‘ownership’ of the public
sphere. Seen through a different medium of display, the right of a nation to
(self-)determine the outlook of its symbolic sphere appeared as the outcome
of a different algorithm that allows for a homogenous coloration of the entire
symbolical sphere in the colours of the constituent attachments of the majority
of moders. Once we see both poles as possible variations of the algorithms
that govern the invisible symbolical ‘Photoshop’ of popular sovereignty, we
might distinguish among at least four existing modes of symbolical representa-
tion—(1) hegemonic–essentialist, (2) compensatory–essentialist, (3) neutralist–
formalist, and (4) reflective-essentialist—and begin to think of possible others.
The first rests on an image of a nation as the owner of a polity that has a right
to shape the symbolical attributes of its public sphere in its image. Concrete
images—flags, emblems, anthems, monuments, street names—are seen as mi-
metic representations of the aspects of a nation’s identity and not as deliberate
outcomes of autonomous political imagination. The second extends the same
courtesy to a minority nation, allowing it to dismiss the ineluctable diversity
within its unit, which it has received as compensation for the absence of sym-
bolic recognition at the level controlled by a national majority. In literature, this
approach is defended as a matter of liberal justice: what justifies compensating a
national minority in this way is the assumption that the denial of symbolical rec-
ognition at the level controlled by a national majority is an important hindrance
to the flourishing of its individual members.67 While the first two approaches
fully accommodate the visions of either a majority’s or a minority’s national
homogeneity, the third ignores national diversity altogether. The flags of Bosnia,
Kosovo, and Cyprus, for example, do not reflect the (national) constituent at-
tachments but rather their territorial shapes. Finally, the fourth strives to reflect
national diversity more faithfully by combining diverse national iconographies
in one symbolic space. An example of that is the symbols of the Federation of
Bosnia and Herzegovina, which incorporated on equal footing the symbols of
Bosniaks and Croats.68
Our discussion in Chapter 5 has already foreshadowed some of the problems
with these techniques. When seen from the perspective of self-determination,
the first two approaches are degrading to whoever happens to be in a minority
within a particular unit, as they help perpetuate the sense of national own-
ership over the territorial unit (irrespective of the level) and the second-class
‘tenant’ status of the minorities who find themselves in its midst. The chapter
also treated the problem with the third and the fourth option: when embraced
as a principled contribution to the resolution of the conflict over territory, the
nationhood see Eric Kaufmann, ‘The lenses of nationhood: an optical model of identity’ (2008) 14[3]‌Nations
and Nationalism 449.
For the most systematic defence of this position, see Will Kymlicka, Multicultural Citizenship: A Liberal
67
Theory of Minority Rights (Clarendon 1996).

For a Habermasian defence of this position, see Simone Chambers, ‘Democracy, Popular Sovereignty and
68
Political Legitimacy’ (2004) 11[2] Constellations 153.

264

last two approaches risk underplaying the resilience of the vision of national
ownership on the one hand, and the depth of the nationalist challenge to the
legitimacy of a particular territorial polity on the other. In conflicts fought over
territory, a compromise over the symbolical representation of political institu-
tions will in many cases satisfy no one: a threat to the enjoyment of national self-
determination from the perspective of a majority, in the eyes of a minority will
be seen as nothing but a hypocritically inconsequential concession.
Rather than problematizing the intimate relationship between symbolical
and institutional dimensions of conflicts over territorial sovereignty, theoret-
ical accounts of justice, nationhood, sovereignty and self-determination con-
sider them as inseparable. In doing so, they contribute to the state of affairs
in which otherwise sensible win–win solutions remain unacceptable. As Karlo
Basta showed in the context of the failure of constitutional reform in Bosnia
and Herzegovina in 2010, a proposal to transform the rotating collective head
of state into the institution of the president of the republic was rejected by the
Serb leadership not because they saw this proposal as particularly consequen-
tial in the context of the overall balance of powers among three major ethnic
groups, but because it was seen as a choice which defines, symbolically, the
meaning of popular sovereignty in Bosnian—and, through that, the juridical na-
ture of the Bosnian state—a union-like ‘compact’ between the three constituent
peoples on one view, or a unified, if federal polity whose authority originates
from the will of the people of Bosnia and Herzegovina, on another.69
Such preoccupations are most visible in deeply divided places. Those who
observe them from the outside often treat them as the signs of political imma-
turity, pre-modern tribalism, or ethnic grievance. Seen as the syndromes of the
pathology of popular sovereignty in the East, they were until recently incon-
ceivable in the West as well. Populist, nationalist, xenophobic, resentful: what
these hastily attached labels miss is not only the distinctly farcical feel of the
recent outbursts of popular sovereignty—both playful, enthusiastic, cynical,
menacing, and half-hearted at the same time—but also the contributions of
liberal, radical, and deliberative democratic imaginations to that state of affairs.
Whether fearful of tyrannical majorities, or betting on the irruption of
their constituent power—or putting faith in the capacity of deliberation to
transform their moral sensibilities—theorists’ imaginations of constitutional
democracy, popular sovereignty, and national self-determination have given
those majorities no reason to look forward to looking forward—to imagine,
instead of something behind that can be made great again, something better
ahead. Within k-universe, in contrast, the backward-looking preoccupations
with constitutional ‘ownership’ transform themselves into potential contri-
butions of nation-states—as ‘moral specializations within mankind’70—not
only to their homelands but also to a world beyond statist internationalism: a
69
Karlo Basta, ‘Imagined Institutions: The Symbolic Power of Formal Rules in Bosnia and Herzegovina’
(2016) 75[4] Slavic Review 944.
Roberto Unger, Democracy Realized: The Progressive Alternative (Verso 1998) 26.
70
265
Sierpinski Recursion and Symbolic Reflection • 265

universe whose t-isomorphs include sovereign states, federal units, and supra-
national trade blocs, as well as ‘innovative form[s]‌of urban confederalism’,71
intercontinental ‘league[s] of socialist cities’,72 and a variety of other ‘bubbles
of autonomy’.73
‘Bubbles’ is a good metaphor. Having spent this entire chapter looking at the
reconfigurations of territorial sovereignty from above—looking at the people’s
territories as surfaces of some kind—bubbles confront us with the neglected
three-dimensionality of it all. In 3D, those territories are not just surfaces, they
are skins; what if the bubbles blemish it? Worse yet, what if they burn a hole
in the body of a sovereign people? Most theorists are uncomfortable with such
questions—not simply because they indicate that an otherwise serious discus-
sion may soon get out of hand, but also because such queries seem to rest on
a deep misunderstanding of the nature of all theoretical figurations—not to be
taken seriously as pictures because they are intended to function as fictions.
In this chapter, however, we saw why fictions offer no easy way out. Even
when their arguments seem to be highly abstract, constitutional theorists
cannot but imagine some very concrete things. The question is not whether
those imaginings are fictional, but rather why are they imagined like that, spe-
cifically. To treat these fictions as (un)intended approximations of underlying
sociological realities is hardly any better either. Like the ‘circumferences’ of
constitutional theorists, the circumferences of sociologists also range from
‘macro’ to ‘micro’; the perception of sociological ‘facts’ depends on which one
you opt for. Choose the former and see a system, a nation, or a class. Choose the
latter and witness face-work, a performance, or a stand-off. The question here is
not that some constitutional theorists ‘overplay’ the sociology card,74 but rather
that most of them remain curiously uninterested in finding out what else is in
the deck that card came from.75 Though this book has only indirectly gestured
towards new cross-disciplinary conversations, the reader will not be mistaken
in noticing that its disciplinary sympathies rest not with allusively prescriptive
constitutional theory, but with a constitutional sociology broad enough to in-
clude a variety of micro, mezzo, and macro levels of inquiry—from symbolic
interactionism and ethnomethodology, to cultural pragmatics and systems and
complexity theory.76
Edward Soja, Postmetropolis: Critical Studies of Cities and Regions (Blackwell 2000).

71
David Harvey, Rebel Cities: From the Right to the City to Urban Revolution (Verso 2013) 151.
72
ibid 126.
73
Mattias Kumm, ‘Constituent Power, Boundaries and Identity: On the Justificatory Depth of
74
Constitutionalism––A Rejoinder to Neil Walker’ (2016) 14[1] ICON 914, 920.

If so, to move beyond the communitarian vision of the people as the darling of normative constitutional
75
theory need not end in the arms of cosmopolitan constitutionalism—especially not if the very polemical
binary cosmopolitanism–nationalism is itself ripe for reimagination.
For the most representative sample of contemporary sociological perspectives on constitutionalism see
76
Paul Blokker and Chris Thornhill, Sociological Constitutionalism (CUP 2017).

26

From that perspective, the chapter that follows may also be read as a pre-
liminary, first step towards a multi-perspectival and sociologically informed
vision of constitutional government beyond the normative commitments of
liberal-democratic constitutionalism. Its main objective, however, is to move
forward as planned—to look beyond the imagery of quotidian manifestations
of popular sovereignty, which means behind the scenes of collective self-gov-
ernment. This, as we will see in a moment, means confronting three important
pictures: the first, where the people’s self-government presents itself as an un-
folding process that progresses along a certain path; the second, where a consti-
tutional order appears as the vehicle that allows a sovereign people to embark
on that journey; and the third, elusive one, which confronts us with a circle
and a triangle, which—together with their geometrical derivatives—make the
ideas of (regular) electoral cycles, (higher and lower) levels of government, and
the hierarchy of (superior and inferior) norms, imaginable.
267
 8 
Constitutional Isomorphs
Beyond Collective Self-Government
1. Popular self-g overnment

space, time, and spacetime
The people is a community that governs itself in space and over time. While
we often speak about popular self-government as a process that involves par-
ticipation, deliberation, and opinion-and will-formation, we rarely ask what
this collective self-government looks like—literally—under the conditions of
contemporary representative democracy. We mostly satisfy ourselves with its
vague image, captured in Abraham Lincoln’s famous slogan: the government
of the people and by the people—an entity that not only spasmodically sets
the conditions for the exercise of constitutional government ‘for the people’,
but that also continues to govern itself continuously during the long periods
in between. Still, Lincoln’s motto tells us nothing about what this unfolding
process actually looks like, minute-to-minute, across the entirety of the con-
stitutional spacetime. In fact, our earlier attempts to capture the slice of that
spacetime have only resulted in a more heightened awareness of the tenuous
success of the imaginative blending among three scenes without which our be-
lief in popular sovereignty would be irretrievably lost: the one in which the
people presents itself as a deliberate deliberator, the one in which it presents
itself as a decisive decider, and the one in which it presents itself as a valid
victor. Once we start paying keener attention to how these figures appear in
real life, the decider will often appear indecisive; the deliberator deluded, not
deliberate; and the deliberator vain, not valid.
But that was Britain—in the aftermath of the Brexit referendum. Elsewhere,
seeing a self-governing people in such an unflattering light would have been
more difficult. It was the ideologically confused British constitutional im-
aginary, one might rightly point out, that allowed us to detect the decider as
dithering, the deliberator as deceived, and the deliberator as vacuous. Had
we gazed at a similar situation in a constitutional order indisputably under-
stood to be founded upon the will of a sovereign people—and governed, in
turn, by a written constitution that it ‘gave’ to itself—the parody of popular
self-government could easily have gone on. Put more precisely: even though
we’d probably think of the outcome of the comparable ‘-exit’ referendum as
268
268 • Constitutional Isomorphs: Beyond Collective Self-Government

a ridiculous way for a people to exercise its sovereign will, it wouldn’t have oc-
curred to us to think of that entity as a farcical assemblage of three less visible
proto-figures. Instead of them, we would have remained fascinated by another
one: the navigator a collective subject who wisely and skilfully pilots its own
constitutional vehicle over time.
In its most famous liberal-democratic incarnation, this navigator is Ulysses,
encountered at the moment when he orders his crew to plug their ears and tie
him to the mast so they can together resist the seductive call of the ultimately
lethal sirens ahead. Among the navigator’s avatars, Ulysses is the most ideo-
logically ambitious: it is not just an emblem of constitutional self-government, it
is an emblem of liberal-democratic constitutional government as the only mean-
ingful form of popular self-government. But even its less explicitly committed
unnamed incarnations manage to distract us from the Brexit-looking body of
a popular sovereign. In the scenes in which we encounter the navigator, there
are no spasmodic indecisive decisions of Schmittian deciders, only navigator
committed to governing itself over time, committed to seeing itself as a consti-
tutional subject ‘ultimately shaped by its own will’.1 In those scenes, navigator’s
occasional lapses of judgement are nothing tragic. Even if it made a deluded
choice based on its deliberations as a deliberator, navigator has a lifetime—
many lifetimes, in fact—to learn not to make them again, and to even rectify
them. Though it occurs in the open sea, collective self-government is a ‘long-
term’ process of ‘progressive evolution’, which fortifies navigator’s unspoken
belief: governing itself constitutionally will turn for the better. Finally, unlike the
winning majority in the Brexit referendum—which ventriloquized the will of a
sovereign British people in a highly disputable manner—navigator is always a
victor that is ‘valid’. The very fact of being able to govern itself constitutionally
is a victory in its own right.
On a closer look, there is something a bit off about these allegories. Consider
Ulysses. If Ulysses is the people—and the ropes and the mast its constitution—
who are his crew? Slaves? Second class citizens? Foreign interveners? Probably
just fellow citizens. But if Ulysses’s crew are fellow citizens—who pre-com-
mitted to governing themselves democratically—one might rightly wonder how
their collective self-government functions on a ship. Extremely hard to imagine,
perhaps it is better just to treat everyone on that ship as the passengers—some of
whom, a small minority, are periodically elected to serve as the crew. The former
is ‘the people’, the latter are its representatives. Thus pictured, the people influ-
ences the decisions of the crew members in ‘the short haul’, determining, in the
‘long haul’, its direction. That too is hard to visualize. The ship has a captain, a
cook, a safety officer, a chief engine officer, and many other crew members. Its
passengers travel in segregated cabins of different levels of comfort and enjoy
different menus. Though it is not difficult to imagine that the crew ought to be
responsive towards the attempts of passengers to exert influence over how the
1
Michel Rosenfeld, The Identity of the Constitutional Subject: Self hood, Citizenship, Culture, and Community
(Routledge 2009) 48.
269
Popular Self-Government: Space, Time, and Spacetime • 269

ship is governed on a daily basis, and ultimately towards the preferences of the
passengers about where they want to travel next, this picture makes no sense
once we remind ourselves of something that the nautical allegories work hard to
hide: that the ship is not moving anywhere; that rather than sailing on the open
seas it remains stranded in a huge port, not alone but in the company of some
two hundred other ships just like itself.
Capsized on the shores of territorial politics, the allegory of navigator re-
veals the exercise of constitutional self-government not as something that im-
measurably unfolds, develops, or progressively evolves, but rather as something
that is a matter of degree, level, extent, and scope. That at least is what follows
from the descriptions of Nadia Urbinati and Philip Pettit. The mechanism that
provides the ‘direction’ to the unmovable ship of the state ought to ‘ensure some
measure of responsiveness to the people by representatives and political parties
who speak and act in their name’,2 and who ‘may be presumed to be responsive
at some level to what they see as the wishes of their constituents’,3 within the
assemblies ‘answering as a whole to the expectations of the people’(including
those that are ‘answering primarily to their own constituents’, constituted as
the discrete parts of the people as a whole).
But what measure of responsiveness is enough? When will ‘some measure’
of responsiveness be enough? At what levels ought we presume that representa-
tives act responsively towards the wishes of their constituents? In addition to the
one answering to the expectations of the people as a whole, what should be the
number, the jurisdictional scope, and the territorial scale of those other, smaller-
scale assemblies so that we can confidently conclude that the constitutional
order is responsive to the expectations of the people ‘as a whole’? Can we even
make that verdict without clarifying what is meant by responsiveness to begin
with? Can we even make that verdict at all, on the basis of a scene in which the
passengers have no reason to treat a dwelling as a ship if it’s moving nowhere?
These are some inconvenient thoughts, which perhaps helps explain why ad-
herents of constitutional self-government so often reach for the ‘metaphorics’
of ships on the open sea, such as the one evoking the famous nautical anecdote
from Homer’s Odyssey.4 They also remind us of the ways in which the con-
stituent iconography of circularity complements the post-constituent allegories
of a redemptive endless journey. Exhibited in the form of a self-constituting
ouroboros, or a chicken-and-egg dilemma, the circle is the symbol of sover-
eign creation as self-constitution. As one of the elementary image schemata,
as Mark Johnson called them, its role in constitutional thought is to discourage
us from doubting the iconic scenes of collective self-government. In that role,
the circle is highly successful. But when it comes to encouraging us to believe
Nadia Urbinati and Mark Warren, ‘The Concept of Representation in Democratic Theory’ (2011) 11
2
ARPS 387.
3
Philip Pettit, On the People’s Terms: A Republican Theory and Model of Democracy (CUP 2012) 197–98.
4
Hans Blumenberg, Shipwreck with Spectator: Paradigm for a Metaphor of Existence (Steven Rendall tr, first pub-
lished 1979, MIT 1997) 9.
270

in those scenes as the scenes of democratic self-government, it is much less so.
The reason is simple: though the circle is highly successful in evoking the mys-
tical self-sufficiency of the agent that performs the act of self-constitution, in
evoking the ‘temporal cycle’ of collective self-government it remains incapable
of evoking its inescapably ‘climatic structure’.5 While it effortlessly persuades
us to look at constitutional self-government—which ‘begins with some initial
state’, leads (when it does) to the ‘return to the original state’, with no ‘back-
tracking’ allowed—it fails to evoke the rhythms of that government as ongoing
and constituted. As an emblematic, mythical snake that keeps biting its own
tail, the circle is not the form that will allow us to look at the ‘patterns’ of its
spasmodic recoiling, which ‘do not simply repeat [but] exhibit a character of
build-up and release’: electoral campaign—elections—the formation of a new
parliament—the election of a new government—governing—the dissolution of
the parliament—electoral campaign . . . and so on, in perpetuity. Once we rotate
the picture on which this circle is inscribed in the position A (Figure 8.1) that
problem will be alleviated—to an extent. Looked at askew, as shown in position
B, the circle becomes the spiral, moving upwards—with each new coil an up-
ward movement towards a more perfect collective self-government.
A B C
Figure 8.1 The image schemata of constitutional temporalities
What this adaptation conceals is represented at position C: the scalar and ana-
logue character of the so-called will of the so-called people: the degree, levels,
extents, and scopes of constitutional responsiveness. We are discouraged from
reckoning with this scalarity in a number of ways. Up to this point, we’ve
encountered five:
(1) The dramatistic m + p trick, where the quiet introduction of the prop of the
place onto the scene of constitution-making turns the scene of unanimity
into the scene of majority-vote;
(2) the refusal to look at what happens with the figure of ethnos as it successfully
achieves its ‘self-determination’ in the form of a territorial polity;
Mark Johnson, The Body in the Mind: The Bodily Basis of Meaning, Imagination, and Reason (University of
5

271
Popular Self-Government: Space, Time, and Spacetime • 271

(3) the commitment to seeing this ethnos as a ‘vanishing mediator’ whose pur-
pose is to allow the transition from a pre-political to a political state of affairs;
(4) the reliance on a norm of international law—mostly, uti possidetis juris—to
encourage us to think of the internal surface of the circle as a constitu-
tional order, whose position has been upgraded on the scale of constitu-
tional statuses through an act of popular ‘willing’; and
(5) the visual ‘circumference’ of our mind’s eye, which, focused on that in-
ternal surface, fails to reinterpret the scalar status-upgrade, as a scalar
responsiveness-increase.
While Chapter 6 allowed us to visualize this increase it did so without repre-
senting the feature that defines that scalar responsiveness as mediated through
the vocabulary of peoplehood. That feature, ‘encoded’ in the imagery of an
ongoing collective self-government, becomes graphically representable once
we elongate and flatten the visual representation of its spiral, as depicted in
the schema C. What the diagram at c represents is not the temporal cycle of
self-constitution (as in A), or climatic rhythm of democratic self-government
(as in B), but the band: the reach within which ‘some measure’ of responsive-
ness, at ‘some level’ ought to be considered good enough. Even so, this pic-
ture is still an inadequate representation of what constitutional self-government
‘looks like’ without its subject; beyond the people. While it depicts the good
enough ‘measure’ of responsiveness, it does so solely by taking into the account
only one particular assembly which claims to speak for the ‘entire’ people. That
measure may be unevenly distributed across a wide variety of norm-making
‘ought-places’, which in addition to elected territorial assemblies include a var-
iety of other sites, both territorial and non-territorial, elected and non-elected.
At the same time, the schema c conceals not only the spatial granularity of the
degrees of responsiveness, but also its internal complexity, and most import-
antly, its orientation.
Recall Kelsen. In contrast to Urbinati and Pettit—but in a vein similar to a
number of constitutional thinkers who didn’t devote themselves to a system-
atic reimagination of popular self-government6—Kelsen maintained that the
6
A number of other theorists had similar, if less articulate, intuitions about the character of popular self-
government as a device of desire-satisfaction. By way of example, consider the traces of scalarity in the way
in which AV Dicey described the function of parliamentary sovereignty, Harold Laski popular sovereignty,
Frank Michelman self-government, and Ronald Dahl democracy. For Dicey, parliamentary sovereignty—‘a
rule which gives the appointment and control of the government mainly to the House of Commons is at
bottom a rule which gives the election . . . of the executive to the nation’—‘is nothing else than a mode
by which the will of the representative body or House of Commons is made to coincide with the will of
the nation’. Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan 1886) 357.
‘Made to coincide’ is an interesting way of putting things. Is coinciding (1) a matter of the extent to which
the will of the Parliament satisfies individual preferences? Or (2) a matter of the reliability of Parliament’s
compliance with the will of the nation? Or, finally (3) a matter of the agility with which Parliament tracks
the changes in public opinion? This first answer is what Harold Laski seems to have had in mind, for ex-
ample, when he suggested that popular sovereignty requires that ‘the interest which is to prevail must be
the interest of the mass of men rather than of any special portion of the community’. Harold Laski, The
Foundations of Sovereignty and Other Essays (first published 1921, Lawbook Exchange 2003) 227 [emphasis
27

purpose of democratic decision-making was not to allow the system to show
some measure of responsiveness, but rather to make the exit from the individual
‘torment’ of heteronomy easier. Though Kelsen was a theorist who has most
explicitly imagined the immanently digital manifestation of popular will—Yes
(1) or No (0); never ‘perhaps’, or ‘not sure’—as the outcome of a maximizing
algorithm of responsiveness that secretly processes the analogue impulses
from ‘below’, what he left unspecified were the dimensions of constitutional
responsiveness—the meaning of ‘easier’ in ‘easier escape from the torment of
heteronomy’. As we will soon see, pushing Kelsen further on the meaning of
‘easier’ will allow us to get a clearer sense of ‘some measure of responsive-
ness’: an ideal that operates not only within a single, even if supreme, site of
democratic norm-making and norm-taking, but rather within the intercon-
nected totality of such sites within a purposive constitutional enterprise.
The figure that will emerge on the other side is constitutional isomorph—
the stranded ship of state among other stranded ships: a t-isomorph, looked
at sideways. Seen without the assistance of nautical metaphors, as in Figure
8.5, it won’t reveal an upward moving spiral that keeps recoiling around the
empty place of power. Seen in cross-section, it will reveal the morphology of
responsiveness: the dynamic configuration of differentiated and interconnected
norm-making and norm-taking ‘ought-places’ within the spacetime of a pur-
posive constitutional order, which needs to find a way of achieving its purpose
without going anywhere. If its name sounds pretentious, it’s because it seeks
to evoke the complex morphology of tendential responsiveness with the help a
number of ‘material metaphors’, which—while drawing the terminology used
in biology, geology, and complexity theory—resist the gravity pull of bodies,
organisms, cells, or systems.
Built with the assistance of their imaginative constituents—sensors, re-
flectors, filters, layers, skins, membranes, protocols, conduits, mechanisms—c-
isomorphs hope to evoke the ‘fleshy’ and ‘pulsating’ character of constitutional
government in a new way. This, unsurprisingly, makes these new imaginary
con-figurations hard to imagine. What they aim to picture is the ‘materiality’
of law in its ‘vast, all-informing, omnipresen[ce]’, something that—as Andreas
Philippopoulos-Mihalopoulos nicely put it—remains ‘difficult to capture and
even harder to negotiate’.7 While liberal-democratic constitutionalists see the
affective and anticipatory side of that materiality as something that must remain
added]. The second answer is also what Laski seems to have had in mind when he said that it is ‘useless
to call the sovereignty of the people effective if the organs through which it works fail to do justice to
popular desire’ (ibid 222). In contrast, the third answer might have been implicitly embraced by Frank
Michelman—who argued that the ‘strong’ conception of self-government presumes that ‘consent [must]
flow continuously’ so that the ‘business of the self [is not] displaced onto any distant force’—or by Robert
Dahl, when he identified ‘continuing responsiveness of the government to the preferences of its citizens,
considered as political equals’ as a key feature of democracy. See Frank Michelman, ‘Foreword: Traces of
Self-Government’ (1986) 100 HLR 4, 42, and Robert A Dahl, Poliarchy: Participation and Opposition (Yale
University Press 1973) 1, respectively.
Andreas Philippopoulos-Mihalopoulos, ‘Flesh of the Law: Material Legal Metaphors’(2016) 43[1] Journal of
7
Law and Society 45, 65.

273
Cicero’s Ulysses: Behind Pre-Commitment • 273

hidden, covered by the masks of popular sovereignty—the personae of sover-
eign peoples—those who look through them will see the patterns in the per-
petually reconfiguring relationship between two figures. The first is nephos—a
fuzzy and perpetually reconfiguring political ‘aerosol’ of moders’ attitudes. The
second is c-isomorph, the figure of a constitutional order beyond the people,
which—in capturing, organizing, and differentiating parts of that aerosol—also
responds to its shifts in conformity with the if-then protocols in a particular
k-algorithm. What follows in the next chapter is the first step towards a more
granular picture of the constitutional spacetimes these protocols establish.
2. cicero’s ulysses

behind pre-c ommitment
At this stage, getting a closer look at c-isomorphs doesn’t require special op-
tical instruments. What it requires instead is a different way of looking at the
imaginary obstacles that occlude our regular gaze. Irrespective of their scenic
character—be that a stage prop, a scenic prompter, an invisible script, a spe-
cific choreography, or even an entire stage-set—their objective is to shame,
demoralize, and discourage. In order to resist their efforts, we don’t have
many rhetorical weapons at our disposal. Reaching, therefore, for one of the
blunter ones—lefort’s vase—will have to do. Discovered almost accidentally
in Chapter 3, this vase became a rhetorical instrument only after we modified
its original picture by superimposing a brick, which—in balancing between
the heads of the two silhouettes cannot ‘enter’ the ‘vase’ itself. Rather than
‘empty’, the black brick offered a vivid visual reminder that xenoi (the silhou-
ettes) co-constitute not just the shape of the hollow space within the vase, but
also the limits of its conceivable teloi (ie not to be used as the receptacle for
bricks). Instead of Lefort’s empty place of power, this modification allowed
us to visualize the contours of a different kind of constitutionalism: neither
‘democratic’, ‘totalitarian’, ‘authoritarian’, ‘liberal’, or ‘popular’—but respon-
sive, catachrestic, and meliorist.
This of course gives rise to a rather predictable question. How can we make
sense of the purposes of an institutional set-up established by a particular con-
stitution if we cannot explain them in reference to the people’s purposes? If con-
stitutions are wish lists, whose wish lists are they? If constitutions still remain
purposeful instruments of government, how may we imagine the pursuit of
those purposes, without the image schema—path—that allowed us to think
of purposes as ‘physical goals’, something that can be pursued, and ultimately
reached?8 Having abandoned the circle—which supplied the trajectory of the
path with the requisite curvature, indispensable for escaping the clash between
the ideals of self-government and its territorial form—the scenes of purpose
as pursued become much harder to conceive. Before we return to the question
8
Johnson (n 5) 114.
274

of how to imagine the pursuit of purpose without the image of collective mo-
tion, it will prove instructive to delve a bit more deeply into how that pursuit is
imagined by those who don’t have such problems: the conjurors of the scene
of Ulysses, contemplating the encounter with the sirens, as the allegory of the
superior wisdom of liberal-democratic constitutional government.
Though thoroughly and frequently critiqued since it first appeared, the
locus classicus among contemporary conjurations of the same nautical anec-
dote is the work of Stephen Holmes.9 In Holmes’s influential account, the
role of navigator is played by Ulysses, the allegorical people, who realizes
that he can only be truly self-governing if he partially incapacitates himself
by pre-committing to a set of institutional devices that limit its freedom of
action. The ‘mast’ and the ‘ropes’ that enable him to do so are the standard
aspirations of liberal-democratic imagination: a written constitution, separ-
ation of powers, and the bill of rights—all of which are embraced in confi-
dence that they will be able to protect Ulysses the People from succumbing
to dangerous populist impulses. Or, in Holmes’s words, ‘citizens need a con-
stitution, just as Ulysses needed to be bound to his mast. If voters were al-
lowed to get what they wanted, they would inevitably shipwreck themselves.
By binding themselves to rigid rules, they can better achieve their solid and
long-term collective aims.’10 While some have argued that there is nothing
purposeful in this scene—Ulysses has reason neither to act or fail to act11—we
may only conclude this if our gaze remains fixed on a short cut-out from a
longer record of Ulysses’ wanderings. Once we extend our gaze to include
both the beginning and the end of his journey, we will recall that the purpose
of his self-incapacitation is not his rational decision to beat his akrasia but the
success of his enterprise: to return home to Ithaca. Or is it?
While Holmes’s interpretation (as we will see in a moment) does not
privilege the enterprising character of constitutional orders, it nonetheless
relies on the idea of pre-commitment to demonstrate the necessity of con-
stitutional self-government for the achievement of concrete capital-intensive,
9
For the most influential critique from the vantage point of liberal jurisprudence see Jeremy Waldron,
‘Precommitment and Disagreement’ in Larry Alexander (ed), Constitutionalism: Philosophical Foundations
(CUP 1998). For a critique from the vantage point of radical democracy see Joel Colón-Ríos, Weak
Constitutionalism: Democratic Legitimacy and the Question of Constituent Power (Routledge 2013). For the criti-
cism from the vantage point of political constitutionalism, see Richard Bellamy (ed), ‘Introduction’,
Constitutionalism and Democracy (Ashgate 2006) xxvii. On the other hand, for an unequivocal embrace of this
metaphor see Andras Sajo, Limiting Constitutionalism: An Introduction to Constitutionalism (Central European
University Press 1999) 7, and Karol Edward Soltan, ‘Constitution Making at the Edges of Constitutional Order’
(2008) 49 Wm & Mary L Rev 1409, 1414. For the application of this metaphor outside the national context see
Gunther Teubner and Anna Beckers, ‘Expanding Constitutionalism’ (2012) 20[2] Ind J Global Leg Studies 523.
For a qualified acceptance of the Holmes’s allegory see John Ferejohn and Lawrence Sager, ‘Commitment and
Constitutionalism’ (2002) 89 Tex L Rev 1929, and Tom Ginsburg, ‘Constitutionalism: East Asian Antecedents’
(2012) Chi-Kent L Rev 11. For a systematic and thorough defence of Holmes’s argument against its detractors
see Janos Kis, ‘Constitutional Precommitment Revisited’ (2009) 40[4] Journal of Social Philosophy 570.
10
Stephen Holmes, Passions and Constraint: On the Theory of Liberal-Democracy (University of Chicago Press
1997) 135.
11
Marco Goldoni, ‘Two Internal Critiques of Political Constitutionalism’ (2012) 10[4] ICON 926, 944.
275
Cicero’s Ulysses: Behind Pre-Commitment • 275

inter-generational, and ‘essential national purposes’.12 On the one hand, the
figure of ‘the people’ allows manifold individuals scattered across a wide
spatiotemporal frame to remain committed to projects that take time to
be completed and show their worth, and in that way mitigates the risk of
‘squander[ing] scarce resources’ by succumbing to their transient (democratic)
desires.13 On the other hand, the figure of the constitutionally pre-committed
‘people’ also contributes to the practical success of such projects in another
way: because of its imagined capacity to bind itself over long stretches of time,
the figure of the Ulysses-like ‘people’ instils confidence in capital owners; with
their expectations about the return on investment stabilized by the picture of
a trans-temporal collective debtor, they will be more willing to finance its pro-
jects. In short: to be purposive, the government must be reliable, and before
it has the opportunity of acting reliably, the government must be imagined as
wanting to do so. Put even more simply, the pre-committing ‘people’ is a col-
lective debtor to a placated capitalist investor.
The oligarchy-friendly nature of this scene was noticed even before it was
mobilized in support of liberal democratic constitutionalism. For Horkheimer
and Adorno this scene evokes the primeval ‘deception, cunning, and ration-
ality’ later fully displayed in the figure of a capitalist entrepreneur. Notice,
however, that the constitutionalist lesson Holmes draws from it is different: for
him, it evokes the importance of the accurate foresight of one’s all too human,
and more or less inevitable, cognitive and affective failures. As Holmes pithily
summarizes it, constitutions are ‘institutionalized cure[s]‌for chronic myopia’.14
Or, more expansively: one of the main purposes of constitutions is to ‘maxi-
mize the intelligence of decisions . . . by guaranteeing that decision makers are
compelled to take dissident views into account and are regularly to consult
informed parties outside the closed ruling clique’.15 However, when it comes
to the intelligent self-government of collective persons resembling Ulysses, the
purpose of the institutions that foster ‘intelligent’ decision-making is more
than instrumental: it is existential. In that case, these institutions are also de-
vices of regret avoidance. Holmes’s Ulysses binds himself to the mast because
he wants to do the most intelligent thing for himself (survive), and because,
otherwise, he would live to regret the consequences.16 Since the Sirens are
both seductresses and killers, we of course cannot reach this conclusion from
Homer’s original ‘script’; had Ulysses failed to resist their seducing song, he
would not have lived to regret the failure of his foresight, nor to report back
on his travels.
Holmes (n 10) 156.
12
ibid 155.
13
ibid 135; Max Horkheimer and Theodor Adorno, The Dialectics of Enlightenment: Philosophical Fragments
14
(Edmund Jephcott tr, Stanford University Press 2002) 48.

Stephen Holmes, ‘Can Constitutions Think?’ (workshop on Constitutions and Constitutionalism, Buenos
15
Aires, 2006).
Jon Elster, Ulysses Unbound: Studies in Rationality, Precommitment, and Constraints (CUP 2000) 16.
16
276

But what would have happened with the liberal-democratic morals of this
story if we followed not Homer but other known dramatizations that emerged
over the course of centuries? For example, in Dante’s version, Ulysses succumbs
to the sirens’ call, ends up living with them, and reconciles himself with his
predicament—even though he is still ‘all taken by his love of going on and on’.17
In Cicero’s version (which served as the inspiration for Dante’s adaptation), the
story preserves the possibility that Ulysses might have actually liked his fateful
choice. As Cicero explains, ‘the Sirens promise knowledge: no wonder that a
man who desired wisdom should have preferred that even to his country.’18
Which raises an interesting question. If Cicero is right, what is the point
of pre-commitment? If we accepted, for argument’s sake, Cicero’s scenario,
the point of various pre-commitment devices would not be regret-avoidance
but rather disappointment-avoidance. While they ignore popular enthusiasm,
which they code as ‘passion’, liberal-democratic constitutionalists focus on
the energy of the government—necessary both externally (for the ‘protection
of the community against foreign attacks’) and internally (for the ‘steady ad-
ministration of the laws’).19 Like the imperative of reliable government, the
imperative of energetic government is directed towards the maintenance of
the capitalist status quo—not only towards ‘the security of liberty against the
enterprises and assaults of ambition, of faction, and of anarchy’, but also to-
wards ‘the protection of property against those irregular and high-handed
combinations’.20 So could it be that the liberal-democratic dramatization of
impulsivity, short-sightedness, and regret is just one of the possible imagin-
ations of constitutionalism? Might its purpose be not to rationalize the need
for partial collective self-incapacitation, but rather—as Figure 8.2 suggests—to
discourage us from redramatizing constitutional enterprises beyond the hori-
zons of capitalism and liberalism?
Liberal-democratic ‘scene’ Discouraged alternative
Populist passion Hopeful purposefulness

↓ ↓
Message
STUPID decisions Internal→OBSTACLE←External

↓ ↓
Self-inflicted detriment Depletion of enthusiasm
↓ ↓
REGRET DISAPPOINTMENT
Figure 8.2 The alternative messages of the Ulysses and the sirens allegory
Mario M Rossi, ‘Dante’s Conception of Ulysses’ (1953) 30 Italica 193, 199.

17
Marcus Tulius Cicero, De Finibus, book v, quoted in Ernest Barker, Traditions of Civility: Eight Essays (CUP
18
1948) 61.
19
Alexander Hamilton, Federalist No 70: ‘The Executive Department Further Considered’, Independent
Journal (15 March 1788).
ibid.
20
27
Taking Kelsen Literally (Beyond Kelsen) • 277

Though at a very rudimentary level, the column on the right of Figure 8.2 pro-
vides us with a template that may be used to reinterpret the meaning of the
scenes that evoke a deeper wisdom of constitutional pre-commitment, and,
more generally, liberal-democratic constitutionalism. Notice, however, that
Ulysses’ self-incapacitation in those scenes is not only a metaphorical illustra-
tion of the superiority of the templates of liberal-democratic, constitutional
self-government, but also functions as an imaginative shorthand for a more
elaborate version of the logic exhibited on the left side of the figure. As with
all shorthands, this one is highly convenient. Inscribing diverse imperatives
of government into a single scene of constitutional pre-commitment allows
those who conjure it to allude to their mutually facilitative relationship without
having to confront the Vorgriff of their constitutional Begriff with the material
reality of liberal-democratic constitutionalism.
The contours of that allegedly virtuous circle are not hard to detect. The
imperative of ‘good’ government (which, in liberal democracies, must include
the right to private property) sets the stage for the exercise of self-government
that is practised intelligently by adhering to the principles of the separation
of powers and the rule of law. In turn, contestatory popular democracy en-
ables the introduction of a multitude of perspectives that enhance its epi-
stemic credentials, making it intelligent. Likewise, this relationship works
in reverse: popular self-government fosters grassroots vigilance, preventing
temporary governors from becoming corrupted, from reaching unintelligent
decisions, and from violating a polity’s foundational commitments to ‘good’
government. Energetic government, finally, contributes to a more vigorous
defence against external threats and, as a result, keeps popular and ‘good’ gov-
ernment safe from destruction.
3. Taking Kelsen literally (beyond Kelsen)

With Figure 8.2, we have reached the midpoint in our journey towards a more
complete morphology of the figure of c-isomorph. In the next two sections
we need to reimagine the imperative of government evoked not by Ulysses in
his specific situation (intelligent, reliable, energetic) but an imperative evoked
by Ulysses as an individual who is ultimately in charge of his ship. That im-
perative is the imperative of popular self-government. In order to do so, we
need to return to Kelsen, and use this occasion to address some nagging sus-
picions about the assumptions on which he based his understanding of the
relationship between majoritarianism decision-making and the imaginary of
popular self-government. What connects the two, Kelsen claimed, is ‘demo-
cratic ideology’—the conviction that keeping the possibility of being outvoted
ought to be ‘reduced to a minimum’.21 Majoritarian decision-making—as an
institutional device required by such order—facilitates the ‘accord between the
21

278

individual will and the will of the state because [it makes] fewer . . . individual
wills necessary for changing the will of the state’.22 In that, it embodies a ‘ten-
dency toward unanimity’—the reverse side of the ‘torment of heteronomy’.
Thus far, we’ve treated this ‘tendency’ as theoretically presumed, norma-
tively inscribed, politically consequential, and phenomenologically manifest.
But the time has come to ask: how Kelsenian is this understanding? Some might
argue ‘not very’. In On the Essence and Value of Democracy, Kelsen appears to be
very clear in distinguishing between the political ideology behind, and the social
function of majoritarianism—the first made the ideals of popular sovereignty
attractive in the past; the second is what makes it meaningful in the present.
From that perspective, majoritarianism is not the mechanism of responsive-
ness. Rather, it is a political game designed to transform the attitudes of those
who choose to play it by compelling them to choose between the alternative
‘teams’—‘Pro’ and ‘Contra’, ‘Yea’ or ‘Nay’, ‘Leave’ and ‘Remain’. Though
both teams advance substantive positions, those positions in most cases end up
emerging through a debate that precedes the very act of a majority vote. But
even when they don’t, the identity of valid victors—in what may be referred
to as the games of Get-to-50%+1—is always formal: whatever they ‘decide’, the
victors are majority coalitions, not deserving nations, or true religions.
Though Kelsen made a sharp distinction between democratic ideology and
social function, the two cannot be so easily separated. Kelsen’s insistence on
the functional contribution of majoritarianism to social integration is itself an
ideological stratagem. At least at one point in the discussion Kelsen admits that
much, noticing the contribution of majoritarianism to keeping the ‘political
movement of the nineteenth and twentieth centuries, under enormous pres-
sure from the democratic idea, on a rational middle course’.23 On a closer look,
Kelsen’s strict separation between the ideology and the function of majoritar-
ianism is not just historically dubious: it is also conceptually unsustainable. Even
if we set aside the fact that there would be no need for democratic decision-
making if most people exhibited a ‘critical relativist political attitude’,24 and
‘consider[ed] not only their own, but also foreign, opposing opinions to be at
least possible’,25 a question that dissolves Kelsen’s distinction still remains: could
majoritarianism ever hope to stimulate the development of a ‘critical relativist
political attitude’26 by incentivizing those who play its game to ‘consider not only
their own, but also foreign, opposing opinions’ as ‘at least possible’,27 without
respecting their opinions enough to make them count as such—considered and
unconsidered, critical and uncritical, relativist and absolutist alike?
In short: social functionality cannot exist without the credibility of incen-
tives, which, in turn won’t be imaginable without according political dignity to
the ‘tendency toward unanimity’ as a democratic ideology that remains opera-
tive in social reality. Against his own protestations, there are good reasons to
ibid. 23 ibid 97. 24 ibid 107. 25 ibid 108.
22
ibid 107. 27 ibid 108.
26
279
Taking Kelsen Literally (Beyond Kelsen) • 279

believe that Kelsen actually believed that as well.28 As an illustration, compare
the differences between himself and Schmitt with regard to the question of na-
tional homogeneity. Similarly to Schmitt, Kelsen envisioned democracy as only
possible in ‘a society with a relatively homogeneous culture, in particular with
the same language’. However, while Kelsen, like Schmitt, held affirmative views
of national homogeneity on seemingly prudential grounds, he nonetheless did
not treat national minorities as potential ‘internal enemies’. While Schmitt’s
argument allowed, and sometimes called for their suppression, Kelsen’s argu-
ment explicitly called for their accommodation. And more than that: ‘in nation-
ally mixed, so-called multinational states, decisions on national cultural issues
must be taken from the central parliament and left to autonomy—that is, to rep-
resentative bodies of national communities (subgroups) organized according to
the personality principle’.29
Why ‘must’, though? Is there anything in ‘critical relativist political attitude’
that would give reason to those who find themselves in the majority—and
whose relative demographic and geographic situation in fact allows them to
ignore minoritarian demands for autonomy—to accommodate them instead?
The only way in which Kelsen’s ‘must’ makes sense as anything more than just
an opportunistic suggestion of how to respond to national conflicts similar,
in principle, to those that existed in the last decades of the Austro-Hungarian
Empire, is not to dispatch the ‘tendency toward unanimity’ to the scrapyard of
conceptual history. If fact, there are hints—in addition to those we’ve already
detected in his Holmes Lectures—that Kelsen was not prepared to accept that
conclusion after all. In defending the application of ‘qualified majority’ in ‘par-
liamentary procedure’, he suggested that protecting certain ‘national, religious,
economic, or spiritual and intellectual spheres of interest’ is also ‘even closer to
the idea of freedom’, than the ordinary majority, ‘signifying a tendency to unan-
imity in the formation of the will of the community’.30
If the ‘tendency toward unanimity’ survives in political reality, why then did
Kelsen continue to insist on the radical transformation of the idea of popular
self-government during its transition from the sphere of ‘ideology’ to the sphere
of ‘reality’? The answer to this question can only be speculative, but Kelsen’s
account of the history of representative government suggests one answer. His
hindsight approval of the ‘rational middle course’ taken by the nineteenth-
century ‘parliamentary regimes’ is formed in contradistinction to the imagined
perilous alternative:
By making people believe that the great mass of the people could exercise pol-
itical self-determination in elected parliaments, it prevented excessive strain on
For an argument that Kelsen’s view of democracy remained committed to ‘the greatest possible approxi-
28
mation to the ideal of self-determination’, see Sandrine Baum, Hans Kelsen and the Case for Democracy ( John
Zvesper tr, ECPR 2012) 22–23. For an argument about Kelsen’s vacillation between two visions of the relation-
ship between the ideal and the reality of democracy, see Gabriele De Angelis, ‘Ideals and Institutions: Hans
Kelsen’s Political Theory’ (2009) 30 History of Political Thought 524, 537–38.
Kelsen (n 21). 30 ibid 101.
29
280

the democratic idea within existing political realities, a strain not without danger
to social progress, because it would necessarily have been linked to an unnatural
primitivization of political techniques.31
Kelsen did not elaborate on the meaning of this ‘unnatural primitivization of
political techniques’, but his argument, as we have just seen, has left enough
space for the application of the ‘tendency toward unanimity’ in reality.32 The
main purpose of returning to it in this chapter lies elsewhere: by taking a
second look at his description of the ‘tendency’, we will not only redeem
its operational character in reality but also notice its revealing partiality. In
focusing on popular self-government in the context of ‘parliamentary pro-
cedure’ and in treating national territorial autonomies as prudential precon-
ditions of democracy, Kelsen lost sight of the additional registers of tendential
responsiveness.
On Kelsen’s account, ‘the tendency’ has only two dimensions: agility and
plenty. From the perspective of the former, majoritarian decision-making al-
lows democratic constitutional orders to speed up, and to rescue people from
their alleged ‘torment’. In contrast to the more ‘plentiful’ outcomes super-
majoritarian decision-making, simple majorities do so by progressively re-
aggregating the satisfaction of political preferences among a smaller number
of people, faster. These dimensions of tendential responsiveness reveal them-
selves if we focus exclusively on the ‘parliamentary procedure’ in the national
parliament. Approaching this ‘tendency’ by expanding our zoom on to all (po-
tential) sites of political decision-making in the entire constitutional order,
however, would reveal two additional dimensions of responsiveness: sensitivity
and reliability.
On the one hand, sensitivity is a measure of the aggregate size of the demand
for constitutional or legislative change deemed sufficient to trigger it. A constitu-
tional order can be more sensitive, and allow the process of constitutional or legis-
lative change to be triggered by groups of citizens, bypassing the procedures for
democratic decision-making in the parliament. On the other hand, reliability is a
measure of likelihood that the constitutional or legislative change will result in the
outcome requested by the demand that triggered it. For example, Secession Reference
commits Canadian constitutional order to negotiate towards secession, it is less
ibid 97.
31
32
Contemporary interpreters of Kelsen have embraced Kelsen’s worries about this unspecified
‘primitivization’ and have, in so doing, missed an opportunity to inquire into the possible ways in which the
‘tendency toward unanimity’ has remained alive and well in the practice of contemporary democracies, do-
mestically, and the right to self-determination, internationally. Wojciech Sadurski, for example, argues that it
is ‘an unattractive conception of political freedom to be told that, while the laws which govern my behaviour
are objectionable (ex hypothesi), I can nevertheless work towards repealing them, and the repeal is easier than
in any other alternative system of law-making’. Wojciech Sadurski, Equality and Legitimacy (OUP 2008) 69.
Such a conception, as Lars Vinx argues, would ‘hardly . . . provide much comfort to members of a minority’.
Lars Vinx, Hans Kelsen’s Pure Theory of Law: Legality and Legitimacy (OUP 2007). A more precise and accurate
answer would more likely be: it depends. In contrast to Sadurski and Vinx, Kelsen’s argument would actually
enhance the chances of some minorities to exit the torment of heteronomy to national minorities by satis-
fying their demands to self-determination as ‘honestly’ and ‘extensively’ as possible, as we saw in Chapter 2.
281
Self-Government as a Constitutional Isomorph • 281

reliably committed to that outcome than, say, a UK constitutional order, where
we know that an affirmative vote on Scotland’s independence will be respected
without qualifications. With the help of these examples, we have arrived at the
cusp of moving beyond popular, and through this, constitutional self-government.
Reimagining Kelsen’s account of popular self-government as a particular con-
stellation of the four registers of tendential responsiveness allows us to take its
first, crude snapshot without the people in its driving seat. Instead of a vehicle
for popular self-government, constitutional government presents itself as pro-
ject that conforms to a specific configuration of five imperatives—good (g), reli-
able (r), intelligent (i), energetic (e), and ‘popular’ (p) government—which itself
entails a specific configuration of the dimensions of its tendential responsive-
ness: agility (a), plenty (p), sensitivity (s), and reliability (r). Diagrammatically, it
can be described as in Figure 8.3.
S1
S2
S3
R I
S4
E P G
a S5 g
r s
Figure 8.3 Imperatives of government and the dimensions of responsiveness
This diagram provides us only with the most general snapshot of the distribu-
tion of tendential responsiveness in the moment in which the constitution was
adopted. In order to uncover the morphology of responsiveness in real time, in
the context of ongoing popular self-government, we need to complement the
previous discussion with a finer-g rained picture of the spacetime in which the
four dimensions of tendential responsiveness operate as a unity.
4. Self-g overnment as a constitutional isomorph

If c-isomorphs exist as configurations of different ought-places of tendential
responsiveness, what assures their unity? What keeps these configurations
not only con-figured, but unified? The answer of Hans Lindahl, from whom
we borrowed the concept of ought-places, is indirect: a constitutional order
28

is ‘concrete because it provides normative markers for what to do, when and
where to do it, and by whom it should be done, such that I can orient myself
in each of these dimensions, and all of them together’.33 To do so successfully,
a constitutional order must do so ‘unobtrusive[ly]’.34 Notice that instead of
answering what unites disparate ought-places, Lindahl offers an answer to
something else: how must a constitutional order present itself (imaginatively,
doctrinally, jurisprudentially, symbolically), so that ‘I can orient myself ’ in it.
Kelsen’s own answer would have been different: what keeps a diverse array
of ought-places together is the fact that they have all been created in accord-
ance with a higher norm, each of which derives its validity from yet a higher
one, and ultimately, from the Grundnorm—the basic norm that validates the
first constitution in the history of the country in question. In Kelsen’s view
the image of a constitutional order is not so different from the picture of the
Hobbesian Sovereign—in both of which constitutional authority has a pyram-
idal or conical structure, whereby legal validity radiates from its ‘top’. In Hobbes’s
case, the conical light of the Sovereign’s authority ‘illuminates’ otherwise non-
descript individuals as legally obligated subjects. In Kelsen’s case, the source of
the order’s ultimate authority, and the validity of all of its legal norms, is not
the will of a sovereign but rather the Grundnorm. Though in adapting Adolf
Merkl’s Stufenbaulehre, Kelsen himself, unlike Merkl, did not use the metaphor
of ‘pyramid’; the description that follows makes it difficult to portray his vision
of legal order differently.35
The relation between the norm determining the creation of another norm, and
the norm created in accordance with this determination, can be visualized by
picturing a higher-and lower-level ordering of norms. The norm determining
the creation is the higher-level norm, the norm created in accordance with this
determination is the lower-level norm. The legal system is not, then, a system of
like ordered legal norms, standing alongside of one another, so to speak; rather,
it is a hierarchical ordering of various strata of legal norms. Its unity contains in
the chain that emerges as one traces the creation of norms, and thus their validity,
back to other norms, whose own creation is determined in turn by still other
norms. This regress leads ultimately to the basic norm—the hypothetical basic
rule—and thus to the ultimate basis of validity, which establishes the unity of this
chain of creation.36
From Kelsen’s perspective, the pyramid remains unaltered by the concrete iden-
tity of the basic norm at its apex. That basic norm can be imagined either as the
absolute norm of domestic legal order or as the relative norm (the Grundnorm
Hans Lindahl, Fault Lines of Globalization: Legal Order and the Politics of A-Legality (OUP 2013) 25 [emphasis
33
added].
34
ibid.
See Rafael Domingo, The New Global Law (CUP 2006) 147. See also András Jakab, ‘Problems of the
35
Stufenbaulehre: Kelsen’s Failure to Derive the Validity of a Norm from Another Norm’ (2007) 20 Canadian
JL & Jurisprudence 35.
Hans Kelsen, Introduction to the Problems of Legal Theory (Bonnie Litschewski and Stanley L Paulson trs, first
36
published 1932, Clarendon 1992) 64.

283

of an individual constitutional order) whose validity stems from the absolute
Grundnorm, the norm of international legal order that prescribes that ‘states
ought to behave as they have customarily behaved’.37 Starting from this norm
as the apex, ‘the principle of effectiveness, a principle of international law, func-
tions as the basic norm of the various state legal systems’.38
But as we saw earlier, Kelsen’s 1942 discussion of the right to self-determination
also allows us to understand this Grundnorm substantively as the global tendency
towards unanimity. From that perspective, the answer to Lindahl’s question is
different: we ought to consider a constitutional order as an ‘unobtrusive’ ‘unity’
of manifold ought-places because they have been constituted in conformity
with the Kelsenian algorithm and kept together in conformity with the purpose
it serves. If so, our imaginary pyramid must transform itself into something
else: a cylinder.39 The same transformation awaits the Grundnorm. As an ‘optical
illusion’ at the apex of the pyramid (or of the cone, as in Figure 8.4), which en-
ables officials to imagine a hierarchical constitutional order, the Basic norm (b)
now is represented as determining the spatial circumference of a constitutional
order, via the application of the Kelsenian algorithm.40 In a simplified two-
dimensional form, that change is depicted in the two-part diagram at Figure 8.4.
B
KA
S1
S2
S3
S4
S5
Figure 8.4 The Kelsenian ‘cone’ and the Kelsenian algorithm
The picture on the left allows us to visualize more clearly the relationship be-
tween the Kelsenian algorithm (ka) operating at s1, s2, and s3 on the one hand,
and c-isomorph as its outcome once the polity is constituted at s4 and s5, on
the other. More importantly, Figure 8.4 opens the possibility of moving beyond
the imagination of constitutional change—as an exceptional transformation—
prefigured by those and other propositions of peoplehood. From what we have
seen so far, those propositions prefigure our understanding of constitutional
change in two interrelated ways: by affirming the distinction between s4 and s5
and by imagining constitutional change at s4 in a binary way—either through a
Hans Kelsen, Principles of International Law (Reinhart & Co 1956) 418.

37
Kelsen (n 36) 61.
38
For a different visualization of Kelsen’s account of a legal order, likened as the Lorenz attractor, see
39
Sionaidh Douglas Scott, Law after Modernity (Bloomsbury 2015) 141.

For Grundnorm as an optical illusion see William E Conklin, The Invisible Origins of Legal Positivism: A Re-
40
Reading of a Tradition (Kluwer Academic 2001) 187.

284

revolution (r) (extra-constitutionally) or through a constitutional amendment
(a) (constitutionally). In both cases, constitutional change is attributed to the
‘will’ of the entire ‘people’ and is seen as being in its collective interest.
Sustaining the two distinctions—s4/s5 and r/a—would have been impos-
sible without a hierarchical vision of a legal order with the ultimate authority
of ‘the people’ at the top of the legal ‘cone’. Estranging us from Kelsen’s im-
agination (on the left side), the picture on right side of Figure 8.4 sets the stage
for moving beyond the distinctions above. What needs to be stressed, however,
is that the possibility for doing so is already entailed in Kelsen’s argument itself—
irrespective of the conical or pyramidal imagery of higher and lower ‘strata’ of
legal norms where ‘the norm determining the creation is the higher-level norm’,
and where ‘the norm created in accordance with this determination is the lower-
level norm’.41 Superficially, this vision would seem to require us to conclude that
constitutions can change ‘only under more stringent conditions—for example, a
majority qualified in some way, an increased quorum, and the like’.42 However,
Kelsen does not claim that ‘the norm determining the creation’ must be the most
proximately ‘higher’ norm, nor does it follow from his account that the constitu-
tional norms cannot set the conditions for a legal regime existing ‘under’ several
strata of higher norms that would be authorized to produce a technically ‘lower-
level’ norm but could still be considered as a constitutional amendment. So, it is
perfectly possible from within Kelsen’s account that a constitution entrenches a
norm that vaguely determines the parameters for constitutional change—that
can ultimately ‘ground’ a yet unknown norm that creates a constituency, author-
ized to change the constitution outside the requirements set explicitly in the text
of the constitution—without ever making recourse to the ‘will’ of the people.43
What prevents us from envisioning this possibility are two sets of images: the
images of the democratic manifestation of ‘the will’ of the people and the pic-
tures of pyramids and ‘chains of creation’. Figure 8.4 shines a different light on
the former: the majoritarian will of ‘the people’ at s4 may be seen as a politically
contestable proxy for the satisfaction with the way the Kelsenian algorithm—in
a concrete case of state formation—improves the satisfaction of allegiances on
the ground. A minoritarian change of the constitution may be seen in the same
light. As in the case of a majoritarian change, what puts its legitimacy in doubt
is the claim made in the name of the Kelsenian algorithm: the claim that the
new constitutional status quo diminishes, not improves, the aggregate of alle-
giances among its citizens.
Kelsen (n 36) 61.
41 42
ibid.
43
See eg Hans Kelsen, ‘The Function of a Constitution’ (Iain Stewart tr) in Richard Tur and William Twining
(eds), Essays on Kelsen (Clarendon 1986) 117–18. (‘The relation between a higher and a lower norm lies in the
validity of one norm grounding in one way or another, the validity of another norm.’) For David Dyzenhaus,
this means that ‘this higher norm’s validity will be dependent on the existence of yet another norm in the hier-
archy, until, step by step, one reaches the top of the normative hierarchy, the basic norm, or the Grundnorm’.
David Dyzenhaus, ‘The Gorgon Head of Power: Heller and Kelsen on the Rule of Law’ in Peter C Caldwell
and William E Scheuermann (eds), From Liberal Democracy to Fascism: Legal and Political Thought in the Weimar
Republic (Humanities 2000) 29.
285

However, with the image of a cone before our eyes, it becomes harder to im-
agine a lower-level norm ‘climbing back’ to the top of the cone and insert itself
into a constitution in disregard for the content of the middle ‘strata’. Likewise,
the image of ‘chains of creation’ discourages us from imagining the unity of
legal orders as a matter of pathways of creation that may be more or less fuzzy
and do not need to amount to a precise advance identification of the relevant
conditions for constitutional change. Together, they distract us from appreci-
ating the contingent character of Kelsen’s association of supermajoritarianism,
with legal hierarchy and constitutional change. Instead of being a conceptual
necessity, supermajoritarianism is ‘a legal technique’, an instrumental ‘presup-
position’ whose aim is to assure respect for civil rights and liberties and equality
before the law.44 With pyramids out of the way, the perspective of Figure 8.4 al-
lows us to imagine new ways of encoding the operation of Kelsen’s ‘tendency’
beyond the r/a and s4/s5 binaries. Instead of describing it in the abstract, let
me start with a description of how it might work in practice by imagining the
following constitution-making scenario.
After a popular referendum in which a region k decided by a majority vote to
secede from country c, the citizens of a newly independent, federal k have not
only adopted a c-isomorph to guide future demands for secession (among her
regions x, y, z) but have also, as highly socially conscious citizens, entrenched in
their new constitution an ambitious set of directives of state policy whose aim
is to eradicate social inequality within their lifetime. While they are not liberal
democrats, they share parts of their worldview. Like Holmes’s Ulysses, they
are suspicious about the resilience of their commitment to their goal. Unlike
Holmes, they do not believe in the idea of constitutional pre-commitment, but
instead they highly value political flexibility. As a result, their constitutional
consciousness is a strange hybrid: a mix of socialist determination to reduce
poverty radically, liberal self-doubt, anti-liberal cynicism about collective self-
government, and a commonsensical belief in the value of responding to cir-
cumstances flexibly. Shaped by the prevalence of such attitudes, the text of the
new constitution entrenches what colloquially has become known as ‘the equal-
izing algorithm’. Its essence is the following:
If the poverty rate within the poorest federal region rises above a certain threshold
during an electoral cycle, and if, within a year from that determination, 10,000
residents of that unit whose income puts them below the poverty line [p] peti-
tion [1*] the regional parliament [r] with the demand to accelerate the process
of poverty eradication, the parliament will be under obligation to establish the
legislative framework [2*] for convening an Expert Social Panel [sp], which would
draft the amendment to the federal constitution and choose between two modes
of amending it: by a regional referendum [3a*] or by a decision of another ex-
pert body that would be authorized to alter the content of the proposed amend-
ment within set parameters [3b*]. In both cases, the amendment would establish
the Office of the Equality Tribune [et] vested with the authority to monitor the
Kelsen (n 36) 65.
44
286

eradication of poverty and to levy a solidarity surcharge on the income of the
wealthiest citizens during a period of ten years, after which the amendment
would have to be renewed through the same procedure.
Under the text of our imaginary constitution, we simply do not know in ad-
vance which body will be authorized by the enabling legislation to produce
constitutional change. Nor are we aware in advance of the extent of the spatial
sphere of validity of such constitutional change. Moreover, such change may
be enacted by the ‘wills’ of a minority of all citizens and might violate the
coordinate relationship that federal regions otherwise enjoy under the consti-
tution.45 Notice that the establishment of the Office of the Equality Tribune
in our scenario would still be described as a constitutional change by means
of a constitutional amendment. As a general matter, the ‘if . . . then’ routine
(implicit in steps 1*–3*) can feature criteria that determine the relevant con-
stituency with a greater or lesser degree of fuzziness and does not have to be
embedded in a constitution. Such algorithms may be implanted elsewhere and
may trigger automatic change in legal regimes established by acts of legisla-
tion and not only the constitution itself. From that perspective, the distinction
between s4 and s5 would become blurred and less consequential. Enlarging
the right-side picture from Figure 8.4 and zooming in on s4 and s5 brings us to
Figure 8.5, which offers a visual rendering of the way in which those provisions
might work in practice.
ET
K
X Y Z
2*
SP
P
3a*
1* 3b*
Figure 8.5 Kelsenian algorithm beyond the layered constitutional hierarchy
This proposal has affinities with John McCormick’s ‘neotribunate model’. See John P McCormick,
45
Machiavellian Democracy (CUP 2011) 183–86. Unlike McCormick’s proposal, which preserves the pouvoir
constituant of the (entire) ‘people’, my proposal effectively attributes the pouvoir constituant (if it is even ne-
cessary to continue resorting to this term) to a constituency, unknown in advance, consisting of those who
have petitioned the Equality Tribunate demanding constitutional change according to the provisions set in the
Law, and the members of the special body who have determined the concrete content of the constitutional
amendment.
287
Constitutional Isomorphs and the Pursuit of Purpose • 287

Against the backdrop of contemporary constitutional categories, this scenario is
highly incredulous. Relying on it for illustration is nonetheless useful because it
makes clear what are, and what are not, the sources of its incredulity. Whatever
its practical demerits, notice how this scenario does not violate the unity of
that constitutional order; nor is it a priori incompatible with the imperative
of popular sovereignty; nor, ultimately, does it violate some abstract political
morality of the principle of federalism.46 Instead, what makes it incredulous is
an assumption that is perhaps too simple to be considered theoretically relevant
but is, nonetheless, decisive: the presupposition that such arrangement would
erode, instead of improve, the allegiance to such a constitutional order among
the totality of its citizens.
Before we move onto the rhetorical implications of Figure 8.5, another ana-
lytical point bears mentioning. The imaginative stepping-stone for developing
Figure 8.5 is Lindahl’s refinement of Kelsen’s account of a legal order. However,
this diagram may also be seen as the qualification of Lindahl’s images of ‘ought
places’. While Lindahl’s imagery evokes the picture of a layered geology of
packed places, Figure 8.5 suggests that it is useful to distinguish between two
categories of such ought-places: norm-making places (the ‘beacons’ such as [3*])
hovering over the space-time of ‘the people’-as-governed, and the norm-taking
ought-places, (such as the constituency 1*) on the ground. Perhaps a better
visual metaphor for the latter would be that of the visual effects of the ‘light’
cast by a normative ‘beacon’. In a real-life constitutional order—imagined as a
three-dimensional cylinder—such ought-places could be seen as visual overlaps
of different conical bases, projected from different sites of norm creation within
a constitutional order. Whether we identify them as ‘places’ in the context of
constituent struggle will depend—here, the discussion from Chapter 5 becomes
relevant again—on our chronoscopes and the polemical ways we use them.
Depending on when we look, they may appear in primary or secondary col-
ours, be polka-dotted, or feature some other visual pattern. A more neutral—if
that is even possible—description of their dynamic interaction in a constitu-
tional order may not be that of a unity of ought-places but the interplay of the
visual effects produced by the gyrating reflectors on the dance floor in an empty
discotheque.
5. Constitutional isomorphs and

the pursuit of purpose
c-isomorph is the work of a purposeful constituent imagination: a model of
what constitutional self-government looks like once compelled to stop telling
tales about its travels on open seas. What appeared in the previous section,
was its image: a t-isomorph looked at sideways, a dynamic configuration of
the differentiated and interconnected norm-making and norm-taking ‘ought-
places’ within the constitutional spacetime: delineated in conformity with the
For a discussion about the purposes of federalism in anxiety management, see Chapter 6.
46
28

k-algorithm (at s2 and s3), and governed by its more complex variation (at s4 and
s5). Instead of an image of a collective agent and its vehicle of self-government,
c-isomorph offers us the picture of swelling and subsiding, fragmenting and
defragmenting, accelerating and decelerating layers in the morphology of
tendential responsiveness. Where is the purpose in that? What is the purpose of
portraying the process of constitutional self-government like that? Those ques-
tions cannot be addressed in isolation. The contextual background that makes
them meaningful has two sides: the imaginary of liberal democratic constitu-
tionalism (we just moved beyond), on the one hand; and the already existing
ways of moving beyond it on the other. What follows is the discussion of one
of the most important, if perhaps under-appreciated figural representations of
the latter: Hannah Arendt’s pyramid of liberty.
At first glance, Arendt seems to have the most elegant solution to the problem
of constitutional purpose: do not speak about it as something that is concrete or
something that is pursued by a sovereign people. The purpose of constitutional
transformation, akin to that experienced by the thirteen American colonies,
was not a concretely purposeful project but rather the constitution of liberty.
The way in which American revolutionaries exercised their agency on the mani-
fold stages on which they appeared is the principle that ought to govern the
purpose of every successive act of re-foundation. During such acts, the freedom
that the original constitution-makers exercised in engaging in the acts of mu-
tual promising ought not only to be replicated, but constitutionally augmented.
Paraphrasing Arendt, it may be said that the constitutional authority of the
original constitutio libertatis lies in its promise of augmentatio libertatis. But what
exactly is augmented? If it’s the foundations, what would that look like? To
understand augmentation as the fortification of the existing foundations along
the lines suggested by Figure 4.1 doesn’t make much sense. Or perhaps aug-
mentation ought to be understood literally, as the spatial extension of the ori-
ginal blueprint of the American constitutional freedom? In ancient Rome, this
literally meant territorial expansion through the establishment of colonies. In
contemporary America, augmentatio of freedom has often been understood in
the same way: from constitutio libertatis in the Philippines, Hawaii, and Puerto
Rico to constitutio libertatis in Iraq and Libya.
An attempt to visualize the augmentation offers us a sense of what the pur-
pose of a constitutional order might look like once it stops being seen as a ve-
hicle driven by a sovereign people along the path of collective self-government.
What Arendt’s vision suggests is that ceasing this linear and unidirectional
movement may be meaningfully transcribed into a different kind of ‘move-
ment’—non-linear, multidirectional, and expansive. Instead of a ship at open
sea, Arendt offers not just a pyramidal structure of ‘elementary republics’, or
present-day councils, but rather, more abstractly, a pyramidal platform of inter-
connected and proliferating institutional platforms, capable of acting as what
she called the ‘spaces of worldly appearance’.47 The way Arendt transcends the
47
Arendt evokes a ‘pyramid’ in her discussion of the authoritarian conception of authority, where authority
flows from the top to the bottom. See Hannah Arendt, ‘What is Authority?’ in Between Past and Future (first
published 1961, Penguin 2006) 98–99.
289
Constitutional Isomorphs and the Pursuit of Purpose • 289

problem of purpose, then, is not just by demanding us not to ask what is for
the better, but rather by offering as the better more of the same—the same ori-
ginal freedom, just more potential ways to exercise it by acting in concert. From
that perspective, Arendt’s pyramid is not that different from Kelsen’s. While the
first emerged as the work of imagination turned backwards, looking to recu-
perate the lost treasures of early modern revolutionary tradition, and while
the second turned forwards—looking behind the veneer of embodied people’s
will—Arendt and Kelsen both moved beyond the people as the empty place of
power. But rather than the ‘enigmatic arbitration of the Number’, they both
unearthed the unidirectional scale that governs it: towards the maximization of
individual freedom, towards the augmentation of opportunities to exercise it
through acting in concert.
In setting the stage for that scene, Arendt seems not to have resorted to the
tricks of constitutional dramatism. More than once in fact, she made it explicit that
the authority of the United States’ constitution derived entirely from ‘subordinate
[state] authorities’—themselves duly authorized by lower-level ‘districts, coun-
ties [and] townships’.48 A closer look however, reveals equivocation. Though she
insisted that it was ‘existing charters and agreements’ that served as the building
blocks of the new constitutional pyramid,49 Arendt at the same time described the
act of its foundation, as the constitution of ‘a completely new body politic’.50 That
detail is symptomatic, since a closer look makes apparent that irrespective of her
rejection of the ideal of sovereignty, Arendt still ends up using the same old m +
p trick used to generate it dramatistically, just in a different scenic environment.
While Hobbes, Schmitt, and Sieyès used it to evoke a bounded space on solid land,
and while Elster, Habermas, and Holmes used it to evoke a bounded space moving
away from that land in the open sea, Arendt used it to evoke a solid land in the open
sea going nowhere: a ‘limited island of stability’.
How can one construct a pyramid out of these islands? At best, it seems that
conjoining them constitutionally can only lead to the constitutio of an archi-
pelago, not that of a pyramidal system of constitutional authority. That is, un-
less, we imagine this constitutio as the constitution of a ramshackle structure,
resembling less a pyramid than a configuration of superimposed pontoons.
Contra Arendt, such an edifice is founded not upon ‘promises’, but rather, as
Alan Keenan memorably put it, on ‘promises, promises’—fickle as the joy of
acting in concert that inspired them in the first place.51 Though Arendt dis-
misses popular sovereignty, she is equally as anxious as those who embrace it
to banish the figure of a fickle promissor, the frustrated cheerleader, from
the space of constituent imagination.52 Though radically different from Kelsen’s
participant in democratic decision-making, her hero is a caricature nonetheless.
48
ibid. 49
Hannah Arendt, On Revolution (Penguin Books 1963) 182. 50
Arendt (n 47) 140.
Alan Keenan, ‘Promises, Promises: The Abyss of Freedom and the Loss of the Political in the Work of
51
Hannah Arendt’ (1994) 22[2] Political Theory 297, 307.

For a retrieval of the threads in Arendt’s thought that gesture towards Patchen Markell, see ‘The Moment
52
has Passed: Power after Arendt’ in Romand Coles, et al (eds), Radical Futures Past (University of Kentucky Press
2014). Discussing the distinction between action and work in ancient Greece, Arendt remarks that Greeks des-
pised non-political pursuits because of their ‘enormous demands on time and energy’ taken away from the
public realm. Hannah Arendt, The Human Condition (first published 1958, University of Chicago Press 1998) 82 n 7.
290

While Kelsen’s citizen either wants nothing more than to return to the state
of his original instinctual freedom, or (as Kelsen also ambivalently claimed) to
find compromise between himself and others who share his ‘scientific relativ-
istic attitude’, Arendt’s protagonist is driven by nothing more than his ‘passion
for emulation’ and the anticipation of the ‘joys of acting in concert’, driven
by a desire to be immemorialized for the actions he performed in the space of
appearance.
In the immense scholarship on Arendt’s constitutional thought, this vision has
been both admired and criticized. What is of interest here, however, is not how
Arendt understood action, or new beginnings, but rather what she had to say
about the ways to represent purpose in a political configuration, which moves
nowhere, of more interest are her curious references to ‘futility’ of action, and
her verdict on what saves action from futility. It is there, not in the vision of
‘augmentation’, where a different vision of constitutional purpose hides.
Viewed, however, in their worldliness, action[s]‌do not ‘produce,’ bring forth any-
thing, they are as futile as life itself. In order to become worldly things . . . they
must first be seen, heard, and remembered and then transformed, reified as it
were, into things—into sayings of poetry, the written page or the printed book,
into paintings or sculpture, into all sorts of records, documents, and monu-
ments . . . Without remembrance and without the reification . . . the living activ-
ities of action, speech, and thought would lose their reality at the end of each
process and disappear as though they never had been. . . . [M]en’s life together
in the form of the polls seemed to assure that the most futile of human activ-
ities, action and speech, and the least tangible and most ephemeral of man-made
‘products,’ the deeds and stories which are their outcome, would become im-
perishable. The organization of the polis, physically secured by the wall around
the city and physiognomically guaranteed by its laws . . . is a kind of organized
remembrance. It assures the mortal actor that his passing existence and fleeting
greatness will never lack the reality that comes from being seen, being heard,
and, generally, appearing before an audience of fellow men, who outside the polis
could attend only the short duration of the performance.53
But why would anyone want organize remembrance of otherwise futile actions
in the first place? What is it in the ‘men’s life together’ that leads them to rescue
from futility some futile actions and not others? Why, among many ‘futile’ acts,
do we remain especially keen to immemorialize those that we consider not
simply as the acts of ‘greatness’ but also as the acts of sacrifice? Still captive to
the image of a ‘physically secured’ polis, we immemorialize them because there
is something in them that summons us to affirm that they were not in vain.
Captive to the images of walled-off political communities we don’t ask why.
Presuming that this question may only be phrased as ‘for whom?’ we fail to ask
‘what for’? In that, we also fail to ask, ‘could we commit to memory something
that was done for us, if it wasn’t, at least in its intention, for the better?’
ibid 198.
53
291
By the People? Imaginative Plurality and its Dignity • 291

Arendt famously had no time for the better, so it is no wonder that her
dramatizations of the acts of foundation had no space for it either. Quite in-
credulously, she claimed that those who were about to take part in revolution
didn’t have the ‘slightest premonition of what the plot of the new drama was
going to be’, but that only once the revolutions had begun, ‘the novelty of the
story and the innermost meaning of its plot’ became obvious to them as ‘the
emergence of freedom’.54 Constituted for the sake of liberty, and liberty alone,
it is no wonder then that Arendt’s constitution had to remain impregnable to the
exhortations to be used deliberately, for some concrete better. On that, Arendt
was resolute: ‘The law of progress holds that everything now must be better
than what was before. Don’t you see, if you want something better, and better,
and better, you lose the good. The good is no longer even being measured.’55
Having banished it from constitutional imaginary as a threat to the good,
Arendt sentenced the better to a life in hiding. Today, the better hides not
within the walls of an Athenian polis, but within the walls of polities governed
in the name of the people. What makes them appear sovereign, however, is nei-
ther the failure to recover the lost treasure of ‘augmentation’, nor the idea of
the sovereignty of the people, but the failure to consider the possibility that the
glory of contributing to a better life together doesn’t require this ‘together’ to
be figuratively represented as a political ‘community’, a constitutional ‘subject’,
or a legal ‘collective’. To make sense, the pursuit of the better need not be al-
legorically projected onto a path, and into a distant future. It can as easily be
imagined as something that is yet to be inscribed within the totality of ought-
places that exhaust the spacetime of a c-isomorph.
6. By the people?
Imaginative plurality and its dignity
Constitutions are wish lists hidden behind the iconographies and allegories of
contemporary constitutionalism. To rewrite them, we must pay keener atten-
tion to the geographies and morphologies of the world we take for granted
every time we speak of constitutional self-government. In order to do so, we
must also begin to think of the pictures of that world less literally: not as land-
scape paintings, or jigsaw puzzles, but as the multi-dimensional surfaces—skins,
screens, filters, masks, and membranes that provisionally separate constantly
reconfiguring c-isomorphs. Unlike the landscape paintings or jigsaw puzzles,
these pictures allow us to look at them sideways as cross-sections. What these
orthogonal slices reveal is not an orderly image of hierarchically interconnected
levels of self-government but rather a global geology of ought-places.
Arendt (n 47).
54
55
Hannah Arendt, ‘Hannah Arendt: From an Interview’ (1978) 25[16] New York Review of Books 18 quoted
from Bonnie Honig, ‘Dead Lives, Live Futures: A Reply to Habermas’ “Constitutional Democracy” ’ (2001)
29[6] Political Theory 792, 797.
29

Focused on representative democracy in large ought-places (ie nation-wide),
liberal-democratic constitutionalism ignores this geology. It ignores it with
good reason. To illustrate why, compare these two c-isomorphs: ‘Venezuela’
and the ‘United States’. The former is governed by the protocols of respon-
siveness calibrated to be sensitive not only towards constitutional, large-scale
demands for political change, but also to those at smaller scales, at the level of
municipalities—‘permitted to associate in commonwealths, or to agree among
themselves or with other territorial political divisions on the creation of types
of intergovernmental associations for purposes in the public interest relating to
matters within their competence’.56 In contrast, the c-isomorph ‘United States’
is far less sensitive towards the demands for large-scale constitutional change. It
is also far less reliably responsive to quotidian demands at smaller scales of gov-
ernment, which, according to the US Supreme Court, exist as nothing but ‘con-
venient agencies for exercising . . . such powers as may be entrusted to them’ by
the state.57 As a result,
The state may modify or withdraw all such power, may take without compensa-
tion such property, hold it for itself, or vest it with other agencies, expand or con-
tract the territorial area, unite the whole or part of it with another municipality,
repeal the charter and destroy the corporation . . . with or without the consent of
the citizens, or even against their protest.58
None of this is to deny that the right to local self-government can be defended as
a specific incarnation of the general ideal of popular self-government. In fact,
some authors have called the exercise of such constitutional powers a ‘demo-
cratic dissolution’ and a ‘betray[al of] local democracy values because they do
not require local consent’.59 Notice, however, that there is nothing in the idea of
popular self-government that can help us arbitrate between different configur-
ations of self-government under an established constitutional order. From the
perspective of the American ‘people’, or ‘the peoples’ of individual states, the
decision in Hunter is not a denial of the right to local self-government. Rather, it is
the manifestation of their own. By the same token, in focusing on the integrative
functions of popular self-government in a representative democracy—and not
on the spatiotemporal distribution of tendential responsiveness in a constitu-
tional order as a whole—we miss how the tools of private law skew the tendential
responsiveness of the constitutional order towards the rich and powerful, who
use private law as what Morris Cohen calls ‘a devolved form of sovereignty’ to
carve out para-political spheres of jurisdiction that serve their interests.60
Art 170 of the Constitution of the Bolivarian Republic of Venezuela (1999, rev 2009).
56
See Hunter v Pittsburgh 207 US 161 (1907) [207 US 161, 179].

57 58
ibid.
Michelle Wilde Anderson, ‘Democratic Dissolution: Radical Experimentation in State Takeovers of Local
59
Governments’ (2011) 39 Fordham Urban LJ 577, 608.

Jeremy Webber and Kirsty Gover, ‘Proprietary Constitutionalism’ in Mark Tushnet, Thomas Fleiner, and
60
Cheryl Saunders (eds), Routledge Handbook of Constitutional Law (Routledge 2012) 361.

293
For the People? Shameful Geography of Liberal Oligarchy • 293
7. For the people?

Shameful geography of liberal oligarchy
The picture that allows us to focus on different constitutional morphologies of
responsiveness also helps us uncover the conceptual complicity of the vocabu-
lary of liberal-democratic popular self-government in normalizing the shameful
geography of socioeconomic deprivation and political disempowerment—the
multitude of tiny dystopias, which either do not exist in liberal-democratic im-
agination, or, when they do, are easily transformed into something otherwise
unconscionable—dictatorships, run by ‘emergency managers’, duly authorized
by a democratically adopted ‘financial martial law’,61 and whose primary task
is to make local administration solvent—not responsive and responsible.62 In
reality, the blind spots of liberal-democratic imaginary take the form of per-
manently contaminated water sources and massive outbreaks of chronic
illness,63 the scenery of Flint, Michigan not Sirenuse, Mediterranean. To look
beyond a sovereign people is too look at the health crisis in Flint not as one
of many regrettable, but excusable malfunctions of popular self-government,
but rather as one of the symptoms of its character. Heavy metals, carcino-
genic trihalomethanes, E. coli, faecal bacteria—not Ulysses, sirens, masts, and
ropes—are perhaps better emblems of a constitutional order that unites liberal
oligarchy and ludic majoritarianism.
This conclusion is hardly new. Behind the unitary vox populi, as Elmer
Schattschneider famously argued, there is a ‘heavenly chorus’, which, irrespective
of its diversity, sings with ‘an upper-class accent’.64 American constitutionalism
is no stranger to this idea. By unearthing the underlying socioeconomic mo-
tivations of the founding fathers, Charles Beard has insisted on the role of the
US Constitution in perpetuating the socioeconomic privileges of the wealthy.65
This conclusion has been harder to digest, even by those American constitu-
tionalists who otherwise defend the idea of a robust popular constitutionalism.
While arguing in favour of the capacity of ‘we, the people’ to engage in the
interpretation of the US Constitution, for example, Larry Kramer nonetheless
argues that the account of American legislators as ‘thoroughly unresponsive to
those they represent and attentive only to private interests dangling campaign
61
Chad Selweski, ‘Michigan Senate Passes Emergency Manager Bills’, Daily Tribune (Clinton Township,
10 March 2011). <http://www.dailytribune.com/article/DT/20110310/NEWS/303109994> accessed 30
January 2018.
Local Government and School District Fiscal Accountability Act (2011) Mich Legis Serv 4 (West) (codified
62
as amended at Mich Comp Laws H §141.1501–1531 (2011)).

63
Laura Gottesdiener, ‘ ‘‘Something is Rotten in Michigan”: Poisoned Water Supplies, Dissolved School
Districts and a Massive Unraveling of American Democracy’ (Salon, 15 June 2015) <www.salon.com/2015/06/
12/something_is_rotten_in_michigan_poisoned_water_supplied_dissolved_school_districts_and_a_mas-
sive_unraveling_of_american_democracy_partner/> accessed 1 November 2017.
Elmer E Schattschneider, The Semisovereign People: A Realist’s View of Democracy in America (Wadsworth
64
1975) 34.
Charles A Beard, An Economic Interpretation of the Constitution of the United States (first published 1913,
65
Macmillan 1921).
294

dollars before their eyes [has been] . . . exaggerated and overdrawn’.66 In fact,
recent empirical research presents a picture which is even bleaker than the one
painted by Schattschneider several decades ago. According to Martin Gilens and
Benjamin Page, ‘[t]he preferences of the average American appear to have only
a minuscule, near-zero, statistically non-significant impact upon public policy.’67
Against the republican and liberal-democratic optimists, ‘when a majority of
citizens disagrees with economic elites or with organized interests, they gen-
erally lose. Moreover, because of the strong status quo bias built into the US
political system, even when fairly large majorities of Americans favour policy
change, they generally do not get it.’68
Today, most oligarchy-intolerant critiques of liberal-democratic constitution-
alism turn their gaze backwards, looking for inspiration in the history of pre-
modern civic republicanism. The constructive outcome of those critiques are
the figurative and institutional complements to, not the replacements of, con-
temporary imaginary of popular sovereignty: plebs (imagined as the bearers of
constituent power) and its tribunes (the institutions tasked with protecting their
class-specific political interests). What these backward-looking approaches ig-
nore is the material side of liberal-democratic constitutionalism; the decaying
state of ‘res’ in our proudly hypocritical res publica:
public things, shared common things, over which to argue, around which to
gather, [and which] require communal attention, public commitment, and col-
lective maintenance. And they return the favor by lending to us some of their
objectivity: that is to say, interacting with public things grants to democratic
subjects some of those things’ durability and resilience.69
This raises a question: why is it that interacting with public things gives resili-
ence to democratic subjects? Is it because it gives them something specific over
which they can argue as a community? Or is it—which seems far more likely—
because it provides them with something concrete and tangible: a school, a
bridge, a promenade, against which they can measure improvement in their
lives, and against which they can evaluate the credibility of the rhetoric of those
who govern in their name?
In their indifference towards this latter possibility, there is little difference be-
tween the imaginations of neoliberals, radical democrats, oligarchy-indifferent,
and oligarchy-intolerant constitutional theorists. Irrespective of their radically
different ideologies, none of them envision material improvement of public
things as one of the defining roles of modern constitutional order. In that re-
gard, there also seems to be little difference between standard liberal-democratic
Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (OUP 2004) 239.
66
Martin Gilens and Benjamin I Page, ‘Testing Theories of American Politics: Elites, Interest Groups, and
67
Average Citizens’ (2014) 12 Perspectives on Politics 564, 575.

ibid 576.
68
Bonnie Honig, ‘Public Things: Jonathan Lear’s Radical Hope, Lars von Trier’s Melancholia, and the
69
Democratic Need’ (2015) 68[3] Political Research Quarterly 623.

295
Of the People? Narrative Identity, de-Dramatized • 295

and novel anti-oligarchic institutions, such as the Tribunate, both of which are
intended to operate in the domain of the abstract and formal, rather than the
concrete and material.
Instead of dictating concrete material improvements, the tribunes’ main
power is the capacity annually to exercise the right of veto over the decisions of
other branches of government. Without something to show for themselves—
concretely and fast—their work will constantly be portrayed as dangerous, fu-
tile, or counter-productive. Originally imagined as constitutional counterpoises
to the oligarchic capture of constitutional democracies, they will be unable to
survive without sufficient grassroots enthusiasm, which (if recent history is any
indication) will soon become depleted if it continues to rely solely on the willing-
ness of the general population to sacrifice for the sake of their egalitarian ideals.
While this doesn’t detract from the desirability of this, and similar anti-
oligarchic constitutional devices, it does suggest that such innovations ought to
be situated within a c-isomorph calibrated to take the ebb and flow of popular
enthusiasm seriously. The telos of such isomorph cannot simply be remedial
and formal. It must be also aspirational, substantive, and specific, constituted to
contribute to a visible improvement in the lives of the citizens on the ground
over and above the formal, diffuse, and often imperceptible statistical improve-
ments, and through the mechanisms not reducible to those already on the insti-
tutional menu of liberal-democratic constitutionalism.70
8. Of the people?
Narrative identity, de-d ramatized
Is it meaningful to speak of constitutional purposes beyond political identities?
Does it make sense to refer to constitutional subjectivity without a group to at-
tach it to, which endures over time? For the most part, contemporary constitu-
tional thought answers both questions with a resolute ‘no’. One of the aims of
this book is to show how an answer to both of them may easily be ‘yes’. Section 4
suggested an answer to the first question. The aim of this section is to elaborate
on the answer to the second one, which, in simple terms, is the following: even
without a constitutional self-government to be attributed to a discrete collective
subject, it remains logically possible—and in a number of cases desirable—to
impute the outcomes of the processes of democratic decision-making to visible
fictional personas. Rather than the condition of the intelligibility or legitimacy
70
One of the ways of achieving this might be something we could provisionally name the circle of solidarity: a
rotating constitutional scheme of material and socioeconomic improvement, where substate regions take
turns in nominating one large-scale and far-reaching project of socioeconomic improvement and benefiting
from the revenues from a special anti-oligarchy solidarity tax imposed on the proverbial 1 per cent of the
population. Within such a scheme tribunes would also be entitled to initiate new projects as well as to fa-
cilitate communication between spontaneous grassroots initiatives on the one hand, and all other interested
stakeholders on the other. Implicating the Tribunate in a constitutional framework devoted to tangible ma-
terial improvement in the daily lives of socioeconomically deprived citizens might, by association, make it
more worthy of ongoing popular support than may otherwise be the case.
296

of constitutional government, collective identity is a theorist’s desire—the work
of her constituent imagination.
Though intuitive, this claim becomes even more plausible once we recall
the work of dramatization that a theorist must perform in order to construct
the emblematic figures capable of enduring over time as unified entities in
space. In doing so, a theorist always has a choice of how to ‘agentify’—which
also means how to emblematize—some aspect of a scene that evokes the act
of constitution-making. That choice, as Kenneth Burke argued, may also be
exercised by de-agentifying already existing actors. In that case, what will ap-
pear on the scene are still figures—just not the emblematic authors of consti-
tutions, or the subjects of collective self-government, but rather the ensembles
of members, whose only essential trait is what Robert Cover called ‘genetic
code’ or ‘legal DNA’, or, what this book refers to as k-algorithm. In that case,
what will appear in the ‘scenic environment’ of such ensembles are not only
other ensembles. Seen purposefully, some of them will deserve the name of
xenoi: neither enemies nor friends—but rather the obstacles and the opportun-
ities: the prompts of purpose, the participants in the transformative encounter
between the telos and the nephos, otherwise occluded by our chastened im-
aginations of demos and ethnos. Once ‘identity’ and ‘subjectivity’ are under-
stood not as the passive objects of theoretical inquiry, but as the figures of
creative imagination—what confronts us are the choices of how to put them
in shape. On the basis of what we’ve said thus far, the following four classes
seem to be the most popular:
In addition to the figures such as Hobbes’s sovereign, Schmitt’s enemy and par-
tisan, and Rousseau’s people and lawgiver, class 1 also includes myriad con-
temporary figurations of self-constituting political communities, or irrupting
collectivities acting jointly. In addition to Kelsen’s people, those in class 2 in-
clude the figures that theorists want them to appear as those in class 1 but who,
in attempting to portray them in that manner, still fail to conceal the fact that
they are more or less fuzzy sets defined by their membership functions. The
examples include Sieyès’s ‘body of associates’ and Schmitt’s political ‘entity’,
as well as a variety of ‘communities’ and ‘collectives’ that normative theorists
imagine as the holders of the right to self-determination. In contrast to the first
two classes, the figures belonging to class 3 are the hardest to find, at least in
the context of theories that focus on the vocabulary of peoplehood specific-
ally. In political theory broadly understood, an important exception is the work
of William Connolly, where class 3 figures appear as ‘evangelical-capitalist’, or
‘global antagonism’ ‘resonance machines’.71 Finally, the figures that serve as the
imaginative substrate of meta-ana-katamorphosis belong to class 4. They are
William E Connolly, A World of Becoming (Duke University Press 2011) 138.

71
297
Of the People? Narrative Identity, de-Dramatized • 297

the ‘clay’ from which the figures that belong to the previous three classes are
put in shape. The figures in this class range from Kelsen’s ‘ocean of psychic
happenings’ and Mr Palomar’s ‘mankind sand’, all the way to the mysterious
‘magma of social significations’—which Cornelius Castoriadis saw as the ma-
terial from which the ‘ensemblist-identitarian’ imagination extracts sets of dif-
ferent fuzziness and granularity.72 Though some aspects of this categorization
were discussed earlier, we return to them here because its four elements need
to be complemented with another one:
is a constitutional subject whose identity is defined neither by an essence, nor

by an algorithm, but by narrative—the story it tells itself, for itself, about it-
self. With important exceptions, those who today stage these subjects theor-
etically rely on similar techniques as do those we’ve analysed earlier in the
book. Consider, for example, Michel Rosenfeld’s ‘constitutional subject’—an
imaginary figure staged with the help of the familiar m + p trick, which, in this
case, consists in Rosenfeld’s casual reference to the beginning of the three-part
drama of constitution as the moment when the subject ‘first enters the scene’.
While Rosenfeld’s ‘entering’ in this case refers to the scene in its totality, and
not—as was the case with Hobbes’s ‘entering into congregation’—to a discrete
place in that scene, the effect in both cases is the same: distracting the audience
from inquiring about the environment and the exact location in which the act
of constitution is about to occur, or, in Rosenfeld’s case, unfold. However, while
the role of p in Hobbes m + p trick was played by ‘congregation’, in Rosenfeld’s
case, that role is performed by three figures of speech—‘negation’, ‘metaphor’,
and ‘metonomy’—which assist in the ‘dialectical’ unfolding of the constitu-
tional subject’s awareness about the narrative character of its political identity.73
What these figures lack, in Rosenfeld’s theory—and which makes them fit to
assist in the performance of the M + P trick is the fact that they refer to speech
acts but without their specific ‘felicity conditions’, and ‘demonstrative orienta-
tional specifications’.74
While Rosenfeld needs to resort to a kind of the m + p trick in order to
persuade the audience to take the site of constitution-making for granted,
Hans Lindahl’s account of the identity of a constitutional subject—capable
of looking back and telling a story about itself to itself—makes no use of this
trick, as it openly posits the necessity of imagining a collective as bounded
in space as the condition for imagining it as ‘more or less unchanged over
Rosenfeld (n 1).
72
73
As Rosenfeld says, a fully self-governing constitutional subject emerges as ‘the culmination of the dia-
lectical evolution’, at a moment when the subject ‘realizes’ that ‘its positive identity originates in the outside
objective world, their selection, combination, organization, and deployment into a coherent whole is the
product of its own work’, ibid.
For a complete argument, see Robin Wagner–Pacifici, ‘Theorizing the Restlessness of Events’ (2010) 115[5]
74
Am J Soc 1351.
298

time’.75 That logic, however, cuts both ways since it is always possible, as
Andrew Abbott suggested,
to reverse the whole flow of [anthropomorphic] metaphor . . . [and] take the so-
cial actor as metaphor for the individual human being. [In fact] there is much
biological evidence for this—the world is full of organisms like slime molds and
jellyfish that appear to be individuals but are actually societies.76
In other words, depending on the algorithm that governs the selection of
the members in a particular ensemble—and which, together with a theorist’s
scopic regime defines the extent to which a particular set presents itself fuzzily
and granularly—it will be possible to start from the contours of whatever it
is that appears on our screens and then, on the basis of that, form an attitude
about whether or not that entity ought to be attributed a figural identity of a
constitutional ‘subject’. In fact, something like that occurs with emblematic
protagonist-storytellers as well. Rather than existing in a vacuum, the ‘un-
interrupted continuity of the past, present, and future of a collective’ within
a ‘single temporal arc in the course of joint action’—logically required for
the existence of ipse-identity—must, as Lindahl himself concedes, be ‘sutured
together’.77
By whom? Though the imaginative cut-and-paste that goes into the produc-
tion of narrative identities in many respects resembles the work that goes into
the production of emblematic deciders, there is one important difference that
separates them. Unlike the emblematic deciders’ designers, the stage-directors
of narrative identities do not aspire to conceal the plurality of an environ-
ment in which the identity of constitutional subjects is being forged. On the
stage set by Rosenfeld, that plurality manifests itself in the curatorial work of
the ‘subject’ itself—which must decide which particular identities to banish,
which to incorporate, and which to confront—as it evolves towards becoming
a fully self-reflective constitutional creature; an entity capable of ‘perceiv[ing]
its unfolding positive identity as being ultimately shaped by its own will, rather
than by outside forces beyond its control’.78 On the stage set by Lindahl, the
scenic environment of self-constitution looks very different, and is far more
politically consequential. Those whom Rosenfeld represents as being subject
to the subject’s strategic curatorial preferences in Lindahl’s account appear
as the spectres that haunt that collective subject’s memory—the memory of
those whom Lindahl describes as having ‘seized initiative’ successfully. The
spectre that haunts them, however, is not only an unpleasant memory of the
violences and injustices involved in the exercise of constituent power, but also
‘xenonomy—not merely heteronomy’, which ‘is inscribed in collective au-
tonomy: necessarily, not merely in fact’.79
Lindahl (n 33) 85.
75
Andrew Abbott, ‘Things of Boundaries’ (1995) 62 Social Research 857, 861.
76
Lindahl (n 33) 198.
77 78
Rosenfeld (n 1). 79
Lindahl (n 33) 37.
29
Chained to the Rhythm: Beyond Identity and Hybridity • 299

Which also leads us to ask: What does it mean for a narrative identity to
be inscribed with the fragments, which can only come from the plural(ized)
environment—in some way always external to the constitutional subject? Are
the identities of xenoi whose ‘-nomy’ ended up being inscribed the subjects
they constitutively affect also narrative in character? In that case, wouldn’t the
act of constitution be less like starting a new book chapter, and more like the
moment suturing—somehow—previously unrelated pieces of narrative fiction?
If so, would it not be better to speak of the stories themselves as the true sov-
ereigns of constitutional orders, and of the formal constitutional subjects as
their guardians, instead of their protagonists? If on the other hand the iden-
tity of these xenoi is non-narrative—what does that say about the identity of a
self-reflexive collective, infected by them? In fact, what does this say about the
Vorgriff of a theorist—the one who put them in that situation? Is attributing sub-
stantive identities to the defeated—because that’s what these xenoi are—a ne-
cessary conceptual sacrifice that must be made so that we may serenely go one
asserting the non-essentialist, self-reflective, narrative world of the victorious?
Aren’t we, in that case, back to square one—with nasty ethnoi on the one side,
and admirable demoi on the other? The idea of a narrative identity seemed to be
capable of transcending the toxic symbiosis between popular sovereignty and
nationalism, but is it really?
9. Chained to the rhythm

beyond identity and hybridity
Narrative identities and constitutional subjects are the works of imagination.
They are artefacts desired by those who produce them. What they prevent us
from seeing is c-isomorph—just like the producers of the narratives about con-
stitutional subjects whose identity was not described as narrative-like (at least in
the moment in which we encountered them). Take Ulysses for example. Though
his life would most certainly have been unbearable had he not told himself a
story that rationalizes his mindless wonderings on his way home, a theorist, such
as Holmes portrays him as someone focused on finding an intelligent solution
to a problem at hand. Put differently, what Ulysses tells himself about himself at
that moment is beside the point.
To move beyond the people in this context is not only to move beyond
a dubiously moralistic account of constitution-making and collective self-
government, but also to accept an invitation to look at the figure of a narra-
tively constituted, and self-reflective constitutional subject in a new light. In
that light, constitutional narratives appear not as the conditions of juridical
and political intelligibility, but rather as a mental, political, and aesthetic epi-
phenomena: (1) as contingent, temporally limited, large-scale, and forward-
looking political coping mechanisms designed to process a variety of historical
traumas; (2) as logical preconditions for the occasions of large-scale public dis-
plays of frisson, or more elaborately orchestrated events of indulgent marvel-
ling at the historical events of overcoming; and, finally, (3) as the symptoms of
30

a theorist-imaginer’s own poetic image of the world—a world picture com-
mitted to narrative plots at the expense of algorithmic protocols.80 What
that picture assumes is that the protagonists of those constitutional plots are
substantial not ephemeral; that their acts are consequential not pointless; and
that the agency they exercise is essential—not irrelevant for the success of
their endeavour. What that picture must assume, in other words, is that the
‘collective’ protagonists of those stories continue to bear the mark of their
creator—either in the form of an essential homogeneity (as with Schmitt) or
in the form of a paradoxical unity in diversity (as is the case with a number
of neo-Schmittian constitutional theorists today). What those who uphold
the image of such a collective constitutional subject must resist, however, is
to begin asking questions about the third, increasingly fashionable, form in
which that protagonist presents itself. That form is defined by the attribute
of hybridity—the ethical other of homogeneity and the ethical cognate of
unity in diversity. Perhaps more than any other, it is that attribute that best
describes the nature of collective subjects that emerge through confrontation
with the plural environments evoked by Rosenfeld and Lindahl. What else
other than hybrids can those subjects be once they’ve ingested the identities
of others (Rosenfeld), or once they’ve proved unable to prevent xenoi from
co-defining their internal nomoi (Lindahl)?
At this point it might be useful to recall once again Urbinati’s definition of
a figure: ‘an observable configuration’, ‘indicative of a political order’, whose
‘phenotype’ allows us to ‘recognize it as distinct and different from other sys-
tems’.81 And what defines a figurative phenotype—to push this analogy further—
is its figurative DNA: ‘narratives’ in the visions of Rosenfeld and Lindahl, or
constitutionally inscribed k-algorithms in the vision put forward in this book.
Seen this way, there ultimately doesn’t seem to be that much of a difference
between the views of those who uphold, and the views of those who look be-
hind the figures of narratively constructed and self-reflective constitutional
subjects. Nonetheless, I think that my initial diagnosis stands: contemporary
fascination with narrative identity ought to be seen as one of the latest subtle
manifestations of secularized-theological constitutional theory. That becomes
more apparent once we detect the presence of a figure whose stage ‘footprint’
is negligible, but whose capacity to evoke contrast is what makes self-reflexive,
narratively constructed, and inevitably hybrid collective identities intelligible.
The question here is not what is being hybridized specifically—a story, identity,
or a phenotype—but rather what is the other of hybridity that constitutes the
condition of its intelligibility.
That other is purity—the figurative attribute that allows us to think of
the encounters staged by Rosenfeld and Lindahl as the encounters between
This book offers only a cursory treatment of a complex relationship between narratives, algorithms,
80
model-building, problem-solving, and one’s own protocols of observation and measurement. For a sophisti-
cated account coming from complexity theory in biology, see Timothy FH Allen and Thomas W Hoekstra,
Toward a Unified Ecology (Columbia University Press 2015) 310–51.
Nadia Urbinati, Democracy Disfigured: Opinion, Truth, and the People (Harvard University Press 2014) 1.
81
301
Chained to the Rhythm: Beyond Identity and Hybridity • 301

somethings. What provides sufficient contrast to allow us to detect their particu-
larity is their presumptive purity. From a concrete dramatistic perspective, this
makes them either (1) unadulterated, (2) pure-bred, (3) unsullied, or some com-
bination thereof. If so, the hybrids as the others of purities emerge as: (1´) the
dilutions of the essential, (2´) cross-breeds from the noble, or (3´) the defacements
of the sacred. The outcomes (1´) and (2´) can only be called hybrids because they
are desired as the emblems. In both cases, the outcomes of dilution and cross-
fertilization may always be redescribed—in the first case with the help of quasi-
chemical formulas, and in the second with the help of the legal ‘genetic codes’,
the constitutional DNAs in the form of k-algorithms, which govern the process
of imaginative meta-ana-katamorphosis.
Hybrid, then, is the figure in which its definitional other (the pure) and its
ethical other (the homogenous) come together to demand in unison: ‘Thou
shalt refrain from the work of ensemble-making! Thou shalt refrain from
asking how is that for the better!’ When they do so they speak in the same
familiar voice—of the anti-framework, the creator herself. So while cele-
brating hybridity—one of the ways of celebrating boundary transgression—
is indeed transgressive, it is transgressive only of the boundaries in a world
picture enframed and organized by the framework—not of the ones created
by the creator. To the contrary, to celebrate hybridity is to be either one of
its most brainwashed captives—one of those who unwittingly contributes to
an imagination still ruled by sacred entities and noble origins—or one of its
most rhetorically skilled partisans. Those who wish to emancipate themselves
from the captivity of this image, and who wish to avail themselves of an op-
portunity to step back and judge for themselves which of the two world pic-
tures, and how, is for the better—the one that created by the creator, or the
one which is the work of the framework—would therefore do well to remind
themselves of:
every time they hear the tropes that are parasitic on the figure of hybridity.
Just as with Toyota Prius, buying (into) them may get you where you wish to
go. But just as with Toyota Prius, the rhetorical vehicles of hybridity are made
so that something could stay at least as pure as it was before—for the profit
of somebody else. That there is something disturbing that both hybrids and
narratives have in common becomes more apparent when either is confronted
with a question it is not prepared for. While each both readily responds to the
questions that start with Who? Why? When? they become quieter when con-
fronted with those that begin with What? and How? and which inquire into
the technology of hybridization and the craft of constitutional storytelling. At
that point, the constitutional subjects or ‘strange’ collectives will either reveal
themselves as the black boxes—which somehow assimilate particular identities
and are somehow inscribed with the traces of ‘xenonomy’—or they will incar-
nate themselves into concrete manifestations of their more general emblem-
atic selves.
302
10. seeing through

beyond the light and shadow
What awaits us beyond the theoretical representations of collective self hood is a
much more refined image of what used to be seen as the vehicle of popular self-
government: not a metaphorical ship at in the open sea, but a spatiotemporally
grounded c-isomorph. From its perspective, manifold local sites of opinion-and
will-formation will now appear in a different light: not as the Arendtian ‘spaces
of appearance’ and ‘joint action’, but as the surfaces whose function is signal-
detection and signal-filtration. What they register are not joint actions, or
shared intentions, but a complex manifold of analogue ‘preferences’, ‘desires’, or
‘aspirations’, that must be attenuated, delayed, and averaged in conformity with
some version of k-algorithm. It is that algorithm that makes those analogue
inputs communicable, and ultimately actionable, in their digital form—as the
univocal, either-or manifestations of the ‘will’ of a discrete political collective.82
Paying attention to the specific workings of c-isomorphs will also allow us to
perceive more vividly the moral eyesores of Western constitutionalism, as well
as to take more seriously the legitimacy of anti-oligarchic institutional innov-
ations that deviate from the templates of representative democracy in the coun-
tries of democratic capitalism.83 At a more general level, the visual complexity
of c-isomorphs remind us to pay attention not only to the metaphors, image
schemata, and other scopic choices we make when we exercise our imagin-
ations figurally, but also to be mindful how the exercise of those choices itself
depends on our imaginations of factors that affect figural visibility.
The first factor, as we saw in Chapter 2, is perspective. ‘Life and the world
are seen in a different light’ and will have ‘different dimensions, depths, and
horizons’ depending on whether you approach it from the perspective of
a ‘farmer’, ‘big city’ person, or ‘aeroplane pilot’. The second, as we saw in
Chapter 3, is contrast—the lack of which made Schmitt anxious about his own
Gestalt. Separate from contrast—which Schmitt doesn’t define, but which may
be understood as a difference in ‘luminance’ or colour that makes a particular
figure distinguishable. The third factor is ‘clarity; not an intense, but appropriate
distribution of light and shadow’.
What is appropriate and what not is itself a matter of the way in which we
imagine specific pictures—on the basis of which it becomes possible to say
what distribution is more or less appropriate or clear or not clear enough. On
the one hand, we might imagine them as landscape paintings, where immov-
able background increases our chances of finding tiny movable figures. On the
other, we also might imagine them as maps whose legends establish clarity, and
which allow us to orient ourselves even when they don’t come in the form of
See Valerie Ahl and TFH Allen, Hierarchy Theory: A Vision, Vocabulary and Epistemology (Columbia University
82
Press 1996) 123.
Cf David S Law, ‘Alternatives to Liberal Constitutional Democracy’ (2017) 77 Md L Rev 223.
83
30
Seeing Through: Beyond the Light and Shadow • 303

a-puzzles. However we choose, landscape paintings and maps will only func-
tion as alternative ways of looking at the world—surfaces that are both invari-
ably two-dimensional, imperatively integral, and uniformly perspectival. Put more
concretely: to look at a landscape painting is to ignore invisible layers of paint,
and to read the legend on a map is to not consider tearing it up. Finally, to look
at either is to act on the basis of an implicit knowledge about the best vantage
point from which to approach them.
Our sense of the appropriateness of clarity and the desirability of contrast
changes once we reject these three propositions, and this, in turn, dramat-
ically alters the conditions of figural visibility—in some cases allowing us to
register brand new figures. In some cases, a figure will appear as a specific
pattern beneath the surface. In others, a figure will appear as a configuration
on the surface—either from a particular perspective, or through the manipu-
lation of that surface itself. In Chapter 7, we’ve looked at t-isomorphs from
above, not violating the integrity of the global surface. In this chapter, we’ve
looked at them as they appear beneath the surface, as c-isomorphs. In the pre-
vious chapter, the circumference of our gaze was wide in order to examine
t-isomorphs replicating themselves among others in conformity with k-
algorithm. In this chapter, the circumference of that gaze became narrower,
as we mostly gazed at one c-isomorph at a time. The visuals we recorded are
the same scenes of the people’s self-determination and its self-government,
only depicted on the basis of descriptions that didn’t use the words ‘people’,
‘self-determination’, and ‘self-government’.
In confronting the final proposition of peoplehood on our list, the task of
Chapter 9 is the same: to offer a rough sketch of international order based on
the principle of sovereign equality, only without the terms that make it mean-
ingful. Gazed at sideways (as in this chapter) but only through a much broader
frame (as in Chapter 7) the picture of the world beyond sovereign peoples that
emerges in Chapter 9 is also a picture beyond three global ‘oligopticons’ that
we kept bumping into along the way: k-universe of aspirational unanimity,
schmitt’s pluriverse of constitutive powers, and a-puzzle (as their unrecog-
nized mediation). What awaits us beyond them is an isomorphic pluriverse: the
world in which internally hierarchical but externally equal c-isomorphs appear
together, in cross-section.
305
 9 
An Isomorphic Pluriverse
Beyond Sovereign Peoples
1. Beyond people-g iants and people-d warfs

Words mean what we want them to mean, but only if our gaze is focused on a
captivating picture. When it comes to the word ‘people’, that picture, on closer
inspection, is actually a set of stacked snapshots, taken in rapid succession.
What they represent is not just a figure against a background, but a scene in
which that figure acts as an agent in an ‘anecdote’ about a representative way of
establishing a new constitutional order. To hold us captive, that anecdote must
be of a particular kind. Kenneth Burke called it the ‘noblest synecdoche’: a scene
that encourages us to treat the description of the act of constituting somewhere
as representative of a desirable way of constituting everywhere. Whatever they
evoke, these anecdotes are open to re-dramatization. The re-dramatization—or,
more accurately, de-dramatization—undertaken in this book has led us to envi-
sion a turn for the better beyond the unitary conceptions of constituent power;
an algorithm of allegiance beyond the rights to self-determination and their
designated holders; t-isomorphs beyond territorial polities; an s-recursion as
the template of conflict resolution; and, finally, c-isomorphs—purposive con-
figurations of ought-places, constituted by the protocols of responsiveness that
conform to a particular version of k-algorithm.
In helping us move beyond demos and ethnos, this de-dramatization also
allowed us to imagine nephos behind them as their substrate, xenos as their
co-constituent, and their telos as chastened. The picture of the world that
emerged as a result may be understood as the fusion of two ‘universal scenes’,
(in Burke’s terminology), or two ‘oligopticons’ (in the terminology of Bruno
Latour): the Kelsenian universe of infinite responsiveness and the Schmittian
pluriverse of constitutive powers. On their own, neither is meaningful: there is
no telos in the mindless adjustment of the global normative order to the shifts
in Calvino’s mankind sand, nor is there a purpose to submitting to the dictates
of the world-boulder that grinds it to dust. It is only with their fusion, which
gives birth to a new figure—set against a new background—that we may begin
to speak of the purposes of constitution and the aims of self-determination.
That figure is a sovereign people, conjured up—as are all quasi-theological
306
306 • An Isomorphic Pluriverse: Beyond Sovereign Peoples

products of our constituent imaginations—to serve as a focal point to our
secular religion, the purpose of which has always been the same: ‘to quiet our
empty and insatiable desires’, as well as ‘our anxiety about our mortality and
our groundlessness’.1
What quiets those desires and anxieties is the scene of a noblest synecdoche
radically different from the one implicit in Kelsen’s interpretation of Rousseau’s
social contract. While Kelsen removed the masks of peoplehood that used to
cover the ocean of psychic happenings, the noblest synecdoche that set the stage
for the picture of the world of sovereign peoples hinges on a further anthropo-
morphic twist given to it by Emmerich de Vattel. In Vattel’s re-dramatization,
social contracts establish not simply commonwealths or peoples, but human-
like political communities, homologous in their equal political dignity to the
individuals who established them and who oblige them, from the moment they
are conceived, to coexist on equal terms. Or, as Vattel put it in a famously evoca-
tive passage: ‘a dwarf is as much a man as a giant; a small republic is not less a
sovereign state than the most powerful kingdom’.2
More than anything else, it is this scene that allows us to continue speaking
in terms set by proposition 6: the people is equal among sovereign peoples. To
have the emblematic people-giants and people-dwarfs removed from our pic-
ture of the world is to be immediately confronted with another, disconcerting
one—imputable not only to Kelsen and his ocean, but also to whoever can be
portrayed as having taken the Kelsenian ‘tendency towards unanimity’ seriously.
Such a picture of the world—as is visible from the one that Robert Filmer at-
tributed to Hobbes—is disconcerting not because it evokes a disorienting chaos,
but rather because it evokes the parody of a paradise in which
everyman is at liberty to be of what kingdom he please, and so every petty com-
pany hath a right to make a kingdom by itself; and not only every city, but every
village, every family, nay, and every particular man, at liberty to choose himself
to be his own King if he please. [In that case] he were a madman that being by
nature free would choose any man but himself to be his own governor. Thus to
avoid the having but of one king of the whole world, we shall run into a liberty
of having as many kings as there be men in the world, which upon the matter is
to have no king at all, but to leave all men to their natural liberty—which is the
mischief the pleaders for natural liberty do pretend they would most avoid.3
So far, attempts to move beyond the Vattelian world picture have never reckoned
with its delirious Filmerian parody (itself a caricature of the world that Kelsen
outlined in his 1942 Holmes Lecture). Having ignored both, those who have moved
Roberto Mangabeira Unger, The Religion of the Future (Verso 2014) 56.

1
2
Emmerich de Vattel, The Law of Nations, Or, Principles of the Law of Nature Applied to the Conduct and Affairs
of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury (Liberty
Fund 2008) §1; bk I ch 3 §11.
3
Robert Filmer, The Anarchy of a Limited or Mixed Monarchy or, A succinct Examination of the Fundamentals of
Monarchy, both in this and other Kingdoms, as well about the Right of Power in Kings, as of the Originall or Naturall
Liberty of the People (1648) 9.
307
Beyond People-Giants and People-Dwarfs • 307

beyond the Vattelian world have instead done so in three main ways: first, by re-
dramatizing what has, in effect, been Vattel’s own re-dramatization of an earlier
version of the scene of the social contract;4 second, by rejecting contractarian
scenes altogether;5 and third, by imagining alternatives to the Vattelian people-
giants and people-dwarfs, five of which are particularly prominent in contem-
porary theoretical debates about and around sovereign peoplehood.
The first among them is the vengeful grossraum—the constituent
building block of a world resistant to the hegemonic aspirations of powerful
people-giants. The second figure is American sovereign, the most powerful
people-giant itself—a collective which, in suffering from a serious personality
disorder, forgot that it spent an important part of its Vattelian ‘youth’ as a
modest, but other-regarding people-dwarf. The third figure is the demoral-
ized multitude, a global insurrectionary swarm, whose proclaimed aim is to
exercise its constituent power by deposing the American sovereign in order
to transform a de-territorialized ‘Empire’ in which that sovereign rules as a
‘monarch’ into a global ‘Commonwealth’. The name of the fourth figure is
the pretender demos. In claiming that a political community can only be le-
gitimate if imagined as, in principle, unbounded, this figure targets all sover-
eign peoples—be they people-dwarfs or people-giants—whom it accuses of
falsely appropriating the patrimony of early-modern social contract theory.
Fated cosmopolis is the fifth and final alternative to the world of sovereign
peoples. It is our figuratively manifest destiny, obvious to those who have real-
ized that what unites us is neither solidarity nor subjection, but rather the
imperatives of democratic inclusion and the facts of our indiscriminate but
universally shared sociability.
Irrespective of their differences, the task of these five figures is the same: to jus-
tify a particular pattern of constitutional transformation by concealing the con-
testable character of the way in which they intend to reconcile the tensions such
transformations generate: between responsiveness to aspiration and resistance
to domination; between the scale of transformation and its frequency; between
its duration and its stabilization. As does the sovereign people, these figures exist
as double emblems: of legitimate aspirations and of structural reconciliations—
presented as co-existing seamlessly. Rather than to choose from the five new
ones—and simply leave the figure of a sovereign people behind—to move ‘be-
yond’ in this chapter is to look through their surfaces and ask instead: What else
may we aspire to? How else could these tensions be reconciled? Once again,
4
This, as we saw in Chapter 6, may consist in attributing the character of a synecdoche to something else on
the same scene, not in creatively re-staging the events that occur on it. For example, while Vattel treated in-
dividuals in their scenic environment (the state of nature) as the synecdoche of sovereign states, Anne Peters
treated the scenic environment as the synecdoche for the logic that calls for transcending them.
5
Human-like dwarfs and giants; often in favour of other biological images, such as ‘amoebas’ or cyborgs
whose ‘identity is always multiple, unfinished, undergoing a process of reconstruction and re-invention’. As
an example of the former, see Boaventura De Sousa Santos, Towards New Common Sense (Routledge 1995) 485.
As the example of the latter, see Anne Orford, ‘The Uses of Sovereignty in the New Imperial Order’ (1996) 6
Australian Feminist Law Journal 84.
308

this confronts us with the question of telos. When posed directly and explicitly,
it transcends not only the figures of demos and ethnos, but also those that offer
to take their place. The purposes it confronts us with are not only always in, but
also always for the world.
2. The vengeful grossraum

Schmitt’s dark materials
To reimagine those purposes requires an act of imagination that is primarily
aesthetic and poetic, and only secondarily polemical and problem-solving. What
it requires, in other words, is a concrete, vivid, forward-looking, hope-rousing,
and wishful image for the world. That wishful image could not be further re-
moved from the one behind the first post-Vattelian world picture, which depicts
powerful regional actors and ‘genuine cultural poles’6 whose sufficient ‘demo-
graphic power’7 and ‘practical and spiritual resources’8 make them capable of
responding to the major political scandal that continued haunting the Vattelian
one from its inception: the possibility that the most powerful people-giants will
use their power not for the better but for the worse.
As for Vattel himself, he dismissed this possibility through a dramatistic move
we have already encountered elsewhere: similarly to Rousseau’s portrayal of
the Lawgiver, he evoked one emblematic situation in which the agency of a
people-giant appears not only as facilitative and benevolent towards a particular
people-dwarf, but also as indispensable for the success of its self-government.
That, essentially, is what makes unequal treaties—the juridical form in which
hegemony most vividly manifests itself—acceptable in a world of notionally co-
equal sovereign peoples. In the same way as Rousseau’s social contract cannot
be seen as an ordinary contractual ‘exchange’, but rather as ‘an advantageous
exchange’ for those leaving the state of nature,9 the contractual exchange be-
tween a people-g iant and a people-dwarf is also advantageous for the party that
enters it in the inferior position. Counter-intuitively, in Vattel’s imagination, it
is the people-dwarf that gets the better deal here: it receives tangible ‘protec-
tion’, enabling it to engage in self-government, while a ‘great power’ merely
obtains ‘honour’.10 The hegemonic potential of this logic is obvious: it allows
powerful states more effectively to pretend that they are not interfering in the in-
ternal affairs of weaker polities by affecting the choices of weaker ones at arm’s
Chantal Mouffe, ‘Schmitt’s Vision of a Multipolar World’ (2005) 104[2] South Atlantic Q 245.
6
7
Danilo Zolo, Cosmopolis: Prospects for World Government (1997). See also Mirelle Delmas-Marty, Ordering
Pluralism: A Conceptual Framework for Understanding the Transnational Legal World (Hart 2009); Danilo Zolo,
‘The Re-emerging Notion of Empire and the Influence of Carl Schmitt’s Thought’ in Louiza Odysseos and
Fabio Petito (eds), The International Political Thought of Carl Schmitt: Terror, Liberal War and the Crisis of Global
Order (Routledge 2007).
8
Roberto Unger, What Should the Left Propose? (Verso 2006) 135. 9
Vattel (n 2).
Louis Althusser, Politics and History: Montesquieu, Rousseau, Hegel and Marx (Ben Brewster tr, first published
10
1972, Verso 2007) 144.

309
The Vengeful Grossraum: Schmitt’s Dark Materials • 309

length, while at the same deflecting criticism by pointing to their commitment
to the people-dwarf’s sovereignty and self-determination.
Though contemporary Vattelian international lawyers see no problem with
the noxious effects of this structural hypocrisy, others who do not speak their
language have found it harder to digest without getting heartburn. In the half-
embittered, half-resigned words of a noted Latin-American historian:
The importance of the presidential elections, with or without fraud, is relative.
The decisions that affect Honduras are first made in Washington; then in the
American military command in Panama (the Southern Command); afterwards
in the American base command of Palmerola, Honduras; immediately after in
the American Embassy in Tegucigalpa; in the fifth place comes the commander-
in-chief of the Honduran armed forces; and the president of the Republic only
appears in sixth place. We vote, then, for a Sixth-category official in terms of
decision capacity. The president’s functions are limited to managing misery and
obtaining American loans.11
Fuelled in part by a similar sense of indignation, the theoretical inspiration for
the post-Vattelian world picture of a multipolar world came from Schmitt’s ma-
ture concept of grossraum , articulated on the pages of The Nomos of the Earth.
Irrespective of their important differences from Schmitt’s conceptual ‘original’,
contemporary adaptations of his grossraum have been subject to sustained and
harsh criticism: as analytically useless,12 theoretically impoverished,13 morally ir-
responsible and strategically counterproductive,14 and too quick to abandon the
promise of international law.15 Fascinated with the (im)morality of the figure of
grossraum (or that of Schmitt himself ) they have ignored useful lessons that
Schmitt’ polemical hypocrisies and dramatistic contortions offer us today, as we
consider the architectural tensions, blind spots, temptations, and ironies in the
world pictures beyond the Vattelian one.
In order to explore them, it is useful to take a few steps back and start our
inquiry at the polemical source of Schmitt’s grossraum, some two decades be-
fore it appeared in Nomos. I hasten to add that in exploring the polemical ‘prehis-
tory’ of Schmitt’s grossraum, my ambition is not to do it exhaustively, but only
to the extent necessary to show how Schmitt negotiates (or fails to negotiate)
the tension described above. In that regard, I focus on three texts. The first is
‘Forms of Modern Imperialism in International Law’, published in 1933. Its topic
11
Agustín Cueva, ‘La democracia en América Latina: “Novia del socialismo o concubina del imperialismo?” ’
(1986) 1[1] Estudios Latinoamericanos 49, 50, quoted from Atilio A Boron, Empire and Imperialism: A Critical
Reading of Michael Hardt and Antonio Negri ( Jessica Casiro tr, Zed Books 2005) 81.
Stuart Elden, ‘Reading Schmitt Geopolitically: Nomos, Territory and Großraum’ (2010) 161 Radical Philosophy
12
18, 24.
David Chandler, ‘The Revival of Carl Schmitt in International Relations: The Last Refuge of Critical
13
Theorists?’ (2008) 37[1] Millennium: J Intl Stud 27.

14
Benno Tescke, ‘Fatal Attraction: A Critique of Carl Schmitt’s International Political and Legal Theory’
(2011) 3[2] Intl Theory 179.
Martti Koskenniemi, ‘International Law as Political Theology: How to Read Nomos der Erde?’ (2004) 1[4]
15
Constellations 492.
310

is not Grossraum, but the ‘scandal’ that provoked Schmitt’s polemical imagin-
ation itself: the Monroe Doctrine. Though initially ‘quite modest’—in claiming
that ‘no European state may interfere in [inter-]American relations, and in turn
the United States will not interfere in European relations’, what allowed this
doctrine to become one of the main ideological vehicles of American imperi-
alism was not its substance, but rather the ultimate authority of the United
States to decide on its interpretation—confirmed in the text of the Covenant of
the League of Nations.
This—claimed Schmitt in a detached manner—ought to be seen as an
‘interesting symptom’ of ‘the growing power of the United States [to which]
all states have silently submitted themselves’,16 even though he doesn't explain
which moral ideal accords that the exercise of such power amounts to a scandal
worth recording as ‘imperialism’. Schmitt doesn’t answer this question explicitly,
but it is clear that his verdict emerges against the backdrop of a Vattelian vision
of international legal order. The original sin of the Monroe Doctrine—the fact
that it was ‘not a treaty . . . agreed with other states’—is only compounded by
the American insistence on their Kompetenz-Kompetenz in interpreting it, which
makes the United States ‘close to becoming the world’s arbiter’.
Though he understood this doctrine as an ‘interesting symptom’ of
American imperialism, Schmitt also considered it a ‘new international legal
principle of legitimacy’ that developed ‘against the previous principle of le-
gitimacy’.17 That Schmitt would still consider qualifying it as a principle of
‘legitimacy’—even though the tone of his denunciation of American imperi-
alism would suggest otherwise—becomes less surprising at the end of his text.
There, he advises the reader not to treat the Doctrine as a ‘low form of crafti-
ness and Machiavellianism’, but rather to appreciate it as ‘a phenomenon of
world-historical significance’.18 That reader is not an eavesdropper, but a ‘we’ of
German nationalist partisans:
We as Germans are obviously in a miserable political [state of] powerlessness, not
only in the world but also within Europe, and as a German I can only feel in these
discussions of American imperialism like a beggar in rags [might feel] speaking of
the riches and treasures of others.19
In concluding his ambivalent denunciation of American imperialism—as ‘the
other’ of the ‘principle of legitimacy’ that was itself left unnamed—in this
1933 essay Schmitt stopped short of reaching the ‘riches and treasures’ of the
Monroe Doctrine. Instead, he satisfied himself with asking for vigilance against
ultimate spiritual imperialism, the aim of which is ‘moral disarmament’—not
through the force of arms, but through submission to ‘the foreign construc-
tion . . . of what law, especially international law, is’.20
Carl Schmitt, ‘Forms of Modern Imperialism in International Law’ [1933] in Stephen Legg (ed), Spatiality,
16
Sovereignty and Carl Schmitt: Geographies of the Nomos (Matthew Hannah tr, Routledge 2011) 34.
ibid 30.
17
ibid 44.
18 19
ibid. ibid 45.
20
31
The Vengeful Grossraum: Schmitt’s Dark Materials • 311

Having unmasked the Monroe Doctrine as the ideological weapon of
American imperialism in 1933, Schmitt’s 1939 text sought to ‘weaponize’ it
for the purposes of German expansionism. As the title of Großraum versus
Universalism: The International Legal Struggle over the Monroe Doctrine suggests, the
international legal struggle is a struggle ‘over’, not against, the Doctrine.21 As in
his 1933 piece, however, Schmitt remained silent on the character of the principle
of legitimacy against which the American refusal to accept the Monroe-like
doctrines of others presents itself as hypocrisy. Against its detractors, Schmitt
claimed a ‘German Monroe Doctrine’ would only ‘excavat[e]‌the healthy core
of an international legal Großraum-principle’ as a ‘reasonable logic of spatial
separation’, but without the ‘fog’ of ‘economic imperialism’ and the ‘ideo-
logical claim to world interference’.22 Compared with the elegiac Schmitt from
Nomos, the Schmitt of this essay does not look particularly bothered by his own
undermining of jus publicum Europeum. In contrast to Grossraum from his 1950
Nomos—portrayed as a ‘rational’ option of ‘peace-lovers’ after the (unfortunate)
passing of the Vattelian international order—the Großraum of this essay serves
a radically different purpose: the destruction of an international order based on
the wills of sovereign ‘peoples’ and their right to self-determination.23
Though still understated in his 1939 essay, this became obvious in The Großraum
Order of International Law with a Ban on Intervention for Spatially Foreign Powers: A
Contribution to the Concept of Reich in International Law.24 There, Grossraum ex-
plicitly presents itself as a desirable alternative to the international order of
nation-states organized around the principle of national self-determination.25
In this essay, Schmitt envisions this principle as the ideological correlate of
the Monroe Doctrine; in preventing ‘given rulers’ from upholding the spatial
‘unity of their state with authority’,26 the right to self-determination is ‘a global
ideology that interferes in everything’, intent on ‘dissolving a concrete, spatially
determined concept of order into universalistic “world” ’.27 As the alternative
to this world, Grossraum, is a ‘great space’—which is both quantitatively and
qualitatively different from the ‘empty space’ of a nation-state.
Notice, however, that the antagonist of Grossraum is not national plur-
ality as such, but rather the kind of national plurality that can be rendered
intelligible, affirmed, and asserted by invoking the universalistic language of
self-determination. In contrast, Grossraum actually affirms the postulate of
the ‘great original Monroe Doctrine’: a ‘politically awakened nation, political
idea, and a Grossraum ruled by this idea, a Grossraum excluding foreign
Carl Schmitt, Großraum versus Universalism: The International Legal Struggle over the Monroe Doctrine in
21
Stephen Legg (ed), Spatiality, Sovereignty and Carl Schmitt: Geographies of the Nomos (Matthew Hannah tr,
Routledge 2011).
ibid 52.
22
Carl Schmitt, Nomos of the Earth in International Law and Jus Publicum Europeum (Telos 2003) 355.
23
Carl Schmitt, ‘The Großraum Order of International Law with a Ban on Intervention for Spatially Foreign
24
Powers: A Contribution to the Concept of Reich in International Law (1939–1941)’ in Writings on War (Timothy
Nunan ed and tr, Polity 2011).
ibid 45.
25 26
ibid. 27
ibid 90.
312

interventions’.28 Such Grossraum does not obliterate national plurality, but,
ironically enough, the universalist in Schmitt cannot bring himself to identify
the idea of which politically awakened nations ought to govern it.
Instead, with universalistic right to self- determination out of the way,
Schmitt proposes another ‘universal foundation for a justification of territorial
demands’.29 At that point, Schmitt-the-ontologist turns into a normative the-
orist of territorial rights, avant la lettre: as part of ‘the larger principle of mutual
respect for every nationhood’, the extent of Grossräume ought to be deter-
mined, in part, according to a ‘ “demographic” right to land’: the ‘right of na-
tions to space and soil, especially the right of more population-rich countries
with respect to less population-rich countries’.30
From that perspective, the rights of minorities acquire new meaning as
well: instead of being grounded in the right to self-determination, the ‘German
right of protection for German national groups of foreign state citizenship’ is
based, as Schmitt explained, ‘all on the foundation of our National Socialist na-
tional idea’.31 What allowed him to refer, with a straight face, to ‘international
law [as] capable of doing justice to the spatial conceptions of today and the real
political vital forces in the world of today’ was a simple act of relabelling. His
earlier protestations against ‘universalistic-imperialistic reasoning’ were, for the
purposes of this argument, set aside to make room for ‘a way of thinking that
can be “planetary”. . . that thinks in terms of the globe’.32
More broadly, preceding contortions of Schmitt’s polemical imagination—
intent first and foremost on unmasking the sanctimonious hypocrisy of the
victors of the First World War—can be summarized more systematically
with the help of the categories developed in Chapter 3. In the first essay, pub-
lished in 1933, Grossraum is the spatiotemporal effect of the hypocrisy of the
other, not a dramatistic figure in its own right. That changes in the second
essay, where Grossraum becomes expressly identified with frame—with the
‘reasonable logic of spatial separation’, the outcome of an ‘international legal
Großraum-principle’, not something that inheres in the quasi-universalistic ma-
chinations of the American other. In 1939, its dramatistic character changes
once again: Grossraum is introduced as place, which soon reveals itself as the
effect of the will of the principal agent on the scene—the politically conscious
nation—which, in an additional twist, transforms itself into another kind of
frame: ‘the larger principle of mutual respect for every nationhood’, which,
conveniently, gives more powerful and numerous nations a ‘demographic right’
to the lands of weaker ones.
Such Grossraum finally reveals itself as a particular inscription of pur-
pose: not just as a great space, Grossraum, but as a Leistungsraum—an area of
‘human planning, organization, and activity’ and ‘above all a connected achieve-
ment space’, radically different from the template of the sovereign state.33 As
such, Schmitt’s Grossraum is best seen as the incarnation of telos implicit
ibid 88.
28
29
ibid 100.
30
ibid.
31
ibid 111.
32
ibid 79.
33
31
The Figure of Schmitt: the Irritant and the Reminder • 313

in his Nomos of the Earth, which, against Schmitt’s attempts to portray it as an
ontological concept, is at its base a poetic category: a reaffirmation of a pas-
toral, bucolic way of life, where Mother Earth and ‘its fields, pastures, and for-
ests’ justly reward the efforts of a ‘farmer’. It is that Earth which is ready to be
inscribed with nomos, not the Earth of marshes, seas, and deserts. Gone are the
perspectives of city dwellers and pilots that we encountered in Chapter 3, whose
gaze turns the world into a pluriverse.34
3. The figure of Schmitt

the irritant and the reminder
Schmitt’s polemical moves are not difficult to uncover. Consider for example,
one such move, implicit in part of his response to the American scholars who
made a distinction between the legitimacy of the American and the illegitimacy
of the German version of Monroe Doctrine:
The Monroe Doctrine, says Willoughby, never provided the United States with
arguments for annexations, and if [it is true that] the United States exercises fi-
nancial and administrative supervision in Central America and the West Indies,
it is only ever and exclusively in the interests of its own citizens engaged in trade
there, and likewise for the benefit of the population of these regions. In other
words, only economic-capitalistic imperialism American-style should have the
right to appeal to the Monroe Doctrine.35
One way of answering Schmitt’s charge is to simply observe that this is obviously
not the point. Willoughby was claiming that the difference between American
and German interference lies in the fact that Americans interfere in the daily
business of self-government, while Schmitt’s version of the Doctrine sought to
justify territorial changes and possibly the extinction of sovereign peoples, not
just the restriction of their right to self-government. In other words, while the
American ‘version’ respects the constitutional order but frustrates its capacity
to pursue its objectives, the German ‘version’ disrespects those very allegiances,
and in so doing destroys or radically degrades the capacity of the object of
intervention to pursue its purposes.
Given the obnoxiousness of the project that his argument was trying to jus-
tify, it is easy to fail to notice that Schmitt’s hypocritical and obnoxious argu-
ment can also be understood as his allusive claim that being reduced to a subject
in the German Reich is still somehow objectively better than being a notionally
free citizen in a country subject to ‘economic-capitalistic imperialism American-
style’. While unimportant in the context of our exploration of Schmitt’s po-
lemical contortions, this basic point—that every self-serving and hypocritical
claim may always be understood as a claim about what is objectively better
Srinivas Aravamudan, ‘Carl Schmitt’s The Nomos of the Earth: Four Corollaries’ (2005) 104[2] South Atlantic
34
Q 227, 231.
Schmitt (n 21) 50.
35
314

from a non-self-serving perspective—is highly relevant in real life, today, when
the figures of Schmitt and his Grossraum themselves became powerful rhet-
orical weapons in regional conflicts with broader geopolitical components,
such as the one that broke out in Ukraine after the successful revolution in Kiev
in March 2014.
In the same way as Schmitt used the Monroe Doctrine as a token for
evoking everything that is wrong with imperialism ‘American-style’, a number
of commentators have now used the figure of ‘Schmitt’ tokenistically, as a
shortcut for everything that was reprehensible about the Russian annexation
of Crimea. Consider, by way of example, the following statement, which,
after arguing that a more contextual and nuanced evaluation of the events
would be tantamount to ‘denying agency’ to ‘the Ukrainian people’, proceeds
to assert that:
Schmitt’s philosophy can serve as a point of departure for reflection on the
possibility of a more robust response by Europe to the Russian intervention
in Ukraine. What Europe needs is a more hard-nosed realist approach, which
recognizes that Russian expansionist ambitions can only be constrained by its
own readiness and willingness to deploy power both politically, and if neces-
sary, even militarily.36
What is problematic here is not only the fact that Schmitt’s philosophy em-
pathetically cannot serve as the point of departure for a conclusion that seems
disturbingly casual about the risk of a Third World War—Schmitt, as we saw
a moment ago, was a staunch enemy of giving groups of individuals the right
to decide on their political destiny. What is problematic is also the fact that
what informs this conclusion is an indignation-catalysing reification of ‘the
people of Ukraine’ imagined as a human-like entity capable of having its
agency denied, not as a conventional name for the population that inhabits
a t-isomorph and whose government enjoys certain rights and privileges in
the international legal order. Seen through that lens, Russian behaviour is
still disturbing and blameworthy, but not as a moral scandal of violating the
moral autonomy of a human-like Vattelian people. Against the backdrop
of the world populated by t-isomorphs—not the one in which they present
themselves as ‘logos’ in an a-puzzle—the diagnosis of ‘expansionism’ pre-
sents itself as an oblique answer to a very specific question: what is the best
way to respond to the acts of hegemonic counter-poaching, where Ukraine—
having been ‘poached’ from the Russian, by the Euroatlantic Großraum in the
spring of 2014—found itself the target of Russia’s retaliatory measure that cul-
minated in the annexation of Crimea? Notice once again that while Russia’s
actions may rightly be critiqued on a number of grounds—from hypocrisy,
recklessness, and false representation of the sentiments on the ground to
the damage they inflicted on regional and global security—they cannot be
Stefan Auer, ‘Carl Schmitt in the Kremlin: the Ukraine Crisis and the Return of Geopolitics’ (2015) 91[5]
36
International Affairs 953, 955.

315
The Figure of Schmitt: the Irritant and the Reminder • 315

critiqued as the ethical violations of the right of the ‘people of Ukraine’ to
sovereignty and self-determination.37
At a more general level, the problem here is not the vocabulary of self-
determination or popular sovereignty as such, but rather the rigidity of our so-
cial imaginary, which prevents us from discussing what we care about with less
reliance on the tokens that poison our political expectations—be those tokens
monochromatic maps of the world in Chapter 6, or the figure of ‘Schmitt’
in this one. If so, it should also be obvious that the problems of hegemonic
counter-poaching cannot be solved by simply postulating a neo-Schmittian
multipolar world as a template superior to the ‘abstract[ly] universalistic’ and
‘imperialistic’ designs of a global hegemon, which provokes regional crises fur-
tively. Such proposals are fatally flawed not because they abandon too soon
the taming power of international law—as suggested by Martti Koskenniemi,
for example—but rather because their ongoing reliance on the idea of self-
determination makes them incapable of answering why it should be a re-
gional and not the global hegemon who decides whether it is ‘contextually
appropriate’ to satisfy the ‘historically constructed expectations’ of an aspiring
‘people’. To chastise, at that point, the moral or material support that such a
Vattelian ‘people-dwarf ’ might receive from another Grossraum, or from the
global hegemon, would be to elide what is really (though not exclusively) at
stake in all such acts of support: first, how much ‘self-determination’ is good
enough for those involved in conflict; second, how much a new constitutional
settlement should deviate from the status quo ante balance of constitutive
powers; and third and most generally, what is the purpose of resolving such
conflicts is—from everyone’s perspective—within the template of a multipolar
world, and not some other.
The last point, of course, is habitually denunciated with reference to
Schmitt’s famous quip that whoever invokes humanity wants to cheat. That, of
course, is wrong: the point is not that whoever invokes humanity in such cases
wants to cheat, but rather that whoever raises the question of cheating must
also desire something for humanity. In that regard, Schmitt is no exception.
The only reason why a clause ‘thinking about international law that is capable
of doing justice to the spatial conceptions . . . and the real political vital forces in
the world of today’ is not the manifestation of ‘universalistic-imperialistic’ rea-
soning he scorned otherwise, is because he renamed it as ‘planetary’—‘a way of
thinking . . . in terms of the globe’.38
That ongoing universalistic, almost cosmopolitan temptation that haunted
Schmitt across all his polemical manoeuvres is something that contemporary
anti-Schmittians fail to exploit when they direct their polemical edge towards the
vileness of Schmitt’s project, or towards the cluelessness of his contemporary
For the claims of the Russia’s reliance on the vocabulary of self-determination as the ‘technology of im-
37
perialism’ see Mark Beissinger, ‘Self-determination as a Technology of Imperialism: The Soviet and Russian
Experiences’ (2015) 14[5] Ethnopolitics 479.
Schmitt (n 23) 70.
38
316

followers—which makes them, ironically, more polemically similar to Schmitt
than they would ever want to be.
Consider, by way of example, Seyla Benhabib’s claim of how ‘left critics of
US hegemony misconstrue the relation between international law and demo-
cratic sovereignty’, which she rhetorically accentuates by reminding her audi-
ence of Schmitt’s own anti-Americanism: his ‘personal interest in the matter’,39
the ‘ruthless’ character of his polemic,40 and his strategic intent. What neo-
Schmittians ‘fail to understand [are] the structure of mediations between inter-
national law and democratic sovereignty’,41 and the fact that we have entered
into ‘a new phase of international law’ that, in contrast to what they believed,
cannot be interpreted as a ‘coercive regime of neo-liberal hegemonic inten-
tions’.42 On closer inspection, what the ‘left critics of cosmopolitanism’ actually
‘failed’ is not to ‘understand’, but to embrace Benhabib’s personal attitude and
her diagnosis of relevant facts on the ground. Specifically, they failed ‘to learn
the art of making hard distinctions’, and to realize that the ‘actual workings
of the system of international law’ are not ‘a smooth “command structure” ’
as they thought they were. Had they accepted that, they would have realized
that their ‘fears that cosmopolitan human rights must override democratic le-
gislation are unfounded, because . . . [human rights] . . . are radically dependent
upon the democratic will-formation of the demos’43—defined elsewhere as a
‘community’, which ‘defines itself by drawing boundaries’ that are ‘territorial
as well as civic’.44
Consider now how potentially disruptive it would be to allow access to
Benhabib’s performance to a partisan eavesdropper—someone with a stake
in a particular struggle, worried about American hegemony but not neces-
sarily anti-cosmopolitan, and not particularly fascinated with the conventions
of theoretical argument either. That is, not fascinated enough not to ask: On
what grounds did Benhabib conclude that Schmitt’s motivation is ‘not easily
extricated’ from his ‘political entanglements’, while leftist neo-Schmittians are
somehow simply ‘mistaken’? Moreover, if they are simply ‘mistaken’—but if
they don’t mention Schmitt at all in the work that Benhabib critiques45—what
is the point of bringing in Schmitt to begin with, unless it is to tar them with a
Schmittian brush? How likely is it that doing so is not the symptom of Benhabib’s
Seyla Benhabib, ‘Carl Schmitt’s Critique of Kant: Sovereignty and International Law’ (2012) 40[6] Political
39
Theory 688, 694.
ibid 692.
40 41
ibid 692 [emphasis mine]. 42
ibid 705. 43
Seyla Benhabib, The Rights of Others: Aliens, Residents, and Citizens (CUP 2004) 45.
44
Benhabib does mention Chantal Mouffe as a neo-Schmittian (which is true) at the beginning of the article,
45
but then doesn’t engage with Mouffe’s work at all. Instead, she ends up refuting the work of Thomas Nagel,
Michael Sandel, Quentin Skinner, and Michael Walzer, whose arguments make no mention of Schmitt at
all. For the anti-democratic effects of ‘competing moralisms’ of American liberals and conservatives, and
the anti-democratic effects of the ways in which both assert the correctness of their accounts of collective
‘we’, see Allan Keenan, ‘Generating a Virtuous Circle: Democratic Identity, Moralism, and the Languages
of Political Responsibility’ in Jane Bennett and Michael J Shapiro (eds), The Politics of Moralizing (Routledge
2002). From that perspective Benhabib has more in common with Sandel than Sandel has in common with
Schmitt.
317
The American Sovereign: an Amnesiac Narcissus • 317

own ‘personal interest in the matter’ and ‘political entanglements’ that have led
her to prefer Kant over Schmitt, and not the other way around? Moreover, why
would someone—who is not already a fully persuaded Kantian cosmopolitan—
embrace the substance of those entanglements if, in the end, Benhabib’s con-
clusion doesn’t actually follow from her interpretation of Kant, but from her
temperamental tolerance for ‘hard decisions’; her factual assessment of the ‘ac-
tual workings’; her willingness to ground a judgement about what ‘fears’ of
others are ‘reasonable’; and, ultimately, her belief that it is reasonable to expect
from her audience to embrace the chicken-and-the-egg ‘paradox’ behind her
definition of demos as self-evidently inevitable and desirable? If so much hinges
on that, shouldn’t we be talking about that?
4. the American sovereign

an amnesiac Narcissus
Benhabib’s conclusions are particularly dubious once we take into consider-
ation the possibility that the American sovereign is not just the most powerful
Vattelian people-giant, but rather a Schmittian mutant itself—‘the most intense
form of association’ bound by a quasi-religious love of its members.46 If Paul
Kahn is right, there is no reasoning with such a sovereign, in the same way as
there is no reasoning with those who are in love about ‘whom [they] should
love or not love’.47 If Kahn is right, there is plenty to fear—against Benhabib’s
claim—because such love knows no bounds; to all those who feel it, it presents
itself as a justified ‘endless demand’.48 As with Benhabib, however, this claim
is the product of a disputable diagnostic gaze, informed, in Kahn’s case, by his
selective appropriation of Schmitt’s scenic imagination. In contrast to Schmitt,
according to whom the enemy must first come to us for us to be able to identify
him, for Kahn, we come to him first: it is love for our popular sovereign, not an-
tagonism, that identifies him wherever he is. Notice that Kahn’s reversal of this
position—by defining enemy as someone who ‘penetrates the border’ and who
can only be defined ‘from a particular perspective on territory’49—still leaves
him on the opposite side of Schmitt, for whom that perspective figured only ob-
liquely and implicitly and never conclusively. While Schmitt critiqued externally
imposed constitutional orders as violations of domestic pouvoir constituant, for
Kahn, ‘the call to sacrifice in an armed revolutionary struggle’50 can always ‘over-
flow the legal boundaries of negative sovereignty’ and spill over into other pol-
ities, potentially as their own constituent power.51 Finally, while Schmitt would
consider ‘the sacrifice of life’ as a consequence of the existence of an entity as
‘political’, for Kahn, that sacrifice is the epiphenomenon of love, which is not
the consequence but the condition of political existence. If so, we must revisit
Paul W Kahn, Putting Liberalism in its Place (Princeton University Press 2005).

46
Paul W Kahn, ‘Political Theology Defended’ (2012) 5[1] Jerusalem Rev L Stud 28, 34.
47 48
ibid.
Paul W Kahn, ‘Imagining Warfare’ (2014) 24[1] EJIL 199, 209.
49
Paul W Kahn, ‘The Question of Sovereignty’ (2004) Stanford J Intl L 259, 274.

50
ibid.
51
318

Kahn’s remarks about political love from that perspective and ask: what kind of
love permeates the body of the American sovereign against the backdrop of a
Vattelian world of formally equal popular sovereigns?
The answer to this question requires imagination. It depends not only on
how seriously we take the personhood of the American sovereign, but also on
the perspective from which we choose to observe its ‘love life’. Seen not as an
object of an individual emotional investment, but rather as the subject which
issues ‘endless demands’ in his own name, Kahn’s sovereign has a narcissistic
personality disorder. Having allowed us to see what his self-love is capable of
making him do to others, Kahn’s portrait of the American sovereign allows
us to identify the features of his narcissistic personality even more precisely.
From Kahn’s description, the American sovereign fits best the psychological de-
scription of an ‘unprincipled narcissist’.52 According to the handbook Personality
Disorders in Modern Life, many unprincipled narcissists are ‘opportunists . . . who
take advantage of others for personal gain’ ‘by exploiting legal boundaries to
the verge of unlawfulness’.53 Very often, they are ‘experienced by others as un-
scrupulous, amoral, and deceptive’.54 ‘Because they are focused on their own
self-interest, unprincipled narcissists are indifferent to the truth. If confronted,
they are likely to display an attitude of justified innocence. To them, achieve-
ment deficits and social irresponsibility are justified by expansive fantasies and
frank lies.’55
This, of course, is not how this sovereign is seen by those who genuinely
love it (in Kahn’s terms), or by many of those who are willing to sacrifice their
lives for it out of a more prosaic sense of ‘patriotic adventure’.56 They see the
object of their love being not only sovereign but also ‘popular’ as evidence that
it is good. Against Kahn, they have responded to ‘the call to sacrifice in an armed
revolutionary struggle’ not out of sheer love but rather out of a sense that that
struggle is noble and justified not only for their own sake, but also for the sake
of the world.57 From their perspective, Kahn’s sovereign is not an American
psycho, but an other-regarding, Vattelian citizen of the world. For evidence of
such other-regard, we need look no further than the American Declaration of
Independence (1776).58 Rather than evidence of ‘Schmittian exception’, which
records love and sacrifice, the Declaration portrays the birth of the American
sovereign as the work of reason and necessity.59 What rendered its political
Theodore Millon et al, Personality Disorders in Modern Life ( John Wiley & Sons 2000) 337.
52 53
ibid.
ibid.
54 55
ibid.
Todd Woodruff, Ryan Kelty, and David R Segal, ‘Propensity to Serve and Motivation to Enlist among
56
American Combat Soldiers’ (2006) 32[3] Armed Forces & Society 353, 355.
Millon et al (n 52) 337.
57
David Armitage, The Declaration of Independence: A Global History (Harvard University Press 2008) 64. See
58
also Robert Howse, ‘Schmitt, Schmitteanism and Contemporary International Legal Theory’ in Anne Peters
and Florian Hoffman (eds), The Oxford Handbook of the Theory of International Law (OUP 2016) 224.
Paul W Kahn, Political Theology: Four New Chapters on the Concept of Sovereignty (Columbia University Press
59
2011) 10.
319
The American Sovereign: an Amnesiac Narcissus • 319

existence morally desirable was not the fact of love, but rather the exhaustion
of patience with British oppression and unresponsiveness, meticulously enumer-
ated in the text of the Declaration itself.
Similar evidence of other-regard can be found elsewhere. In Common Sense,
Thomas Paine recognized that the ‘new world hath been the asylum for the
persecuted lovers of civil and religious liberty from every Part of Europe’ and
called for America to continue acting as an ‘asylum for mankind’.60 In The
Federalist Papers, John Jay predicted that a united America would ‘probably give
the fewest’ just causes for war, observe ‘more perfectly and punctually’ the laws
of nations, that its national government would be ‘more wise, systematic and
judicious . . . and consequently more satisfactory with respect to other nations’
and that it would act with ‘moderation and candor’ in international relations in
general.61
Though sidelined in the nationalistic narrative of American constitutional
history, these remarks are hardly exceptional. In taking notice of them, my aim
is not to allude to the strength, influence, or sincerity62 of the vision of popular
sovereignty as inseparable from the concern for a wider world. For our pur-
poses, these should be taken as a indicators of the possibility which both Schmitt
and Kahn wanted to exclude as a matter of principle: that a constitutional order
can be purposive without that purpose being prefigured either by a ‘way of life’
or love, without which such life wouldn’t be worth the sacrifice. At this point,
notice an interesting ambivalence in Kahn’s description of the American sover-
eign. On the one hand, he describes the exercise of ‘the people’s’ sovereignty as
an ‘ontological experience’.63 On the other hand, however, he describes his ap-
proach to the figure of the American sovereign as ‘a kind of phenomenology of
our most compelling secular forms of meaning’.64 If this is the case, what looks
like ontology is in fact the description of what Kahn thinks are the resilient fea-
tures of the American social imaginary, modelled, according to Kahn, around
the template of Christian political theology.
But on what grounds can Kahn claim that ‘the national culture of popular
sovereignty and constitutionalism places the aspiration for the universal within
the faith practices of a particular community’, and not the other way around?65
On what grounds is it possible to argue that the relationship between the indi-
vidual willingness to sacrifice for the perpetuation of the American sovereign
and the underlying Christian political theology is one of causation and not a
weak, or even inverse, correlation? According to a Gallup survey, for example,
Quoted in Susan F Martin, A Nation of Immigrants (CUP 2011) 63.

60
61
John Jay, ‘Federalist no. 3’ in Alexander Hamilton, James Madison, and John Jay (eds), The Federalist Papers
(first published 1787, OUP 2008) 21.
62
Of course, arguments such as these were not irreconcilable with depriving Indians of political subject-
ivity. See Peter S Onuf, Jefferson’s Empire: The Language of American Nationhood (University of Kentucky Press,
2000) 49.
Kahn (n 46).
63
ibid 143.
64
Paul W Kahn, ‘The Constitution and United States’ Culture’ in Mark Tushnet, Mark A Graber, and Sanford
65
Levinson (eds), The Oxford Handbook of the US Constitution (OUP 2015) 1032.

320

American citizens’ willingness to sacrifice for what Kahn called ‘the mystical
body of the state’ pales in comparison with the willingness of the citizens of
select non-Christian countries to do the same. If anything, there seems to be an
inverse relationship between the readiness for ultimate sacrifice and the sway
of Christian political theology over the imaginations of states’ citizens: it is the
world’s Muslims, Buddhists, Hindus, and atheists/agnostics, not Christians, who
are comparatively more willing to lay down their lives for the survival of their
states.66 Moreover, if the willingness to sacrifice one’s life for the perpetuation
of one’s sovereign people were any indication, a better exemplar of the sway
of Christian political theology would be Pakistan (85 per cent), India (75 per
cent), Turkey (73 per cent), or China (71 per cent)—not the United States (44 per
cent).67 Against the background of these facts, one may wonder: is the willing-
ness to sacrifice in non-Christian countries actually shaped by Christian political
theology through some subtle global imaginative osmosis? Or, is Christian pol-
itical theology, contra Kahn, actually ineffective, or only marginally effective in
contributing to the willingness to sacrifice in nominally Christian nation-states,
such as America? For our purposes, another question is more important: given
the obviously complicated relationship between love, sacrifice, and Christian
political theology, how appropriate is it to insist that the phenomenon that
keeps a popular sovereign in existence is indeed political eros and not a different
affect altogether? The simple answer to this question is that it isn’t, even though
Kahn attempts to evade this conclusion by insisting on the descriptive nature of
his attempt to offer ‘a larger view about the nature of American political life’,
‘observ[able] not in surveys, but in narratives’.68 This larger view—K ahn’s word
for Burke’s ‘circumference’—is a matter of choice, which Kahn could have ex-
ercised differently. Between the American popular sovereign in love with it-
self and a porous, gelatinous mass of changing affects, interspersed with the
minoritarian ‘loves’ of Mohawks, Bundy family militiamen, Chicano activists,
anti-war protesters, Hawaiian sovereigntists, and many others, Kahn chose the
former. That choice is anything but descriptive: what appears as love within this
wider and less granular ‘phenomenology of our most compelling secular forms
of meaning’ will appear as a complex constellation of affects—which, in add-
ition to an unprovoked ‘love’, also includes enjoyment—stimulated by the formal
and informal techniques of scapegoating to get us to the point where the idea
of ultimate sacrifice becomes normal.69
‘WIN/Gallup International’s Global Survey Shows Three in Five Willing to Fight for Their Country’
66
<http://gallup-international.bg/en/Publications/2015/220-WIN-Gallup-International%E2%80%99s-global-
survey-shows-three-in-five-willing-to-fight-for-their-country> accessed 22 July 2016.
Kahn (n 47).
67
ibid 33.
68
69
For Kahn, scapegoating occurs ‘where law cannot acknowledge the violence done on behalf of the sov-
ereign’, where a scapegoat ‘tak[es] onto himself symbolically that which the community can neither do
without nor acknowledge as its own’. Paul W Kahn, Sacred Violence: Torture, Terror and Sovereignty (University
of Michigan Press 2008) 41 and 163. One should wonder what is the function of doing that? Once we, even
for a moment, estrange ourselves from the idea of the people, as a community that ‘cannot do without’
321
Multitude: the Emblem of Failure • 321
5. Multitude
the emblem of failure
In Kahn’s imagination, the existence of the American sovereign depends on
none (other) but the parts of its own collective body that nourish it with pol-
itical love. In the imagination of others, the American sovereign is the global
other: either as a faux-universalist hegemon that needs to be counterbalanced
in a multipolar world or as the monarch that dominates the global empire—
the other to a global many, the figure that Michael Hardt and Antonio Negri
call multitude. Unlike the spatiotemporally delimited people—or the figure of
many we discussed in Chapter 3, which assembles with the intention to produce
a constitutive act and which succeeds in doing so, multitude is a much more
ambivalent figure: the incarnation of the ‘savage powers of the imagination’
beyond the Vattelian world of sovereign peoples.70 To gauge its limitations, its
blind spots, and the intensity of this savage imagination, we should pause to
consider what exactly it evokes, both on the global scene of struggle and at the
local stages where Hardt and Negri incarnate it in allegorical re-enactments of
the notorious watershed moments in the history of modern constitutionalism.
Situated on the global stage, multitude is the figure that flows, disrupting
another, imperial one. On closer inspection, the morphology of both flows is
organized. When it comes to imperial flows, multinational corporations ‘de-
center’ them,71 nation-states (with increasing difficulty) ‘filter’ them,72 trans-
national ‘aristocracies’ channel them—all this in a world over which presides
a ‘multi-form and spatially diffuse’ ‘monarch’:73 ‘a central military power in
Washington (or Beijing); a central cultural power in Los Angeles (or Mumbai); a
central financial power in New York (or Frankfurt)’.74 The same is the case with
the flows of multitude. What at first simply appears as a scene with no agents
in sight—an impersonal, ‘uninterrupted flow of . . . creative determinations’75
that flows ‘variably, unevenly, and indefinitely’76 towards the locations where it
is ‘most creative’—on second look reveals itself as a pump, the ‘heart’ of some
allegorical body; ‘the real motor of constitutional dynamism’.77
There are no specific agents of change in that scene. They only appear on
third and final look, once we focus on what is actually being pumped—not
some ethereal multitude-fl uid, but rather the ‘combinations of sailors, ma-
roons, servants, soldiers, tradesmen, laborers, renegades, castaways, pirates,
and numerous others circulating through the great oceans’.78 Once staged
it—scapegoating presents itself for what it often is: a governmental technique, used to spike up the aggregate
enjoyment in the social ‘body’ by identifying someone who allegedly stole it from the people.
Michael Hardt and Antonio Negri, Commonwealth (Harvard University Press 2009) 99.
70
Michael Hardt and Antonio Negri, Empire (Harvard University Press 2000) 310.
71
ibid.
72
ibid 317.
73 74
ibid 136.
Antonio Negri, Insurgencies: Constituent Power and the Modern State (University of Minnesota Press 1999).
75
Michael Hardt and Antonio Negri, Multitude: War and Democracy in the Age of Empire (Penguin 2004) 54.
76
Negri (n 75) 4.5.
77 78
Hardt and Negri (n 70) 44.
32

locally, these ‘combinations’ transform themselves into the allegorical emblems
of transformative constitutional moments. Transposed into early twelfth cen-
tury England from the early twenty-first century world, the United States—the
monarch that regulates contemporary imperial flows in the later—reincarnates
itself in the body of King John prior to the signing of Magna Carta, compelled,
as it were, to realize that his aspiration to rule alone has become increasingly
‘unsustainable’.79 Similarly to the events that preceded the signing of Magna
Carta, the financial crisis of the late 2000s has presented the opportunity for
‘global aristocracies’— such as ‘the multinational corporations, the supra-
national institutions, the other dominant nation-states, and powerful non-state
actors’—to restrain his arbitrary power. As with Magna Carta, their role is to
compel the monarch to commit to the global version of the principle of ‘no tax-
ation without representation’, to renounce his right to engage in ‘unilateralist
military adventures’, and to absolve the debt of the world’s poorest countries.
In Hardt and Negri’s imagination, the allegorical Magna Carta exists as a
remedial first step towards the full emancipation of multitude—to be com-
pleted through an event alluded to in their second allegory. There, the United
States, the King John from the first narrative, incarnates itself again, only this
time in the body of Louis XVI, who must, like the historical French king, con-
front manifold cahiers de doléances, this time submitted to him by the global
Third Estate. Many of them, like the original ones, are about inadequate polit-
ical representation, albeit at a different scale. In this allegory, the problem with
the American monarch lies in its ‘claims to represent all of humanity’, which,
on Hardt and Negri’s account, is completely untenable: ‘If the connection of
U.S. voters to these leaders is small, then that of the rest of humanity is infini-
tesimal.’80 In fact, the ‘[p]‌rotests against the United States throughout the world
are often not so much expressions of anti-Americanism as they are grievances
against [the] lack of representation.’81
What follows from this? Those who would have followed Hardt and Negri
up to this point should be forgiven if they brought this allegory to its ‘savage’
conclusion: if America, as the allegorical global monarch, continues behaving
as Louis XVI—ignoring the global cahiers de doléances from the global Third
Estate—it should like citizen Capet himself, end up decapitated. Instead, how-
ever, this allegory ends with the intimation of a non-revolutionary happy
ending, where Louis willingly becomes an ordinary citizen, and continues to
live together with other fellow citizens on equal terms, happily ever after. In
non-allegorical terms, this means reconstituting the United Nations as a body
representing not only nation-states, but also the population of the world, ac-
cording to the principle of proportional representation. Aware that American
‘exceptionalism’ presents the major obstacle to such ‘global form of democratic
representation’,82 Hardt and Negri do not radicalize but rather simply abandon
their allegorical script. Instead of Louis XVI, as the obstacle to the success of
Hardt and Negri (n 76).

79
ibid 271.
80
ibid.
81 82
ibid 292.
32
The Pretender Demos and the Disciplinary Pretensions • 323

the Third Estate, the United States become themselves once again on the pages of
Multitude. And not only that: we in fact learn that the imagined constitutional
reform of the United Nations would be a spatial expansion of the logic of the
American constitution.
What started as the stage-setting for an imaginative confrontation with the
actual monarch ends up as a humble plaidoyer to the citizens of the United States
to come to their senses and reconsider—as allegedly illogical—their simultan-
eous allegiance to their own constitution and lack of enthusiasm to expand
it globally.83 The whimper with which the second allegory ends is symptom-
atic. It indicates the essential tameness of the ‘savage powers’ of post-popular
constituent imagination. That tameness is both theoretical—indicative in that
regard is Hardt and Negri’s demoting of multitude from an ontological cat-
egory in Empire to a mere ‘emblem’ of a desire for ‘a better, more democratic
world’84—but also practical, indicating the resilience of the Vattelian social im-
aginary of popular sovereignty.85
6. the pretender demos and

the disciplinary pretensions
Without the ‘will’ of a corporate body, Hardt and Negri’s cahiers de doléances
could only remain grievances. Though diverse as multitude itself, all of them
charged the monarch with the same transgression—that he adversely affected
the legitimate interests of its members. More than four decades ago, the similar
logic animated Robert Dahl’s musings on a possible wisdom ‘in the half-serious
comment of a friend in Latin America’, whose ‘jest’ shouldn’t be dismissed as
an ‘absurdity’, and ‘who said that his people should be allowed to participate in
our elections, for what happens in the politics of the United States is bound to
have profound consequences for his country’.86 Though it took a while before
Dahl’s invitation was taken more seriously, contemporary democratic theory
developed a rich body of thought that has systematically probed the nature,
function, and content of the principle that Dahl put in the mouth of his Latin
American friend. While it is the all-affected interest principle (in its manifold
variations) that emerged as the most influential interpretation of Dahl’s argu-
ment, the family of principles that conform to the spirit of the challenge posed
by Dahl’s imaginary friend now also include the all-constitutively affected, all-
coerced, and all-subjected principles—all of which profoundly challenge the
tripartite vision of ‘the people’ inherited from early-modern constitutional
ibid 298.
83 84
ibid 227.
85
Ironically, the captivating power of that imaginary is most vividly on display in the environments, which
are otherwise widely discussed as antithetical to the ideals of hierarchical and state-bound popular sover-
eignty. The Charter of Principles of the World Social Form is indicative in that regard: while explicitly calling
for the alternative visions of globalization, it folds back on a vision of a ‘democratic international systems and
institutions at the service of social justice, equality and the sovereignty of peoples’.
Robert Dahl, After the Revolution? (Yale University Press 1970) 67.
86
324

theory: the demos of citizens (in a pre-Dahl sense), who as ethnos have a
right to self-determination, and who—as populus—exist in perpetuity as the
ultimate source of constitutional authority at home, and the bearer of sover-
eignty abroad. Irrespective of their intra-disciplinary differences, a variety of
all-affected, all-coerced, or all-subjected principles challenge the soft spots im-
plicit in the still dominant vision of sovereign peoplehood: the circularity of the
constitution of a pre-Dahl’s demos, the legitimacy of the claim of the right to
self-determination by an ethnos; and the compatibility between democratic le-
gitimacy and the idea of popular sovereignty, in general.
Though technically not a theorist of the all-affected interest principle, Arash
Abizadeh expresses that challenge with most clarity. Rather than bounded (and
hence circular, we might add) the demos of contemporary democratic theory
must be seen as unbounded. Rather than existing in a tense but intimate re-
lationship with an ethnos, such demos is divorced from nationalism. Rather
than (ultimately) authoritative internally, and (equally) sovereign externally,
such demos finally expels a sovereign people from the empty place of power.
‘In the regulative sense’, such demos prescribes that ‘whatever rights members
have to settle and control the boundaries of their political unit are derivative
rights whose full, democratic legitimacy depends on a broader normative con-
text: political procedures addressed to all those subject to the exercise of polit-
ical power in question.’87
The consequences of such democratic imagination are radical: what re-
places ‘the people’—a fuzzy, contested, oftentimes ineffectual and increasingly
disappointing collective protagonist of history—is not the figure of a collective
political subject as something that exists in reality independently from theory—
but rather the name of demos, shorthand for the successful application of the
principle of demos-formation. What ultimately makes that shift necessary is not
only Abizadeh’s concrete argument, but also his understanding of the discipline
that it contributes to. In the final analysis, the reason why ‘[d]emos of norma-
tive democratic theory marks the inability of any of its putative representations
to exhaust the normative aspirations of democratic legitimacy’ is because of a
particular vision of the task of democratic theory. ‘Like cultural nationalism’,
democratic theory is a ‘self-referential theory’, which ‘must answer the legit-
imacy and boundary questions together’.88
Why such resoluteness? What is it in normative democratic theory that
would, as a matter of principle, make it incapable of welcoming alternative
accounts of democratic legitimacy? Put differently, what is it in its character that
compels it to side with the (Habermasian) privileging of the normative implica-
tions of Rousseau’s imagination—the ‘notion of the people [as self-legislating,
which] requires that all those who compose the people be able meaningfully to
participate in them to articulate their collective will’—and not with (Kelsenian)
Arash Abizadeh, ‘On the Demos and Its Kin: Nationalism, Democracy, and the Boundary Problem’ (2012)
87
106 APSR 867, 881.

ibid 874 and 880.
88
325

insistence on the unifying normative premise of Rousseau’s theory of social
contract? What is it that is so particularly undemocratic in the claim that both
the initial unanimity, as well as subsequent majoritarianism, must be seen as the
manifestations of a same political ideal, the maximization of political freedom,
or as Kelsen put it, the alleviation of the torment of heteronomy? Kelsenian
interpretation—as Abizadeh asks of it—also comes free of ‘putative representa-
tions’.89 If so, why should a democratic theorist play by the rules of the theories
of cultural nationalism (and try to justify the legitimacy and boundary issues
together) unless she for some reason would want to do exactly that?
Like all others, Abizadeh’s demos is a polemical concept, even if perhaps not
originally developed for the purpose of specific struggles. As a polemical con-
cept that aspires to dethrone ‘the people’ who still sovereignly lords over our
political imaginations, this demos is also a pretender, falsely claiming to have a
better historical claim to the crown of democratic legitimacy than all other aspir-
ants. Like a False Dmitry—claiming to be the tzar’s brother and a rightful heir
to the Russian throne—Abizadeh’s demos also makes dubious kinship claims. In
fact, at this point it is useful to compare it with Dahl’s 1989 later answer to the
problem of the scope of the democratic unit. While Abizadeh (together with
most other democratic theorists today) ignores Kelsen’s insistence on the uni-
fying normative premise of Rousseau’s democratic imagination, Dahl’s account
of demos-formation actually reconciles it with the a version of the all-affected
interests principle. Among his seven criteria for the ‘rightfulness’ of a demo-
cratic unit, that principle coexists together with the mandatory responsiveness
towards ‘strong desire’ of those on the ground and the requirement to pursue
‘consensus’ as another ideal of demos-formation.90
Before asking how it might be redeemed, this False Dmitry must be in-
dicted for committing one more offence. That offence is committed against the
principle I announced at the outset of this book: no taxation of imagination
without cost-benefit representation. That offence consists in its misleading self-
representation as, in principle, unbound.91 Like a people-dwarf and a people-
giant, pretender demos is always very much bounded. What bounds it is the
ibid 880.
89
90
Robert A Dahl, Democracy and Its Critics (Yale University Press 1989) 207–09. For an inconclusive rela-
tionship between ‘consent’ and the principle of affected interests (quod omnes tangit) see also James Tully,
‘Introduction’ in James Tully and Alain Gagnon (eds), Multinational Democracies (CUP 2001). For Tully’s sub-
sequent privileging of consent over affected interests, see James Tully, Political Philosophy in a New Key, vol
1 (CUP 2008) 177. For the decisive role of ‘consent’ in the formation of a polity, at the expense of the all
affected interests principle, see also David Owen, ‘Constituting the Polity, Constituting the Demos: On the
Place of the All Affected Interest Principle in Democratic Theory and in Resolving the Democratic Boundary
Problem’ (2012) 5 Ethics & Global Politics 129.
For a critique along similar lines see Paulina Ochoa Espejo, ‘People, Territory, and Legitimacy in
91
Democratic States’ (2014) 58 American Pol Sci R 466. For a related objection, see Matt Whitt, ‘Democracy’s
Sovereign Enclosures: Territory and the All-affected Principle’ (2014) 21 Constellations 560. ‘Just as democratic
nation-states rely upon territoriality as a purportedly pre-political framework for determining the Demos,
contemporary theorists invoke affectedness as a moral status that democracy must conform to, rather than
a political claim to be adjudicated through democratic contestation.’ While this is a valid point, the question
remains: what counts as ‘democratic’ in ‘democratic contestation’?
326

stage-prop of place, which prefigures other aspects of its jurisdiction, and
which—as with Vattel’s people—functions as the technology of capture, coding
all those who have entered it as the members of a political ‘community’. The
main difference between the two is the way in which this technology operates.
In the case of former, what ‘captures’ its citizens is a formal device—a physical
boundary, a line that renders place compact and uniform. In the case of the
Abizadeh’s demos, what turns individuals into its members is not the magical
fact of affectedness (or coercion) but rather their presence within a zone within
which that coercion may be exercised.
If so, Abizadeh’s conclusion must be rejected: ‘whatever rights members
have to settle and control the boundaries of their political unit are derivative’
not of the ‘broader normative context’, but rather the physical location of the
individual, which turns them into such rights-bearers at any given moment in
time. That location is still bounded. What makes it such, however, is not the fact
that it has been conventionally marked off. Rather, it is the fact that it can be en-
tered into and left behind. By the same token, the fact that its shape may change
faster than the territory of an independent state does not change the fact that it
is always in principle bounded.
In concealing the fact that even demos must presume place, Abizadeh’s con-
stituent dramatism has important implications. Instead of understanding the
principle ‘which requires that political power be legitimized to all subjected’ as
one among other potentially applicable principles (dubbed, say, an anti-nationalist
principle of polity-formation),92 a democratic theorist can now occupy the
conceptual—and hence polemical—high ground. The polemical benefit of
doing so is obvious: if you still wish to be called a ‘committed democrat’,93
you had better embrace a particular version of the all-summoned principle as
the meaning of democracy. In turn, this surreptitious distribution of political
dignity creates losers (statists, constitutional patriots, ethno-nationalists, and
neo-imperialists who would want to project their power abroad without ac-
countability), and the winners (migrants, stateless persons, communities in the
vicinity of US military installations abroad, populations in the occupied terri-
tories, and all those who, once summoned to the demos, can now demand to
control the power that affected them). Perhaps even more disturbingly, it under-
mines the dignity of struggles that are active and creative, and in the privileging
of the ones that are only reactive and remedial.94 The former, dignified by pro-
positions of peoplehood, are revolutions. The latter, dignified by the figure of
demos, are the demands for reform and inclusion. The former create new con-
stituted powers without having to justify themselves to anyone beforehand.
The latter are haunted by the need to earn the right to participate in existing
constituted powers by becoming sufficiently ‘affected’ by them first. In that way,
Abizadeh (n 87)
92
Arash Abizadeh, ‘Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own
93
Borders’ (2008) 35 Political Theory 37, 38.

For a discussion of the concept of a ‘vanishing mediator’, see Chapter 5.
94
327

demos the False Dmitry destines them to the eternity of trying to catch up with
unilaterally exercised power, without being able to justify their demands to take
pre-emptive action until such power actually starts adversely affecting those on
the ground.95
Democratic theorists never envisioned the demos the way constitutional the-
orists envisioned the people: as a Kampf begriff, a fighting concept. Seeing it as
a desired end-result rather than as a vehicle, or a weapon, they also neglect its
potential as a vanishing mediator: the figure that may justify the transition from a
sovereign nation-state not to a specific, more justifiable end state (say a world of
overlapping demoi), but simply to something else. From that perspective, the de-
mands symbolized by its figure would no longer need to recoil before the doubts
of an epistemic sceptic. To the questions such as:
What is the relative ‘impact’ experienced by a Nigerian farmer who loses his job,
a Hungarian worker who starts working for an American company, or a Chinese
entrepreneur who can sell to the United States because of American policy? Do
you measure ‘impact’ by numbers of encounters? What is the baseline from
which you measure impact—is impact measured by how much a life has been
changed as an adult (which would privilege foreign speakers) or by how much a
life has been shaped (which would privilege American speakers)?96
—one may now answer: it is not my job to answer this question, and it is not
your privilege to decide whose answer ought to count as authoritative. Such
answer differs from one influential strategy in democratic theory, which could
be called: appease the sceptic.97 From the perspective of a polemical democratic
imagination, the figure of demos can feature as a shorthand in the context of a
twofold political communication of expectations: a prima facie claim about the
existence of legitimately affected but disenfranchised actors that entitles them
to some form of inclusion in the processes of opinion-and will-formation of
an extant people; and as a pre-emptive warning about the unacceptability of
asserting the ultimate authority of the organs of such peoples to adjudicate (or
most often simply ignore) such claims.
As a vanishing mediator in the struggles against existing configurations of
ultimate authority, demos can thus be seen as a vehicle of a disjunctive substan-
tive demand: subject the judgement made on behalf of a sovereign people to
the verdict of an impartial umpire or accept that you cannot hide behind it in a
struggle for inclusion on behalf of all those indirectly or directly affected in that
people’s name.98 Put differently, the demands made in its name delegitimize the
For a related objection, see Jonathan White and Lea Ypi, ‘The Politics of Peoplehood’ [2015] Political
95
Theory 1.
Zephyr Teachout, ‘Extraterritorial Electioneering and the Globalization of American Elections’ (2009) 27(1)
96
Berk J Intl L 162, 184.

Mathias Koenig-Archibugi, ‘Fuzzy Citizenship in Global Society’ (2012) 12[4] Journal of Political Philosophy
97
456, 463
For a discussion of the different functions of the all-affected principle see Sofia Nasström, ‘The Challenge
98
of the All-Affected Principle’ (2010) 59[1] Political Studies 130.

328

figure of ‘the people’ not vis-à-vis the demos—as an allegedly more legitimate
figuration of a political ‘community’—but vis-à-vis the eventual refusals in the
name of the ‘people’ to accept the verdict of another, impartial umpire about
the substance of the demands made in the name of the demos. The purpose of
such a demos, from this perspective, is not to foreshadow a comparatively more
legitimate institutional alternative, and not even to help summon a global audi-
ence of the speakers of the same moral language, but rather to help push the
world of sovereign peoples towards a different institutional arrangement.
7. Cosmopolis
between nomos and telos
The final contender that seeks to displace the Vattelian people from our social
imaginary is cosmopolis—a polity which may or may not be statist, but which
is in any case anti-nationalist, and, in the imagination of most international
legal and political theorists, almost without exception, liberal-democratic. As
a figure that aims to transcend the Vattelian world of sovereign equality and
prevent the Schmittian world of antagonistic Grossräume, cosmopolis is more
than just a global constitutional order. It is a hoped-for political organization of
mankind, which, in the imagination of most cosmopolitans, exists as a demo-
cratic decision-making community. cosmopolis, in other words, is the most
encompassing global demos.99
Like the figure of demos we discussed in the previous section, the demos of
cosmopolis is haunted by its unresolved relationship with democracy. As is the
case with its arch-nemesis, Schmittian grossraum, this makes it too optimistic
about the possibilities of resolving the architectural tensions that continue to
plague every post-Vattelian vision of global order. Some democratic theorists
have tried to circumvent this problem by making a theoretical move we have
already seen in action a moment ago: extracting the meaning of global demos
from the disciplinary understanding of democracy. In the previous section,
we’ve problematized the assumptions behind one such understanding. For the
purposes of this one, consider another, similar one.
For Hans Agné, democracy is an ideal that aims to ‘exclude exclusion’ from
political decision-making.100 From this, it follows that ‘none of the competing
positions’ can be excluded from deciding on the formation of territorial pol-
ities we today imagine as being governed by sovereign peoples—‘otherwise, the
procedure would not observe the democratic criterion of neutrality between
alternatives’.101 So on Agné’s view, every local challenge to the spatial, tem-
poral, personal, and material jurisdiction of ‘the people’ is potentially global,
turning into ‘jurors’, not only those who may fall under some variation of the
This claim obtains, I think, for most theorists of cosmopolitanism, not democratic theorists.
99
Hans Agné, ‘Why Democracy Must Be Global: Self-founding and Democratic Intervention’ (2010) 2[3]
100
International Theory 381, 390.

101
ibid 398.
329
Cosmopolis: Between Nomos and Telos • 329

all-summoned principle, but also anyone who has expressed an interest, what-
ever it may be, in the outcome of that struggle. For example, a territorial dis-
pute in Europe may legitimately include in this wider demos-jury not only those
in Europe who may claim to be legitimately affected, but also ‘a cosmopolitan
in Africa who fights for a world state’, ‘a nationalist in Asia’, and everyone else
who, in a concrete case, may be opposed to a world of sovereign states.102
On closer inspection, however, the reason for an ever-expanding circle
of inclusion is not that including more distant ‘jurors’ increases the chances
of constituting a more impartial umpire, but simply that they desire to be in-
cluded. Their positions, which qualify them for the inclusion in global demos,
may or may not be normative reasons, but are always desires for the world. If so,
the reason democracy demands that ‘all persons be counted equally and be in-
cluded in the first place’ lies in the fact that their desires are worth responding
to tendentially. Without this, it would not be possible to treat a decision by the
global ‘majority’, as Agné suggests, as the sign of ‘consent’ on behalf of the
global demos in the context of a particular settlement of the territorial conflict.
If so, are democratic theorists like Agné closet Kelsenians? As we saw in
Chapter 3, Kelsen’s ‘equality is naturally assumed to be a basic hypothesis of
democracy is shown . . . not only [by the fact that] this or that person is to be
free, because this person is not worth more than that one [but] instead [by the
fact that] as many as possible are to be free’.103 When it comes to the reconstitution
of the world, however, Kelsen’s account of ‘freedom’ is not precise enough to
describe what kind of freedom is being served by a majority vote in the context
of the reconstitution of the world. As we saw in Chapters 5 and 6, the demands
for ‘freedom’ that k-algorithm accommodates are not ‘basic instincts’, but ra-
ther allegiances, identifications, or deep attachments. They are the particular
kinds of constituent attitudes to a constitutional enterprise. Thus understood,
the right of a people to self-determination (as one of the variations of the that
algorithm) manifests the ‘tendency’ towards the satisfaction of such allegiances,
not only locally, in a concrete struggle, but also globally. From that perspec-
tive, Agné’s inclusion of all competing positions cannot be understood as the
principle of democracy-as-exclusion-of-exclusion. Instead, it present itself as
the norm-already-decided-on in an act of democratic decision-making that con-
forms to Kelsen’s ‘tendency’. Put differently, the only thing that would allow
his ‘cosmopolitan in Africa’ to have a voice in a nationalist territorial dispute
in Europe, and vice versa, is a majoritarian allegiance to a particular kind of
world that upholds that possibility as a norm. Without the actually existing ma-
joritarian allegiance to such a world, a k-universe could never transform itself
into a global demos that decides locally.
So is our k-universe already constituted as a global demos? Do we already live
in a ramshackle cosmopolis, just that we don’t know it? That is a factual, not
ibid.
102
103

30

a theoretical question. Some cosmopolitans seem to have answered it affirma-
tively. For Jens Bartelson, for example, ‘[w]‌henever modern political institutions
and practices are resisted in the name of mankind, this usually implies not only
that these institutions and practices go against the best interests of humanity,
but also that they help to reproduce those forms of authority that keep man-
kind divided.’104
But where is evidence for such a claim? Following Kelsen, one might argue
that we have always lived in a juridical cosmopolis, only that our perspectives
on the relationship between domestic and international orders prevented us
from realizing it. Following Kelsen, the fact that we do not live in a political
cosmopolis is not that mankind has been artificially divided, but rather that too
many of its members have continued to embrace vantage points that have pre-
cluded them from endowing their juridical cosmopolis with political content.
That, following Kelsen, is an everlasting choice that confronts us all: ‘a person
whose political attitude is one of nationalism and imperialism will naturally
be inclined to accept the hypothesis of the primacy of national law. A person
whose sympathies are for internationalism and pacifism will be inclined to ac-
cept the hypothesis of the primacy of international law.’105
The trouble with Kelsen’s juridical gaze, as we saw in the previous chapter, is
that it presents us with a false choice between two juridical world pictures: one
that is hierarchical and isomorphic and one that is non- hierarchical and
dysmorphic—both of which, however, leave the imaginary of Vattelian peoples
in its place.
The alternative is something that has eluded the juridical cosmopolitans,
such as Kelsen, as well as the political cosmopolitans, such as Bartelson: a new
way of looking at both juridical world pictures, sharper in focus and willing to
oscillate differently between its sides. The sharper focus will allow us to look
behind the images of the chains of legal validity represented in both.
What will appear behind them is the totality of t-isomorphs, at all scales of
government, replicated through the reiterations of some k-algorithm. At the
same time, the willingness to change the way our gazes oscillate when they
look at those juridical world pictures will allow us to see their isomorphic and
dysmorphic nature in a new light. Once we cease to oscillate our gaze between
the bottom-up and top-down vantage points and instead move it to a position
from which it may glance at the juridical world picture sideways, the difference
between the cosmopolitan isomorphism (appearing before the eyes of those who
gaze at the world through the upper plane as in Figure 6.4 and the nationalist
anisomorphism (which will appear to those who look at the same world through
the bottom one) will appear not simply as a matter of perspective (which Kelsen
already made clear), but also as a matter of our unexamined statist pattern
recognition.
Jens Bartelson, Visions of World Community (CUP 2011) 181.

104
Hans Kelsen, Principles of International Law (first published 1952, Lawbook Exchange 2003) 447.
105
31
Cosmopolis: Between Nomos and Telos • 331

The first step towards examining whether this is indeed the case consists in
adjusting our scopic regime in such a way that the diagram in Figure 6.4 ap-
pears differently—not as the two platforms between which the jurists, such
as Koskenniemi, oscillate as they explain what makes international legal argu-
mentation distinctive, but rather as a cut-out: a partial cross-section of a world-
encompassing constitutional epidermis, consisting of a variety of cell-like
t-isomorphs endowed with different jurisdictional authority at different scales
of government.
In other disciplines, such as geology, similar orthographic drawings depict
the morphology of the soil, or the arrangement of the tectonic plates. The
cross-section in Figure 9.1 may be used for similar purposes—as ‘tool of dis-
covery’ and a ‘tool of measurement’, that reveals ‘internal structure and lon-
gitudinal variation’.106 For the purposes of this chapter, it may also be used as
something else: the litmus test of the characteristics of our pattern-recognition
modules, which we constantly use in our endeavour to impose some meaning
onto our juridical and political world. More specifically, a diagram such as
Figure 9.1 might be used to explore whether our dysmorphic national-statist
imaginations draw their force solely from the power of the Vattelian anthropo-
morphic heritage, or whether they are also assisted by a complementary ge-
stalt that leads us to see the domestic and international ‘levels’ of legal order
because we have envisioned them as layers in the global constitutional epidermis
(or geomorphology) first. In other words, Figure 9.1 provides us with a useful
backdrop against which it becomes possible ask whether Vattelian imaginations
owe their enduring appeal only to their capacity to latch on to other, nationalist
sides of our social imaginary, or whether they manage to remain so resilient
because of our unexamined convictions about the appropriate architecture of
international order, represented visually in Figure 9.1.
BP KA
+ –
– +
Figure 9.1 Isomorphic pluriverse––a cross-section
What Figure 9.1 depicts is a speculation about our convictions, which, on closer
inspection, boil down to our perceptions of correlations. For the most part,
we don’t deliberately reflect on these perceptions because we are satisfied to
Jill Desimini and Charles Waldheim, Cartographic Grounds: Projecting the Landscape Imaginary (Princeton
106
Architectural 2016) 177.
32

imagine the relationships among and within people-giants and people-dwarfs
with the help of something else: a 2D-triangle, a 3D-pyramid, or whatever image
schema seems capable of evoking vertical hierarchies and their horizontal co-
existence in a world of sovereign peoples, governing themselves with the help
of higher- and lower-level norms, superior and inferior organs of government,
final authorities at the top and their ‘sources’ at the bottom.
What this imagery conceals is what Figure 9.1 evokes: correlations—between
scale and scope on one side (ka), and speed and balance on the other (ba). The
first imagined correlation is negative. It postulates the existence of an inverse
relationship between the scale of c-isomorphs on the one hand, and the charac-
teristics of k-algorithms inscribed in their constitutional protocols of respon-
siveness on the other. The second, BP-correlation is positive. It postulates that the
increase in the scale of these isomorphs makes their constitutional protocols of
responsiveness more likely to calibrate specific k-algorithms in conformity with
the ideals of the balance of powers. Though abstract, the main point is intuitive
and easy to imagine. To do so, we need to turn our gaze away from the norma-
tive and towards natural organisms—away from metaphorical Leviathans that
govern parts of Kelsen’s ocean of psychic happenings, and towards the real ones
that swim in the actual one.
Imagine seeing one such whale through the same imaging device that re-
corded the scheme on display in Figure 9.1. Allowing you to look through its
skin, the same device also sharpens your vision to such an extent that it allows
you, should you wish, to gaze not only at the whale itself but also at its indi-
vidual cells. What you see is something that the visuals of hierarchy hide—the
fact that ‘whale cells divide faster than whales reproduce’, or more generally,
that ‘typically, physically smaller things have a short return time, or a high char-
acteristic frequency’.107 Though not perfect, the correlation seems to be pretty
strong. As our whale barely seems to move its body, the fish that swim around it
seem to be moving their fins manically. Attention! Even though we are talking
about entities which don’t seem to be the products of our imaginations, what
appears in this scene is also in the eye of the beholder—or, more precisely, the
‘observation protocols’ that govern its gaze. What determine the features of
those protocols in concrete situations are practical considerations. As Valerie
Alh and Timothy Allen explain,
as the extent of an observation protocol increases, the level of detail capture[d]‌
in the grain must decrease. If it takes a very long time to capture a low-frequency
phenomenon, then frequent measurements are a waste of resources. Hourly
measurements of temperature are inappropriate if one is searching for an ice
age . . . Low-frequency events, which rarely occur, impose a coarser grain on
observation.108
Valerie Ahl and TFH Allen, Hierarchy Theory: A Vision, Vocabulary and Epistemology (Columbia University
107
Press 1996) 62.
ibid.
108
3
Beyond Cosmopolis: Nehru’s (Isomorphic) World • 333

When it comes to c-isomorphs, the whale-cell correlation also seems to hold,
at least intuitively. We expect more responsiveness from a mayor than from
the Secretary-General of the United Nations; we expect that it ought to be
easier to recall the governor of California than the President of the United
States; we are not surprised to learn that it is easier to form new territorial
units at the municipal level in Venezuela than to form new ones at the level
of Latin America. The same goes for plebiscites, popular initiatives, and ref-
erendums as vehicles of constitutional responsiveness. At the smaller scales
of domestic constitutional orders, they are a more regular occurrence. At the
wider scale of international order, they are admitted only in a select number
of infrequent situations associated with post-conflict constitution-making or
with achieving independence under international supervision. The second,
positive correlation seems equally intuitive. On a very small scale, the im-
perative of power equilibrium virtually never occurs to us. While possible,
implementing an elaborate system of checks and balances at the level of
small units of local self-government—say, instituting the UN Security Council
veto system in a city hall—would seem downright strange. At broader spatial
scales, however, this imperative suddenly appears much more sensible. But
even there—as is the case in a variety of federal states—the imperative to
balance political power will sometimes be seen with suspicion; as something
illegitimately designed to diminish the self-determination of the numerically
strongest group, or to unjustifiably diminish the influence of one region at
the expense of another.
As the bp–ka scale in Figure 9.1 suggests, the negative and the positive correl-
ation may themselves be correlated. That this may be the case becomes more
apparent once we plot otherwise diagrammatically unrelated theoretical argu-
ments about merits and demerits of local self-government and federalism on
the bp–ka scale, where from the BP-perspective they appear: (1) bizarre at the
micro scale, (2) sensible but contested and suspicious at the mezzo (federal)
scale, and (3) imperative and self-evident at the macro scale of international
order. Our verdict about them changes once we approach them from the ka
side of the scale: (1) our democratic sensibilities are much more likely to be
sympathetic towards attempts to be responsive to smaller-scale demands for
spatiotemporal reconfiguration, (2) more wary towards them when it comes to
urban secessions or the creation of new federal units, and (3) much more likely
to be hostile towards it on a wider scale.
8. Beyond cosmopolis

Nehru’s (isomorphic) world
We never get a chance to ask ourselves whether—or to what extent—these two
scales of sensibility quietly influence our attitudes both towards the Vattelian
world of sovereign peoples and towards its figurative alternatives. We never
get a chance to do so because we most often tend to rationalize our intuitions
about what is sensible not simply by presuming the state-form as the template
34

of spatiotemporal reconfiguration of constitutional orders, but also by relying
on organizational principles, such as subsidiarity, which, though parochial in
their origin, have been disseminated globally. Finally, we never get a chance
to ask whether we remain committed to the Vattelian world picture of co-
equal sovereign states because our conflicts about altering its contingent fea-
tures proceed from specific pictures that often function as imaginative override
devices. In conflicts over territory, they will often take the form of pieces of
a jigsaw puzzle, territorial monochromatic ‘logos’. In many cases, such logos
will have the character of toxic tokens: in providing an icon to be worshipped
by the believers in nationalist self-determination, they will also distract them
from considering what is sensible when it comes to the spatiotemporal recon-
figuration of c-isomorphs—how much is too much, how late is too late, and
how good is good enough when it comes to the satisfying the requirements of
k-algorithm on the one hand, and the requirements of three constitutive
powers on the other.
One of the possible ways of estranging ourselves from those tokens is to
compare the features of institutional responsiveness towards diverse demands
for the formation of new territorial units of a similar size but in radically dif-
ferent constitutional environments. One of the benefits of doing so was dis-
cussed in previous chapters. In Chapter 7, we compared the Canadian and
Spanish isomorphs, which showed us that there is no reason to uphold the idea
that there exists an intrinsic correlation between foundational constitutionalism
and sovereign statehood on the one hand, and minimal responsiveness of such
orders towards the demands for their radical spatiotemporal reconstitution on
the other. In Chapter 8 we relativized the same scale of sensibility in the context
of smaller-scale isomorphs that exist in the ‘deeper’ layers of the global con-
stitutional epidermis. Looking at this cross-section of isomorphic pluriverse
after having weaned ourselves from our knee-jerk Vattelianism—but without
rushing to embrace any of its particular alternatives—allowed us to deflate the
liberal-democratic and republican attempts to arbitrate between democratic
and non-democratic forms of government.
As I argued at the end of Chapter 8, the analytic and polemical potential
of this way of seeing transcends the debates about the legitimate plurality of
local constitutional imagination. The overarching objective of the sections
thus far has been to make that potential more visible in the hope that once
we become more aware of the relationship between our perspectives, circum-
ferences and pattern recognition modules, we will also feel less compelled
to choose (unnecessarily) between a neo-Schmittian grossraum and a trans-
national demos; between statist pluralism and global constitutionalism; be-
tween nationalist statism and cosmopolitan federalism; and many others that
come in the form of an imaginative ultimatum, but which are often only
hinted at. Beyond them, there may be a variety of political forms that con-
form neither to our Vattelian nor to our post-Vattelian imaginations and the
ways in which they prefigure the relationships between the local and the
35
Beyond Cosmopolis: Nehru’s (Isomorphic) World • 335

global, the inside and the outside, the domestic and the international, and the
territorial and the non-territorial.
One of them, Jawaharlal Nehru’s vision of One World, we have already en-
countered in Chapter 2. At this point it is useful to revisit Nehru’s ‘meta-national
set-up’, not only because it actually transcends the contemporary ambitions of
global cosmopolitans, but also because it provides us with the image of an iso-
morphic pluriverse, which deviates from the ways in which we’ve got used to
thinking of universalism and particularism, nationalism and cosmopolitanism,
subsidiarity and consent, and democracy and human rights. To get the best
sense of it—together with its ambiguities and tensions—it is most appropriate
to give the floor to Nehru himself, and quote the part of his 1948 address to the
Indian Constitutional Assembly in full:
Another point has been raised: the idea of the sovereignty of the people, which
is enshrined in this Resolution, does not commend itself to certain rulers of
Indian States . . . But, as I made plain on the previous occasion when I spoke, this
Resolution makes it clear that we are not interfering in the internal affairs of the
States. I even said that we are not interfering with the system of monarchy in the
States, if the people of the States so want it . . . This Resolution and, presumably,
the Constitution that we make, will not interfere with that matter. Inevitably it
will be necessary to bring about uniformity in the freedom of the various parts
of India, because it is inconceivable to me that certain parts of India should have
democratic freedom and certain others should be denied it. That cannot be. That
will give rise to trouble, just as in the wide world today there is trouble because
some countries are free and some are not . . . We are not laying down in this
Resolution any strict system in regard to the governance of the Indian States. All
that we say is this[:]‌that they, or such of them, as are big enough to form unions
or group themselves into small unions, will be autonomous units with a very
large measure of freedom to do as they choose, subject no doubt to certain cen-
tral functions in which they will co-operate with the Centre, in which they will
be represented in the Centre and in which the Centre will have control. So that,
in a sense, this Resolution does not interfere with the inner working of those
Units. They will be autonomous and, as I have said, if those Units choose to have
some kind of constitutional monarchy at their head, they would be welcome to
do so. For my part, I am for a Republic in India as anywhere else . . . So, the ob-
jection of the Ruler of an Indian State to this Resolution becomes an objection,
in theory, to the theoretical implications and the practical implications of the
doctrine of sovereignty of the people . . . That is an objection which cannot stand
for an instant. We claim in this Resolution to frame a constitution for a Sovereign,
Independent, Indian Republic––necessarily Republic—What else can we have in
India? Whatever the States may have or may not have, it is impossible and incon-
ceivable and undesirable to think in any other terms but in terms of the Republic
in India. Now, what relation will that Republic bear to the other countries of the
world, to England and, to the British Commonwealth and the rest . . .? The only
possible real objective that we, in common with other nations, can have is the
objective of cooperating in building up some kind of world structure, call it ‘One
World’, call it what you like. The beginnings of this world structure have been
36

laid down in the United Nations Organisation. It is feeble yet; it has many defects;
nevertheless, it is the beginning of the world structure. And India has pledged
herself to cooperate in that work.109
Notice how striking Nehru’s vision is. The world he evokes is a configuration
that unites, at the micro-level, non-democratic princely states; at the mezzo-
level, democratic, republican, nationalist, and self-determining India as a sov-
ereign state; and at a global level the rudiments of global government within
One World: a cosmopolitan republic in the making, whose World Court would
be authorized to protect the fundamental rights of everyone everywhere, at all
scales of government.
Our imaginations are too quick to identify these visions as diversity-affirming
but ultimately incoherent. Indeed, it is hard to see how Nehru’s principled rec-
onciliation of nationalistic republicanism, anti-democratic monarchism, and the
elements of liberal, global cosmopolitanism can be reconciled with his claim
that the principle of political legitimacy can only be based on ‘the sovereignty
of the people’. One answer is that it cannot—and that Nehru’s position was
nothing but a stratagem, meant to manoeuvre the maharajas into consenting
to a new Indian constitution. Possibly. But if so, why would Nehru make sure
to disclose his disdain for the reactionary nature of the princely states, unless it
was to indicate that even his personal revulsion won’t stand in the way of the
political framework he considered coherent and legitimate? Another possibility,
of course, is that Nehru was serious. In that case, however, his political disdain
for the reactionary character of princely states—qualified, on the one hand by
‘if the people of the States so want it’, and on the other hand by ‘the sovereignty
of the people’ of India—opens a fundamental question. What is the meaning of
the sovereignty of the people, which is, as a matter of principle, constrained—both
at the micro-monarchical and at the liberal cosmopolitan level—but still sover-
eign, or sovereign enough, to establish India as an independent state?
Nehru dismissed this question as too trivial to merit an answer. The answer
this book provides hinges on the picture of an isomorphic universe of respon-
siveness where Bhopal, India, and the globe at different scales all conform to
the Kelsen’s ‘tendency’ that determines the orientation of nomos towards the
ebbs and flows of changing constituent attitudes within the humanity at large.
That world is democratic, non-democratic, republican, nationalist, cosmopol-
itan, and progressive at the same time: more pluralist in its respect for political
autonomy than Roth’s, more cosmopolitan in its institutional boldness than
Peters’s, and more maximizing of freedom and pregnant with purposefulness
than the one envisioned by Koskenniemi.
Its small fragments are on display in the work of contemporary post-Vattelian
theorists, such as David Held, who capture it under the rubrics of consent, inclu-
siveness, and subsidiarity.110 Notice, however, that in most of such theories the
109
Manu Bhagavan, ‘Princely States and the Making of Modern India: Internationalism, Constitutionalism
and the Postcolonial Moment’ (2009) 46 Indian Economic Social History Review, 427.
110
David Held, Cosmopolitanism: Ideals and Realities (Polity 2010) 71–72.
37
For Love of the Purpose: das Telos der Erde • 337

idea of consent exists only as the crude approximation of the variety of dimen-
sions of responsiveness, which hide under the binary ‘consent given’—‘consent
revoked’. Notice also that the ‘inclusiveness in the process of granting consent’,
which, according to Held is owed to those who are ‘significantly affected by
public decisions’, need not translate into an equal opportunity to participate in
democratic decision-making, especially within the framework of multiple and
overlapping transnational demoi. Though democratic and cosmopolitan theor-
ists generally accept this as unproblematic, they do so by ignoring a more basic
question that should be capable of being answered in principle: Towards what
goal should the ideal of responsiveness be directed? Should the imperative to
be responsive be understood non-committally (as a duty only to offer ‘some
measure’ of it, as Urbinati suggested in Chapter 8)? Or should that duty expli-
citly embrace an ideal, which in pedestrian terms might simply be referred to as
the more the merrier?
To try to prefigure an answer to this question by pointing to the regulative
role of the principle of subsidiarity is here largely beside the point: subsidiarity
will remain irrelevant wherever it is obvious that it is the expectant emotions
of hope, desire, and anxiety—and not calculable expectations—that inform a
demand to form a polity at the scale generally not expected to be sanctioned by
that principle. To get a chance even to ask the question above, however, more is
needed than to simply retrofit the principles that emerged in certain regions and
in certain historical eras and redeploy them elsewhere. What is necessary is to
move beyond the people—a figure that has to, as one of its main tasks, distract
us from the possibility of asking that question in the first place. This, in turn, re-
quires us to move beyond the people’s world, and imagine one of its Kelsenian
image-oligopticons: a world whose horizon is the asymptotic tendency towards
unanimity—a universe where everyone is able to get all they want, everywhere,
all the time.
9. For love of the purpose

das telos der erde
Preoccupied with finding figurative alternatives to the world in which people-

giants and people-dwarfs live together in sovereign equality, we recoil from
confronting this Kelsenian asymptote. We recoil not only because the world
whose horizon it defines is a deliriously meaningless one, but also because we
seem to believe that there is nothing to be gained by confronting it. In fact, to
reckon with it would only confront us with a Palomar-like irony: having started
our journey beyond the people by de-dramatizing the dramatizations of the
secularized theological god-hypostases in Chapter 3, we would be compelled
to acknowledge that we have only succeeded in reinscribing their secularized
theological character onto the world itself. Having started our inquiry in a spirit
that was empathetically anti-‘secularized theological’, we would be forced to
acknowledge that we have succeeded in turning Schmitt’s local, (theistic) vision
into a global (deistic) one.
38

Though useful to consider, this is a conclusion one doesn’t need to accept. As
for myself, as I progressed across the terrain of six popular propositions, the
character of my embrace of k-algorithm and k-universe was analytical (and to
an extent, moralistic) not poetic, spiritual, or ideological. To use these concepts
as the devices for clarifying the extent and nature of the theoretical and practical
differences among different imaginations of peoplehood in no way commits
those who do so to embrace a secular-deistic theology through the back door.
In fact, the case may be the exact opposite. To imagine a world of unlimited re-
sponsiveness is to be confronted with the question: what for? As Philippe Nonnet
and Philip Selznick famously argued, ‘to assume [the] posture [of responsive-
ness] an institution requires the guidance of purpose. Purposes set standards for
criticizing established practice, thereby opening ways to change.’111
As we have seen in this chapter, it is not only the people-dwarfs and the people-
giants that recoil from ‘the unsettling effect of purposive thinking’.112 When it
comes to confronting telos face to face, grossraum, sovereign, multitude,
demos, and cosmopolis are not that good either. That is unfortunate. A keener
sense of what they are exactly for would not only render these otherwise mu-
tually indifferent figures more aware of the zones of their mutual complemen-
tarity, but also more attuned to the chronic problems that plague the world of
Vattelian peoples and which they are destined to inherit should they succeed in
imprinting a new one with their image. How could they not? Without a radic-
ally different vision of telos—neither as self-regarding, forward-looking, but
hollow (as with demos), nor self-regarding, concrete but backward looking (as
with ethnos)—why wouldn’t we expect more of the same? Backward-looking
nationalism on the one hand, and the vacuous civicisim in all of its cowardly,
cynical, traumatized, and dishonest flavours, on the other.
More important than to critique this Tweedledum and Tweedledee of con-
temporary theoretical imagination is to point to what they hide from sight: an
anti-Schmittian telos der erde—other regarding, forward looking, and con-
crete. What makes it imaginable is the same visual choice that made possible
a more refined account of responsiveness in Kelsen’s work on popular sover-
eignty domestically and internationally: the decision to emulsify the collective
body, to imagine these otherwise incommensurable ‘collectivities’ as part of
the same ‘ocean of psychic happenings’ in which they ‘rise like waves in the
sea and after a brief space [are] lost again in an ever-changing ebb and flow’.113
To envision that ocean beneath anderson’s puzzle is to come one step closer
to another, action-oriented picture of the world—one that depicts, similarly to
Calvino’s mankind sand, ‘the cerebral mass of all humanity, whose connections
Philippe Nonet and Philip Selznick, Law and Society in Transition: Toward Responsive Law (Octagon Books
111
1978) 77.
ibid 82.
112
Hans Kelsen, ‘The Conception of the State and Social Psychology—With Special Reference to Freud’s Group
113
Theory’ (1924) 5 Int J Psychoanalysis 1, 9–10.

39

must be increased, whose channels must be diversified and whose messages
must be re-humanized’. In order to do so, we need a new constituent imagin-
ation. This, it seems, is what Frantz Fanon meant by his demand to
not pay tribute to Europe by creating states, institutions, and societies, which
draw their inspiration from her. Humanity is waiting for something from us other
than such an imitation, which would be almost an obscene caricature. . . . But if
we want humanity to advance a step further, if we want to bring it up to a dif-
ferent level than that which Europe has shown it, then we must invent and we
must make discoveries. If we wish to live up to our peoples’ expectations, we
must seek the response elsewhere than in Europe. . . . For Europe, for ourselves,
and for humanity, comrades, we must turn over a new leaf, we must work out
new concepts, and try to set afoot a new man.114
Throughout the book, different authors have offered different reasons for not
trying to do so. In Chapter 2, we were told that this is impossible—that a new
individual is already set afoot, but as neoliberal consumer, the heir to the homo
politicus of the ideals of popular sovereignty. In Chapter 4, we were told that
doing so would turn an otherwise democratic citizen into a ‘machinist’, a ‘con-
stantly working . . . social engineer’, a witch hunter who feverishly seeks out in-
ternal enemies, without whom there would never be sufficient élan constituent,
which every purposive political project needs to sustain itself.115 In Chapter 6,
we were told that this ‘new man of socialism’ can only exist as a sentimental
revolutionary, a believer in ‘a future that would never arrive but for which the
present would nevertheless be sacrificed’.116 What speaks against trying to set
him afoot (again) is not only the lack of realism that defines his pursuit of a
radiant future, but also the kitschiness of the affects that go with all such
pursuits: sentimental, prideful, righteous, careless, and undeserved at the same
time.117 As we come close to the end of our inquiry, the question of ‘kitsch’
should not be dismissed as nothing more than the remnant of a particular
theorist’s temperamental or aesthetic preference. Instead, it is useful to pause
and ask: a kitschy radiant future as opposed to what other picture of cosmo-
politan purposefulness in this world?
This question is apposite because one could rightfully argue that our world is
already fully purposeful, only the locations for concrete purposefulness have mi-
grated and multiplied, moving away from the public realm of nation-states and
into the private realm of individual households, even individual bodies, ground
into hundreds of millions of small spatiotemporal ‘commodified opportunities’
Frantz Fanon, The Wretched of the Earth (Richard Pilcox tr, first published 1961, Grove 2004) 316.
114
115
Martti Koskenniemi, ‘The Subjective Dangers of Projects of World Community’ in Antonio Cassese (ed),
116
Realizing Utopia: The Future of International Law (OUP 2012) 12, quoting Alexander Zinoviev, The Radiant Future
(Random House 1980).
Martti Koskenniemi, ‘Law, Teleology and International Relations: An Essay in Counterdisciplinarity’
117
(2012) 26[1] Intl Theory 3.

340

to act purposefully—from home renovation and interior decorating to training
for an Ironman and all sorts of other forms of self-entrepreneurship, in which
case there is absolutely no necessity for a constitutional order to be a purposive
enterprise.118 Before anxiously discarding Fanon’s new individual, however—ei-
ther as impossible, foolish, or dangerous—it is worth reminding ourselves of
a variety of organized practices of imagination that make the Fanonian new
man unimaginable. Those practices are not theoretical, nor are they seen as im-
portant or interesting for the bodies of thought that preoccupy themselves with
the institutions that help political projects endure over time. Given the fascin-
ation of contemporary constitutional thinkers with hollow, empty, and smooth
constitutional topologies, it is no wonder that pointing to their subterranean
influence comes from an anthropologist and an anarchist, David Graeber, who
detected their demoralizing consequences on the social imaginary of consti-
tution-making where we would probably expect them the least—in superhero
movies. In his essay ‘Batman and the Problem of Constituent Power’, he as-
tutely observed that most such films feature
heroes [who are] purely reactionary . . . in the literal sense: they simply react to
things; they have no projects of their own. [O]‌r to be more precise, as heroes they
have no projects of their own . . . Almost never do superheroes make, create, or
build anything. The villains, in contrast, are relentlessly creative. They are full
of plans and projects and ideas. Clearly, we are supposed to first, without con-
sciously realizing it, identify with the villains. After all, they’re having all the fun.
Then of course we feel guilty for it, re-identify with the hero, and have even more
fun watching the Superego pummel the errant Id back into submission.119
The irony, of course, is that this superego has pummelled the errant imagin-
ation of a post-Vattelian, cosmopolitan theorist, not that of a xenophobic and
nationalistic ‘villain’ who continues to broadcast the images of tangible things
he intends to create in this world: a big, beautiful wall, for example, with a
‘fat beautiful door right in the middle of the wall’, which will provide jobs for
‘25,000 border patrol agents’ and ‘a lot of construction workers’.120 At that point,
those in the field of struggle can only hope that the picture that post-Vattelian
conjurors offered them from a ‘cosmological vantage point situated over and
above the plurality of human communities’ will be enough of a match for the
desires roused by the villain’s toxic conjurations. What they can’t do—having
been shamed into renouncing anything to do with radiant future—is to point
to a number of peaceful cosmopolitan projects that emanated from its visions:,
from ‘solv[ing] the world hunger problem by harvesting lakes and oceans with
an edible bacteria called spirulina . . . to solv[ing] world energy problems by a
Max Haiven, ‘Finance as Capital’s Imagination? Reimagining Value and Culture in an Age of Fictitious
118
Capital and Crisis’ (2011) 29[3] Social Text 93, 104.

David Graeber, The Utopia of Rules: On Technology, Stupidity, and the Secret Joys of Bureaucracy (Melville
119
House 2015) 211.
‘Donald Trump on Immigration’ (On the Issues) <http://www.ontheissues.org/2016/Donald_Trump_
120
Immigration.htm> accessed 3 November 2017.

341

truly breathtaking plan to launch hundreds of gigantic solar power platforms
into orbit and beaming the resulting electricity back to earth’.121 While part of
the purpose of a serious regional quasi-Grossraum in the late twentieth cen-
tury, the only place where these visions are safe from the allegations of kitschy
nostalgia today is in a utopian no-place. A way to retrieve them—should we
choose to do so––is not to go back to the emblems of the free, the best, the good,
the plural, and the open. More comfortable to assert, more easy to defend, and
less in need of evaluation, it’s no surprise that they will look better than the
better. To accept this for a fact, however, is to capitulate before the forces of a
particular kind of constituent imagination.
Graeber (n 119) 123.
121
34
 10 
A New Hope
Image Wars and Eutopian Imagination
1. The square, the triangle, and the circle

A sovereign people is the arbiter, warden, and manager of our expectations, and
the mediator of the expectant and recollective emotions that accompany them.
The ways in which the figure of the people acts in each of these roles depends
on how it incarnates itself in space and time. As a three-dimensional figure,
gazed at over a longer period of time, a sovereign people is the holder of the
right to self-determination and the subject of constitutional self-government—
an engaged ethnos, whose members have over time aspired to achieve their
national sovereignty, or a partly self-incapacitated deliberative demos, whose
members continue to participate in ongoing processes of opinion-and will-
formation. Though these figures are hard to visualize—because they must be
imagined over longer stretches of time—we catch the traces of their shapes in
the ways conjurors of peoplehood describe the nature of their aspirations over
time as evolving, developing, or unfolding.
Easier to imagine, in contrast, are the three-dimensional figurations of sov-
ereign peoplehood that we gaze at within a narrower spatiotemporal frame.
They are those we encounter on a stage: acting as the agents that will a new
order into existence ex nihilo, exercising their pouvoirs constituants to depose
existing pouvoirs constituées, or sharing an aspiration to exercise their right
to self-determination. Often, as we saw earlier in the book, these figures are
about-to-become sovereigns, not sovereigns themselves. When evoked by the
dramatists of the acts of constitution-making, they appear in the guise of
many—one of the four dramatistic stage-props; the crisp set of those who
share identical attitudes towards the constituent act they are about to perform.
To be symbolically efficacious from the perspective of those on the ground
who invoke its name the three-dimensional figure of a sovereign people must
appear as a seamless blend of three ideal-typical images evoking a decider
that decides decisively, a deliberator that deliberates deliberatively, a victor
that wins validly. Finally, outside the sphere of domestic politics, these triune
decider-deliberator-victors exist as people-dwarfs and people-giants, co-
equal peoples in the world of sovereign peoples. Rather than irrupting, or
34
344 • A New Hope: Image Wars and Eutopian Imagination

irrupting within a narrowly circumscribed scene, they remain unmovable,
flattened under the monochromatic logos of their territories, in a two-
dimensional space afforded to them by anderson’s puzzle.
Across the imaginative dimensions in which we encounter them, their
co-existence is organized by a range of quasi-narrative spatiotemporal sche-
matic devices: from the basic image schemas, trajectories, and turning points
to more elaborate, but nonetheless straightforward anecdotes and scripts,
some alluded to, others hidden but decipherable. Throughout this journey
we have also taken for granted the figurative contribution of three two-
dimensional humble helpers of constituent imagination—too complex for
image schemas, too rudimentary and archetypical to be recognized as con-
ceptual metaphors: the square, the triangle, and the circle. Though more
modest-looking than most of the figures we’ve encountered so far, they de-
serve equal concern and respect. What they will reveal on closer inspection,
may still surprise us.
The square is a device that prefigures innovation, exploration, and relativ-
ization. It is the geometrical form of revelation and localization. When we
square up someone metaphorically, we have evaluated them and put them in
their place. When we square up something theoretically, the lines that connect
the four angles allow us to explore the hidden relationships between the fig-
ures whose ways of relating to each other would have otherwise appeared
random. In order to locate, or to square up someone or something geographic-
ally, a single square must have proliferated and cooperated with others by first
forming the grid of a map. While the internally complexified semiotic square
encourages innovation—by showing us how we might ‘hybridize’ the figures
that occupy the four angles—the squares that make up the grid of a map will
remain in their rudimentary form when contributing to one of the most im-
portant functions of every map: to encourage (further) exploration. In doing
so, their organized uniformity enables and conditions the journeys that will
allow us to conclude the opposite; that not everything is the way it seems, that
the same latitudes and climates don’t translate into same cultures, customs,
and constitutions.
The triangle, in contrast, prefigures stabilization, not innovation; immo-
bilization, not exploration; absolutization, not relativization. It is the geomet-
rical form of organization and domination. While the squareness of the square
tempts us to escape it and explore the world beyond its bounds, the triangle
demands that we stay put once it has put us in our place. While the square en-
courages us to question (but not deny) the ideals of equality once we encounter
the diversity outside its confines, the triangle asks us to embrace the inequality
between the ‘upstairs’ and the ‘downstairs’ without hesitation. Unlike the
square, the emblem of knowledge, the triangle is the emblem of advantage.
While to square is to gain insight—leaving you to decide how to use the know-
ledge gained at your discretion—to triangulate is to gain a more specific insight
into how to get what you want.
345
The Square, the Triangle, and the Circle • 345

Both the square and the triangle are stencils. They prefigure the ways in
which we interpret the meanings that inhere in diverse figurations of sover-
eign peoplehood. The circle—the third humble helper of our constituent
imagination—is different. Unlike the square and the triangle, which are only
stencils of sovereign peoplehood, the circle is its symbol.1 It is the geometric
shape we reach for once confronted with the miracle of the people’s birth, or
with the doubts about its character as a person. While the square encourages us
to focus on the problems and puzzles, and while the triangle demands us not
to look for them (claiming there is no puzzle) the circle shapes our gaze so that
we always see a puzzle, but never a problem.
Unlike the square and the triangle—which irrespective of their radically
different attitudes both evoke a certain something for our own sake, (which we
may make use of instrumentally (square), or which we must comply with un-
flinchingly (triangle))—the circle tells us who we are: it provides us with the
meaning of ourselves in a way we are ready to accept as ours. While the square
and the triangle allow us to imagine ourselves either as relative or conditional
equals, the circle offers us a vision of absolute equality—free to choose the
point on its line; perpetually moving, never destined to encounter an obstacle.
And when engraved with the mark which reads Start Again the circle becomes
a cycle, the image schema of return, repetition, and rhythm: the circle of life,
an inner ring, a whole cycle, and a full circle. Of the three humble helpers, it is
the circle that seems to offer us the paradoxical benefits of both inevitability
and progress; homecoming and a new adventure; wisdom upon return and the
anticipation of surprises that await in the next round.
As stencils and symbols of sovereign peoplehood, the square, the triangle,
and the circle have personalities of their own. The square is hospitable, co-
operative, and open-minded. The triangle is self-confident; ‘valiant’ on some
occasions and a bully ‘taking advantage of its size’, to intimidate others. In
contrast to both, the circle is ‘frightened’, ‘fearful’, or ‘timid’.2 When it ap-
pears on the scene, there must be no one around. While both the square and
the triangle are comfortable with being the objects of our creative vision, the
circle presents us with a bargain: I will only be able to do as I promised—to
allow you to envision yourself as an equal who participates in a never-ending
process of collective self-government—if you don’t look around as you do
imaginative rounds around my perimeter. To ensure this, the conjurors who
1
On the ‘ “primordial circle” which originally represents the whole figure’ see Rudolf Arnheim, Art and Visual
Perception: A Psychology of the Creative Eye (The New Edition) (first published 1954, University of California
Press 1974) 174.
2
These adjectives are the findings of the famous psychological experiment in which a group of schoolchil-
dren was asked to describe the ‘behaviour’ of a circle and two triangles after having seen an animation that
featured their shapes ‘interacting’ as they ‘entered’ and ‘left’ the ‘rectangle’ (apparently evoking a room, seen
from above). Fritz Heider and Marianne Simmel, ‘An Experimental Study of Apparent Behavior’ (1944) 57[2]
American Journal of Psychology 243, 248–50. The animation is available at <https://www.youtube.com/
watch?v=VTNmLt7QX8E> accessed 6 November 2017.
346

evoke it do so against a blank background. The imaginative cost of that bar-
gain is rarely articulated clearly and succinctly: the vision of ourselves as ab-
solutely equal, but equally indistinguishable; on a safe path, but disoriented;
reconciled with deeper meanings, but neither able to create nor find new
ones. The alternative to this bargain, from the perspective of the circle, is
unpleasant. ‘Without me’, the circle tells us, ‘your choice is between the
nothingness I will have left behind, or a return to the triangle’s oppressive,
hierarchical hold’.
In this book, the ‘figure’ that helps us to stare down the moral blackmail of
the circle—encouraging us to hope that doing so will be for the better—is not
a geometrical shape. It is Kelsen. Taking his remarks on popular sovereignty and
self-determination literally provided us with a powerful analytical frame that en-
abled us do what the circle forbade explicitly: to look around, to ask where
everyone else is, and to notice that as we move round and round, the ground on
which we move moves with us as well. Kelsen showed us that once we ignore
the circle’s attempts to intimidate us (‘if you go back to the triangle, you will
never again be able to imagine popular self-government as meaningful!’) and
instead expand our gaze wide enough to gaze at both of them at the same time,
then circle’s premonitions will appear false
What made Kelsen’s insights on the function of majority vote in a dem-
ocracy possible was not his legal positivism as such. Rather, it was his unflap-
pability; his lack of concern for how things—which otherwise embody political
and legal ideals—might look, once we elect to look at them differently. This atti-
tude is only available to those who choose (or are fortunate enough to stumble
upon) a method of looking at seemingly abstract concepts contextually, and
who—instead of simply concluding that they are contextualized—choose to
ask: What else may be abstracted on the basis of that what we’ve just contextualized?
Or, more concretely, what else did Kelsen need to conclude that it is possible to
re-envision the majority vote as a decision-making mechanism whose purpose
lies in the reduction of the torment of heteronomy? Both domestically (as he
argued in On Essence and Value of Democracy in 1929) and internationally (as he
suggested in Holmes Lectures in 1942)?
The answer is simple: the background. Without it—either in the guise of a
primordial scene of ‘original instinctual freedom’, or a world-wide ‘ocean of
psychic happenings’—it wouldn’t have been possible to identify a pattern under-
neath the figures of popular sovereignty and national self-determination. So
now we know what else needs to be done—aside from removing the ‘neces-
sitarian superstitions’ Roberto Unger warned about—in order to tap into the
‘transformative opportunity’ that inheres beyond the theoretical imaginations
of sovereign peoplehood. In order confidently to refuse the false necessity that
inheres in the ecosystem of the take-it-or-leave-it or binaries that cluster around
the six propositions of peoplehood, that necessity must be seen not simply as
superstitious, but rather as staged. As Either and Or pretend to be taking part
in the duel of alternatives, they rely on the same second, who has the backs of
both of them: their shared background.
347
Beyond Circularity: Transparency and its Ironies • 347
Figure 10.1 Figure-g round, hierarchy-circularity
As Figure 10.1 indicates, we need not render co-original two otherwise irrecon-
cilable political concepts in order to make them co-productive. For this to be-
come possible both the triangle and the circle must be seen as capable of
being restaged, rearranged, and looked at differently, and for that to happen,
something in the scene—that initially pitted them against each other—must it-
self become a detachable figure. Or, as imaginary ancient Romans might put it:
This tertium may be understood in a number of ways. The little hat-wearing

head in the diagram on the right symbolizes the way we’ve implicitly under-
stood the third so far—not as an unimaginable concept that becomes clear
only once we have set our existing conceptual binaries aside, but as a conceptual
surplus that inheres in those binaries, and becomes detectable once we have
chosen to re-envision their relationship.
2. Beyond circularity

transparency and its ironies
Together, the six most important propositions of peoplehood give rise to
an ecosystem of overlapping and mutually reinforcing binaries: revolution–
amendment, norm– exception, universalism– particularism, nationalism–
cosmopolitanism, monism–pluralism, and so on. In order to get to the third
these binaries conceal, we needed to exercise our constituent imaginations ac-
tively. More specifically, we needed to pass through the symbol of the circle in
its two more specific, pictorial incarnations: the ouroboros—the mythical em-
blem of perfection and self-sufficiency; and the chicken-and-egg-dilemma—the
parodic emblem of our self-defeating desire to get to the bottom of things; to
the root of the problem; to the origin of our constitutional order. Irrespective
of the differences in the tone of their messages, both emblems invite us quickly
to size up the scenes of constitution-making and foundation, embrace them as
marred by the inevitable paradox of the infinite regression inherent in the pro-
cess of self-constitution—and conclude that it would be pointless (or risky) to
attempt to look behind, beneath, or beyond them.
Those who have historically disregarded this advice, confronted an alterna-
tive: to either embrace the substitute vision of legitimate political community,
348

or be forced to concede that the entire idea of ‘letting the people decide’ is
nothing short of ridiculous. In defying the counsel of the circle’s two avatars
we also refused the choices they offered us. Rather than immanently paradox-
ical, substitutable, or ‘ridiculous’, we’ve treated the scenes in which we detected
the presence of a sovereign people as symptomatic—indicative of the variety of
hopes, desires, and anxieties too consequential to be simply abandoned, and too
costly to be debated openly.
To approach these scenes symptomatically is also to look differently at the
circle, the emblem than renders them intelligible—not as the symbol of popular
self-government, but as an icon and an index: in the first case, as the representa-
tion of the in–out (of a constitutional order); and in the second, as the repre-
sentation of the cycle (of the democratic rhythms of responsiveness). From the
perspective of the first, what’s inside the circle exists not as the ‘empty place
of power’, but rather as the surface populated by those ‘captured’ by a constitu-
tional order whose operations conform to some version of k-algorithm. From
the perspective of the cycle, changes in the radius of the circle and the fre-
quency of its rotating perimeter relate to changes in the pixelated background
inside and outside the constitutional order.
To look at symbols but to register underlying icons and indexes requires
more than just a particular way of seeing. What it also requires is an essen-
tially optimistic attitude towards the capacity of ‘vision and visuality in all their
rich and contradictory variety [to] provide us mere mortals with insights and
perspectives, speculations and observations, enlightenments and illuminations
that’—as Martin Jay poetically put it—‘even a god might envy’.3 The visual en-
thusiasm that allowed us to envision isomorphic patterns behind the emblems
of sovereign peoplehood in this book is admittedly more modest. What it
shares with Jay’s optimistic conclusion is a premise without which no visual
optimist would be capable of envisioning either ‘enlightenments’ or ‘illumin-
ations’. That premise is transparency.
Defined, circularly, as ‘perviousness to light’ that makes an object or a me-
dium transparent, transparency seems to define two types of image: those
evoking transparent figures, and those evoking transparent objects (as the non-
obstacles to seeing them). An example of the first: an image of a glass of water
seen through an open window. An example of the second: an image of an apple
seen through the same—now closed—window. Obviously, the two categories
may overlap, as would be the case with an image of a glass of water as seen
through a closed window. Irrespective of their differences, all images of trans-
parency rest on a conviction about the necessity of all images to conform with
the third law of scenic contrast: for the figures of imagination to appear credible,
the loss of contrast must be understood as the loss of meaning, not as the acquisition of
meaning of another kind.
Martin Jay, Downcast Eyes: The Denigration of Vision in Twentieth Century French Thought (University of
3
California Press 1994) 594.

349
Beyond Circularity: Transparency and its Ironies • 349

Progressively qualified and relativized in Chapters 3, 4, 5, and 9, this law
can no longer lend requisite support to the above-mentioned conceptions of
transparency, which means that the transparency-evoking pictures it used
to de-contest now also need to appear differently; more abstractly, as the re-
gimes of attention-management. If so, to call something transparent or non-
transparent (be that affirmatively or critically) is yet another oblique way of
asserting: on the one hand, the advisability of conforming to a particular re-
gime of attention-management; and, on the other, the inadvisability of chan-
ging the element in a scopic regime that allows one to detect the ‘fact’ of
transparency.4 This needs to be kept in mind as we recall the ways in which
transparency allowed us to envision c-isomorphs as the dynamic configur-
ations of nesting ought-places within their isomorphic pluriverse—itself
a wider, kaleidoscopic configuration beneath the non-translucent surface of
a-puzzle.
What these images managed to disrupt is not only the credibility of the influ-
ential allegories about the benefits of pre-commitment during perilous sea voy-
ages, but also, at a deeper level, the very sense of constitutional spacetime—as
integral, indissoluble, and progressively unfolding. Rather than being seen as
imaginary chunks of global constitutional spacetime, c-isomorphs that popu-
late the normative epidermis beneath the surface of a-puzzle may now be seen
as the granular and dynamic configurations of ought-places, within which
time ‘percolates’ rather than flowing unidirectionally and uniformly.5 This is
something that is hard to represent visually, since the time that percolates across
the totality of such isomorph’s micro, mezzo, and macro places both ‘passes
and doesn’t pass’.6 Rather than a‘sieve’, the device that regulates its flow is a
‘filter’—a semi-permeable membrane that ensures ‘one flux passes through,
[and] another does not’.7
The flows that pass through the nets of such isomorphs don’t simply per-
colate. The protocols of measurement and observation that define how their
filters capture popular ‘signals’ in space also determine the rhythm of their
processing, modulation, and transmission over time. Ironically, the very idea
that today distracts us from appreciating the granular rhythmicality beneath
the scenes of popular self-government gained ‘aesthetic and epistemological
momentum’ only after it became associated with the episteme of rhythm
in the early nineteenth century.8 That idea—implicit in the theorists’ refer-
ences to ‘progressive evolution’ (Habermas) or ‘unfolding’ (Rosenfeld)—is
development.
For the discussion of the sources of the ‘metaphorical authority’ of transparency, see Ida Koivisto, ‘The
4
Anatomy of Transparency: The Concept and its Multifarious Implications’ (2016) 9 EUI Working Paper 1.
5
Michel Serres with Bruno Latour, Conversations on Science, Culture, and Time (University of Michigan Press
1995) 58.
6
ibid. ibid.
7
8
Janina Wellmann, The Form of Becoming: Embryology and the Epistemology of Rhythm, 1760–1830 (Zone 2017)
232–33.
350

Today, we mostly don’t think about what makes such highly abstract concep-
tions imaginable. We either don’t think about what the ‘unfolding’ of popular
self-government looks like, or simply seem to take the scene of an ‘organized
temporal flow’ that renders this idea intelligible, for granted.9 Historically, how-
ever, it was ‘the use of pictures [that] enabled development to be located in the
image itself: in the iconography of the series, development becomes a pictorial
relationship’, organized around ‘an oscillation between repetition and vari-
ation, uniformity and diversity, continuity and disruption’.10 The specific pic-
torial regime of cross-sections—‘which alone could capture the form . . . at each
point in time with the necessary precision and detail’, and which, as a result,
made the contemporary idea of unfolding, progression, and development im-
aginable, came from chick embryology.
Ironically, then, it seems that the iconography of circularity—which con-
stitutional theory today mobilizes to shield the abstract idea of unfolding
self-government from further scrutiny—could only ever become so popular
because another iconography (which also focuses on the chicken and the egg)
recorded the sequence of visual patterns beneath the shell, and, in that way,
set the stage for the perceptual credibility of an otherwise highly abstract idea
of ‘development’. The penetrating gaze that contributed to the historical tri-
umph of the idea of development, and to the ubiquity of its figurations in the
modern imaginary of popular sovereignty is today devalued in the name of the
very same idea. Chapters 3, 4, and 8 showed us how this devaluation manifests
itself in constitutional theory—more interested in the obscurantist celebration
of the ‘paradoxes’ of constitutionalism, that in the actual morphology of the
spatiotemporal patterns of ‘collective’ ‘self-government’.
Confronting this irony once again is useful: not only because it will remind
us of ‘how abstractions [could] be made visible’,11 but also because it will en-
courage us to revise our disciplinary disciplined imaginations of contemporary
theorists of peoplehood.12 As we can see better now, their conformity with the
‘monographic logic’ of theoretical inquiry hinges not only on their (mostly un-
acknowledged) observational ‘circumferences’, but also on the sedimented icon-
ographies of their disciplines, which they also simply take for granted.13 Such
iconographies—as the tale of the two chicken-and-the-egg dilemmas hopefully
illustrates—is always the outcome of some historical ‘iconoclash’—a historical
battle in an ongoing, all-encompassing, low-intensity image war conducted in
ways that escape the attention of those who practise theory monographically,
as well as the more deliberate practitioners of theoretical imagination.14
ibid.
9 10
ibid. Jay (n 3) 95.
11
12
See Kenneth Burke, A Grammar of Motives (first published 1945, University of California Press 1969) 86.
For the most part, theorists of peoplehood recoil from reflecting on the ways in which their arguments
13
depend on their disciplinary iconographies. For a promising alternative in legal theory see Andreas Fischer-
Lescano, ‘Sociological Aesthetics of Law’ (2016) 13 Law, Culture and the Humanities 1.
I borrow the term ‘iconoclash’ from Bruno Latour, ‘What is Iconoclash? or Is There a World Beyond the
14
Image Wars?’ in Peter Weibel and Bruno Latour (eds), Iconoclash: Beyond the Image Wars in Science, Religion and
Art (ZKM and MIT 2002) 28.
351
Theory, Iconoclash, and the Games of Make-Believe • 351
3. Theory, iconoclash, and the games

of make-b elieve
Constricted by the disciplinary ‘terms of placement’ the mind’s eye of a theorist
remains unwilling to depart from the ‘circumferences’ that seem to follow from
those terms naturally.15 Rather than being discussed openly, these circumfer-
ences remain inscribed in the arguments that the theorists advance when they
defend or dispute the substance of a particular theoretical proposition. Most
often, these arguments will conform to the following formula:
—where X stands for the meaning, structure, function, importance, promise,

or peril; Y, the people, its constituent power, its right to self-determination, its
ultimate authority; W, a historical era, a geographical location, or a particular
arena of struggle, or nothing in particular; Z, a particular discipline (constitu-
tional theory, international legal theory, normative political theory, democratic
theory) or a particular approach (ontological, normative, systems-theoretical,
historical-sociological, and so on); and B, ‘better’, more attractive, more precise,
more productive, less ambiguous in relation to C, the target-contribution to the
same debate. What prefigures the meaning of X, Y, B, and C, however, cannot
be reduced to W and Z. What also affects their meaning—as we saw in the pre-
vious section—are the historical victories in the clashes of iconographies, and
which allow Y to become the legitimate object of a theorist’s evaluation of X
today. Once seen as the products of victorious iconographies from another era,
the formulas (1) and (2) transform themselves into
It is through these certificates that friends and enemies, empty places, co-
originalities, or torments of heteronomies become Schmitt’s, Lefort’s,
Habermas’s, and Kelsen’s—the polemically useful emblems of theory, the role of
which is to prompt the audiences to look in certain directions, and in doing so
take certain assumptions, wagers, prognoses, fears, and hopes for granted (and,
as a result, submit, without protestation, to a particular regime of expectation-
management). From that perspective, that regime is always the work of many
different theoretical ‘characters’ whose task is to certify the emblems used in the
scenes of constitution-making as props or prompts, and who themselves must
be staged in a certain way. In theories focused on some aspect of the imaginary
of popular sovereignty—as in most political thought, for that matter—these
characters appear as ventriloquist dummies. At the meta-level of constituent
dramatism, the task of these figures is to communicate (1) and (2) in ways that
offer teachable lessons that the author is then ‘compelled’ to agree or disagree
Burke (n 12).
15
352

with (as did Schmitt with Hobbes, Kelsen with Rousseau, the author of these
lines with Kelsen and so on). In offering various degrees of support for a par-
ticular regime of expectation-management these dummies will sometimes speak
in voices that turn them into veritable protagonists in the meta-dramas that go
on at the plane of theoretical he-said-she-said—above the actual mise-en-scène on
which the figure of the people is staged into imaginal life. Consider this book, for
example. On the basis of what they’ve been allowed to communicate thus far the
reader wouldn’t be mistaken if she got the sense of:
Theory as ventriloquy is not pointless. It allows those who (somehow) share

similar practical and polemical attitudes today to recognize each other by
the dummies they use, and to compare the lines these theory-puppets recited
yesterday—in the hope that the entire process (somehow) culminates in other-
wise theoretically inaccessible insights, potentially useful to other fellow-
ventriloquists tomorrow.16 Since the dummies on which they rely may always
be used as rhetorical weapons, moralizing admonitions about the need to do
‘justice’ to the sophistication, hidden coherence, or complexity of their argu-
ments seem particularly suspicious. On closer inspection, what the demands
to cast those arguments in ‘the best possible light’ actually require from their
addressees is to distribute the light and the shadow in a way that inadvertently
casts a bad light on the stage props of someone else.
16
Such insights must come from a theorist who is both ‘capable of imaginative re-enactment of the experi-
ences of which theory is an explication’ in general, and able to ‘stir up parallel experiences’ in others, in par-
ticular. Eric Voegelin, The New Science of Politics: An Introduction (first published 1952, University of Chicago
Press 1987) 64. What may possibly count as a parallel experience in this context is far from clear, however. That
the successful stirring of parallel experiences can only be described as being achieved ‘somehow’ becomes
more apparent once one begins to imagine what could for instance, possibly unite a contemporary left-wing
radical democrat, preoccupied with the neo-liberal biases of constitutional democracy, who came from a
semi-periphery to theorize the meaning of popular sovereignty from his office in the middle of Manhattan,
with the experiences of a resentful German nationalist, an opportunist, intent on getting even, in continental
Europe in the third decade of the twentieth century. What may be aroused are not similar geopolitical con-
siderations, but temperamental sensibilities that make Schmitt-inspired ‘intellectual adventurers’ gravitate to-
wards intellectual adventurers, Twining-inspired ‘mild agent provocateurs’ towards mild agent provocateurs,
sensibilities that might lead some to be irritated by the prissiness of the tone of analytical philosophy but to
chuckle at the unrespectuous irreverence of Pierre Schlag.
35
Theory, Iconoclash, and the Games of Make-Believe • 353

Even when theorists have much more modest pretensions, the conflicts over
the ownership of the dummies they use will remain an ineradicable facet of
the make-believe games they play. As an illustration, consider this minor inci-
dent from one particular theoretical playground. The main protagonist: Michel
Troper, pushing back against Lars Vinx’s attempt to turn ‘Kelsen’ the legal posi-
tivist into ‘Kelsen’ the dummy of the anti-positivist normative theory of demo-
cratic constitutionalism. Though in claiming to be ‘puzzled as to real object
of [Vinx’s] book’, Troper managed to obey the rules of theoretical decorum—
asking from the interlocutors to refrain from imputing ulterior polemical mo-
tives to one another—he nonetheless found a way to go on the counter-offensive:
If it really is an interpretation of Kelsen’s legal theory as a political theory, then
we might think that the price paid, the sacrifice of the most important elements
of that theory, is much too high and that we have not augmented our knowledge
of the history of legal philosophy. If, on the other hand, it is an attempt to con-
struct a normative theory of the law that would have implications for political
theory, this is entirely legitimate; but, in that case, why bother with Kelsen?17
Troper may have genuinely wondered about the value of doing such a thing,
without implying—which one may interpret him as doing—that Vinx simply
wanted to score a ‘win’ for the Army of Legal Anti-Positivism; or, to be even
more imaginative, sabotage one of its armouries with the aim of sufficiently
demoralizing some of the jurisprudes who fight on that side enough to concede
that it is legal anti-positivism not legal positivism that has something mean-
ingful to say about what makes democracy attractive.
Situated in the midst of our theoretical playground, this ‘iconoclash’ looks ra-
ther differently. What, in fact, happened is that Troper detected someone trying
to run away with the Kelsen-dummy already used by someone else in the field
of legal theory, and, after having caught up with him, asked: ‘What did you do
that for?! You are running towards the field of the History of Legal Theory, but
they have enough Kelsen-dummies already!... What? You just wanted to bring
this dummy to the games played by anti-positivist legal theorists and normative
theorists of popular sovereignty? But why would you ever want to do so when
they have their theory-puppets which are perfectly adequate to the task—unless
you actually wanted to ruin our game?’
More important than the answer itself is the invisible map of the fields, dis-
ciplines, perspectives, communities, and debates, which enabled Troper to con-
textualize Vinx’s effort in a broader environment of ‘history of legal theory’,
‘political theory’, or ‘normative theory’; to quickly retrieve his diagnoses of
what each of them does or doesn’t require, or is capable of doing; and, finally,
to make a choice not to denounce Vinx’s interpretation of Kelsen as an act
equivalent to theoretical dummy-snatching. Inspired by William Twining’s auto-
biographical description of the affects (‘mild agent provocateur’), dispositions
Michel Troper, ‘Hans Kelsen’s Pure Theory of Law: Legality and Legitimacy (review)’ (2008) 58[4] U
17
Toronto LJ 521, 527.
354

(concerns with ‘the health of [his] discipline’), and the specific geographical
perspectives that informed his vision of globalization, a cross-disciplinary ver-
sion of that map is on display in Figure 10.2. Its name—twining’s map—is a
tribute not only to the openness of his constituent imagination, but also to his
willingness to put it on the record. In this chapter, its main objective is to chal-
lenge our implicit, but possibly deeply entrenched images of our imaginations
in action. Often described as overactive, we also tend to imagine them as un-
controllable, fleeting, and, as a result, unfit for systematic introspection. Kendall
Walton disagrees:
Spontaneous imaginings may be subject to the imaginer's control. The imaginer
may have the option of intervening deliberately in her imaginative experience
even if she chooses not to exercise this option. If I find myself musing, spontan-
eously, about a candy-striped polar bear jumping over the moon, I may never-
theless realize that I could, if I wanted to, imagine instead a polka-dotted grizzly
jumping over a star, or that I could stop imagining altogether. This realization
limits my sense of the independence of my imaginative experiences from me.
The imaginary world does unfold under its own power, but only with my (im-
plicit) permission, only because I allow it to do so.18
At a more general level, the aim of twining’s map is to show how easy it is
to imagine a more analytical, systematic, and comprehensive account of the
imaginative choices that otherwise don’t register from disciplinarily disciplined
perspectives. What such account allows—and what the visual representation
of twining’s map aims to evoke—is a more exploratory trajectory of one’s
mind’s eye.
Moving from one ‘cloud’ (which may also be imagined as an ‘atom’ or a
‘bubble’) to another the eye can always pause to inspect—from a particular van-
tage point—one’s own prognoses and diagnoses, one’s dramatistic choices, one’s
work as an algorithm-maker, one’s anxieties, hopes, and polemical objectives,
one’s visions of the conceptual structure of a concept under scrutiny, as well as
one’s own disciplinary vision—represented by the grey surfaces on the ground
that may always be imagined differently: as sovereign disciplinary peoples, as
distant, incommunicable islands in a global disciplinary archipelago, or as the
‘amoeba’-like ‘densities of practitioners’ that move across the ‘multidimen-
sional intellectual space’19 within the single empire of constituent imagination.
4. Beyond image wars? ad bellum purificandum
The preliminary question that confronts those tempted to imagine themselves

using twining’s map is simple but consequential. Who am I, as a theorist-
conjuror, the partisan-theorist? In what capacity may I take part, once I’ve im-
agined that I must, in the low-intensity war of images that rages across this
Kendall L Walton, Mimesis as Make-Believe: On the Foundations of the Representational Arts (Harvard
18
University Press 1990) 15–16.

Andrew Abbott, Chaos of Disciplines (University of Chicago Press 2001) 138.
19
35
Figure 10.2 Constituent imagination—a Twining’s map

356

empire? A preliminary answer to this question is easy: one participates in an
image war just as one participates in any other political conflict—as a ‘moder’
in a nephos—as a (we-mode) performer, (pro-g roup) mode supporter, or as (a
pro-project mode) cheerleader; he who (sensing that something either doesn’t
‘fit’ or is ‘amiss’) approaches the conflict either by being inspired, frustrated,
defeated, distracted, or departed. Existing at different levels of intensity, re-
silience, and viscosity, these intentional and existential attitudes—towards the
objective of the struggle; towards one’s contribution to its success in relation to
the attitudes of others; and towards the ‘uncomfortable situation’ that causes
one to assume one of the personas above—always come in tandem with those
that are more ethereal and that, ironically, only become visible once we remind
ourselves that our ‘wars’—metaphorical and real—are always wars of images.20
In these kinds of wars there are no draft dodgers and every conscript may
choose what kind of a ‘soldier’ she wants to be: a recruit, commissar, martyr,
mercenary, saboteur, or deserter—the peacemaker.21 The recruit is someone
whose eyes are still innocent, like those of the little boy who cried, ‘but the
Emperor has no clothes!’ in Hans Christian Andersen’s famous fable. In the con-
text of the global war of images, it’s best to refer to the recruit as untrained and
as yet insufficiently equipped to correctly read what is actually going on in the
context of a particular battle of images. In contrast to the recruit—someone
who would not only believe the picture that Jennings drew for him when he
claimed that the idea of ‘letting the people decide’ is ‘ridiculous’, but that this,
on its own, matters—the commissar is a persona who destroys the images of
others deliberately, while fully aware of the functions they serve for others in
the context of broader iconoclash. She does so, however, with the earnest con-
viction that those she is proposing are not just different, but superior. Just like
the Party commissars in real wars—those tasked with making sure that army
units follow the Party line faithfully—the commissars in wars of images aim
to undermine enemy images without a shred of self-irony. The martyr, on
the other hand, has no respect for images whatsoever. He is the destroyer of
images—naive enough to think that there is another world beyond the one in
which expectations require figurative mediation. In the image wars fought over
the icons of sovereign peoplehood, he is the most elusive.
In contrast to the recruit, the commissar, and the martyr (all of whom act
in earnest) the attitude of the mercenary and the saboteur is cynical and ma-
nipulative. In the most extreme case, the former is a true ‘conceptual vandal’,
defacing the icons of political figures not out of philosophical, quasi-religious,
or political commitment but for amusement, to satisfy vain ambitions, garner
prestige, or in the naive belief that doing so is to take on a particularly intel-
lectual challenge. Those who defend conceptual paradoxes and their pictorial
See Richard K Sherwin, Visualizing Law in the Age of the Digital Baroque: Arabesques & Entanglements
20
(Routledge 2011).
21
The six categories are developed on the basis of Latour’s five kinds of attitude of those who participate in
iconoclash as types ‘a’, ‘b’, ‘c’, ‘d’, and ‘e’.
357
Beyond Image Wars? Ad Bellum Purificandum • 357

representations—though they might have ulterior motives—are in this regard
correct: there is nothing easier than to denounce the paradox. In fact, doing so
will almost always make it reappear somewhere else. The latter attitude—that
diminishing the symbolic efficacy of images is achievable by de-masking their
flaws—may also sometimes be found in some saboteurs, especially those who
haven’t read Andersen’s fable sufficiently thoroughly to realize that although
the entire audience eventually joined the little boy in crying ‘the Emperor has
no clothes’—and that although the Emperor even ‘shivered’ for a bit ‘for he sus-
pected they were right’—nothing really happened after all. As Andersen reports
at the end of his fable, ‘he walked more proudly than ever, as his noblemen held
high the train that wasn’t there at all’.22
The final figure knows this. That’s why her attitude towards the war of im-
ages is that of a peacemaker. Unlike the martyr, she ‘doesn’t believe in the pos-
sibility of getting rid of images’. Unlike the commissar, she refuses to ‘extract’
a single image out of their flow—even if it’s her own—and demand that others
worship the image she has just extracted as the incarnation of the truth, beauty,
or justice. Unlike the mercenary, she doesn’t deface images, but instead makes
new ones, in the hope of contributing to a world ‘filled with active images’ in
which they would be produced ‘as fast and as fresh as possible’.23 Finally, unlike
the recruit whose innocent eyes have yet to learn why the procession has ‘got
to go on’, why the noblemen must continue to carry the invisible train of the
Emperor’s robe, the peacemaker is careful not to mistakenly create an incident
that might lead to a fresh image war. On the contrary: she offers the Emperor
more images, ‘more of the latest “wearables” ’.24 She makes it her aim to con-
nect them all—to put them all in an album, or in a gallery, or in a single wiggly
‘panorama’—so that all who gaze at them may ‘move fast from one . . . to an-
other’.25 In moving towards that ideal she seemingly has no ulterior, polemical
motives, only to escape the vicious ‘cycle of fascination, repulsion, destruc-
tion, atonement’ with those images,26 and to appreciate their ‘truth, objectivity,
and sanctity’ in the only way possible, by encouraging the gaze to oscillate as
quickly as it can.
If Bruno Latour is right, that would bring peace to the war of images. We
shouldn’t be so quick to accept this conclusion, however: our imagination of
an ‘image war’ is based on some image of ‘war’, in the first place. Whether or
not we wish to end it, we better make sure we want to do so on the basis of an
image we’ve consciously inspected first. Most often, the images of ‘war’ evoke
the tragic scenes of sacrifice and suffering. But ‘war’ may also refer to the
purpose of the overall drama, as ‘in schemes proclaiming the cult of war’; to
some ‘super-agent’ such as the ‘war god’, who might act decisively to resolve
Latour (n 14).
22
ibid.
23

24
Latour (n 14).
25
This is, at least, the sense we get from ‘type B’—one of the participants in image wars imagined by Latour,
26
which together with the previous five, we used as a prototype.

358

it; or simply to ‘a means to an end’, used in a particular conflict.27 These are
the dramatistic choices, which—as Burke reminds us—are ours to make, and
which need not end up evoking the scenes of existential struggle between
those who embrace the ‘most extreme possibility’ of killing and being killed
in order to defend their ‘way of life’ (as with Carl Schmitt),28 or as an epiphe-
nomenon of the love we feel for our sovereign, to whose ‘endless demand’ we
respond with willingness to make the ‘ultimate sacrifice’ (as with Paul Kahn).29
The image of war herein—on the basis of which this chapter proposes to take
part in the global war of images—sides not with Schmitt and Kahn but with
Burke, who asks:
Why must any imagery of killing, even when explicit, be taken as ultimate, rather
than as an ‘opportunistic’ terminology for specifying or localizing a principle of
motivation ‘prior’ to any imagery, either scenic or personal? That is, we can recog-
nize that our anecdote is in the order of killing, of personal enmity, of factional
strife, of invective, polemic, eristic, logomachy, all of them aspects of rhetoric
that we are repeatedly and drastically encountering, since rhetoric is par excellence
the region of the Scramble, of insult and injury, bickering, squabbling malice and
the lie, cloaked malice and the subsidized lie. Yet while admitting that the genius
of our opening anecdote has malign inclinations, we can, without forcing, find
benign elements there too.30
To follow Burke and not Schmitt, Kahn, (and perhaps, implicitly) Latour is to
treat war ‘not as a primary motive in itself, not as essentially real, but purely
as a derivative condition’, indicative neither of love, nor of hate, nor of non-
negotiable commitment to a ‘way of life’, but as an attitudinal pathology, which,
you will understand . . . much better if you think of it, not simply as strife come to
a head, but rather as a disease, or perversion of communion. Modern war charac-
teristically requires a myriad of constructive acts for each destructive one; before
each culminating blast there must be a vast network of interlocking operations,
directed communally.31
Burke’s response to this ‘ultimate disease of cooperation’ is condensed in the
motto ad bellum purificandum (towards the purification of war), where the pur-
pose is ‘not to eliminate war but [rather to] translate [it] to a higher level’,32 to
‘[refine it] to the point where it would be much more peaceful than the condi-
tions we would now call peace’.33
27
Carl Schmitt, The Concept of the Political (Georg Schwab ed, Rutgers University Press 1976). For a more de-
tailed discussion, see Chapter 2.
Latour (n 14) 28.
28
Paul W Kahn, ‘Political Theology Defended’ (2012) 5[1] Jerusalem Rev L Stud 28, 34.
29
Kenneth Burke, A Rhetoric of Motives (first published 1950, University of California Press 1969) 19.
30
ibid 22.
31
A remark from Burke’s letter on the essence of dramatism, quoted from M Elisabeth Weiser, ‘Burke and
32
War: Rhetoricizing the Theory of Dramatism’ (2007) 26[3] Rhetoric Review 286, 285.

Burke (n 12) 305.
33
359
Beyond Image Wars? Ad Bellum Purificandum • 359

In the scholarship on Burke, these claims have been subject to much debate.
Why not aspire towards the elimination, not just purification, of war? If war is
the ‘ultimate disease of communication’, why not aspire to cure it? Why satisfy
ourselves with an improved ability,
to see our own lives as a kind of rough first draft that lends itself at least some-
what to revision, [in] hope at least to temper the extreme rawness of our ambi-
tions, once we become aware of the ways in which we are the victims of our own
and one another’s magic?34
Why only aim to ‘temper’ the ‘extreme’ rawness of our ambitions that leads
to the ‘perversion of communion’, instead of trying to heal it? Why only as-
pire to become ‘aware’ of the ways in which we become the victims of each
other’s magic instead of aspiring to banish the magic that turns us into victims?
Finally, why use the essentially comedic method of dramatism as the chief tech-
nology of purification? Put differently: if purifying intends to shape our atti-
tudes towards war in a very particular way—so that our polemical awareness
is enhanced, our empathy extended, our ambition preserved, and our sense of
humour stimulated at the same time—why refer to the sum of these aspirations
as ‘purification’? Or, finally: What is the essence of war that is being purified;
or the sacred vision of war that needs to be redeemed from desecration; or a
‘pure-bred’ specimen of war that needs to be un-hybridized?
While on face value it has nothing to do with either war or communication,
the key to unlocking the meaning of purification lies in Burke’s stance towards
purposive action; his ‘insistence that a purposive or teleological factor must be
reaffirmed in [the] attempts to understand man’s relation to his environment’.35
The key word being ‘reaffirmed’, having the dignity of purposefulness restored,
made—as it were—g reat again. In order to illustrate the intensity with which
we suppress the purposeful side of our consciousness, Burke, just like Andersen
in his fable, may have felt that the most effective way to do so is through an in-
nocent child’s eyes:
I once heard a child of five ask: ‘What are the hills for?’ Hearing such a ques-
tion today [in 1945] we spontaneously translated it from teleological to evolu-
tionary terms, so that the child is taught to ask instead: ‘How do hills come to
be?’ But may the teleological intent survive vestigially, beneath the evolutionary
style of expression? We have heard much of ‘repression’ in recent decades. May
there also be a kind of ‘Grammatical repression’, as we learn to express ourselves
in non-teleological forms, while the experience of purpose is at the very roots
of knowledge: for the first sort of thing a child learns is that way (indetermin-
ately knowledge and action) whereby its random sounds and random motions
are transformed into the purposive. And as we later learn to superimpose non-
purposive forms of thought, to what extent might the purposive survive?36
ibid 442.
34
Kenneth Burke, Permanence and Change: An Anatomy of Purpose (first published 1954, University of California
35
Press 1984) 230.
Burke (n 12) 305.
36
360

This is, obviously, a rhetorical question. From what we’ve seen thus far, to help
purpose survive is to imagine war not as an existential conflict, but rather as
one of the manifestations of ‘competitive cooperation’ which may always be
‘waged’ more empathetically, and self-reflexively. Needless to say, this is not the
spirit that any of the five ideal-typical image-warriors we’ve encountered so
far is ready to embrace. Whether they earnestly create and destroy images, or
whether they do so cynically, none aspire to affect the attitude of their opponent
towards the image of the war itself. That also counts for the peacemaker, the
figure closest to the spirit of Burke’s motto. While there is no reason why she
should not contribute to the purification of war—by constructing a variety of
interchangeable images that allow those who take part in image wars to see,
just as with Burke’s dramatism, the way they end up being the victims of each
other’s ‘magic’—she, as we saw, aspires to more than that. Not to purify war,
but to gain insight into the sanctity, truth, and objectivity of its images.
In contrast, the figure whose attitude fits the bill, is a figure we have al-
ready encountered: the theorist-imaginer who acts as a gambler-conjuror.
Like the other theorist-partisans and partisan-theorists, he practises his im-
agination polemically. Unlike them, he is less risk-averse, or perhaps (only)
reckless enough to experiment publicly. What makes him think of himself as
a ‘gambler’ and not only as an adventurer—the conceptual persona which,
incidentally both Schmitt and Lefort were fond of—is his visions of his adven-
ture not simply as something that allows ‘insights and thoughts to arise’, nor
compels him to answer the ‘tests’ that his time ‘bears’, but as a bet that he
places in an attempt to contribute to victory in the war of images, or at least
in some of its battles.
But what would this entail? While Burke’s re-dramatization allows us to
envision ‘purification’, it tells us nothing about the formal objective of every
war—victory—where the task before the image-warrior is the same as it would
be in a real conflict; to ‘muster on the spot the largest number of well aligned
and faithful allies’, and ensure that their ‘effective alignment’ will hold into
the future.37 gambler-conjuror does so not by trying to trick his adversaries
(by pretending to be exercising his imagination objectively) but by seeking
common ground (by encouraging those either indifferent or hostile to his pro-
ject to revisit the reason why they want to pursue theirs, and if they still wish
to do so, whether they want to use the same means). In doing so, gambler-
conjuror has two instruments at his disposal—Burke’s dramatism and Latour’s
oscillationism—which, even as diagnostic tools at everyone’s disposal do not
cease to be polemical weapons, and whose duality compels him to place two
additional bets. First, that in manipulating these weapons he himself won’t get
hurt; that his polemical intention—and his sense of purpose—doesn’t explode
in his face, in the form of paralysing self-contempt or ironic self-awareness.
Second, that his opponent will, at the least, be open to discussing the anatomy
Bruno Latour, ‘Visualisation and Cognition: Drawing Things Together’ in H Kuklick (ed), Knowledge and
37
Society Studies in the Sociology of Culture Past and Present, vol 6 ( Jai 1986) 5.
361
Breaking the Siege: the Liberation of Eutopian Imagination • 361

of his imaginative choices; that is, that she will be open to a proposal to have her
cherished political icons provisionally damaged through a sequence of acts of
reimagination without immediately entering into fight-or-fl ight mode—which
would make ‘purification’ impossible. As we will see later in this chapter, this
likewise requires the gambler-conjuror to tread carefully and act in a way that
minimizes the risk of provoking an adverse reaction from his opponent.
5. Breaking the siege

the liberation of eutopian imagination
Unlike the Latourian peacemaker, or a Schmittian or Lefortian adventurer, the
gambler-conjuror is a path-finder and an alliance-builder. Unlike other image-
warriors, he must make one final bet: that his use of Burkean and Latourian
weapons will not only assist him in his most immediate struggle, but that those
instruments of re-dramatization and oscillation-encouragement will also be of
use in the struggle for the liberation of theoretical imaginations from their self-
disciplined disciplinary servitude, ultimately leading to the overthrow of the
empire in which they exist––in the hope of achieving a distant goal: the consti-
tution of the united provinces of constituent imagination.
In order to illustrate what the exercise of constituent imagination may look
like in such a polity, imagine if it had already been formed. More concretely,
imagine that you—excited to explore its distant corners without first having to
pass through disciplinary checkpoints—embarked on a journey across its previ-
ously insular lands. Finally, imagine that the only piece of quotable knowledge
you took along is Jennings’s 1956 remark.
Your trip would reveal its educational value early on. Having reached your
first stop—the capital of a member-state of Constitutional Theory—you would
quickly realize that none but a few residents believe that this contradiction is
what makes the idea of self-determining or self-constituting people ‘ridiculous’.
Rather, the citizens of Constitution City prefer to attribute ‘a flat ontological
status’ to this contradiction, which allows them to treat it as ‘intellectually
intractable and historically invariant’.38 Moving on, you arrive at your next
destination—Normativetown—and soon notice something else: while consti-
tutional theorists speak of a performative contradiction, normative theorists of
self-determination only occasionally mention its name. Instead of celebrating
it, as is the custom among constitutional theorists, normative theorists trans-
form it into a ‘theoretical unmentionable’—a ‘wonderful theoretical [space]’,
which ‘by virtue of the constitution of [their] theory . . . [they] cannot say very
much about’.39
By the time you’ve reached the Province of Jurisprudence, determined to find
its allegedly Invisible College, you will have started to have serious doubts about
Pierre Schlag, Laying Down the Law: Mysticism, Fetishism, and the American Legal Mind (New York University
38
1996) 87–88.
ibid.
39
362

the appropriateness of the responses you’ve encountered. In contrast to con-
stitutional and normative theorists—who treat the performative contradiction
either as totem or taboo—you have probably realized that neither is really ne-
cessary; and that it is possible, as international jurists do, to simply ‘sectorialize’
it.40 What, then, is ‘ridiculous’—international jurists would have told you once
you caught up with them, walking around the College’s atrium—is not ‘letting
the people decide’, but rather the claim that it is. ‘If one pays sufficient respect
to the jurisdictional scope’ of the allegedly contradictory claim of the right to
self-determination, the supposed performative contradiction, which Jennings
identified, will reveal itself to be purely ‘illusory’.41 ‘For us’—you’d hear the jur-
ists explain as your eyes glance over the image of Humpty Dumpty on the coat
of arms hanging in the main hall of their college—‘the people, self-determin-
ation, the rights of collectives, are just the way we speak when we interpret the
rights and duties of more specific sets of actors under international law.’
Thanking them for their hospitality and insight, you depart, anxious to reach
the Province of Democratic Theory before nightfall. The next morning over
breakfast, democratic theorists regretfully inform you that you made a mis-
take by not coming to speak to them first. ‘Constitutional theorists, normative
theorists, and international jurists are like those three wise monkeys’, they ex-
plain, to your surprise. ‘The first monkey decides to see no evil, so he makes
the other vanish in order to make the idea of constituent power look good. The
second decides to speak no evil, so he stays silent about the other, who other-
wise might have made his theories about the right to self-determination not look
good. The third, anxious about his authority, decides to hear no evil, so he keeps
his ears covered. And, what does that do?’—they ask, only to make you more
appreciative of their imminent punchline: ‘Nothing, except that it allows them
to go on pretending the other two monkeys don’t exist’. ‘But if you had come
to us first you would have realized that the contradiction need neither be en-
trenched, nor ignored, or sectorialized, but that it can be (in principle, at least)
elegantly resolved’. Soon enough, you would have realized that your attempt
to start a discussion about the scenic tricks they rely on might not have been the
best idea after all. Upon leaving, you cannot but wonder: What, in the end, is
‘ridiculous’ here?
The idea of ‘letting the people decide? Jennings’s claim about the ridiculous-
ness of that idea? Jennings himself—for thinking he could conceal a polemical
motive behind his own theoretical inconsistency? Ourselves, who, in searching
for wisdom never consult more than one wise monkey and fail to appreciate
that the image of the three wise monkeys might itself be informed by the image
of six, more abstract ‘monkeys’? (Those who, just as August Kekulé imagined
them, hold each other’s tails within a hexagon that constricts our theoretical
imagination (see Figure 1.1). Or, again, ourselves—for preferring to ignore the
question of what else is at stake; what other non-disciplinary considerations may
explain the difference between the ways in which federal disciplinary territories
ibid. 41 ibid.
40
36
Striking Back: the Anathema, the Nebula, and the Utopia • 363

respond to the same logical problem? The importance of these questions lies
not in the answers they might give, but in their capacity to beget new ques-
tions: Why be squeamish and taciturn about the practical consequences—
intended and unintended—of theoretical interpretations of polemical concepts?
Why conceal the visual props that sustain them? Why pretend that it is possible
to escape reading ‘your book on the battlefield’42 in the midst of an image war?
Why ignore the possibility that there may be other horizons of expectation that
would allow you to lend constitutional dignity not only to, ‘Good enough’ and
‘Enough!’, but also to ‘Not good enough’.
An imagination capable of making such answers imaginable must have a par-
ticular kind of object in focus: not the scenes of foundation in the past, nor a
utopian future nowhere, but a concrete better somewhere. This type of imagin-
ation is eutopian, and not just constitutional or constituent. Though seemingly
defeated by the disappearance of the horizon of expectations associated with the
struggles of the developing world in the second half of the twentieth century,
this eutopian imagination has survived in a limited ‘free zone’—one we might
imagine as the free eutopian republic—encircled by the combined forces of
anti-utopian imagination. In that regard, while moving across the mountainous
terrain of the six propositions of peoplehood in the previous chapters has at
times proved cumbersome, it has nonetheless given us valuable information
about the location of the forces that keep our imaginary republic under siege.
Though at times well camouflaged behind the positions held by a variety
of disciplinary detachments fighting in the name of Its Majesty, the Sovereign
People, the records of Chapters 1–9 demonstrate that we have already tackled
some of them as we manoeuvred around the subjects and predicates across
the disciplinary fields organized around six propositions of peoplehood. The
time has come to end the manoeuvring, and prepare to confront head on the
five bases that are vital in keeping the forces of eutopian imagination under
siege: (Lefort’s) anathema, (Baudrillard’s) nebula, (Koskenniemi’s) utopia,
(Christodoulidis’s) aporia—and the most infamous among the five: (Schmitt’s)
tabula. In isolation, they look formidable. What their architects don’t realize,
however, is that having surveyed the terrain in which they appear we now have
a good idea of what they actually are: prompters to other figures, ‘prompters’ to
the ‘props’ in somebody’s game of make-believe, and figments of somebody’s
imagination.
6. Striking back

the anathema, the nebula, and the utopia
How does the anathema block the forces of eutopian imagination? At first its
demands seem sensible—we might respond by paraphrasing Jennings—because
we were initially told that the only way to maintain a space that allows us to
Jean-Jacques Rousseau, ‘The State of War’ in Victor Gourevitch (ed), Rousseau: ‘The Social Contract’ and
42
Other Later Political Writings (CUP 1997) 162.

364

exercise our eutopian imaginations, is to imagine it empty. The price we were
asked to pay seemed modest, since all Lefort asked of our eyes was to comply
with one major demand: ‘Thou shalt not imagine the empty place on the inside,
as co-constituted by the other on the outside!’ This seemed sensible because
the scenes Lefort conjured to encourage us to conform to his imaginative de-
mand were terrifying enough: ‘the spectacle of individuals or clans’, ‘a collapse
of legitimacy’, ‘the fragmentation of the social space’,43 and, ultimately, totali-
tarian adventure—the prompter he used, in order to have us believe that the
pursuit of eutopia inadvertently leads to witch hunts, Stalinist purges, cultural
revolutions, dehumanizing social engineering, and other evils of not having the
other abolished.
Though it is difficult to tell if we would have ever become suspicious of
these claims without the help of our undisciplined eyes, the fact remains that
once they obeyed Lefort’s proposition—to look at the stage and see an empty
place in the middle of an empty scene—they reported back that the scene
was too incredible to be believed without there being something other than
nothing. Since we didn’t want to be too hasty, and risk appearing uncharitable,
we told our eyes to go back to the text and find a better way to visualize the
empty place, which they dutifully did. Coming back, they reported: ‘OK, the
“empty place” may refer to an actual chair; the throne, the one the Prince vac-
ated, and which is every now and then occupied by someone representing the
sovereign people’. ‘Where did you see the throne?’, we replied. ‘The throne
is in the chamber, but following instructions to abolish the Other, we were
compelled to imagine that chamber as being empty as well. There is one pos-
sibility, though. Lefort said that even though the Other must be abolished, its
dimension will still be inscribed in the place of democracy. It’s just that we have
no idea what that means’.
At this point it is a matter of choice as to how to continue: whether in the
spirit of patient, respectuous, filial piety; or with a wager that ‘theorizing impa-
tiently’ might prove more fruitful at least on this occasion.44 What is behind the
imaginings of the one who, in discussing at length the ways in which political
figures must not only be shaped (mise-en-forme) but also put on stage (mise-en-
scène) somehow forgot to tell us that he himself had done just that? Though
sounding uncharitable, this enables a response more charitable and illuminating
something that—while probably obvious to Andersen’s little boy or to Burke’s
little friend—has nonetheless been obscured by an overly respectuous theoret-
ical eye. In attempting to glean what that is, we approach the problem in the
spirit that Lefort described as his own:
to restore both what is deliberate, controlled, in the thought of the writer and
what for him proves to be unmasterable, what constantly carries him along to-
wards or carries him outside the ‘positions’ he has adopted . . . [to identify] the

43
Mario Feit, ‘Wolin, Time, and the Democratic Temperament’ (2012) 15[4] Theory & Event.
44
365

adventures of thought in writing, to which the writer consents . . . [those that
summon] him to lose sight of himself so as to place himself in the work . . . [those]
in which the work takes shape, of an experience of the world from which the ex-
perience extracts itself and that gives rise to this experience.45
What we realized in Chapter 3 is that ‘sensitivity to these adventures’ doesn’t
get us that far once we have factored in the contingent work of diagnosis and
prognosis that feed the theoretical conjurations of every thought-adventurer.
What we have also realized, more generally, is that thought-adventurers
must inadvertently act as prognosticators and diagnosticians, as they, like
Lefort, meditate on the ‘experience of the world from which the experience
[of others] extracts itself ’ in an attempt ‘to hear or reformulate the ques-
tions our own time bears’.46 In other words, anathema will only be capable
of disciplining our imagination if it successfully distracts us from starting to
wonder: what is it that proved ‘unmasterable’ to you? What makes you sure
that you didn’t mishear, or not hear clearly enough, the questions that defined
the spirit of your generation? Why do you wish to prevent us from trying
to interpret the questions of our own time and deny us our own adventure?
Though unrespectuous, these questions are both necessary and appropriate
in tone and substance—not because Lefort allowed Stalinism to define his
attitude towards an ideology which cannot be reduced to its traumatic ex-
perience, but because he chose to portray the ‘empty place of power’ as an
imperative of political morality, and a matter of logical necessity—and not as
what it is: an imaginative response to a historical contingency. To realize that
is to also realize that we don’t need to choose between only two visions of
peoplehood; that tertium, indeed, datur.
Two conditions need to be met for the third to appear beyond the either
and the or. First, the figures on both sides of the either–or binary must be
set against the same background, which, rather than acting neutrally, acts as
their invisible second. And second, the third must always appear with a Janus
face: not only as something other than them, but also always as someone other
than us. In order to keep this in mind, we cannot rely on casual references to ex-
ternal actors and their constituent power. What we need is not an allusion, but
an emblem of the other; a figure of imagination evocative enough to distract us
from politically self-absorbed, strategically naive, and scholarly compulsive pre-
occupations with identity, integrity, autonomy, and sovereignty of an allegedly
sovereign political community.
Rather than inducing anxiety, the function of the third is to break the circle
of anxiety-raising but politically irrelevant questions—How should we im-
agine our moments of political birth? How might we imagine the conditions
of ever promising-looking open-ended aspirations? When will we be able to
say that we are ethically superior to other imaginable forms of government?
Claude Lefort, Writing: The Political Test (David Ames Curtis tr, Duke University Press 2005) 245.
45
ibid.
46
36

Doesn’t the fact we just said ‘ourselves’ attest to our captivity to the polit-
ical frame defined by the first-person plural ‘we’?47 To ignore these questions
is to see the scenes of constitutional government as shades of grey beyond
black and white conjurations of constitutional theory. From the perspective of
eutopian imaginers that look beyond Lefort’s anathema, these shades deserve
to be condensed into a memorable figure that reminds us not to be intimidated
too easily—while at the same time acting as a visual reminder of the asking
price to be paid for imagining the acts of constitution as something that moves
forward purposefully.48
That figure is xenos. Though often playing the same role on stage as Jennings
dedicated to ‘someone’ (ie deciding who ‘are the people’), the purpose of this
figure is not to create a Gotcha!-moment, revealing how ‘ridiculous’ the idea to
‘let the people decide’ is, but rather it asks us to consider what else this deci-
sion might mean, once we begin to contemplate the function the visual patch
of emptiness has in its environment. To do so is to be usefully reminded that
‘to be emplaced is not just to be cosily contained by an encircling surface, but
to be sustained by powers that ensure that what is in place will be inherently
stronger for having been there’.49 It is to ask, yet again: For what purpose? What
is the better for? Lending dignity to these questions in theory requires an ad-
equate change in choreography: in order for xenos to appear on the stage, the
figures that used to conceal it must disappear. This goes not only for the black
and white figurations of the other but also for the black and white figurations
of the many: an ensemble of individuals whose identical attitude towards the
act of constitution has transformed them into an emblem, a stage prop for a
sovereign people.
To allow xenos to appear, that people—together with its main incarnations,
demos and ethnos—must disappear as well. What appears behind them is not
only a variety of partisans vying over the constitution of a new constitutional
order, but something with the potential to discourage us from extending the
space of our constituent imaginations any further. Throughout this book, we
have encountered this ‘something’ under different names: Kelsen called it the
‘ocean of psychic happenings’, Calvino, ‘mankind-sand’, and Castoriadis, the
‘magma of social significations’. In our make-believe allegory it may be im-
agined as an area of quicksand, marshlands, or an impenetrable jungle that
It doesn’t.
47
48
In contemporary political theory, for the most forceful call to look at the figure of the Other (the Foreigner)
ambivalently Bonnie Honig, Democracy and the Foreigner (Princeton University Press 2003) 39. Honig’s Foreigner
is the figure of sobriety. Those who are reminded of the ambivalences of that figure ‘do not expect power to
be granted to them by nice authorities . . with their best interest in heart’. They ‘know that if they want power
they must take it’, and ‘that such takings are always illegitimate from the perspective of the order in place
at the time’. However, the attempts to ‘carve out a just and a legitimate polity will always be haunted by the
violences of their founding’. As a result, such subjects will ‘experience the law as a horizon of a promise but
also an alien and impositional thing’. The figure of xenos in this book—the Foreigner in relation to the telos
of a nascent constitutional order, in whose formation it participates; and Foreigner in relation to the tradition
of constitutional theory—is heavily influenced by Honig’s work.
Edward Casey, The Fate of Place: A Philosophical History (University of California Press 1998) 89.
49
367

prevents the forces of the eutopian republic from breaking out from their
blockade. Unlike the first three prompters, this one says nothing. And this is the
point entirely. While anathema seeks to discourage by terrifying its audience,
this prompt just is: the very sight of itis discomfiting enough to make us think
twice about moving forward, if that means we must move through it.
In its most disturbing manifestation, this scene presents itself as Jean
Baudrillard’s nebula: a cluster of stellar gases; a ‘gigantic black hole which in-
exorably inflects, bends and distorts all energy and light radiation approaching’
it; an ‘aggregation of individual particles, refuse of the social and of media
impulses’ whose ‘growing density absorbs all the surrounding energy and
light rays’.50 Unlike a sovereign decider that decides decisively, ‘nebulous fluid’
is ‘shifting, [and] far too conforming to every solicitation’ to be the carrier
of a ‘critical-explosive’ constituent power. Whatever is left is not driven by a
‘new and joyous negativity’, but rather by inertia, which makes its revolutions,
when they occur, ‘implosive and blind’.51 Unlike a non-sovereign deliberator
who deliberates deliberately, this nebula is ‘dumb like [a beast]’.52 Though not
quite ‘a mass prostrate in an unintelligible coma’, it is a far cry from the happy
images of the body of fellow citizens engaged in the activity of collective
self-government.
The price for extending our constituent imaginations beyond the horizons
defined by the figures of peoplehood may be too high (if what is beyond them
is a nebulous fluid that renders our visions of democracy and popular repre-
sentation meaningless). In an attempt to escape the twilight zones of popular
sovereignty, we have ended up in an even stranger quadrant of constituent im-
agination in which there is no difference between informal ‘polls’, media ‘sur-
veys’, constitutional referendums, and other ‘tests’—all of which aim to provide
fleeting snapshots of the morphology of attitudes that permeate a particular
nebula, by ‘bombarding [it] with stimuli’.53 In that quadrant, the only semb-
lance of the popular ‘will’ are the effects these stimuli provoke in the changes
occurring in its ‘light spectrum’—unlike the peoples that express themselves,
these nebulous fluids are ‘interrogated by converging waves . . . exactly like dis-
tant stars or nuclei bombarded with particles in a cyclotron’.54
As became apparent in Chapter 5, accepting an image similar to this
one became the condition of moving across the remaining propositions of
peoplehood—not a stellar gas, but a cloud-like nephos: a political aerosol, a
fuzzy ensemble—more granular than Kelsen’s ocean, more politically charged
than Calvino’s mankind-sand, and more solid than Castoriadis’s magma. Against
it as a backdrop—and with the help of our imaginary spectroscope s1–s5—we
could proceed to redefine the right to self-determination as an algorithm of alle-
giance; the polities constituted in conformity with it as t-and c-isomorphs, and
the universe in which it exists as an isomorphic pluriverse.
Jean Baudrillard, In the Shadow of the Silent Majorities . . . or the End of the Social and Other Essays (Semiotext(e)
50
1983) 4.
ibid 48–49.
51
ibid 28.
52 53
ibid 21. ibid 24.
54
368

Let us move beyond a picture of the world that makes the images of co-
equal sovereign peoples appealing and sensible, and towards one more capable
of inscribing a sense of urgency that comes with a question: what purpose for
the world? What prevents us from asking this utopian-sounding question, as we
saw in Chapter 5, is the figure of utopia itself—or, more precisely, a particular
conjuration of utopias in which the ‘realistic’ utopia stands juxtaposed to that
which Martti Koskenniemi referred to as radiant future—the doppelgänger of
Lefort’s totalitarian adventure.
Quietly presupposing a Lefortian distinction between a democratic and a
totalitarian people, Koskenniemi’s Utopia provides us with a more frank de-
scription of the choice between the alternatives that confront us. While Lefort
continued to insist on the emancipatory power of the ideals of human rights
and popular sovereignty, with Koskenniemi’s Utopia it becomes clearer that our
choice boils down to constructive criticism and reformist activism within the
confines of political realism, on the one hand; and a cruel, foolish, and vain at-
tempt to achieve a radiant future.55 Here, as well, tertium datur. ‘what might
count as “constructive” for us, that is, what we, given who we are, could do
about something, given our identities and possibilities, need not be the same as
what is constructive for them (given their identity and situation).’56 As Raymond
Geuss rightly argued,
appeal to the requirement that criticism be ‘constructive’ can thus often have the
function of trying to shift the onus probandi in a particular way. I, as a critic, am
required to formulate my criticism in a way that is shaped to the action-related
demands of the target-agents. I must criticise them . . . in a way that conforms to
what ‘they’ define as what they can ‘reasonably’ be expected to do.57
What makes this shift of onus probandi easier are concrete visions of utopia,
which not only aim to shame the addressee back into the confines of con-
structive criticism, but also to distract that addressee from imagining a eutopia,
a better place to which objections to amoral adventures, foolish futures, or
even boring ‘tranquil village pond[s]‌’,58 do not apply.
7. And again
the aporia and the tabula
Shaped by the invisible boundaries set by the propositions of peoplehood,
the imaginative territory of this eutopia continues to shrivel. To increase the
chances of its survival the practitioners of eutopian imagination must push not
55
Raymond Geuss, ‘Must Criticism be Constructive?’ in A World Without Why (Princeton University Press
56
2014) 99. [Geuss’s emphasis].

ibid.
57
Ralf Dahrendorf, ‘Out of Utopia: Toward a Reorientation of Sociological Analysis’ in George Kateb (ed),
58
Utopia (Atherton 1971) 104.

369
And Again: the Aporia and the Tabula • 369

only against the forces of the anathema, nebula, and utopia, but also against
those that advance from the directions of aporia and tabula.59 Among the
five, the forces of aporia are best equipped to engage in psychological (image)
warfare. While anathema’s attempt to contain the space of eutopia is forceful,
it is also too blunt in its reliance on naming and shaming. And while utopia’s
attempts to extinguish that space seem less crude in comparison, its attempts
to portray its geography as dangerous, kitsch, or boring will only work on
those who are already temperamentally predisposed to take them seriously.
Though the objectives of those who rely on the aporia’s scenic contribution
may be the same, they will never resort to moral shaming and character assas-
sination. Instead, they will either phlegmatically or empathetically point to the
insurmountable obstacles that preclude us from moving towards a different
horizon of political expectations. The rhetorical function of aporia is to trans-
form those obstacles into non-passages, whose demise is ‘both necessary and
impossible’.60
As is often the case, the less defeatist meaning of a word remains inscribed
in its etymology. Unlike odos, as Sarah Kofman reminds us, which is a physical
path on firm ground—poros is a sea-route, constituted not by an obstacle but
by ‘blazing a trail where no trail exists’.61 In that scene—set on open seas, not
in front of a vertical granite boulder—passage is not impossible, only difficult.62
This brings us to an interesting question. While the broadcasters of anathema
and the denigrators of utopia still seem to be traumatized by Stalin and his to-
talitarian adventures and radiant futures, no such figure seems to be haunting
the imaginations of contemporary Aporians. Do they have a Stalin of their own,
from whom they try to escape? Or do they conjure up unsurpassable sceneries
in somebody’s name?
If so, in whose name do they hide those risky, but potentially advantageous
and ennobling sea-routes? This is a fair question. Just like its twin brother
paradox, aporia is a ‘consequence of the factual relationship between the alter-
native and the excluded third party’ that had to construct it, not simply ‘in order
to be excluded’, but also ‘in order to be able to decide’.63 Who is this third party
that mobilizes aporia in order to prevent us from being reminded that tertium
datur? Who, in other words, is the imaginative Stalin of aporetic imagination?
The best candidate seems to be the system—the most recent pretender to the
throne historically occupied by a variety of god-hypostases. While the capacity
of such hypostases for wilful creatio has always been matched by their capacity
for an even more wilful destructio, the system has no such powers. Though it
might destroy those who defy its commands, it does so not because it wills their
See Ruth Levitas, The Concept of Utopia (Phillip Allan 1990) 181.

59
Emilios A Christodoulidis, ‘The Aporia of Sovereignty’ (2001) 12 Kings’s College Law Journal 111, 132.
60
Sarah Kofman, ‘Beyond Aporia?’ in Andrew Benjamin (ed), Post-Structuralist Classics (Routledge 1988) 10.
61
ibid.
62
Niklas Luhmann, Law as a Social System (Klaus A Ziegert tr, first published 1993, OUP 2004) 282.
63
370

destruction, but because it cannot un-see the unbearable consequences of their
transgression.
Is this, then, the function of aporia? To apologize on behalf of the overly
anxious system, and help it save face in the process? Can’t the system look us in
the eye? It is difficult to say. Notice, however, some intriguing parallels. On the
one hand, Christodoulidis’s aporia quietly offers us an apology in the name
of the system (for not being able to ‘bear’ the anxiety caused by pushing the
system to get over itself, and adjust its expectations about what is imaginable).
On the other hand, the function of Koskenniemi’s utopia (within the binary in
which it is emplaced) is to remind us that the only ‘reasonable’ alternative to
the humiliating situation where we who are tasked with inventing the apology
the system owes us, is not to bring about a situation that the system might find
unbearable in the first place. In a scene in which the system appears as someone
capable of experiencing the emotions that system’s theorists habitually refer to
when they wish to excuse its behaviour, aporia will be the functional equivalent
of the notorious It’s-not-you-it’s-me routine:
It’s not you (ie rest assured, there is nothing wrong with your radical demands). It’s
me (ie it’s just that I have some serious issues, which I can’t talk about, but which
compel me to end this conversation without addressing how we might make it
work for both of us).
Is system a manipulative boyfriend? Or is its wish simply to ‘dramatize
our deep disappointment that more cannot be done with law to effect so-
cial regulation [in] a world of legal problems urgently requiring regula-
tory solutions’?64 Does it matter? Nobody is stopping us from abandoning
the figure of the system once it stops being useful as a metaphor.65 Nor is
anyone preventing us from using a different kind of a metaphor (or no meta-
phor at all) to describe it. Tushnet, implicitly, has done just that as shown in
Chapter 4 of this volume, when he de-agentified one big anthropomorphic,
and always anxiety-ridden system into manifold legal officials whose anxie-
ties may be toned down with the help of the right kind of concept of con-
stituent power. In comparison, dramatizing the envoys of aporia as those
who do the system’s bidding seems either superfluous—from the perspec-
tive of those who don’t take its theoretical perspective seriously in the first
place—or profoundly misguided from the perspective of those who do. The
aim of this book is not to show why that may not be the case).66 What awaits
us instead is the encounter with Schmitt’s tabula.
Roger Cotterrell, ‘The Representation of Law’s Autonomy in Autopoesis Theory’ in Jiri Priban and David
64
Nelken (eds) Law’s New Boundaries: The Consequences of Legal Autopoesis (Ashgate 2001) 89.
ibid 99.
65
66
In terms of existing disciplinary approaches, this would require an attempt to stage an encounter be-
tween systems theory (Niklas Luhmann, Günther Teubner) complexity theory (Timothy Allen, Robert
Rosen), constitutional sociology (Christopher Thornhill, Emilios Christodoulidis), cultural pragmatics
( Jeffrey Alexander), political semiosis (Robin Wagner-Pacifici), and social anthropology (David Graeber, Ilana
Gershon). On the one hand, this cross-disciplinary encounter should probably offer an account of political
371
And Again: the Aporia and the Tabula • 371

While aporia gently lets us know that our aspiration to expand the horizon
of our expectations beyond those shaped by the figures of popular sovereignty
is legitimate, if (regrettably) impossible, tabula broadcasts its attempts to in-
timidate us loud and clear—mischaracterizing, and then denouncing, eutopian
imaginations as foolish, frivolous, and cruel. Foolish—for their failure to recog-
nize that all attempts to create a new set of de-theologized figures beyond the
god-hypostases of sovereign peoplehood are futile, given that,
all de-theologisations, de-politicisations, de-juridifications, de-ideologisations,
de-historicisations, or any other series of de-prefixed entities tending towards a
tabula rasa [will end up] nullified, [and that] tabula rasa [will also end up] de-
tabularis[ing] [itself] erased [together] with its tabula.67
What is destined to make eutopian aspirations inhumane—predicts Schmitt—
is the ‘immanent aggression’ that accompanies our mindless cravings for
everything that is ‘scientifically, technically and industrially new’, which, as a
consequence, will make us quick to discard everything that is ‘outmoded’ and
‘unusable’, or, worse yet, annihilate as ‘invalid’. Having confronted the figures
that populate this tabula in Chapter 2, this time around the effect of their
choreographer’s ‘exemplary theatrical’ imagination68 on our anticipatory con-
sciousness will have been only marginal as we would have been fully aware
of three things: first, the tricks Schmitt uses to evoke holders of constituent
power, friends, enemies (for ‘background and pathos’ as Hans Blumenberg
said); second, the anxieties about his Gestalt that compel him to resort to them;
third, the ‘embarrassments’ of naive acts of stage-setting that evoke ‘cre-
ation’ while ingenuously forgetting that even ex nihilo presupposes some pre-
existing scene; and, fourth—and most importantly—that the theology in pol-
itical theology or secularized theological concepts has never been anything
but secular. Or—as Ernst Bloch helped us realize—that our secularized theo-
logical concepts have never been anything but variations of a ‘secularized,
dramatism more attuned to the systemic aspect of the performers’ imagination (who not only narrate and
perform (scripts) but also calculate (the systemic costs of their actions), as they anticipate the behaviours of
others. On the other hand, the same encounter should probably result in a more expansive understanding of
the system itself: less anxious about the complexity it confronts, less text-centric in the way it does so, more
self-aware of its own scopic regime, and, as a result more able to incorporate a wider variety of observations
into its protocols of responsiveness. Though thoroughly pragmatic, and devoid of underlying ‘commitment
to system’ (Luhmann), the perspective of the observers of such systems will still be systemic, even though
they might perceive the boundaries between them differently. (For example, in contrast with the traditional
picture––w here systems theorists report their observations on political, economic, and legal subsystems from
their disciplinary vantage point within the scholarly subsystem––a new picture would allow us to recognize
some of those second-order observers as colloblasts at the tips of the liberal-democratic political system’s tent-
acles—whose systemic function is to roam that system’s imaginative environment (like the hairs of jellyfish
floating through the ocean) and immobilize the agents who might otherwise be tempted to imagine the pur-
poses of those systems differently.)
Carl Schmitt, Political Theology II: The Myth of the Closure of any Political Theology (Michael Hoetzl and
67
Graham Ward trs, first published 1970, Polity 2008) 128.

Stathis Gourgouris, ‘Political Theology as Monarchical Thought’ (2016) 23[2] Constellations 145, 149. See
68
Brian Goldstone, ‘Life After Sovereignty’ (2014) 4[1] History of the Present: A Journal of Critical History 100.
372

worldly, masterless . . . original biblical hope’,69 an expectant emotion that
obliterates the distinction between the secular and the theological. And this,
without distinction, applies to all god-hypostases over the course of human
history, where
God becomes the kingdom of God, and the kingdom of God no longer contains a
god: ie this religious heteronomy and its reified hypostasis are completely dissolved
in the theology of the community but in one which has itself stepped beyond the
threshold of the previously known creature, of its anthropology and sociology . . . despite all
hypostases of reality. . . comes increasingly to represent a utopian ideal . . . the mode
of reality of concrete ideals.70
Breaking the siege of eutopia is destined to confront us with a reality that is quite
different from the one announced by Bloch: not a landscape defined by new aspir-
ational horizons, but a barren land, and an unfamiliar terrain of struggle that calls
for an even bolder act of imagination—going not only beyond the imaginary of
popular sovereignty, but also beyond our even more unreflective background im-
aginings of ‘society’ and ‘economy’ as the regions of reality that are impossible to
imagine otherwise.
8. Wishful images and partisan onlookers

What happened to the ‘continual propensity for the better’?71 Where is the proof
of Bloch’s claim that ‘we never tire of wanting things to improve’? Or was Schmitt
right to insist that meta-ana-katamorphosis must result in an imaginative god-hy-
postasis? Perhaps the only way to reach eutopia is to allow Schmitt’s ‘space shuttle’
to take us to Mars, to the only place in the world where eutopian imagination re-
sults in institutional innovation:
The neighborhood boards, the agriculture board, the water board, the architec-
tural review board, the project review council, the economic coordination group,
the crater council . . . the global delegates’ advisory board—all that network of
small management bodies that progressive political theorists had been suggesting
in one variation or another for centuries, incorporating aspects of the almost-
forgotten guild socialism of Great Britain, Yugoslavian worker management,
Mondragon ownership, Kerala land tenure, and so on.72
Once a constitutional reality, today these institutions dwell in the realm of
science fiction. Though there are no time-travelling machines in the fictional
universe of Kim Stanley Robinson, we can still imagine the bemusement with
Alfred Jäger, Reich Ohne Gott: Zur Eschatologie Ernst Blochs (EVZ 1969) 167–68, quoted from Warren Goldstein,
69
‘Messianism and Marxism: Walter Benjamin and Ernst Bloch’s Dialectical Theories of Secularization’ (2001)
27[2] Critical Sociology 246, 267.
70
Ernst Bloch, The Principle of Hope, vol 3 ( Neville Plaice, Stephen Plaice, and Paul Knight trs, first published
in German 1959, MIT 1986) 1196.
71
1959, MIT 1995) 107.

Kim Stanley Robinson, Blue Mars (Spectra 1997) 433.
72
37
Wishful Images and Partisan Onlookers • 373

which Martian constitutional scholars would have greeted out inquisitive ques-
tions about the terrestrial approaches to constitutionalism that influenced them
the most. ‘Which one was it? Arendt’s, Kelsen’s, or Schmitt’s? Perhaps an early
twenty-first century reinterpretation of their thought by one of their influ-
ential exegetes?’ ‘It was none of the above’—they would have probably told
us—‘we were fortunate enough to have stumbled upon the collected works of
a lesser-known scholar named Yogi Berra. He was the only one kind enough
to alert us always to keep one particular supra-constitutional principle of both
eutopian and non-eutopian constitutionalism in mind as we drafted the Martian
Constitution: If you don’t know where you are going, you’ll end up someplace else’.
Having said that, one should also be reminded that practising constituent im-
agination in public is not an excuse to be a public nuisance by doing so too
indulgently. Instead of allegories and metaphors, the time has come, therefore,
to ask an earnest, respectuous-sounding, scholarly question: presuming that
a (e)utopian imagination is also an imagination of eutopia, shouldn’t those
whose texts encourage it also promote the production of images capable of
encouraging the attitude that must accompany its pursuit?
Bloch called this attitude docta spes, educated hope. Without more images
that better evoke this attitude, how can those who promote ‘the imaginary
reconstitution of society’;73 or call on others to unleash the ‘powers of im-
agination, in the field of institutional creation’;74 or to devote themselves to
‘the morphological anticipation of a better form of society’75—do so without
producing a single image? Are there more evocative ways of narrating, or the-
orizing its necessity? How (un)imaginative is it to imagine the defeat of the
pictures: totalitarian adventure, radiant future, frenzied ‘machinists’, cruel
egg–breakers—as well as a number of others from the arsenal of Cold War
liberalism—without more evocative, forward-looking wishful images cap-
able of provoking not a ‘naive’ (as Lefort assumed it must be), but a ‘cheerful’
optimism’?
That attitude, as Bloch insisted, has nothing to do with ‘revolutionary ro-
manticism’. Rather, it emerges from a mutually facilitative relationship between
‘sobriety and enthusiasm’ where sobriety immunizes enthusiasm against the
self-defeating fervour of ‘revolutionary romanticism’, and where—at the same
time—enthusiasm also assists sobriety ‘so that it does not abstractly-immediately
foreshorten the perspective’, but keeps it instead ‘on the globe of concrete pos-
sibility’: ‘the Totum of a large ship on a long voyage . . . illuminable in all the
painstaking details of revolutionary work’.76 To Bloch, these are the pictures of
‘concrete utopia’, the ‘Not-Yet-Being’. When it comes to their potential in the
Ruth Levitas, Utopia as Method: The Imaginary Reconstitution of Society (Palgrave 2013).

73
74
Etienne Balibar, ‘After Utopia, Imagination?’ in James D Ingram, ‘Introduction’ in SD Chrostowska and
James D Ingram (eds), Political Uses of Utopia: New Marxist, Anarchist, and Radical Democratic Perspectives
(Columbia University Press 2016) 161–63.
Miguel Abensour, ‘Persistent Utopia’, (2008) 15[3] Constellations 406, 414.
75
Bloch (n 71) 1368.
76
374

field of struggle, it may be more useful to focus less on the image-poets who
extol them and more on the experiences of image-fighters, who failed because
they didn’t have the right images at their disposal—someone like Frantz Fanon
instead of Ernst Bloch.
Beside the much-discussed elaboration of the justifiability of anti-colonial
violence, Fanon’s The Wretched of the Earth should also be seen as the oral
history of a participant on the frontline of the image war—a reminder that
every wishful image which evokes a Blochean ‘concrete utopia’ will always
compete with ‘ten thousand wiles and a hundred thousand tricks’; a flurry of
counter-wishful images, intended ‘to draw us toward them, to seduce us, and
to imprison us’.77 Though the forms and mediums presumed by ‘wiles and
tricks’ may have dramatically changed since Fanon’s book, a broader point he
raised still stands: wherever there is a wishful picture of a ‘large ship on a long
voyage’, there will always be counter-pictures, aspiring to lead the ship off
course. Needless to say, none of them feature on the ‘terministic screens’ of
contemporary constitutional thought; a distinct kind of imagining that con-
tinues to fantasize about abstract individuals coming together to constitute an
order governed constitutionally that irrupts in the middle of nowhere, con-
veniently, with no one else around to create the false glitter that might distract
them from their hollow goals. Set against their backdrop, Fanon’s references
to the ‘false glitter’ of capital—and other more specific pictures capable of
leading Bloch’s ‘large ship’ astray include ‘detective novels, penny-in-the-slot
machines, sexy photographs, pornographic literature, films banned to those
under sixteen’ (including ‘above all alcohol’)—may sound bizarre, if not down-
right comical.78
To sneer at them, however, is to allow the terministic screens of constitu-
tional thought to capture something else: the xenoi who co-constitute new
constitutional orders by exercising their forming force by invading old ones in
order to induce their populations to reconstitute themselves into something
they like better. Or, the xenoi who do no such thing, but who nonetheless also
constitute what in Chapter 3 was identified as the first among three consti-
tutive powers: enterprising enthusiasm, the energy behind the eutopian en-
terprise. Behind the old question, What is pouvoir constituant?, there seems
to hide another, potentially more consequential one: How do we promote
the right kind of élan constituant?’ Unfortunately, this question remains un-
common not only among those who would approach it from the perspective
of theory, but also, perhaps more surprisingly, among those concerned with
constitutional design—those who may have taken Rousseau’s metaphor of
a constitutional machine that runs by itself too literally. Rather than being
abandoned, this metaphor should be allowed to generate new images—of fil-
ters, sensors, transmission belts, gyroscopes, radars, drones, and many other
Frantz Fanon, The Wretched of the Earth (Richard Pilcox tr, first published 1961, Grove 2004) 227.
77
ibid 137.
78
375
Diagrams of Hope and Purpose • 375

imaginary prosthetic devices—and help set the stage for a new imaginary be-
yond the disorienting, misleading, infantilizing, and distracting pictures of
popular self-government.79
9. Diagrams of hope and purpose

Social imaginary is not the work of theory. Still, to theorize is to imagine, and
those who do so publically have a privileged position in the global circulation
of the images that mediate the political expectations from the vocabulary of
popular sovereignty. What captivated Fanon, as we saw in Chapter 2, was the
‘mirage’—a picture, ‘whose configuration [has been] the most satisfying for the
mind’, so powerful, in fact, that it prevented him from achieving what Latour
claims to be the objective of every image-fighter: an ‘effective alignment’ among
the existing, and ‘the fidelity of new allies’.80 As we saw in earlier chapters, this
mirage was fuzzy, ambiguous, and hard to capture visually. Though the mono-
chromatic logos of nation-states that populated post-colonial a-puzzles fortified
its intelligibility and sensibility, what made it ‘commendable’ and ‘appealing’
was what Fanon called a ‘theory on unity’. Though Fanon doesn’t specify the
identity of that unity, it is obvious that his reminiscence refers to the mirage of
popular sovereignty.
This confronts us with an uncomfortable question: If Fanon essentially ended
up agreeing with Jennings’s 1956 verdict—that ‘constitutional development is al-
ways empirical because the dependent territories have different origins and tra-
ditions’81—wouldn’t anticolonial nationalists have been better off had they been
less enthusiastic about the idea of self-determination from the very beginning?
Irrespective of his background motives, Jennings seems to have anticipated
what Fanon recognized only retrospectively: the importance of ‘micro nation-
alism’, an endemic and highly consequential political phenomenon that the
alluring ‘theory on unity’—‘under the pretext of combating Balkanization’—
vainly and counter-productively asks to be eradicated. What ‘fervent national-
ists often forget’—argued Jennings seven years before Fanon—is ‘that they are
an educated minority whose nationalism derives from the English [or French]
education . . . [in contrast to] the mass of the people [which] is more likely to
abide by its traditional loyalties.’82
79
While the indifference to the constitutive power of enthusiasm may be seen as the side-effect of the suc-
cessful attempt of Lefort’s anathema to persuade would-be eutopians that they would inadvertently be trans-
formed into manic ‘machinists’, witch hunters, the ‘social engineers’ of collective feverishness, it is worth
noting that its success comes with the indifference to the questions which have nothing to do with Stalinism
that Lefort continued to be anxious about, but which, highly sensibly and insightfully ask, like Albert O
Hirschman, ‘How can we reintroduce more steady concern with public affairs as well as “genuine public cele-
brations” into our everyday lives? How can we learn to take up public causes with enthusiasm, yet without
the frenzy and the millenarian expectations that guarantee failure and massive disappointment?’ How can
we can set the institutional stage for ‘spasmodic outbursts of “publicness” ’, and imagine institutions more
sensitive to the ‘movement back and forth between public and the private life’? Albert O Hirschman, Shifting
Involvements: Private Interests and Public Action (Princeton University Press 2002) 118.
Latour (n 37) 5. 81 Ivor Jennings, The Approach to Self-Government (OUP 1956) 165.
80
ibid 164.
82
376

Today, our question is broader. Why strive to create a new set of images,
by reimagining the existing figures and scenes of sovereign peoplehood, once
we’ve wizened up to the mirage-like quality of them all? This question seems
to be particularly pertinent in an age where forward-looking and cheerfully
optimistic eutopian imagination seems to be a fading. Whatever mirages cap-
tivate us today, they don’t seem to be dependent on the appeal of the com-
mendable theories on unity. So even if Fanon could be excused for harbouring
a naive belief that the ‘false glitter of capital’ and its cultural products may
successfully be resisted by sending the post-colonial youth to the countryside,
there seem to be no excuses for a similarly naive confidence in the power of
a visually rich eutopian imagination.83 And yet, if it’s true, as David Scott
claims, that,
the currency value of that national sovereignty has vastly declined [and that] to
gain any sort of critical purchase, our oppositional questions, the revised ques-
tions about our futures have rather to be those of unsettling the settled settle-
ments of this very postcolonial sovereignty itself . . .
‘Reimagining other futures for us to long for [and] anticipate’84 won’t make
much sense without something to show for it: a new set of ‘wishful images’
capable of distracting us from the saturnalia of saturation-inducing mediatic
images. The pictures that may assist in that endeavour theoretically may be div-
ided into four categories:
(1) reminders of the invisible— whose purpose is to assist contemporary
Fanons to remain alert to contemporary ‘mirages’ and ‘false glitter’. In
doing so, they are more likely to achieve what Jennings-style icon-smashing
never could: emphasize the way in which the abstract, pictorially modest,
half-invisible products of centuries-old theoretical imaginations continue
shaping which visually rich media images will be more and which less af-
fectively ‘saturating’.85
83
See more generally, Chiara Bottici, Imaginal Politics: Images Beyond the Imagination and Imaginary (Columbia
University Press 2014). For the call to engage in ‘cognitive mapping’ of ‘the artistic production of our own
time’ in the hope of finding ‘signs of some new, so far only dimly conceivable, collective forms which may
be expected to replace the older individualistic ones’, see Fredric Jameson, Signatures of the Visible (Routledge
1992) 54. For an argument that calls for the development of the ‘images of people [that] can be modified
out of all empirical or naked-eye recognition-for example, into gods, talking animals, allegorical notions or
disembodied narrative voices [but which] still remain fabular transpositions and re-creations of possible rela-
tionships between people [and which could] be both decoded and transposed back into relationships between
historical people in significant cases, with an increment in understanding and a possibility of intervening into
them’, see Darko Suvin, ‘Can People Be (Re)Presented in Fiction?: Toward a Theory of Narrative Agents and
a Materialist Critique beyond Technology or Reductionism’ in Cary Nelson and Lawrence Grossberg (eds),
Marxism and the Interpretation of Culture (Macmillan 1988) 663. Finally, see Susan Buck-Morss, ‘Envisioning
Capital: Political Economy on Display’ (1995) 21[2] Critical Inquiry 434, 466–67, for an important discussion
of a nagging question: ‘Why is it, today, that theory generally shirks the challenge of envisioning the social
whole? Is it the taboo against “totalizing” discourses?’ Her conclusion is as timely as ever: ‘the global system
will not go away simply because we theorists refuse to speak about it’.
David Scott, Conscripts of Modernity (Duke University Press 2005) 204 and 49 respectively.
84
Bottici (n 83) 223.
85
37

Though perhaps incredulous when simply put forward as an assertion, this
claim becomes much more intuitive once we pause to ask: What is it—if not
pictorial tokens of territorial integrity, invisible pyramids of legal hierarchies,
or constitutions’ foundations dug into the ground—that makes viciously
self-righteous pursuits of territorial control, the sheepish conformity with
the oligarchic constitutional status quo, or a still-nationalistic world of geo-
political leviathans imaginable as sensible and appealing? Would the media
images that exploit our baseline nationalisms, statisms, and affected shallow
cosmopolitanisms still be able to desensitize us to the injustices and indig-
nities near and far, had we been imagining, instead of these token-pictures
of popular sovereignty, different ones in which a nation-state reveals itself as
a jiggly jelly, or a liberal-democracy as a perpetually reconfiguring oligarchic
slime mould? To begin to look at them in that way is to make the first step to-
wards the construction of:
(2) engines of the deviant—the diagrams whose task is twofold. First, to depict,
in a visually accessible manner, why ‘necessitarian superstitions’ continue
to appear as the most sensible functional adaptations to the facts of polit-
ical life irrespective of the monumental amount of theoretical effort spent
on unmasking them. And second, to inscribe the locations of imaginative
variability into that diagnostic picture that, when made use of, might also
be used to stimulate the development of institutional deviations.
Deviant from the point of view of established imaginative orthodoxies, these
institutional innovations must nonetheless remain within the imaginative grasp
of those who would otherwise find them unimaginable. Rather than remaining
dispersed and ignored in their respective disciplinary environments, the totality
of these deviations would find a new diagrammatic home in:
(3) inventories of the useful—the diagrams whose objective is to compensate
for the polemical waste of theoretical effort; that is, for the inevitable dissi-
pation of the useful theoretical insights that occurs when theorists practise
their craft monographically but not transparently and almost exclusively,
textually. Such practice—rather than stimulating the accumulation of prac-
tically useful theoretical knowledge—does the exact opposite: it demands
an exorbitant investment of time from those who do not have it, and the
keen attention to detail of those who don’t need it. Whatever the eutopian
potential of the texts born out of such practice, the labels attached to
it will radically diminish the likelihood of it being harnessed outside its
monographically defined circumference.
That problem is alleviated neither by a more interdisciplinary, nor by a more en-
gaged theoretical scholarship, because the problem—at its base—originates from
a deep mistrust of the kind of ‘meta-ana-katamorphosis’ that would be needed
for the accumulation of theoretically useful knowledge. Therefore the inven-
tories of the useful are best understood as the ‘paper tools’ that foster otherwise
shunned practices of compression, simplification, and reduction necessary for
378

the emergence of what might playfully be termed the imaginative Wikipedia of
counter-hegemonic political forms, used productively in the projects that rely on:
(4) scaffoldings of the new—whose objective is to represent, as systematically
as possible, the expanse of imaginative powers that inhere in the totality of
choices that are made across the six registers of constituent imagination.
Rather than vacuously affirming the famous battle-cry of 1968—‘all power
to the imagination’—their purpose is to provoke reckoning with the ways
in which the totality of that power is already being exercised, and, in doing
so, render new ways of looking at the world more imaginable.
In this book, these aspirations have been inscribed across thirty figures, most of
which are in the form of a diagram: some showing us how theorists stage the
figure of a sovereign people into existence; to some how move beyond the scenes
in which that figure appears; and some what might be expected beyond them. That
journey began in earnest with Figure 2.5. Though we’ve moved beyond the icon-
ography of circularity at the end of that journey, that doesn’t mean that we need
to avail ourselves of the pleasures it gives us in allowing us to imagine making full
circles, and arriving, at a different state of mind from where we started.
It is only fitting to close this enquiry with an adapted version of that early
diagram below, Figure 10.3. As an emblem of eutopian emancipation, this dia-
gram records the liberation of otherwise invisible members of the dramatistic
quartet—those who over the course of centuries quietly toiled in the cell-blocks
of Schmitt’s tabula—churning out, on demand, one sovereign god–hypostasis
after another.
T
K N
D
E
F M C
T
O P
X S
FF CR EE
Figure 10.3 The emblem of an emancipated eutopian imagination
As a joint snapshot of the way they looked after they escaped their captivity, this
emblem also offers a more condensed representation of the visual consequences
of an imagination exercised in conformity with Burke’s enigmatic directive—ad
379

bellum purificandum—beyond the people. Verbally, that condensation is itself
condensed in this emblem’s subscriptio:
or, more elaborately: xenos (x) beyond (the traditional representations of )

other (o); a polemical scopos (s) beyond the reified three-dimensional place
(p); nephos (n) as a fuzzy ensemble of moders’ attitudes beyond the uniform
representations of the attitudes of the many (m), demos (d), and ethnos (e); the
k-algorithm (k) b eyond the directionless frame; the triad of qualifying con-
stitutive powers the forming force (ff), the capacity (c) for responsiveness
(r), and the enterprising enthusiasm (ee); the territorial constitutional order as
territorial (t) and constitutional isomorph (c); and finally, the telos (self and
other–regarding; backward and forward–looking; formal and concrete).
As a new tabula beyond Schmitt’s tabula, the emblem recorded in Figure 10.3
inadvertently leaves some questions unanswered. Was Schmitt really trying to
warn us not to de-tabularize the old tabula? Or was he making fun of our gul-
libility, by de-tabularizing the tabula himself right in front of our eyes when—
like a good disciple of Latour—he showed us how not to ‘freeze-frame’ the
sacred political icons so that the king can appear ‘as God’, ‘God as a king’, ‘God
as the world’s electric motor’, ‘the electric motor as a kind of machine that
moves the world’—and all this ‘through a kind of space-shuttle’? Was the mo-
ment when he made sure to deny the privilege of being ‘freeze-framed’ even to
the mighty Leviathan—fl icking the images in which it appears as ‘mortal god’,
‘a huge animal’, ‘a large man’, and ‘a big machine’ before our eyes—also the
moment where Schmitt broke character, unable to continue playing the part of
a concerned political theologian any longer?
Perhaps. But there is something a bit too playful and too irreverent in a com-
edic sequence—for someone, that is, who aspires to be seen as earnestly con-
cerned about the mortal dangers of a more daring and hopeful imagination.
Could it be that Schmitt—as he cheerfully narrated all sorts of ways in which
we may imagine the sovereigns of our imaginations—was actually attempting
one last practical joke at our expense? Could it be that our imaginations—always
anxious to get the interpretation right—were also too busy to notice that the
texts in question had been written by someone who had made it clear from the
outset that all political concepts have a polemical purpose; by someone whose
theoretical meanderings gave us enough indicia to conclude that he never really
cared about any of Leviathan’s contemporary incarnations, be they people,
constituent power, demos, nomos, partisan, or some other political entity. By
someone, that is, who seems to have known that the question they raise is not
who they are, but what’s for the better, and what are they for.
381
Index
Abbott, Andrew 22, 24 n81, 124, 298, 354 n19 constitutive 30, 75, 117, 121
Ackerman, Bruce 141 n58, 241 contemporary 24, 87, 117, 13
adventures vi, 4, 17–8, 345, 352 n16 naturalistic 87
‘of thought in writing’ 3, 15, 365 nautical 269
‘patriotic’ 318 representative 83, 86, 88, 90, 116, 120, 130
‘totalitarian’ 125–7, 364, 368–9, 373 scripted 344
‘unilateralist military’ 322 synecdochic 85
hesitant scholarly adventurism 44 see also dramatism; Many; Frame; Place
Schmitt as a self-described ‘intellectual anxiety 14, 27, 28–30, 35, 48, 67, 96, 119, 121, 140–1,
adventurer’ 16, 30 174, 337, 365
see also Gambler-Conjuror ‘about mortality and groundlessness’ 306
Alexander, Jeffrey 242 n21, 370 n66 ‘Cartesian’ 28
algorithm 71, 89, 109, 120, 161, 182, 248, 186, 220, and constitutional pluralism 256, 259
243, 367 in international law 216–20, 228–9
and the ‘coloration’ of public symbols 263 of ‘incompleteness’ 58
and the ways of looking at the scenes of of fragmentation, domination, and
self-determination 198–201 collaboration 77–9, 251
as a ‘legal DNA’ 296, 301 Schmitt’s 105–6, 125–6
as the most primitive if-then storyline 26 systemic 370
compared to narrative 297, 300 see also anxious loop of popular
equalizing 285 sovereignty; Demos
inscribed in a diagram 379 anxious loop of popular sovereignty 77–9, 160,
Kelsenian (K-algorithm) 187, 196–8, 208–10, 234–6, 242
212, 219, 231–3, 237, 245–7, 250–1, 253, 256, see also (sovereign) people
256–60, 262, 272–3, 283–4, 302, 305, 329–30, Aporia 244, 363, 368–71
332, 334, 338, 348 Appadurai, Arjun 5 n13, 57–8, 232
see also ensembles; ensemble-making Arendt, Hannah 84, 128, 153, 373
allegory xiii, 25, 44, 111, 322–3, 366 and ‘augmentation’ 288–9
and constitutional self-government 274 on constitutional authority 237–9, 243–4
underlying mental schemas 25 on constitutional purpose 290
nautical 269, 276 on the absence of revolutionary
Allen, Timothy FH 300 n80, 332, 370 n66 expectations 291
Althusser, Louis 86, 308 n10 argument(ation)
A way of life 176, 191, 319–20 international legal, imagined structure 209–13
and Schmitt’s conception of the Enemy 125–7 tricks 17, 93, 128, 212, 297
and the image of war 358 Armitage, David 133, 141, 318 n58
bucolic vision underpinning Schmitt’s Arnheim, Rudolf 236, 345 n1
Nomos 313 attitude 115–17, 120, 153, 168, 186, 352, 356–7
different from culture 192 according to Burke 151
scenic prompter 125 critical as well as satirical 84
ambiental imagination 15, 30–7, 55, 60, 133, 139, ‘critical relativist’ as the condition for
216, 365 democratic compromise 278
disciplinary 9, 12, 33, 40, 68, 223, 265, 322–8, demanded from the consumers of theoretical
350, 354, 361–3 arguments 244–5
rhetorical 16, 27, 33–6, 64, 83, 139, 244, 297, 357 poetic 192
prognostic 17, 29, 30–2 optimistic 348
Anderson, Benedict 194–6, 201, 204–5, 209 of ‘educated hope’ 373
anecdotes 24–6 of ‘rational’ and ‘passionate obedience’ 21
‘noblest’ 89, 305 ‘of nationalism and imperialism’ 330
382
382 • Index
attitude (cont.) Better 3, 17, 25, 32, 66, 76, 111, 139, 153, 259, 264,
of those in power 149 268, 289, 301, 308, 351, 363, 366, 379
of international jurists 227 better than the Better 341
in real-life constitution-making 50 in constitutional theory 121–4, 154
in self-determination conflicts 176–8 that we stop talking about ‘red-haired man’ 192
anti-colonial 51 ‘a better, more democratic world’ 323
of polemical unimpressionability 17 ‘we never tire of wanting things to
required by radical pluralism 258 improve’2, 122, 294, 372
evoked by the Square, the Triangle and the and Bloch’s thought 2, 84, 123, 169, 372–4
Circle 343–7 Arendt’s aversion toward 291
as fragile, volatile, and liquid 177 see also Demos; Ethnos; hope; Telos
visual representation 170 Bhuta, Nehal 214–15
scanned from above 197, 201 binaries 4, 42, 61–4, 67, 69, 76, 78, 84, 109, 112, 135,
their qualitative, intentional, and aspirational 139, 142, 150, 152, 168, 184, 201, 209, 214, 228,
dimensions 164–7 240–1, 246, 347
and the figure of Many 86–7, 379 consent given–consent revoked 337
see also disappointment; hope; moders; Either–Or 346, 365
Nephos; regret; unanimity mimetic–aesthetic 262
authority 1, 4, 13, 18, 40, 45, 54, 66, 79, 112, 113, Demos–Ethnos 234
145, 178, 193, 206, 218 revolution–amendment 283–4
‘metaphorical authority of intervention–non-intervention 216
transparency’ 349 n4 norm–exception 148, 283
and ‘augmentatio libertatis’ 288 inside–outside 214
and ‘reverent awe’ 237–8 cosmopolitanism–statism (nationalism) 231,
and constitutional pluralism 254–6 265 n75
and Münchausen’s Trilemma 243 tertium datur 365
as ‘advice which one may not safely Utopia-Apology 228–9, 370
ignore’ 243–4 Bloch, Ernst 2, 8, 84, 109, 123, 115, 122–3, 134, 152–
as ‘liquid’ 258, 260 3, 155, 167–9, 227, 371–2, 373–4
of ‘ur-texts’ 242 Blumenberg, Hans 89, 104, 269 n4, 371
of a Greek chorus 226 body (political) 86
professional 220 ‘a mass prostrate in an unintelligible coma’ 367
pyramidal or conical structure 282, 289 ‘body of associates’ 69, 95–7, 118–19, 135, 162,
the matrix of authority-challenges 239–41 207, 296
the sources of legitimate authority 53, 56–7, ‘cyborg’ 307 n5
245, 251 ‘founding a new body politic’ 238
‘the mystical body of the state’ 320
background 1, 21, 37, 38, 89, 193, 305 ‘the will of the representative body’ 271 n6
as ‘society’ and ‘economy’ 372 emulsified 225, 338
as a map and as a landscape 302–3 in the context of Brexit 46–7, 268
as the site of inattention 19 moving 270, 289, 332
beehive-like 41 boundary drawing (S2) 74, 79–80, 234, 316, 324–6
blank 346 and Kelsenian algorithm 108
contrastive 105 and territorial rights 189
figure 19, 40 in constitutional theory 98
ideological 42 in international law 201, 208, 219–20, 234
pixelated 71, 348 Brexit 46–51, 166, 267–8
scenic 72 Brubaker, Rogers 157 n2, 166–7
to either–or choices 365 Buck-Morss, Susan 64 n76, 110 n80, 376 n83
world picture 42, 191 Burke, Kenneth 3, 15, 22, 45, 61, 67, 72, 83–5,
Badinter Committee 203–4, 218, 225 87–90, 117, 120–2, 127, 151, 190, 200, 210, 214,
Balkanization 56–7, 77 n100, 375 232, 240, 260, 296, 305, 320, 350–1, 358–9,
Bartelson, Jens 246 n30, 330 361–4, 378
Baudrillard, Jean 363, 367
Benhabib, Seyla 316–17 calculus 130
Berman, Nathaniel 198 n14 and anxiety management 219
Berra, Yogi 373 and the imagination of parallel universes 216
38
Index • 383
and the Lockean script of exhaustion 144 and the principle of all-affected
and the trial by ordeal 206 interests 325
of suffering 149, 213, 215 as an on-off power switch 218
Calvino, Italo 9–10, 171, 194–5, 231, 305, in the Secession Reference 249–50
338, 366–7 local self-government 292
Casey, Edward 8 n30, 23, 87 n14, 110 n78, 366 n49 see also majority vote; unanimity
Cassirer, Ernst 26 n88, 72 constituent imagination 12–15, 17, 20 and
Castoriadis, Cornelius 34, 63 n72, 72 n91, 84, 170, throughout
297, 366–7 affected and affecting 26
Catalonia 45, 247 as a speculative morphology 14
see also Spain as the practice of theory 2
Chatterjee, Partha 52 n18, 53, 194 constitutional 13
Christodoulidis, Emilios 150–1, 363, 369–70 eutopian 31, 343–4, 346, 363–4, 366, 368,
Circle 7, 29, 47, 84, 266, 343–8 372, 376
and the chicken-and-egg dilemma 269–70 its practical objectives 15–19
and the cycles of constitutional quasi-narrative 15, 22, 123, 344
self-government 270–1, 273 traumatized 84, 338, 369
as ‘frightened’, ‘fearful’, or ‘timid’ 345 visual 5, 19, 38, 106, 112, 210, 216–17, 235, 271,
breaking 365 302, 331, 348, 378
cycles 132, 266, 270, 285, 357 constituent power 1, 4, 12–13, 20, 24–6, 30, 37,
ever-expanding circle of inclusion 329 45, 50–1, 57, 79–80, 86–7, 109, 119–20, 130–7,
full 378 139–45, 169, 214, 231, 245, 256, 306–7, 351,
image schema 74 365, 371
of solidarity 295 n70 ‘all power to the imagination’ 378
synergistic 51 ‘emplaced’ and emplacing 366
the ‘paradox’ of circularity 96, 110, 118, 158, ‘implosive and blind’ 367
179, 182, 184–5, 187, 189, 235, 242, 251, 269, 324, ‘never an innocent affair’ 137
347, 349–50, 378 ‘powers of imagination, in the field of
vicious 95–6 institutional creation’ 374
virtuous 73, 277 ‘savage powers’ of imagination 321, 323
circumference 46, 67, 80, 90, 131, 210–11, 215, 232, ‘xenonomy’ 298
340, 245, 271, 283, 303, 320, 351, 377 and constitutive anecdotes 121–3
its relationship to the perception of and the gaze of the Other 150
agency 199–200 anticipations 129
see also Burke, Kenneth as opposed to pouvoir irritant 258
civil war 13, 66, 96, 12, 133, 136, 141–2, 144, 152, 178, as the capacity for creatio ex nihilo 65
206–7, 215, 233, 242 belonging to Multitude 321
Colón-Ríos, Joel 274 n9 belonging to the plebs 294
Committee of Rapporteurs (1921) 202, 218, 226 hope as the catalyst of constituent
Commune of Paris 134, 149 power 66–7
concepts in a Schmittian pluriverse 306
concepts as anticipations 31, 71, 129 n21 in popular culture 340
endoconsistency 38, 40, 191, 237 in Schmitt’s Constitutional
polemical 15 Theory 96–102, 104–5
six propositions of peoplehood 38, 338, in Sieyès’s Third Estate 94–6
346–7, 363 in the diagram of authority-locations 53
supplementary 42, 60, 209, 241 irrupting 241
the role of diagrams 39–42, 223, 229, 375–9 its ‘paradox’ 74, 158–9
supplementary concepts 41–2, 60, 209, 241, 245 its prompters 124
taxonomy of counterconcepts 60–4 its topology 111
the polemical anatomy of peoplehood 60–4 overflowing 317
the concept of crisis 66–7 symbolical efficacy of its vocabulary 149
conceptual imagination 3, 15, 18, 37 three constitutive powers 129, 379
see also Koselleck, Reinhart; Scmitt, Carl see also constitution; constitutionalism;
consent 92–4, 120, 207, 292, 325, 329, 335–7, 365 constitutional self-government;
‘flowing continuously’ 272 n6 empty place of power; enthusiasm;
‘residence constitutes consent’ 93 Telos; Xenos
384
384 • Index
Constitution 5, 23, 25, 27, 32, 154, 192, 213, 219, cutting
237–40, 244–7, 344, 366 ‘one-dimensional paths’ 236
‘slowness and aversion . . . to quit . . . old across 190
constitutions’ 145 and the meaning of crisis 66–7
‘the constitution of the People-as-One’ 126 bending, twisting, and connecting 110–12
‘the state does not have a constitution . . . the cut-and-paste 298
state is constitution’ 100 cut-offs 243
‘undiscriminating and blind worship’ cut-outs 274, 331
towards 237 orthogonally 64
American versus British 49 short 90, 142
and pre-commitment 26, 268, 274–5 see also decision
as an ‘Ur-text’ 242
as a project 22, 32, 105, 126, 154, 178, 183, 186–7 Dahl, Robert A 272 n6, 323, 325
as a wish list 291 daily government (S5) 79–81, 104, 120, 186, 214,
co-institution versus to co-imposition 127 281, 283–6, 288, 367
constitutional epidermis 331 decision 36, 48–50, 58, 67, 74–6, 79–80, 89, 97, 100,
constitutional grievances 236 106–7, 114, 119, 122, 132, 160–3, 166–7, 182, 200,
constitutional spacetime 349 204, 206, 219–20, 247, 256, 268, 272, 274–5, 275,
constitutional subject 343 279, 285, 295, 309, 317, 329, 337–8
etymology 127 Declaration of Independence (1776) 145, 318
founding versus with-standing 32, 128 decolonization 53–6, 60, 65, 198, 203–4, 206
imposed 120 n97, 317 decorum xiii, 2, 353
Indian 54, 335–6 Demos 12, 36–7, 43, 131, 316–17, 334, 338, 343,
post-colonial 53 366, 379
preambles as Litanies 25, 236 allegedly unbound 326
purposive 59 and Ethnos 4, 44, 109, 66, 78, 109, 116–18, 120,
self-constitution 24, 117, 167, 227, 251, 269–71, 158–60, 162–4, 170, 178–9, 182, 184–7, 224, 234,
298, 347 296, 307–8, 338, 343
stance word 87, 127 as a False Dmitry 325
constitution-making (S4) 79–81, 95–8, 100, 134–6, as a vanishing mediator 327–8
161, 182, 186–7, 204, 214, 232, 249, 250, 253, Deliberative Demos and the referendum on
256–8, 260, 281, 283–6, 288, 316 Brexit 47
constitutionalism global 328–9
and liberal democracy 50, 58, 138, 219, 259, in contrast to a sovereign people 323–4
268, 272, 274, 276–7, 292–5 mutant 51
and radical democracy 274 n9, 294 diagnosis and prognosis 36, 365
beyond the people 259 constitutional theory 131–4
catachrestic 54, 259, 273 international law 221
constitutional pluralism 231, 240, 241, 253–62 diagrams 53, 81, 81, 117, 129, 169, 186, 211, 223,
foundational 245–51, 255, 258, 334 228–9, 236, 271, 281, 283, 287, 331, 333, 347
global 51, 209, 231, 334, 336 in natural and social sciences 38
Western 30, 49, 148, 302 their anticipated function 39–42
constitutional self-government of hope and purpose 375–9
and K-algorithm 26, 120, 180, 237, 245, 251, 256, Dicey, Albert Venn 271 n6
259, 273, 285–8, 296, 298, 300, 302, 334 disappointment 9, 48, 60, 122, 221–2, 236, 276
its cycles 266, 270–1, 285 dramatism 22, 24, 83–5, 88, 90–1, 93–4, 109, 115–
its geography 293 16, 118, 121–2, 128, 289, 326, 351, 358–9, 360, 371
its iconography 269, 350 dramatis personae
its morphology 13, 171, 255, 272, 281, 288, 291, ‘barbarous philosopher’ 139
321, 350, 367 ‘constantly working social engineer’ 127, 339,
its rhythms 270–1, 299, 348–9 375 n79
see also Constitution; constitutionalism ‘man of business’ 3
Cosmopolis 307–8, 328–31, 333, 335, 338 ‘priest of the profane’ 3
Cover, Robert 23 n75, 26, 296 ‘red-haired man’ 192
creatio ex nihilo 65–6, 85, 89, 91, 93, 99, 104–5, 115, administrator 54
119, 152, 371 circus performer 129
Creator and Framework 41, 64–6, 81, 88, 109, computer programmer 43
120, 197, 301 conscript 70, 72, 148, 356, 376
385
Index • 385
farmer 68, 302, 313, 327 182, 195, 220–2, 236, 245, 256, 269, 275, 315,
image-warrior 360–1 356, 369, 370, 375
painter 15, 172 anti-colonial 51–9, 374
pirate 104, 321 concrete 182, 339, 363
poet 6, 16, 18, 38, 42, 54, 155, 192, 195, 290, 300, expectant emotions 27–9, 49, 51, 67, 87, 138,
308, 313, 338, 348, 374 223, 337, 343
scientist 6, 8, 38, 240 managed by the figures of peoplehood 1–2
scholarly, in this book 352
screenwritter 15, 143 Fanon, Frantz 52, 54, 56, 77, 190, 192, 339, 340, 374–6
soldier 137, 318, 321, 356 fauna (imaginary)
stage-director 15, 83, 298 amoebas 307, 354
superhero 340 chicken-and-egg 70, 95, 269, 347
see also theorists e. coli 293
Dworkin, Ronald 238–9 elephant 8, 163
insects 84, 111
Egypt 135–6 jellyfish 371 n66
Elkins, James 19, 69 ‘huge animal’ 20, 379
emblems 6, 9, 11, 21, 42, 69, 70, 75, 81, 83–4, 88, little red ants 112, 117
125–6, 131, 161, 201, 256, 263, 268, 270, 296, monkeys (holding each others’ tails) 40,
298, 301–8, 321–3, 341, 347–8, 351, 365, 378, 379 (three wise) 362
emblematic certificates 69 (oligarchic) slime mould 298, 373
tokens 4, 47, 72–3, 314–15, 334, 377 snail and caterpillar 159
ventriloquist dummies 351–2 snake (mythical) 70, 117, 158, 270
see also ensembles; meta-ana-katamorphosis; spirulina 340
prompts; prompters swarm 19, 86, 170, 307
Enemy 16, 61, 87, 88, 91, 94, 101, 102–6, 114, 116, whale 332–3
118, 125–6, 131, 136, 150, 235, 296, 317, 356 federation(s)
empty place of power 7, 69, 84, 87, 112, 113–14, Bosnia and Herzegovina 233, 263
117, 130, 139, 152, 272–3, 289, 324, 348, 351, 365 Canada 203, 244, 248–9, 250–2, 260
Enough! 78, 128, 147–8, 363 France, as a transcontinental socialist 55
ensembles 70–3, 120, 161–2, 170, 176, 298, 301, Russian dolls 233
366–7, 379 world 32, 55, 107, 109, 134
crisp 118, 162, 170, 177, 343 Yugoslavia 52–3, 198, 203–4, 210–11, 217, 222,
fuzzy 161–2, 170, 296, 367, 379 225, 233, 257, 372
granulated 163, 240 see also United Kingdom; United States
sets of members 162 fiction 1–5
see also emblems; meta-ana-katamorphosis; ‘awkward patch’ 45
prompts; prompters and the vocabulary of ‘good enough’ 217 n71
enthusiasm 6, 30, 32–3, 40, 45, 111 n83, 127, 143, democracy as a necessary political
276, 166, 276, 323, 373, 379 fiction 5 n11
‘interpassive’ citizens 50 fictional emotions 27
and ‘the annihilation of despotism’ 144 twilight 44–5
and the ‘false glitter of capital’ 374, 376 figures 19
as ‘cheerful optimism’ 373 as defined by Urbinati 69–70
as ‘feverish’ in a totalitarian society 126, of constitutional subjects 296–9
339, 375 perceptual credibility 46, 90, 94, 110, 119, 130,
as the ‘spasmodic outbursts of 191, 350
“publicness” ’ 375 n79 nine figurations 70–3
élan établissant (constitant) 129, 339, 374 as staged 20–1
estrangement (imaginative) 223, 260, 262 see also background; Brexit; emblems;
and prescriptive precision 67 ensembles; (sovereign) people
from the imagery of self-determination 160–1 Filmer, Robert 92, 94, 306
from the vocabulary of peoplehood 12, five stages of determination 79–80, 95, 104, 247,
167, 253 260, 288
not being the task of normative theory 188 occasions for normative prescription 202
Eutopia 363–4, 367, 371, 373, 374–8 see also triggering (S1); constitution-
expectations 1–4, 13, 15, 30, 36, 43–4, 48, 66, 70–1, making (S4); boundary-drawing (S2);
75, 87, 122, 132–3, 135, 148, 151, 155, 158–9, 166, status-determination (S3)
386
386 • Index
Foucault, Michel 28–9 Holmes, Stephen 274–5
four laws of grouping 234–7 homogeneity 46, 97, 99–100, 135, 142, 144, 263,
frequency 171, 240 279, 300
and the scale of constitutional hope 2, 8
transformation 307 ‘method of radical temporal reorientation of
of reproduction and the question of knowledge’ 49, 223
hierarchy 332 ‘nihilism of theoretical
of territorial fragmentation 356 hopelessness’ 84, 113
see also responsiveness ‘worldly, masterless . . . original biblical’ 372
Frame 88–9 absent from constitutional theory 121–4
and Framework 41, 48, 63–6, 81 diagrams of hope and purpose 375–9
and Nomos 88, 101–2, 105, 109, 116–17, 120, 196, docta spes 373
198, 210, 212, 214, 216, 336, 379 hope for the Better and the sense of
see also Many; Other; Place purpose 122, 124, 126, 153, 308, 368
Frontier Dispute Case (1986) 204 inscribed in the Vorgriff of constituent
power 122–3, 134, 152–3, 155
Gambler-Conjuror 17, 32, 139, 360–1 management of, in international law 220–3
Gaonkar, Dilip P 5 n14, 44 n4 see also Bloch, Ernst; Eutopia
gazes 19–26 horizon of expectation 31, 33, 44, 131–4, 195, 229,
‘staring obsessively’ 110 256, 337, 363, 369, 371
and cross-sections 26, 272, 291, 303, 331, 334, 350 anti-colonial 51, 55, 59
and cut-outs 331 see also diagnosis and prognosis; Koselleck,
and metapictures 195–6, 243 Reinhart; space (of experience)
and the question of perspective 38, 40, 67–9, hybridity 299–301
229, 318, 373 hypocrisy 18, 146, 208, 226, 309, 311–12, 314
from above (top-down) 197 n13, 199, 200–2,
202, 209, 211–13, 229, 330, 345, 361 iconoclash 350–1, 353, 356
from aside (sideways, diagonally) 199, 200, participants 355–7
201, 272, 287, 291, 303, 330 and the image of war 358–60
from below (bottom-up) 211–13, 227, 229, 330 see also Gambler-Conjuror
narrow or wide 74, 80, 90, 142, 175, 204, 232, identity (collective) 6, 77, 114, 159, 162, 173, 191,
245, 303, 343 197, 259, 295–9, 307
oscillating 3, 9, 13, 26, 90, 95, 116, 122, 179, 195, ‘reflexive’ 74
209, 229, 254, 350, 360, 361 and a ‘missing fullness’ 213
shaped by affective imagination 27–30 and identification 184
squishing hierarchical protrusions 202, 255 as ‘ideology’ 164 n19
see also circumference; images; instruments civic 178, 184, 316
and artifacts; imaginary fauna; scopic externally defined 203
regimes hybrid 178, 299, 300–1
Geertz, Clifford 56–7 its symbolical representation 263–4
Gestalt 105–7, 125, 234–5, 302, 371 narratively constructed 299–300
good enough 4, 76–8, 122, 148, 201, 210, 217, 271, national 63, 161–3, 167, 191
278, 315, 334, 363 of international jurists 223–5
Goodman, Nelson 71, 194 of Valid Victors 278
Goodrich, Peter 73 n94 predatory 58, 88, 103–4
Graeber, David 340, 341 n121, 370 images 3, 6, 8, 9, 15, 21–2, 25, 27, 39
Grossraum 307–15, 328, 338, 341 ‘mirage’ 56, 58, 77, 192, 375–6
and pattern recognition 330–1, 334
Hale, Henry 152 and text 42, 69, 96, 236, 377
Hardt, Michael and Negri, Antonio 131, 134, 309, anxiety-inducing 35
321, 322, 323 as optical illusions 83, 113, 283
hegemonic counter-poaching 314–15 as props 3, 69, 343
Held, David 336 figure and background 19, 40, 288
Hevia, Martín Jesus 174–5 image warriors 360–1
hierarchy 178, 284–6, 302, 332, 347 metapictures 195–6, 243
Hirschman, Albert O 55–6, 60, 375 n79 oligopticons and panoramas 195, 303,
Hobbes, Thomas 20–1, 24, 28, 86–94, 103, 116, 305, 337
130, 153, 282, 296–7, 306, 352 rich images 19
387
Index • 387
self-images 15, 33, 106, 137, 241 Jameson, Fredric 32 n111, 159 n7, 376 n83
their clarity 302–3 Jay, Martin 11, 21, 348
wiggle images 196 Jennings, Ivor 46, 48, 50, 73–5, 199, 356, 361–3,
wishful images 155, 227, 372–4, 376 366, 375–6
see also emblems; ensembles; gazes; Gestalt; Johnson, Mark 9 n32, 19, 269–70
iconoclash; image schema(ta);
meta-ana-katamorphosis; scopic regime; Kahn, Paul W 317–20, 358
transparency Kelsen, Hans 75–81, 89, 105–9, 114, 120, 160–5,
image schema(ta) 19, 25, 41, 73–5, 88, 191, 260, 167–70, 182–6, 195–201, 205, 207–13, 231, 233–4,
269–71, 273, 302, 332, 344–5 237–8, 272, 278–90, 296–7, 305–6, 324–5,
imaginative taxation 146, 260, 325 329–30, 332, 336–8, 346, 351–3, 366–7, 373
innovation 24, 253, 260, 295, 344 see also algorithm; majority vote; unanimity
and diagrams 377 Kennedy, David 5 n12, 17, 223 n92, 224 n98
anti-oligarchic 295, 302 Kennedy, Duncan 223 n91
false necessity 67, 84, 219, 346 Kesavananda Bharati v State of Kerala
institutional 372, 377 (1973) 246
interpretation Kharms, Daniil 192
anxiety-management 216–20, 256, 262 kitsch 196, 339, 341, 369
hope-management 220–3 Klabbers, Jan 219, 221
isomorphs 70-71 Koselleck, Reinhart 31, 41–2, 60–4, 66–7, 71, 129
constitutional 267–70, 272–4, 276–89 n21, 131–4, 209, 227, 240
in a pluriverse 303, 305, 314, 330, 331, 332, 334, see also diagnosis and prognosis; horizon of
349, 367 expectation
morphology 272, 281, 288, 331, 367 Koskenniemi, Martti 202–3, 210–13, 216,
territorial 231–6, 256, 265 221–2, 224, 227–9, 309, 315, 331, 336, 339, 363,
translucent 26, 349 368, 370
see also algorithm; gazes; meta-ana- see also Aporia; argument(ation); kitsch; self-
katamorphosis; responsiveness determination; Telos; Utopia
instruments and artifacts Kosovo 185, 203, 205, 210, 216, 221–4, 233, 263
‘asylum for mankind’ 319 Advisory Opinion (2010) 202, 221
‘big, beautiful wall’ 340 the constitutive influence of external
‘bubble’ 265, 354 actors 179–81
‘cyclotron’ 367 Kratochwil, Friedrich 33 n112, 155
‘gigantic solar power platform’ 341 Krisch, Nico 257–8
‘large ship’ 373–4
‘Omnimax rooms’ 196 Laclau, Ernesto 35, 53, 172, 213
‘paper tools of theory-making’ 37–42, 377 Laski, Harold 271–2 n 6
‘space-shuttle’ 20–1, 71, 379 Latour, Bruno 3 n7, 35 n120, 43 n2, 85 n5, 86 n9,
‘telescope’ and ‘microscope’ 26 88 n17, 158 n5, 179 n59, 195–6, 305, 349–50,
‘the motor of constitutional dynamism’ 321 356–8, 360–1, 375, 379
‘washing machine’ 131–2 Lefort, Claude
‘world’s electric motor’ 20, 70, 379 ‘adventures of thought in writing’ 3, 15, 365
computer 43, 160–1 ‘the enigmatic arbitration of
deictic cube 138 Number’ 114, 289
filters, sensors 272 Anathema 363, 365–6, 375
gyrating reflectors in an empty empty place of power 69, 84, 112–14, 117, 139,
discotheque 287 152, 351, 365
high-wire 129 Lefort’s vase 112–14, 117, 127, 195, 273
MRI scanner 197, 201, 209, 262 see also prompters; (sovereign) people
on-off power switch 218 Leviathan 20–1, 28, 56, 87–8, 90, 92, 113, 332,
Photoshop 263 377, 379
projectile 43 Lezra, Jacques 148
rocket booster 96 Lindahl, Hans 129, 136, 137–9, 152, 193, 251–3, 281–
shelter, dwelling 128, 154 3, 287, 297, 298, 300
spectroscope (spectrometer) 79–81, 187–8, localizers 88, 116, 179
202, 367 Loughlin, Martin 5 n10, 7 n19, 22 n71, 75, 130, 133
video game 43 n34, 241
video screen 50, 71 ludic majoritarianism 50–1, 58, 293
38
388 • Index
M + P trick 93, 119, 124, 127–8, 130, 243, 270, 289, 297 Mitchell, William (WJT) 191–3, 195
majority vote (majoritarian, democratic mnemonic editing 199, 216
decision-making) 49–51, 58, 75–6, 122, moders 183, 197, 207, 224, 258, 263, 273, 379
160–1, 167, 177, 201, 206, 256, 272, 277–8, 280, Committed, Departed, Defeated, Distracted
284–5, 293, 295, 298, 325, 329, 337 and Frustrated 168–9
supermajority 285 distinguished from members 165
good enough 76, 122, 201 Frustrated Cheerleader 289
and Brexit referendum 48–9, 58, 76, 92, 94, Performers, Supporters and
106–7, 119, 161, 208, 248, 270, 278, 285, Cheerleaders 165–6
329, 346 see also algorithm; Bloch, Ernest; ensembles;
in Hobbes’s Leviathan 92–4, 119 Kelsen, Hans; Nephos; self-determination
see also algorithm; Kelsen, Hans; ludic Moore, Margaret 161–5, 172–80, 189–91
majoritarianism; M + P trick; unanimity; Multitude 4, 30, 43, 50, 86, 90–1, 108, 131, 150, 277,
uti possidetis principle 293, 307, 321, 338
Many 81, 86–94, 105–6, 115–16, 118–20, 124, 321, see also Demos; emblems; Many; Nephos
344, 366, 379
and isolated individuals ‘seeking to unite’ narratives 5, 15, 22–6, 30, 42, 54, 72, 75, 111, 123,
95–7, 119, 142 159, 236, 241–3, 295–301, 319–20, 320, 322,
and the ‘enemy we fear’ 91 344, 376
and the ‘preparation to act’ 87 and algorithms 26, 243, 297–8, 300–1
as Multitude, globally 321–3 and collective identity 159, 295, 297–301
stage prop 83–6 coping mechanisms, therapeutic
see also algorithm; consent; dramatism; Frame; function 299
majority vote; M + P trick; nomos; Nephos; need for ‘robust narratives’ 241–2
Other; Place; (sovereign) people; six laws of rudimentary, as Litanies 25
constituent dramatism their imaginative fragility 23
maps 15, 29, 37, 44, 51, 72, 142, 157, 193, 194–9, see also allegories; anecdotes; prompters;
210–11, 213–14, 216, 236, 260, 262, 302–3, 315, prompts
344, 353–4 Nebula 363, 365, 367, 369
‘cognitive mapping’ 376 n83 see also (political) body, Nephos
‘time maps’ 199 Nehru, Jawaharlal 54–5, 333, 335–6
as mediums 194–6, 199 Nephos 114, 120, 157, 158, 160, 162–8, 170, 172,
disciplinary 354 174, 176, 186, 224, 240, 262, 273, 296, 305, 356,
map-making 7, 194, 214 367, 379
of international jurists 193–5 Nonet, Philippe and Selznick, Philip 338
of popular sovereignty 44–5
the map of the world as a jigsaw puzzle Oakeshott, Michael 3 n5
194–9, 201, 231, 291, 334 oligarchy 51, 61, 171, 275
the role of squares 344 liberal 293–5
Twining’s Map 355 see also constitutionalism; constitutional self-
versus landscape paintings 302–3 government; enthusiasm; innovations
see also cutting; Goodman, Nelson; gazes; Other(s) 39, 87–9, 90–5, 99, 103–6, 113–16, 118–19,
images; Latour, Bruno 121–3, 125–6, 137, 149–51, 154, 176, 180–1, 183
Martians 254, 373 n64, 187, 213–19, 224, 259, 300, 312, 321, 332,
Massey, Doreen 172 362, 364–6, 379
McCormick, John P 286 n45 ‘abolished’, 113, 126, 364
mediators 1, 40, 343 ambivalent 104
and intermediaries 86, 158 and ‘constitutive outside’ 114
furtive 158 as opportunity and obstacle 113
vanishing 159, 271, 327 as the ‘enemy we fear’ 91
see also localizers benevolent 94 n31, 103, 308
meta-ana-katamorphosis 20–3, 70–3, 296, 301, internal 150
372, 377 Interssierte Dritte 87, 104, 150, 179, 215, 226
metaphor 20, 36, 38, 71, 73, 77, 79–80, 96, 110–12, predatory 88, 103–4
114, 118, 130–2, 159, 196, 206, 232, 238–47, 265, see also constituent power; Enemy; Frame;
272, 274, 287, 297–8, 302, 332, 344, 349, 356, Gestalt; Lawgiver; Many; Place; Xenos;
370, 373–4 Schmitt, Carl
Michelman, Frank 271–2 n6 ought-place 271–2, 281–3, 287, 291–305, 349
Miller, David 162, 177, 179, 180, 184, 189, 191 see also Lindahl, Hans; Place
389
Index • 389
‘paradox’ self-determination (right to); Telos; Xenos;
and constitutional subjectivity 111 status-determination (S3)
and the constitutive involvement of great political equality 78, 123, 159, 182–3, 245, 285
powers 180 political theology 89, 319–20, 338, 371–2
and virtuous and vicious circles 96 see also Bloch, Ernest; Schmitt, Carl
as allegedly generative 158 populism 58, 167
as the product of Jennings’s scopic preamble 25, 127, 159
regime 73–4 prompters 124–7, 273, 363–4, 367
chicken-and-egg 85, 317 see also A way of life; Anathema; Aporia;
de-paradoxification as pensiero debole 110 Constitution; Nebula; Tabula; Utopia
demanded to be tolerated 244 props 3, 69–71, 81, 106, 118, 124, 343, 351–2, 363
easy to denounce 35 see also emblems; Many; Other; Place; Frame
iconography of circularity 269, 350 purity
infinite regression 347 ‘pure’ concept of constituent power 140–1
of circularity 182, 185 and hybridity 300–1
of constitutionalism, constituent power 74, ethnic 213
182, 242, 350 ad bellum purificandum 354, 359–60
of imagination 8
of transubstantiation 182 referendum 27, 46–9, 76, 79, 107, 166, 177–8, 200,
rhetorical function 160 203, 208–9, 217, 248–9, 251, 256, 267, 285, 367
self-constitution 127 regret 275–6, 293
see also Aporia; gazes; Jennings, Ivor; resentment 27–8, 48, 50, 119–20, 168
Loughlin, Martin; M + P trick; scopic responsiveness 50, 147, 154, 176, 186, 227, 245
regime; Utopia four dimensions 281
partisan eavesdroppers 35–6, 60, 137–40, 225, in a representative democracy 269, 271, 292
229, 244, 253, 310, 316 its morphology 288
as a ‘Latin American friend’ of Robert Dahl 323 its relationship to purpose 338
as onlookers 372–3 tendential 272, 280, 281, 288, 292
asking questions about constituent power 137 revolution 141–50, 152–3, 168, 231, 237, 241, 326, 367
quasi-Socratic ingénue 35 adjectival 133
see also ambiental imagination; Burke democratic 53
Kenneth; Castoriadis, Cornelius; dramatis French (1789) 143, (1848) 45
personae; Martians American (1776) 145–6, 198, 288, 317–18
patience 49, 144, 147, 148, 319 Kiev (2014) 66, 178, 314
‘democratic impatience’ 148 revolution-amendment binary 4, 347
see also Enough!; script of exhaustion expectations of the American
Peters, Anne 205–9, 222, 307, 318, 336 revolutionaries 291
Pettit, Philip 183, 269, 271 ‘revolutionary romanticism’ 373
Place 81–106, 110–12, 114–20, 124, 127, 130, 133, 139, see also civil war; script of exhaustion; script of
140, 312 contamination; (sovereign) people
‘limited island of stability’ 289 Ricœur, Paul 23, 123
‘spaces of worldly appearance’288 Rosenfeld, Michel 110 n79, 268 n1, 297–8, 300, 349
and constitutinal spacetime 272–3, 281, 287, Roth, Brad 205–7, 209, 214–15, 219, 221
291, 349 Rousseau, Jean-Jacques 24, 69, 86–7, 93–4, 103–4,
and Demos 325–6 107, 116–17, 139, 215, 296, 306, 308, 324–5, 352,
and fragmentation 77–8, 113, 119, 139, 217–18, 363, 374
233–4, 251, 256–7, 260, 262, 364
and space 171–9 Said, Edward 33
as ‘hollow’ in relation to ‘nihilism of Schlag, Pierre 5 n14, 7 n25, 18, 24 n80, 40, 192,
theoretical hopelessness’ 84, 113 220, 352, 352 n16, 361 n38
Ouroboros 70, 110, 111, 112, 116–18, 158, 269, 347 Schmitt, Carl 15–16, 18, 20–1, 28, 42, 62, 64, 68–
topology, constitutional 111 71, 73, 84–6, 88–9, 91, 95–110, 113, 117–18, 120,
utopian no-place 341 125–7, 137, 139, 141–4, 149–53, 162–4, 178–9, 181,
see also boundary-drawing (S2); Casey, 191, 195, 214–15, 226, 235, 241, 258, 268, 279,
Edward; dramatism; ‘empty place of 289, 296, 300, 302–3, 305, 308–9, 311–19, 328,
power’; Frame; instruments and artifacts; 334, 337, 351–2, 358, 360–1, 363, 371–3, 378–9
Lefort’s vase; majority vote; Many; M see also anxieties; A way of life; serious(ly);
+ P trick; Other; ought-places; Scopos; Enemy; Gestalt; Other; Nomos; script of
six laws of constituent dramatism; contamination
390
390 • Index
scopic regime 21, 26, 70, 75, 90, 120, 175, 184, 194, sovereign equality 108–9, 214, 303, 328–9, 337
201, 210, 223, 298, 331, 349, 371 (sovereign) people 1–7, 13–14, 24, 32, 43–5, 48–9,
cinematographies of constituent power 142 51–60, 64–5, 75–80, 83, 106, 109, 111, 127, 147–
focus 13, 21, 45, 50, 74, 80, 196, 204, 206, 210–11, 8, 152, 159–60, 171, 191–2, 201, 203, 206, 234–8,
214, 216, 232, 255, 305, 330, 345, 350 242, 242, 244–5, 263–4, 266–7, 271–3, 278, 287,
zoom 74, 142, 175, 280, 286 289, 292, 294, 299, 315–20, 323–4, 339, 346,
exposition 175 350–3, 367–8, 371–2, 375, 377
fast-forwarding 46, 142 American 50–1, 54, 145–6, 246, 288, 292, 293,
recording 90, 142 307, 309–14, 317–27
mediums 68, 73, 79, 95, 194–7, 199, 201, 213, 236, asymmetric counter-concept 62–3, 67,
255, 260, 263, 374 112, 228
see also cutting; dramatism; emblems; conceptual anatomy 40–1
ensembles; gazes; Jay, Martin Decider, Deliberator, Victor 46–7, 267, 268,
Scopos 120, 171–9, 262, 379 343, 367
script of contamination 141–3, 152 demanding sacrifice 317–20
script of exhaustion 144–8, 153, 319 in Twining’s Map 355
Secession Reference (1998) 203, 218, 248–51, its ‘will’ (Brexit) 46–51 (status-elevator) 200
253, 280 (informed by a wager, evaluation, and a
self-determination (right to) 12–13, 23, 36–7, 44, commitment) 188
44–5, 54–5, 58, 64–5, 74, 79, 89, 105, 107, 108, Navigator 268–9, 274
116, 118, 120, 139 people-Dwarfs and people-Giants 305–9, 315,
and normative theory 158, 168, 178, 183, 325, 332, 337–8, 343
188–92, 233, 235, 361 perceptual credibility 46, 90, 94, 110, 119, 130,
civic and ethnic 56–8, 65, 157–9, 164, 177–8, 182, 191, 350
185, 199, 203, 208, 219, 222, 264 semi-sovereign 293
international jurists, observing 201, 206, see also; creatio ex nihilo; Demos; ‘empty place
209, 210–11 of power’; majority vote
its ‘paradoxes’ 158–61, 182, 184–7, 189, 235, 324 Soviet Union 60, 178–9, 198, 315
its holders 157–8, 161–3, 165, 171, 176, 180, 184, Spain 189, 248, 260
196, 205, 220, 223, 256, 305 Spivak, Gayatri Chakravorty 54 n33, 259
territorial rights 172–5, 180, 183, 185, 193, 233, Square 115–20, 343–5
235, 262, 312 status-determination (S3) 79–81, 97–8, 100,
see also constituent power; emblems; 135–6, 160–1, 186–8, 200, 203–4, 206, 214,
ensembles; (sovereign) people; Yack, 218–19, 221–2, 247–50, 253, 256, 258, 260, 281,
Bernard 283, 288
Sénghor, Leopold Sédar 54–6 Strauss, Leo 16, 18, 42
serious(ly) surfaces
‘a world without seriousness’ 16 ‘surface eruptions’ 44
‘half-serious comment of a friend in Latin and screens 197, 291
America’ 323 gazed at sideways 291, 303
‘serious disaffection based on primordial imaginatively flattened 255
attachments’ 56 in Mr Palomar’s imagination 194, 231
‘seriously considering the outsiders’ layered 286–7, 291, 303
desires’ 258 Möbius strip 70, 87, 110–12, 117
‘the right to be taken seriously’ 219–21 monochromatic 194, 197, 209, 231
(not) taking popular sovereignty seriously 12 opaque 197
comedic method of dramatism 359 seen from above 112, 209, 212, 265, 303, 349
getting ‘serious about evaluation’ 192 n75 transparent 197, 348–9
Sewell, William H 143, 144 n66 see also cutting; gaze; image; Lefort’s vase;
Sherwin, Richard 27, 356 n20 transparency
Sierpinski recursion 231–3, 262–3, 265 Suvin, Darko 376 n83
Sieyès, Emmanuel Joseph 69, 95–7, 110, 118–19, symbolical efficacy 45, 126, 139, 144, 149, 159,
123, 135, 139, 142, 153, 162, 289, 296 192, 342
six laws of constituent dramatism 115 synergy 51, 59
first 90 System
second 91 agentified and de-agentified 151
third and fourth 93 and the function of Aporia 370
fifth and sixth 94 as an anxious internal Other 151, 370
additional hypotheses 118–19 systems theory 265, 370 n66
391
Index • 391
Tabula 363, 368–71, 378–9 Ukraine 66, 133, 141, 177–9, 184, 18–90, 247, 314–15
Taylor, Charles 1 n1 Ulysses and the sirens 25–6, 70, 268, 273
Telos (purpose) 3, 4, 20, 24, 51 and the image schema Path 25
‘dissolved’ in constitutive anecdotes 121 Cicero’s adaptation 276
‘What are the hills for?’ 359 Dante’s adaptation 276
and constituent power 123, 152–4 Holmes’ constitutionalist interpretation 274–5
and international order 201, 328 Horkheimer’s and Adorno’s interpretation 275
and Lefort’s vase 127, 273 unanimity 76, 79, 89, 93–4, 106–9, 119, 128, 130,
and Schmitt’s Enemy 126 183, 196, 213, 233–4, 270, 278–80, 283, 303, 306,
and Schmitt’s Grossraum 311–2 325, 337
and Utopia 227–31 Unger, Roberto Mangabeira 4, 7, 29 n102, 31, 264
Fanon’s conception 339 n70, 306 n1, 308 n8, 346
for the Better 122 United Kingdom 50, 217, 256–7
forward-looking and backward-looking 196, Act(s) of Union (1707) 257, 260
228, 338, 379 union state 256
in an isomorphic pluriverse 305, 308 see also Brexit; Jennings, Ivor; referendum
the figure of purpose 65 United States 18, 49, 55, 58, 93, 180, 189, 217, 238,
see also dramatism; Frame; Many; Other; 240, 246, 256, 257, 289, 292, 310, 310, 319, 320,
Place; Xenos 322-3, 327, 333, 336
Texas v. White (1868) 246 unmasking 3, 17, 235, 311–12, 377
three laws of scenic contrast 75, 90, 348–9 Urbinati, Nadia 69–70, 269, 271, 300, 337
theorists uti possidetis principle 203–8, 252, 271
‘capable of imaginative re-enactment’ and historical pedigree 217–18
352 n16 in Latin America 204
artists 6–7, 85, 376 in the former Yugoslavia 198, 203–4, 217
dilettante prognosticators 31–2 see also gazes; majority vote; M + P
Gambler-Conjurors 17, 32, 139, 360–1 trick; Peters, Anne; referendum; self-
homines magi 26 determination (right to); surfaces
mild ‘agent provocateurs’ 9, 32, 352, 353 Utopia 31–2, 122, 363, 378
playful xiv, 264 and Apology 227–9
stage directors 15, 298 and Eutopia 84, 363–73
suffering from ‘syphilis’ 34, 84 no-place 341
Tierney, Stephen 135 n38, 252 n50 realistic 227
Transparency 347–9 see also Aporia; Bloch, Ernst; Eutopia;
trauma(tized) 84, 338 Koskenniemi, Marrti; prompters
by defeat of the Commune of Paris 134
by military defeat 194 Vattel, Emmerich 306–11, 314–15, 317–18, 321, 323,
by Norman conquest 28 326, 328, 330–1, 333–4, 336, 338, 340
by Stalinism 7, 365, 369, 375 Venezuela 141, 292, 333
narrative as a coping strategy 299
see also disappointment; resentment; Wagner-Pacifici, Robin 142, 241 n20, 242, 243
Lefort, Claude n24, 297, 370
Triangle 332, 343, 344, 345–7 Walker, Neil 22 n73, 48 n12, 63 n73, 254–5
triggering (S1) 79–81, 95–6, 100, 104, 120, 160–1, Walton, Kendall 27, 124, 354
182, 186–7, 202–4, 206, 218–19, 221, 232, 247–8,
250, 253, 256–8, 260, 281, 283, 311, 367 Xenos 104–5, 122–3, 126, 129, 150–2, 182, 225, 305,
Tully, James 7 n24, 148 n79, 325 n90 366, 379
turning point 48, 50, 66, 69, 74, 155, 344 see also dramatism; Frame; Many; Other; Place
focal, randomizing, simple, contingent 124
in quasi-narrative imagination 24–5 Yack, Bernard 57–8, 65, 158 n4, 184, 232
as a Turn for the Better 67, 123–4, 153–5, 268, Yugoslavia 52–3, 189, 198, 203–4, 210–11, 217, 222,
290, 306, 346 225, 233, 257, 372
Tushnet, Mark 140–1, 144, 150–1, 292 n60, 319
n65, 370 Žižek, Slavoj 159–60
Twining, William 8–12, 30–1, 284, 352–4 Zolo, Danilo 216, 308 n7
Twining’s map 355 Zupančič, Alenka 111

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i

ALSO AVAILABLE IN THE SERIES

Europe’s Functional Constitution The Cosmopolitan State

1.1 Sovereign people—​the diagram of a conceptual ‘molecule’ 39

xiv • A Note on the Cover

1. A sovereign people and its two realms

Charles Tilly, Regimes and Repertoires (University of Chicago Press 2006) 56.

2. videre aude

Martin Loughlin, ‘The Constitutional Imagination’ (2015) 78[1] MLR 1, 3.

Yaron Ezrahi, Imagined Democracies: Necessary Political Fictions (CUP 2012).

University Press 2014) 98.

Martin Loughlin, Swords and Scales (Hart 2000) 32.

James Tully, Political Philosophy in a New Key (CUP 2008).

Rosanvallon and Revisionist Historiography’ (2004) 76 Journal of Modern History 107.

3. Twining’s Palomar and his ‘cosmic wisdom’

Chicago Press 1987) 165.

10 • A Different Beginning

Italo Calvino, Mr Palomar (William Weaver tr, Harcourt Brace 1985) 94.

Martin Jay, Refractions of Violence (Routledge 2003) 139.

imagination, such as that by Paul Ricœur.

12 • A Different Beginning

4. Imaginative theory as constituent imagination

14 • A Different Beginning

5. Purposeful imagination

16 • A Different Beginning

18 • A Different Beginning

University Press 2014) 98.

6. Visual imagination

20 • A Different Beginning

Graham Ward tr, first published 1970, Polity 2008) 57.

22 • A Different Beginning

7. Quasi-​narrative imagination

Lawrence B Solum, ‘Narrative, Normativity, and Causation’ (2010) Mich St L Rev 597.

Gary Jeffrey Jacobsohn, Constitutional Identity (Harvard University Press 2010) 90.

24 • A Different Beginning

26 • A Different Beginning

8. Affective Imagination

28 • A Different Beginning

Pennsylvania Press 1983) 19.

30 • A Different Beginning

9. Ambiental imagination

Michael Rustin, ‘Practical Utopianism?’ (2004) 26 New Left Rev 136, 145.

Activism (Duke University Press 2013) 9.

Columbia University Press 2004) 251.

32 • A Different Beginning

Robert Sack, Human Territoriality: Its Theory and History (CUP 1986) 33.

Style as Audience Design’ (1984) 13[2] Language in Society 145.

Things I Do?)’ (1992) 63 U Colo LRev 389, 394.

34 • A Different Beginning

Colo LRev 569, 587.

eavesdroppers—​‘indifference’, ‘concealment’, ‘disguise’, and ‘disclosure’—​most theorists adopt the former,

36 • A Different Beginning

Conceptual Imagination and the Paper Tools of Theory • 37

10. Conceptual imagination and

38 • A Different Beginning

Chemistry in the Nineteenth Century (Stanford University Press 2003).

Conceptual Imagination and the Paper Tools of Theory • 39

Figure 1.1 Sovereign people—​the diagram of a conceptual ‘molecule’

Imaginary’ (2009) 14 Early Science and Medicine 398, 399.

1.1 Sovereign people—the diagram of a conceptual ‘molecule’ 39

7. Quasi-narrative imagination

eavesdroppers—‘indifference’, ‘concealment’, ‘disguise’, and ‘disclosure’—most theorists adopt the former,

Figure 1.1 Sovereign people—the diagram of a conceptual ‘molecule’

10/24/brexit-is-not-the-will-of-the-british-people-it-never-has-been/> accessed 11 October 2017.

supra-constitutional constitutional norms, see Yaniv Roznai, Unconstitutional Constitutional Amendments: The

Discourse and Post-Colonial Theory (Columbia University Press 1994) 64.

Research Paper Series No 2013/14.

Within this loop—represented in Figure 2.4—the language of popular will (1*)