Narratives of economic crisis are foundational of Empire – the state of exception imposed by their impacts creates a universal right of intervention which enables the global expansion of the new form of sovereignty

We must avoid defining the passage to Empire in purely negative terms, in terms of what it is not, as for example is done when one says: the new paradigm is defined by the definitive decline of the sovereign nation-states, by the deregulation of international markets, by the end of antagonistic conflict among state subjects, and so forth. If the new paradigm were to consist simply in this, then its consequences would be truly anarchic. Power, however—and Michel Foucault was not the only one to teach us this—fears and despises a vacuum. The new paradigm functions already in completely positive terms—and it could not be otherwise. The new paradigm is both system and hierarchy, centralized construction of norms and far-reaching production of legitimacy, spread out over world space. It is configured ab initio as a dynamic and flexible systemic structure that is articulated horizontally. We conceive the structure in a kind of intellectual shorthand as a hybrid of Niklas Luhmann’s systems theory and John Rawls’s theory of justice.20 Some call this situation ‘‘governance without government’’ to indicate the structural logic, at times imperceptible but always and increasingly effective, that sweeps all actors within the order of the whole.21 The systemic totality has a dominant position in the global order, breaking resolutely with every previous dialectic and developing an integration of actors that seems linear and spontaneous. At the same time, however, the effectiveness of the consensus under a supreme authority of the ordering appears ever more clearly. All conflicts, all crises, and all dissensions effectively push forward the process of integration and by the same measure call for more central authority. Peace, equilibrium, and the cessation of conflict are the values toward which everything is directed. The development of the global system (and of imperial right in the first place) seems to be the development of a machine that imposes procedures of continual contractualization that lead to systemic equilibria—a machine that creates a continuous call for authority. The machine seems to predetermine the exercise of authority and action across the entire social space. Every movement is fixed and can seek its own designated place only within the system itself, in the hierarchical relationship accorded to it. This preconstituted movement defines the reality of the process of the imperial constitutionalization of world order—the new paradigm. This imperial paradigm is qualitatively different from the various attempts in the period of transition to define a project of international order.22 Whereas the previous, transitional perspectives focused attention on the legitimating dynamics that would lead toward the new order, in the new paradigm it is as if the new order were already constituted. The conceptual inseparability of the title and exercise of power is affirmed from the outset, as the effective a priori of the system. The imperfect coincidence, or better the ever-present temporal and spatial disjunctions between the new central power and the field of application of its regulation, do not lead to crises or paralysis but merely force the system to minimize and overcome them. In short, the paradigm shift is defined, at least initially, by the recognition that only an established power, overdetermined with respect to and relatively autonomous from the sovereign nation-states, is capable of functioning as the center of the new world order, exercising over it an effective regulation and, when necessary, coercion. It follows that, as Kelsen wanted, but only as a paradoxical effect of his utopia, a sort of juridical positivism also dominates the formation of a new juridical ordering.23 The capacity to form a system is, in effect, presupposed by the real process of its formation. Moreover, the process of formation, and the subjects that act in it, are attracted in advance toward the positively defined vortex of the center, and this attraction becomes irresistible, not only in the name of the capacity of the center to exercise force, but also in the name of the formal power, which resides in the center, to frame and systematize the totality. Once again we find a hybrid of Luhmann and Rawls, but even before them we have Kelsen, that utopian and thus involuntary and contradictory discoverer of the soul of imperial right! Once again, the ancient notions of Empire help us articulate better the nature of this world order in formation. As Thucydides, Livy, and Tacitus all teach us (along with Machiavelli commenting on their work), Empire is formed not on the basis of force itself but on the basis of the capacity to present force as being in the service of right and peace. All interventions of the imperial armies are solicited by one or more of the parties involved in an already existing conflict. Empire is not born of its own will but rather it is called into being and constituted on the basis of its capacity to resolve conflicts. Empire is formed and its intervention becomes juridically legitimate only when it is already inserted into the chain of international consensuses aimed at resolving existing conflicts. To return to Machiavelli, the expansion of Empire is rooted in the internal trajectory of the conflicts it is meant to resolve.24 The first task of Empire, then, is to enlarge the realm of the consensuses that support its own power. The ancient model gives us a first approximation, but we need to go well beyond it to articulate the terms of the global model of authority operating today. Juridical positivism and natural right theories, contractualism and institutional realism, formalism and systematism can each describe some aspect of it. Juridical positivism can emphasize the necessity for a strong power to exist at the center of the normative process; natural right theories can highlight the values of peace and equilibrium that the imperial process offers; contractualism can foreground the formation of consensus; realism can bring to light the formative processes of the institutions adequate to the new dimensions of consensus and authority; and formalism can give logical support to what systematism justifies and organizes functionally, emphasizing the totalizing character of the process. What juridical model, however, grasps all these characteristics of the new supranational order? In first attempting a definition, we would do well to recognize that the dynamics and articulations of the new supranational juridical order correspond strongly to the new characteristics that have come to define internal orderings in the passage from modernity to postmodernity.25 We should recognize this correspondence (perhaps in Kelsen’s manner, and certainly in a realistic mode) not so much as a ‘‘domestic analogy’’ for the international system, but rather as a ‘‘supranational analogy’’ for the domestic legal system. The primary characteristics of both systems involve hegemony over juridical practices, such as procedure, prevention, and address. Normativity, sanction, and repression follow from these and are formed within the procedural developments. The reason for the relative (but effective) coincidence of the new functioning of domestic law and supranational law derives first of all from the fact that they operate on the same terrain, namely, the terrain of crisis. As Carl Schmitt has taught us, however, crisis on the terrain of the application of law should focus our attention on the ‘‘exception’’ operative in the moment of its production.26 Domestic and supranational law are both defined by their exceptionality. The function of exception here is very important. In order to take control of and dominate such a completely fluid situation, it is necessary to grant the intervening authority (1) the capacity to define, every time in an exceptional way, the demands of intervention; and (2) the capacity to set in motion the forces and instruments that in various ways can be applied to the diversity and the plurality of the arrangements in crisis. Here, therefore, is born, in the name of the exceptionality of the intervention, a form of right that is really a right of the police. The formation of a new right is inscribed in the deployment of prevention, repression, and rhetorical force aimed at the reconstruction of social equilibrium: all this is proper to the activity of the police. We can thus recognize the initial and implicit source of imperial right in terms of police action and the capacity of the police to create and maintain order. The legitimacy of the imperial ordering supports the exercise of police power, while at the same time the activity of global police force demonstrates the real effectiveness of the imperial ordering. The juridical power to rule over the exception and the capacity to deploy police force are thus two initial coordinates that define the imperial model of authority. Universal Values We might well ask at this point, however, should we still use the juridical term ‘‘right’’ in this context? How can we call right (and specifically imperial right) a series of techniques that, founded on a state of permanent exception and the power of the police, reduces right and law to a question of pure effectiveness? In order to address these questions, we should first look more closely at the process of imperial constitution that we are witnessing today. We should emphasize from the start that its reality is demonstrated not only by the transformations of international law it brings about, but also by the changes it effects in the administrative law of individual societies and nation-states, or really in the administrative law of cosmopolitical society.27 Through its contemporary transformation of supranational law, the imperial process of constitution tends either directly or indirectly to penetrate and reconfigure the domestic law of the nation-states, and thus supranational law powerfully overdetermines domestic law. Perhaps the most significant symptom of this transformation is the development of the so-called right of intervention.28 This is commonly conceived as the right or duty of the dominant subjects of the world order to intervene in the territories of other subjects in the interest of preventing or resolving humanitarian problems, guaranteeing accords, and imposing peace. The right of intervention figured prominently among the panoply of instruments accorded the United Nations by its Charter for maintaining international order, but the contemporary reconfiguration of this right represents a qualitative leap. No longer, as under the old international ordering, do individual sovereign states or the supranational (U.N.) power intervene only to ensure or impose the application of voluntarily engaged international accords. Now supranational subjects that are legitimated not by right but by consensus intervene in the name of any type of emergency and superior ethical principles. What stands behind this intervention is not just a permanent state of emergency and exception, but a permanent state of emergency and exception justified by the appeal to essential values of justice. In other words, the right of the police is legitimated by universal values.29