BARSCHACK, Lior - Time and The Constitution

ARTICLE
Time and the constitution

Lior Barshack*
Downloaded from http://icon.oxfordjournals.org at Universidade Federal de Minas Gerais on June 22, 2010
The idea that sovereignty can be characterized in terms of the opposition between immanence and transcendence has gained increasing currency in constitutional theory. Roughly characterized, immanent sovereignty belongs to the livingto a Hobbesian monarch, for example, or to a group of individualswhile transcendent sovereignty belongs, at least partly, to the dead. The essay puts forward one argument in support of transcendent conceptions of sovereignty, namely, that only such conceptions can account for the temporal organization of social life. The relegation of sovereignty to ancestors and offspring and the distinction between constitutional moments and constitutional routine open up society to the temporal horizons of past and future. By afrming temporality, theories of sovereignty as transcending social and legal systems afrm the burdens of human, temporal existence. The sovereign power over life and death, like other attributes of sovereignty, is relegated by such theories to ancestral authority in order to safeguard life. The proposed account of sovereignty and time is contrasted with the theories of Arendt, Marcuse, Negri, and Maurice Bloch.
The idea that sovereignty can be characterized in terms of immanence or transcendence in relation to the legal system is gaining ever-more currency in political and constitutional theory. Claude Lefort draws on theological notions of transcendence in his account of sovereignty. Antonio Negris thought proceeds from an advocacy of all things immanent. Contrary to Negris own pronounced intentions, his work follows in the footsteps of Carl Schmitt, who persistently subscribed to an immanent conception of sovereignty albeit with frequent shifts of position on other issues. This essay proposes an understanding of immanence and transcendence as alternative congurations of the relations between generations.1 To put it generally, immanent sovereignty belongs to the livingto a Hobbesian monarch, for example, or to a group of individuals. Transcendent sovereignty belongs, at least in part, to the dead and to those yet to be born.
* Radzyner School of Law, The Interdisciplinary Center, Herzliya, Israel. Email: barshack@idc.ac.il
In a way that almost turns constitutional theory into a branch of the study of kinship. See Lior Barshack, Constituent Power as Body: Outline of a Constitutional Theology, 56 UNIV. TORONTO L.J. 185 (2006). For Negris and Leforts views, see ANTONIO NEGRI, INSURGENCIES: CONSTITUENT POWER AND THE MODERN STATE (Maurizia Boscagli trans., 1999); CLAUDE LEFORT, DEMOCRACY AND POLITICAL THEORY (1989). Schmitts clearest statement of his immanent view of constituent power can be found in CARL SCHMITT, CONSTITUTIONAL THEORY 149 (2008) (Chapter 10).
The Author 2009. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: journals.permissions@oxfordjournals.org. ICON, Volume 7, Number 4, pp. 553576 doi:10.1093/icon/mop022 Advance Access publication October 7, 2009
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In the following pages, I will outline one claim in support of notions of transcendent sovereignty, namely, that only such conceptions can explain the temporal organization of social life. Historical consciousness and the ow of historical time depend on a partial or complete surrender of sovereignty to past and future generations.2 The assignment of sovereignty to ancestors and offspring renders society open to the temporal horizons of the past and the future. Because immanent theories consider sovereignty to be permanently present and active, they imply a self-sufcient and omnipotent eternal present. Denying the past and the future a share in the making of higher law, these theories erase memory and anticipation. By afrming temporality, transcendent notions of sovereignty undertake a commitment to endure the burdens of temporal existence. The denial of time implicit in immanent conceptions of sovereignty amounts to a repudiation of the toils of reproduction and production, the burdens of living and dying. Few renditions of Hobbess political philosophy have captured its spirit as succinctly as Michel Foucaults statement that [f]or sovereignty to exist, there must beand this is all there must bea certain radical will that makes us want to live. . . .3 Hobbes saw that the states brutal power is grounded in an unwavering afrmation of life. While Hobbes deposited sovereignty in the hands of the living, in order to institute time and safeguard life, sovereignty has to be entrusted to the dead. The projection of sovereignty outside the realm of the living does not necessarily conne sovereignty to the realm of the dead. According to the version of transcendent sovereignty outlined in the following section, sovereignty does not vest exclusively in the past. Rather, it belongs to the group as an immortal entity that retains its identity through past, present, and future generations. It belongs to present and future generations much as it belongs to the dead. Sovereignty vests, I will argue, in an imaginary, collective body in which all generations are consubstantial, and that normally resides outside the social. Thus, according to a rened formulation of the distinction between transcendent and immanent theories of sovereignty, transcendent theories place the common body of all generations outside society while immanent theories conceive of society as permanently enacting its intergenerational unity. I will argue that the simultaneous presence of all generations that is envisaged by immanent theories of sovereignty arrests the ow of time. It is the projection of the sovereign body, in which all generations are consubstantial, onto an external realm that sets historical time in motion. That projected collective body is referred to by lawyers as the corporation. Time, I will suggest, rests on the
For a different account of the relations between time and the constitution, see JED RUBENFELD, FREEDOM TIME: A THEORY OF CONSTITUTIONAL SELF-GOVERNMENT (2001). Rubenfeld argues that selfhood and freedom are constituted by long-term personal and social commitments in a way that justies limitations on the power of majorities in democracy. The legal implications of Rubenfelds account and my own are similar.
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MICHEL FOUCAULT, SOCIETY MUST BE DEFENDED 96 (2003).
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corporate structure of society, which severs the group from its collective body, and in particular on the legal ction of corporate perpetuity.
1. The corporate body

The idea of an absent and immortal sovereign body, of which all generations partake, can be identied with the legal construct of the corporate body. The proposed account of absent sovereignty is, thus, an account of corporate sovereignty. In order to describe the legal institution of time through the projection of the sovereign body outside the social, the concept of the corporation has to be introduced in some detail. As Henry Maine, F. W. Maitland, and Ernst Kantorowicz have shown in their works on the corporation, the legal construct of the corporate body ties the idea of authority, or sovereignty, to that of perpetuity. The account of the corporation in terms of sovereignty and perpetuity can be supplemented with several characterizations.
1.1. The separate corporate personality of the family and the state is associated with the mythical person of their founding ancestors
The examples of the family and state suggest that the corporation is personied by ancestral gures, such as the mythical, heroic founder of a Roman family, the founder of a royal dynasty, or the founding fathers of modern nation-states. The symbols and names of descent groups often refer, directly or indirectly, to their real or ctional founding ancestors. The modern state came into being through a gradual appropriation of the corporate familys role of postulating origins and stories of descent. The rise of civil religion over and above the different historical religions, with its increased capacity to administer the most important rites of passage in the citizens life cycle and to render death for the nation beautiful and exemplary, depended on the political colonization of ancestral authority. As Meyer Fortes explains, the corporate group is personied by ancestral authority since all members of descent groups are perceived as extensions of the same ancestral body or substance: The notion of a descent group as constituting one person takes many forms. The essential idea is that the living plurality of persons constitutes a single body by reason of being the current representation and continuation of a single founder. Whether this is conceptualized and expressed in beliefs about being the children of so and so, or of one womb, or of one blood, or of one penis, ormore metaphysicallyof one spiritual essence or totemic origin, or of common ritual allegiance to ancestors or other supernatural agencies, the implications are the same. The group is one by physical perpetuation and moral identity.4
4 MEYER FORTES, KINSHIP AND THE SOCIAL ORDER, 304 (1969). See also MEYER FORTES, The Concept of the Person, in RELIGION, MORALITY AND THE PERSON: ESSAYS ON TALLENSI RELIGION, 283 (1987) (. . . [A] lineage is a collective person because it is the perpetuation of its founding ancestor in each of his descendants . . .).
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In his analysis, Fortes refers to the corporate unity that looms behind the living plurality of persons, thus focusing his attention on living members of the corporation and holding out the sibling group as the paradigm of corporate unity. It is clear, however, that the image of the corporate body implies that both living and dead members of a descent group partake of a single body. The cross-generational nature of membership in the corporate body suggests that the corporate body dwells outside the social sphere. Through its corporate personalityits mythical ancestors and their multiple totemic representationsthe group represents itself to itself. According to Hegel and Durkheim, notwithstanding the differences between their theories of religion, societys self-representation is its object of worship. If the corporation is associated with ancestral guresand ancestral lawand constitutes the self-representation of the group, it cannot fail to be sacred. Corporations, like the gods, are invisible; they are absent and act through representatives. The religious dimension of political systems and families inheres in their corporate structure.
1.2. The corporate body originates in the projection of sovereignty outside the social
Before the creation of a corporate body, sovereignty dwells within society. The presence of sovereignty leaves no room for a secular social realm of everyday pragmatic interaction. Sovereignty is typically considered, at this stage, to be vested in the private body of a divine kingor, in modern terms, a charismatic leaderwhose authority is neither sanctioned nor constrained by a superimposed ancestral law. Divine kingship may be highly effective in periods of foundation but is hardly consistent with stable and continuous structures of rule. Thus, the sovereignty of the divine king is projected onto an authority that dwells outside the social.5 From this moment onward, sovereignty vests in the corporate, as opposed to the private, body of the king, in the dynasty and the constitution. The king is seen as an ordinary mortal, an organ of a corporate orderthe dynastyand his rights as grounded in ancestral law rather than personal charisma. It is the sacred communal bodynot merely the sanctity of the kings private bodythat is projected outside the group and transformed into its corporate body. By the notion of the communal body I refer to the group as a simple,
For a seminal discussion of the constitutional signicance of divine kingship from the perspective of political anthropology, see LUC DE HEUSCH, Pour une dialectique de la sacralit du pouvoir [For a dialectic of the sacredness of power], reprinted in CRITS SUR LA ROYAUT SACRE [WRITINGS ON SACRED ROYALTY] 215 (1987). Contractarian foundation narratives, such as Hobbess and Rousseaus, according to which the state originates in the voluntary transfer of natural rights and freedoms to the sovereign, capture the process of projection on which social structure is premised. As Hobbess account suggests, the founding projection is not a single historical event but a permanent process of refoundation of the polis by its individual members.
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inarticulate, immanent unity, generated through the dissolution of interpersonal boundaries. The communal body is the communion of group members that occurs in rites of passage, carnivals, natural disasters, fascist regimes, wars, revolutions, referenda, elections, and other instances of communitas. During these episodes, the group contains and enacts its unity.6 The concept of the corporate body, too, refers to the group as a single, sacred, collective body, but one that dwells outside the social, and which comes into being through the projection of the communal body. Sovereignty always vests in the collective body: ordinarily, it assumes the form of a corporate body and dwells outside society, occasionally it pervades society in the form of a communal body. The social body comprises not only living members of society. It is the common body of the dead, the living, and the yet-to-be born. All generations partake of the social body in either of the forms that it may assume: as a communal or a corporate body.7 When the social body is enacted, that is, when it appears as a communal body, the dead and the unborn are rendered present alongside the living. The communal body dissolves intergenerational as well as interpersonal boundaries. The communion of the living with the dead in the communal body shatters the social space. It leaves no room for exclusive occupation by the living and for the business of life. As we shall see in the last section, an arbitrary, ruthless power over life and death, which has been associated, traditionally, with sovereignty pervades society with the enactment of the communal body. Episodes of sovereign presence tend to result in bloodshed and cannot last for long. The transitional nature of communal presence undermines the idea of immanent sovereignty. The projection of intergenerational unity outside society and its transformation into a corporate body allow for an advanced degree of interpersonal separation and individual autonomy in the regular course of social life, as well as for the emergence of spheres of everyday, pragmatic action and interaction. The projection of such unity attests to societys acceptance of division and absence and of the toils of everyday life.
1.3. The corporate body and the communal body correspond to social structure and communitas respectively
In an earlier work, I proposed reading into Victor Turners distinction between social structure and communitas two subdistinctions that Turner himself did
6 On the imaginary identication of the group with a single, all-embracing body, see, for example, WILFRED R. BION, EXPERIENCES IN GROUPS 162 (1961); DIDIER ANZIEU, THE GROUP AND THE UNCONSCIOUS 120124 (1985); OTTO KERNBERG, Regression in Groups, in INTERNAL WORLD AND EXTERNAL REALITY 211 (1980). 7 Bloch describes the perennial notion that the bodies of the living are made of the bodies of the dead: . . . different generations are consubstantial so that the body of one generation is the source of life and substance for the next. Maurice Bloch, Almost Eating the Ancestors 20(4) MAN 631, 633 (1985). This image is different from that of a single collective body of which the dead and the living partake.
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not consider.8 The rst is the psychoanalytic distinction between relations of mutual recognition among autonomous individuals and relations of violent fusion. Different versions of this distinction can be found in the works of Melanie Klein and Erich Fromm and in other psychoanalytic theories. The second subdistinction is that between absence and presence. Social structures can be understood in terms of interpersonal separation and absence; communitas, in terms of fusion and presence. The combination of these characterizations entails a view of communitas as a moment of presence of social unitynamely, as a communal bodyand an understanding of social structure as a state of absence of communal unity, that is, as a corporate body. The distinction between social structure and communitas corresponds, then, to the distinction between corporate and communal bodies. The differentiation between the corporate and communal instances of the collective body allows for the integration of accounts of social structure and ritual into a single conceptual framework. In communitas, society enacts its communal body, whereas in the course of social structure the communal body is projected, transformed into a corporate body, and worshipped from afar by autonomous individuals. Interaction in social structure takes place between separate individuals and is mediated by their differentiated, normative social roles. These normative identities, which consolidate interpersonal separation in social structure, dissolve in communitas. The personal self expands and coincides then with the collective self. Social stratication, legal mediation, and conicts of status and interest, which in social structure enhance individual autonomy and the alienation of the subject from his own and other selves, give way to an experience of universal twinship. Communitas is an essentially lawless form of interaction: the normative system, which structures everyday life, is suspended, challenged, and occasionally reformed. Fundamental interdictions are violated and traditional authority replaced by a charismatic leadership devoid of a genuine legal sanction. Society is pervaded by constituent, seemingly boundless power and asserts its freedom from superimposed laws and constraints.
1.4. The corporate structure as a legal order
In the passage from communitas to social structure, from a communal to a corporate body, the law steps forward. Traditional representations of the law in different medialearned, gurative, ritual, or oral-popularpoint to its origin in ancestral/corporate authority.9 The standard opposition between the rule of law
8 See, e.g., Lior Barshack, The Communal Body, The Corporate Body and the Clerical Body: An Anthropological Reading of the Gregorian Reform, in SACRED AND SECULAR IN MEDIEVAL AND EARLY MODERN CULTURES: NEW ESSAYS 102 (Lawrence Besserman ed., 2006). For the distinction between structure and communitas, the locus classicus is VICTOR TURNER, THE RITUAL PROCESS (1971). 9 Moreover, cultural representations of ancestors rarely omit reference to their juridical capacities: . . . ancestors are projected as gures of authority to whom powers of life and death are attributed judicial gures . . . rather than bountiful deities. Meyer Fortes, An Introductory Commentary, in ANCESTORS 1, 14 (William H. Newell ed., 1976).
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and the rule of men reects the intuition that ultimate lawmaking power does not reside among the living. Lawgiving is the predominant function of corporate/ ancestral authority; the more transcendent an authority the more its function is reduced to that of lawgiving. The continuous existence of corporate social structures depends on the regular enforcement of the law. Legal categories divide society into independent institutions and alienated groups and individuals in order to prevent it from embodying its unity, which nds refuge outside the social, in the realm of the corporate body. By dividing the group, ancestral law becomes the embodiment of its absent unity. As the origin and anchor of division, it functions as a common reference for the different segments of social structure.
2. Legal continuity and the institution of historical time

The description of the corporate body in the preceding section hinted at several moral and sociotheoretical arguments for the absence of sovereignty. The presence of sovereignty dissolves interpersonal boundaries and leads, sooner or later, to the violation of human rights. Moreover, immanent sovereignty endows the community with arbitrary power over individual fates and tends to precipitate senseless violence. Economy and politics seem to depend on societys relinquishment of sovereignty insofar as everyday social action assumes interpersonal rivalries of various sorts and the demarcation of a secular, temporal realm that is devoted to the satisfaction of individual appetites and pursuits. To this blend of considerations the claim that immanent conceptions of sovereignty cannot account for the temporal organization of social life lends additional support. The ow of historical time depends on the projection of the communal body outside society and on its transformation into a corporate body. In particular, it depends on the legal ction of corporate perpetuity. Without belief in corporate perpetuity, society would have been conned to an experience of temporality known to anthropologists as mythical time.
2.1. Mythical time
Anthropologists have employed the term mythical time to refer to the experience of temporality in communitas. In a way, the term is imprecise because communitas allows for neither mythology nor time. It is characterized by an atemporal liminal experience that interrupts historical time. The arrest of time in communitas can be understood in light of the proposed concept of the social body. If the dead, the living, and the unborn are consubstantial in the collective body, societys enactment of its body occasions the simultaneous presence of all generations and arrests the ow of time. It generates an experience of permanent immediacy, an eternal present.10 Mythical time is self-sufcient
10 Numerous accounts of ritual describe an interruption of the normal ow of time. See, for example, VICTOR TURNER, Images of Anti-temporality, in ON THE EDGE OF THE BUSH 227 (1985); TIME OUT OF TIME: ESSAYS ON THE FESTIVAL (Alessandro Falassi ed., 1987).
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and carefree, a time of complete and immediate realization. The exuberance of the founding episode coincides, here and now, with the promised, posthistorical bliss of salvation. Like time and like law, national and other myths dissolve in communitas because, like time and law, they are premised on the separation between the generations and, in particular, between the living and the dead. While communitas often occasions an intense reenactment of myth, such a celebration of myth actually involves its suspension. Myth remains in effect only as long as the ancestors dwell in a separate realm and the corporate structure is intact. Then, myth provides the group with prototypical representations of its ancestors and corporate perpetuity, and of past episodes of communitas in which social structure was founded and refounded. Communitas suspends mythology in order to rejuvenate time and social structure, and to be recorded in a new myth, a new collective memory, once time has been relaunched. The simultaneous presence of all generations in the communal body and the consequent arrest of time in communitas imply the identication of the living with death and the dead. The afrmation, or enactment, of death in ritual has been repeatedly observed in studies of myth and ritual.11 Anthropological accounts of funerary and sacricial rituals often recorded manifestations of collective identication with the dead. At funerals, Arnold Van Gennep noted, all members pass through death.12 In certain societies, the living masquerade during funerals as dead. The entire process of mourning is sometimes referred to as a phase of death.13 The assertion of life over death through the projection of the communal body and its transformation into a corporate body is performed by means of the corpses disposal. The boundary between the living and the dead is then reestablished; the deceased is transformed into an ancestor, a personication of the corporate body and the corporate structure of society. Afrmations of death and the identication of the living with the dead are not conned solely to rituals that are explicitly concerned with death, such as funerals and sacrices.14 In other rituals, too, the enactment of the communal body implies an arrest of time and a withdrawal of societys endorsement of the burdens of temporal existence.
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See, e.g., EDMUND R. LEACH, Time and False Noses, in RETHINKING ANTHROPOLOGY 132 (1961). ARNOLD VAN GENNEP, THE RITES OF PASSAGE 147 (1960).
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13 Benjamin Ray, The Story of Kintu: Myth, Death and Ontology in Buganda, in EXPLORATIONS IN AFRICAN SYSTEMS OF THOUGHT 70 (Ivan Karp & Charles S. Bird eds., 1980)
Sacricial rites occasion a social surrender to death insofar as the victim stands for the sacricing community. See GODFREY LIENHARDT, The Control of Experience: Symbolic Action, in DIVINITY AND EXPERIENCE: THE RELIGION OF THE DINKA 282297 (1961) (summing up a long tradition of anthropological reection on sacrice: . . . an important feature of sacrice is that the people for whom it is made enact the death of a victim which in important respects represents themselves, in order to survive that death).
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2.2. From mythical time to corporate perpetuity
In the passage from communitas to structure, the renunciation of sovereignty on the part of the living launches the ow of time. The projection of the collective body institutes social space much as it sets social time in motion. It sets apart the living and the dead, clearing a space for exclusive habitation and exploitation by the living. Social space, as a network of interpersonal distances, is produced through the separation of the individual from the communal body. Hannah Arendt saw that space is constituted through the legal establishment of boundaries between individuals. Already in The Origins of Totalitarianism she noted that [b]y pressing men against each other, total terror destroys the space between them. . . .15 Time, as a conguration of intergenerational relations, is set in motion through the disentanglement of the communion of generations that occurs in communitas. Time is launched by means of separation between successive generations of the living,16 as well as between the living and the dead. With the laying down of interpersonal and intergenerational boundaries, the collective body does not disintegrate. It is relegated to a realm outside society, where it assumes the form of an immortal corporate body. From this moment onward, the unity of the generations unfolds in the course of a history, with every new generation extending the life story of the collective body forward in time. History is launched in the passage from communitas to social structure once the founding moment of intergenerational communion is inscribed in a refashioned collective memory. No longer immediately present, intergenerational unity becomes the subject of mythical representations of corporate perpetuity, of Roma Aeterna, which convey the idea that an innite number of generations partake of the sovereign body. Kantorowicz explains the image of corporate immortality: . . . the most signicant feature of the personied collectives and corporate bodies was that they projected into past and future, that they preserved their identity despite changes, and that therefore they were legally immortal.17 The specters of corporate perpetuity, such as myth, law, monumental architecture, and the symbols and sites of civil religion, endow the
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HANNAH ARENDT, THE ORIGINS OF TOTALITARIANISM 466 (1948).
On the structural advantages of norms of distance, avoidance, and authority between successive generations, see A. R. RADCLIFFE-BROWN, STRUCTURE AND FUNCTION IN PRIMITIVE SOCIETY 68, 96 (1965). Pathological cases of communitas, such as the Nazi regime, originate in repudiation of the normative and temporal hierarchies between generations. On pathological reversals of these hierarchies, see JANINE CHASSEGUET-SMIRGEL, THE EGO IDEAL 1518 (1984).
17 ERNST H. KANTOROWICZ, THE KINGS TWO BODIES 311 (Princeton Univ. Press 1957). In a Lacanian vein, Pierre Legendre observes that historical time, which, following earlier authors, he distinguishes from mythical time and associates with the succession of generations, is represented by namesefgies and the gure of the Father. See PIERRE LEGENDRE, LINESTIMABLE OBJET DE LA TRANSMISSION [The Priceless Object of Transmission] 270, 279 (Fayard 1985).
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social with unity and with a sense of identity with past and future generations. As Jed Rubenfeld argues, The Constitution is what continues to gather up generation upon generation of Americans into a single political subject. A written constitutions normative force depends ultimately on whether it works to recall a people to itself over time: a means by which a people re-collects itself and its fundamental commitments.18 I would add that the constitution is capable of relating the generations in time by virtue of the fact that it fabricates time itself by disentangling the communion of the generations. The ow of historical time depends on the ction of corporate perpetuity, because it is this ction that provides the conceptual bedrock for the succession of generations and dispels their simultaneous presence. The relegation of sovereignty to ancestors and offspring and the different representations of corporate perpetuity, such as symbols of nation, monuments, and the constitution, open up the present to the horizons of the past and the future. Corporate perpetuity is not only the conceptual premise of time reckoning but, as well, the object of civic faith. The ritual experience of timelessness and intergenerational communion gives way to a belief in corporate perpetuity. This belief, bound up with recognition of ancestral authorities, conditions societys willingness to embrace the burdens of temporal existence. It is embedded in legal institutions and animates their efforts to curb aspirations for communal presence through the regulation of everyday life. In order to sustain the ow of time, the corporate body and the political center that represents corporate unity claim to be not only enduring but also everlasting. The passage from mythical to historical time would not have been tolerable had it doomed society to temporal nitude. Through the ction of corporate immortality, the group as a whole and, indirectly, each of its individual organs embrace time yet transcend temporal nitude. In the passage to social structure, the corporate body comes to stand in the place of the communal body, enabling humans to resist the allure of immanence and imminence through the promise of corporate immortality. Law and the other specters of corporate perpetuity offer humans a vicarious access to the collective body, an access that is indirect, tame, and within time. The idea that time is grounded in xed and sacred collective representations is familiar to the sociology of time since its beginning. For Durkheim, temporality is primarily social and public. It consists of a social rhythm of collective activities that is largely codied in societys calendar.19 However, the many authors who, following Durkheim, have asserted the primacy of public, ofcial time generally have failed to identify the ctional perpetuity of the corporate body as the imaginary axis along which historical time unfolds.
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RUBENFELD, supra note 2, at 177. EMILE DURKHEIM, THE ELEMENTARY FORMS OF RELIGIOUS LIFE 10 (Karen E. Fields trans., 1995).
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The claim that time is grounded in corporate perpetuity implies that time presumes the existence of a higher law that binds all generations behind the changing positive articulations of the law. From an anthropological, as opposed to a metaphysical, perspective on time, it matters little whether the eternity of higher law is taken to be enshrined in custom or in the unchanging order of nature.20 A further manifestation of corporate perpetuity alongside the idea of eternal law is the continuity of legal systems. Corporate perpetuity endows legal systems with cross-generational continuity. Immanent theories of sovereignty, such as Hobbess and J. L. Austins, cannot conceive of legal continuity that extends beyond the life of a sovereign king or group of individuals.21 In constitutional thought, the import of the ction of corporate perpetuity consists in the challenge that it poses to immanent notions of sovereignty. The claim advocated by theorists of immanent sovereigntythat there is no distinction, in Walter Benjamins terms, between founding and conserving violence or that sovereign violence is not renounced with the establishment of a constitutional order is at odds with the view of corporate perpetuity as the institutional premise of temporality. The ow of time depends on a passage, however partial and incomplete, from founding to conserving violence. It rests on the relegation of sovereignty outside the social that proceeds through the transformation of the communal body into a corporate body and the postulation of corporate perpetuity.
2.3. Corporate perpetuity, ancestral immortality
Corporate groups, we have seen, represent themselves to themselves and to other groups by reference to ancestral gures. This applies to modern nations as much as it does to traditional societies. Mythical lawgivers, founders of dynasties, and the founding fathers and mothers of modern nation-states count among the more familiar instances of ancestral authority. As personications of corporate bodies, ancestors serve as guardians of time. Having already died, ancestors are immortal, and their immortality represents corporate perpetuity, the perpetuity of the cultural process by which generations of descendants succeed each other in time. The ction of descent from common ancestors paves linear time, as the path along which generations succeed each other, by uniting and separating the generations. It dispels the simultaneous communion of the generations and transforms communal into corporate unity.
On custom and the immemorial in the history of the common law, see J.G.A. POCOCK, THE ANCIENT CONSTITUTION AND THE FEUDAL LAW (1987). In France it was the Salic law which symbolized unchanging custom and national identity. See Ralph Giesey, The Juristic Basis of Dynastic Right to the French Throne, 51 TRANSACTIONS OF THE AMERICAN PHILOSOPHICAL SOCIETY (1961); COLETTE BEAUNE, THE BIRTH OF AN IDEOLOGY: MYTHS AND SYMBOLS OF NATION IN LATE-MEDIEVAL FRANCE 245265 (Susan Ross trans., 1991). The arduous crystallization of the modern concept of legislation testies for the tenacity of the idea of eternal law, an idea which ultimately refers to the basic principles of the corporate organization of society.
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For Harts critique of Austins position, see H.L.A. HART, THE CONCEPT OF LAW 58 (1961).
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The claim that historical time rests on ideas and ctions of descent becomes all the more plausible in light of the fact that these ideas open up the horizon of the future much as they open up the past. The deference to ancestral authority and law binds the subject to the horizons of past and future alike. While the dead enjoy a special position as personications of corporate perpetuity, the idea of corporate perpetuity, as such, does not privilege the past. The prestige of the generation of the founders can be reconciled with the equal status of past and future in a temporal order that is based on the legal construct of corporate perpetuity. Insofar as descent refers to a ctively perpetual process by which the descendants of a certain ancestor succeed each other, it postulates genealogical links with past and future generations. The relations of the living with past and future generations are premised on, and mediated by, the legal ctions of an everlasting succession of generations and corporate perpetuity. This entails that our relations with future generations presuppose relations with past generations, and vice versathat we cannot relate to past generations without the anticipation of future generations, which, as Fortes writes, are united with the ancestors in complementary continuity, laced with opposition, as if they were mirror images of one another.22 The rst point is that the living relate to their children and to all future offspring through the mediation of notions of descent and ancestral authority. In the terminology advocated by Fortes, relations of liation (between parents and children) always assume relations of descent (between ancestors and descendants).23 The second, less evident, point is that the presupposition of the perpetuation of the corporate group into the future is built into our relations with past generations. If our relations to the past are mediated by the idea of descent as the uninterrupted succession of generations, then they presuppose future offspring. In a typically perceptive remark, Fortes suggests that ancestors preside not only over the horizon of the past, and that the reverence toward past generations is future-oriented. Fortes writes: [C]orporate groups . . . are kept in existence by mobilizing the succession of generations regulated by the principle of liation. . . . The dead are . . . thought of as having a stake in the continuity, i.e. in the future persistence
22
FORTES, TALLENSI RELIGION, supra note 4, at 275.
On the distinction between liation and descent, see Meyer Fortes, Descent, Filiation and Afnity: A Rejoinder to Dr. Leach, 59 MAN 207 (1959). It is unlikely, though, that Fortes would have afrmed a necessary and universal dependence of liation upon notions of descent. In his recent overview of the theory of kinship, Godelier captures the universal signicance of descent as the underlying premise of human reproduction. Godelier: [N]ulle part, dans aucune socit, un homme et une femme ne suffisent eux seuls pour faire un enfant. Ce quils fabriquent ensemble, dans des proportions qui varient de socit socit et avec des substances diverses (sperme, sang menstruel, graisse, souf, etc.), cest un ftus mais jamais un enfant humain, complet, viable. Dautre agents doivent pour cela intervenir:. . . des dfunts, des anctres, des esprits, des divinits. MAURICE GODELIER, MTAMORPHOSES DE LA PARENT 325 (2004).
23
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of the society to which they belonged in life. In ancestor worship this is accepted as just and natural; it is this that, paradoxical as it may sound, gives ancestor worship a future orientation, rather than, as might supercially be thought to be the case, a xation on the past.24 In his celebrated study of the Nuer, E. E. Evans-Pritchard tackled the issue of the relationship between time and descent, a relationship which Nuer temporal terminology makes explicit and inescapable. Evans-Pritchard noted that Nuer locate events in time by reference to generations and age-sets as time units. On the basis of this terminological observation, Evans-Pritchard concluded, in passing, that time is not a continuum, but is a constant structural relationship between two points, the rst and last persons in a line of agnatic descent.25 Here, Evans-Pritchard adds the mythical identication of the beginning of time with the beginning of a line of descent to the role of generations as units of time reckoning. If my argument is correct then the dependence of temporality on descent goes deeper than Evans-Pritchard had thought. Descent serves not only for time reckoning and for xing the external boundaries, the beginning and end, of history, but also for overcoming ritual time. In that way, descent allows for the formation of elementary temporal notions such as duration, past, and future. These notions depend on the dispersion of the communal body through the recognition of descent. They depend on the attribution of transcendence, perpetuity, and sovereignty to the imaginary collective body of all generations.
2.4. Constitutional moments as interruptions of time
While the ction of an immortal corporate body may be thought to entail social and legal stagnation, it produces the opposite consequences. The succession of generations in time and the relegation of intergenerational unity outside the social will encourage, if not prescribe, development, change, and renewal
24
Fortes, supra note 9, at 6.
25
E. E. EVANS-PRITCHARD, THE NUER 108 (1940). The ction of corporate perpetuity, which EvansPritchard does not count among the constituents of temporality, allows time to be both a continuum and a structural relation. By the constancy of the structural relationship, Evans-Pritchard refers to an observation he makes earlier that the temporal depth of Nuer lineage structure never grows, so that there is a constant number of steps between living members and the founder of their clan. A particular aspect of the relations between kinship and time concerns the role of kinship terminology in the representation of time. Lvi-Strauss has argued that kin terms that lump together members of successive generations, such as the use of a single term to designate mothers brother and mothers brother son in so-called Omaha type terminologies, reect an empty notion of time with no change taking place whatsoever. See CLAUDE LVI-STRAUSS, STRUCTURAL ANTHROPOLOGY 74 (trans. Claire Jacobson & Brooke Schoepf, Basic Books 1963). For an illuminating discussion and critique of Lvi-Strausss position, see ROBERT HARRISON BARNES, TWO CROWS DENIES IT. A HISTORY OF CONTROVERSY IN OMAHA SOCIOLOGY 224226 (Univ. Nebraska Press 2005).
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within the social.26 The distance of corporate unity from society implies that interpretations of what successive generations consistently consider as eternal law vary from generation to generation, as they do among the living. The diversity of interpretations of the same law allows society to administer its relations with other generations as relations that combine identity and difference. Moreover, the meaning of what is taken to constitute the unchanging core of the law, in fact, also changes over time. While the social body and fundamental law are represented, at any given moment, as eternal, they undergo constant developments. Legal historians have often noted how the idea of unchanging custom had been used to forge a sense of overarching continuity and to conceal changes and developments.27 Similarly, while the social body is represented as immortal, the hegemonic representations of man and woman, through which the social body is visualized and operates as an ethical ideal, change with time. These hegemonic representations can accommodate novel and diverse identities and forms of life without breaking the temporal continuity of the body politic. Since descent is imaginary and manipulable, the ction of the body politic does not preclude the integration of new groups.28 While changes and developments are usually interwoven into the continuous history of the body politic, in moments of crisis such as revolutions and civil wars the continuity of historical time is interrupted and challenged. The corporate group is dened by reference to extraordinary moments in which the communion of generations arrests the ow of time. The ongoing succession of generations is represented as bracketed by a founding moment and subsequent turning points. Corporate perpetuity is grounded ctively in a prehistorical founding episode in which the corporate body was born and the law given. The moment of foundation presides over the horizon of the past but also gives society a future orientation, a destiny. History stretches between, and is driven by, a founding moment in which the ideas to be pursued by society were announced, and the moment of nal redemption in which they will be realized. Between the imaginary moments of the beginning and end of history, the founding moment is periodically reenacted in order to sustain societys
26 In contrast to the immutability that is characteristic of the corporate realm. The world of the ancestors is typically depicted as bereft of change and renewal. In AN AFRICAN ARISTOCRACY, Kuper noted that the activities of ancestors . . . are similar to those of the living, but the spirits do not marry or reproduce. It is a static life. HILDA KUPER, AN AFRICAN ARISTOCRACY 186 (1947). On the eventlessness of ancestral life, see also JEFFREY BURTON RUSSELL, A HISTORY OF HEAVEN: THE SINGING SILENCE 57, 81 (1997). 27
T.F.T PLUCKNETT, LEGISLATION OF EDWARD I 20 (1962). See also Fredric L. Cheyette, Custom, Case Law, and Medieval Constitutionalism: A Re-Examination, 78 POL. SCI. Q. 362 (1963).
28 As Radcliffe-Browns discussion of marriage suggests, novel alliances are concluded through the fabrication of shared descent. A. R. Radcliffe-Brown, Introduction to AFRICAN SYSTEMS OF KINSHIP AND MARRIAGE 1, 54 (A.R. Radcliffe-Brown & Daryll Forde eds., 1950).
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adherence to time and to the corporate order as a whole. The corporate, temporal organization of society is refounded in large-scale rituals during which mythical time permeates and paralyses spheres of everyday social interaction. Temporal continuity breaks down in order for it to be renewed. Any large-scale ritual resembles a constitutional moment insofar as it revitalizes the legal order through its relaxation. Some rituals are constitutional in the narrower sense of having formal constitutional consequences. These include declarations of independence, constitutional amendments, referenda, states of emergency, and broad amnesties. The general signicance of constitutional moments consists in their contribution to the production of time. Thus the ction of corporate perpetuity acquaints the living with the temporal horizons of past and future through the idea of cross-generational legal continuity as well as through representations of mythical episodes which interrupt and bracket historical time.
3. Critical perspectives on the alliance of law and time (Arendt, Bloch, Marcuse, Negri)
The view of time as a legal construct runs up against naturalist and Marxist perspectives on time. According to the former perspective, time is not legally constructed. Its structure is dictated by nature and grasped in the course of mans laborious encounters with nature. According to Marxist accounts, such as Marcuses and Negris, time, or a certain distorted form of it, is indeed legally instituted; however, as such, it is a repressive institution. Human liberation requires the overthrow of the temporal organization decreed by the law. Arendts reections on time in relation to society and politics are predictably not quite Marxist in their inspiration. I will conclude the section with a short discussion of her views on the temporal signicance of the law.
3.1. Blochs critique of social-constructivist theories of time
According to Maurice Bloch, societies employ two sets of temporal concepts. One set consists of ordinary notions of duration that humans form in the course of their productive activities through the confrontation with nature. Since these notions are imposed by nature they can be found in all societies. In the context of ritual, society employs a different set of concepts, which is characterized by denial of everyday notions of duration. These notions of time are, according to Bloch, not universal. They differ from one society to another. Bloch seems to contradict himself in arguing that ritual notions of time are both culturally variable and universally characterized by the reversal of ordinary notions of duration. However, my main critique of Bloch concerns his understanding of corporate perpetuity. Bloch recognizes that corporate perpetuity plays a role in shaping societys notions of time but misconceives that role. While I have argued that the ction of corporate perpetuity underpins the temporality of everyday life as opposed to mythical time, Bloch associates
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corporate perpetuity with ritual breakdowns of time because he considers corporate perpetuity an otherworldly, fanciful idea that is inconsistent with everyday experiences of duration.29 Bloch claims that notions of ritual timelessness are culturally variable; however, his examples suggest that they are as universal as everyday notions of duration. If different societies express similar ideas about the temporality of ritual, the dichotomy between temporal concepts that are natural and universal, on the one hand, and those that are religious and culturally variable, on the other, breaks down. Like notions of ritual time, everyday notions of duration are both universal and socially constructed. They are socially constructed because they are premised on the ctional perpetuity of corporate bodies. Since the publication of Lvi-Strausss major work on kinship, the paradigm of a universal social construct is the incest taboo.30 For Lvi-Strauss, the incest taboo lies at the origin of all cultures because it marks the threshold between nature and culture. Corporate perpetuity is analogous to the incest taboo in being at once universal and socially constructed. Moreover, the two social constructs are closely tied to each other: corporate perpetuity is premised upon the incest taboo insofar as time rests on boundaries between the generations that are laid down by the incest taboo. Bloch fails to recognize the possibility that everyday notions of duration may be grounded in the ction of corporate perpetuity because he does not distinguish between corporate perpetuity, on the one hand, and the timelessness of the communal body, on the other. As a result, he associates corporate perpetuity with the temporality of ritual, while it is, in fact, the timelessness of the communal body that seems to be captured in the multiple descriptions of
29
Bloch writes: On the one hand there is a system used in normal communication based on universal notions of time and cognition, and in which people are visualised in ways which seem to differ little from culture to culture, a system which is used for the organisation of practical activities, especially productive activities, and on the other hand there is another totally different system, referred to by Radcliffe-Brown as social structure, based on a stranger and much more culturally specic system of classication. The presence of the past in the present is therefore one of the components of that other system of cognition which is characteristic of ritual communication, another world which unlike that manifested in the cognitive system of everyday communication does not directly link up with empirical experiences. It is therefore a world peopled by invisible entities. On the one hand roles and corporate groups and on the other gods and ancestors, both types of manifestations fusing into each other as is shown so subtly by Fortes study of the representation of Tallensi descent groups. Another world whose two main characteristics, the dissolution of time and the depersonalization of individuals, can be linked, as I have argued elsewhere, with the mechanics of the semantic system of formalised, ritual communication.
Maurice Bloch, The Past and the Present in the Present, 12(2) MAN 278, 287 (1977).
30
LVI-STRAUSS, THE ELEMENTARY STRUCTURES OF KINSHIP (1969). In contrast to approaches to kinship that emphasize the ideas of corporateness and descent, theories that revolve around the idea of exchange, such as Lvi-Strausss, accord priority to horizontal incest prohibitions that apply between siblings over lineal prohibitions that apply between generations.
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ritual time. Corporate perpetuity is diametrically opposed to the eternal present and permanent immediacy of ritual. Rather than epitomizing ritual notions of time, corporate perpetuity underlies everyday notions of temporal and historical continuity.
3.2. Time and emancipation in Eros and Civilization
Marcuse, unlike Bloch, distinguished between eternity and timelessness, and recognized that notions of duration are socially constructed. In Eros and Civilization Marcuse denounced the alliance between law and time as the foundation of repressive civilization. According to Marcuse, a nonrepressive civilization is characterized by the convergence of the reality principle and the pleasure principle in a state of abundance. Under conditions of abundance, the temporal dimension of biological decay and time, generally, will lose their allimportance. Marcuse writes: . . . the fatal enemy of lasting gratication is time, the inner niteness, the brevity of all conditions. The idea of integral human liberation therefore necessarily contains the vision of the struggle against time. . . . If the aesthetic state is really to be the state of freedom, then it must ultimately defeat the destructive course of time. Only this is the token of a nonrepressive civilization.31 Man comes to himself only when the transcendence has been conqueredwhen eternity has become present in the here and now.32 According to Marcuse, law and order champion time as their strongest ally. The law and the temporal organization of social life are mutually reinforcing. Both epitomize the type of rationality dictated by the reality principle under historical conditions of want and, accordingly, prescribe sober, down-to-earth realism. Every sound reason is on the side of law and order in their insistence that the eternity of joy be reserved for the hereafter, and in their endeavour to subordinate the struggle against death and disease to the never-ceasing requirements of national and international security.33 Furthermore, law celebrates time because temporal nitude accustoms man to resignation and submission generally: The ux of time is societys most natural ally in maintaining law and order, conformity, and the institutions that relegate freedom to a perpetual utopia; the ux of time helps men to forget what was and what can be: it makes them oblivious to the better past and the better future.34 If the foregoing account of corporate perpetuity is tenable, Marcuse is wrong to argue that law and time form an alliance under the auspices of the reality principle as mutually reinforcing strategies of coping with given conditions of
31
HERBERT MARCUSE, EROS AND CIVILIZATION 191 (1956). Id. at 122. Id. at 234. Id. at 231.
32
33
34
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shortage. Rather, absence itself appears to be legally fabricated, primarily through the transformation of the communal into a corporate body. Absence, and with it law and time, must be reproduced in order to safeguard life in the face of the destructiveness of the communal body. Marcuse rejects the metapsychological assumptions implicit in the concepts of the communal and corporate bodies, which entail a cultural imperative to reproduce absence articially in order to keep communal presence in abeyance. For Marcuse, the state of complete gratication and abundanceor, in the present terms, the state of immediate presence of the communal bodywill see the diminution, not the outbreak, of the death instinct.35 If Marcuse is correct, the afrmation of life requires the overthrow of the prevailing temporal regime, to which he refers as the deication of time.36 According to Marcuse, destructiveness will be minimized under conditions of abundance, lawlessness, and timelessness. Marcuses metapsychology would be, and largely has been, rejected by most schools of psychoanalytic thought. Kleinians would anticipate the release of violence with the loosening of collective projective mechanisms in communitas, and Lacanians would insist on the inherent destructiveness of jouissance. Leaving aside the metapsychological controversy, my doubts about Marcuses profoundly humanist position emanate primarily from the sort of anthropological evidence cited earlier. Anthropologists have repeatedly observed that the arrest of time in ritual typically occasions the blurring of boundaries between the living and the dead if not an outright celebration of death. These observations suggest that the arrest of time releases rather than abates violence and self-destructiveness. Marcuse states that . . . the struggle against time becomes a decisive moment in the struggle against domination . . . and proceeds to quote Benjamins assertion, in the Theses on the Philosophy of History, that [t]he conscious wish to break the continuum of history belongs to the revolutionary classes in the moment of action.37 However, the revolt against time is by no means unique to progressive forces. In its most extreme instances, it was not mounted by the working classes but by sinister regimes that turned themselves into cults of death.
3.3. Negri on constituent power as real time
Like Marcuse, Negri recognizes and criticizes the alliance of time and law. Negri blames the law for petrifying real time by setting up stagnant constitutional structures. Real time is time of labor as opposed to time of property, open time as opposed to consolidated time.38 Negri identifies real time with
35
Id. at 234235. Id. at 121.
36
Id. at 233. Marcuse translates Walter Benjamin, ber den Begriff der Geschichte [Theses on the Philosophy of History], 61.3 DIE NEUE RUNDSCHAU [THE NEW REVIEW] 568 (1950).
38
37
NEGRI, INSURGENCIES, supra note 1, at 231.
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constituent power, as opposed to constituted power and protests against its subordination to xed constitutional structures. He characterizes constituent power as love of time39 and celebration of temporality, and as an endorsement and afrmation of the crisis inherent in a genuine experience of time.40 Constituent power is a permanent revolution gushing toward an open future.41 The political is . . . production par excellence, collective and non-teleological. Innovation constitutes the political. . . .42 For Negri, the afrmation of real time calls for the permanent galvanization of the peoples constituent power and repudiation of any enduring constituted structure. Contrary to Negris remarks on sovereignty and time, the immanence of sovereignty betrays an aversion to time and change, a quest for a perpetual present. The exercise of constituent power dissolves the horizons of past and future into a sprawling present. Negri makes this point himself when he insists that constituent power cannot be guided by a utopian vision. Utopia, he species, is a blueprint for a movement toward a determinate future and, as such, it represses the genuine, necessarily traumatic, experience of time.43 Released from the hold of linear time, constituent power cannot be recruited to the realization of any utopian projection. Negri champions the implacable temporality of the French Revolution. He accuses Michelet of class hatred for having observed a thirst for blood in that phase of the Revolution that saw revolutionary time at its utmost intensity.44 Contrary to Negris accusation, the thirst for blood identied by Michelet is an inherent aspect of constituent power and of all interruptions of historical time. Negri correctly associates ordinary historical time with the transcendence of sovereignty; however, he fails to describe a viable alternative temporality, since the time of constituent power is aficted with violence and self-destructiveness. The absolute presence of constituent power negates present lives much as it erases the memory of past generations and the anticipation of future ones.
3.4. Time and the constitution in Arendts On Revolution
In The Human Condition and other works, Arendt claimed that political action would be inconceivable without a belief in immortality. The idea of immortality
39
Id. at 334. Id. at 318319. Id. at 24, 334, 335.
40
41
42 Id. at 28. Negri laments that Constitutions can come one after the othereach time or, rather, each historical period has its own constitutionbut time must always be constitutionalized. And different times must be reduced to zero. The machination of this reduction is temporal and the constitution is a temporal machine. Id. at 315. 43
Id. at 322. Id. at 194196.
44
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plays a crucial role in her accounts of both action and work. Political action assumes a collective memory in which it aspires to be immortalized. The indifference to immortality in the modern world was, for Arendt, a clear indication of the decline of the political.45 Like action, work, too, becomes meaningful through the anticipation of permanence. In her account of work in The Human Condition, Arendt lays emphasis on the durability of artices. By outliving their makers, artices establish a link between the generations. It is by virtue of their durability that artices can endow the world inhabited by humanity with reality and reliability.46 In On Revolution, Arendt applies her general ideas about the artice to the law and the constitution. For Arendt, lawmaking belongs in the category of work rather than action since the purpose of makers of laws and constitutions is to produce enduring artices. Like other artices, the constitution forges a link between the generations.47 While this is an important function of the constitution, I will argue that Arendt does not recognize laws more fundamental role of fabricating time itself. The law, as an enduring artice, makes possible the succession in time of separate generations before it connects them to each other. Arendt does recognize the role of the law and other artices in the fabrication of space. The law is the wall, Arendt asserts in The Human Condition, laying down spatial, interpersonal boundaries. A few pages earlier she states, more generally, that the common world of things . . . relates and separates men at the same time.48 In other words, artices permit the fabrication of space by separating individuals. Under fascism, when the rule of law collapses, the social space disintegrates.49 When Arendt describes the intermediate position of the artice between generations no mention is made of the need to separate the generations from each other. Here, the role of the artice is limited to that of creating links. There is an asymmetry between the synchronic and diachronic functions that Arendt attributes to the artice. While the artice, according to Arendt, mediates between the living by separating and relating them at the same time, as far as intergenerational mediation is concerned the function of the artice is only that of relating the generations to each other. Implicit here is an asymmetry between Arendts conceptions of space and time. Space, Arendt states repeatedly, needs to be articially fabricated. The artifact is indispensable if a space between individuals is to be opened. By contrast,
45
HANNAH ARENDT, The Concept of History: Ancient and Modern, in BETWEEN PAST AND FUTURE 41, 74 (2006). HANNAH ARENDT, THE HUMAN CONDITION 95 (1958). HANNAH ARENDT, ON REVOLUTION 203 (1963). ARENDT, supra note 45, at 52.
46
47
48
By pressing men against each other, total terror destroys the space between them . . . ARENDT, TOTALITARIANISM, supra note 15.
49
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time does not have to be articially fabricated. The temporal distance between generations, as opposed to the spatial distances among the living, is given. Nature, mortality, takes care of separating the generations; culture then enters the scene, endeavoring to connect the living and the dead. Contrary to Arendts position, the diachronic and synchronic functions of the law are analogous. The law, and the corporate structure of society as a whole, not only relate generations to each other but drive a wedge between them. Before the law can relate the generations to each other, it has to dispel their simultaneous presence in the communal body. The temporal distances between the generations have to be legally, articially fabricated. Arendt could not recognize the role of the law and other enduring artices in the production of time because, as Martin Jay has suggested, she subscribed to an immanent understanding of ultimate lawmaking power.50 Arendt makes no room for the distinction between normal politics and constitutional moments and undertakes to demythologize constitutional beginnings. For her, every moment is a constitutional moment, a singular and unconstrained beginning. Historical beginnings are denied both authority over the present and a position outside the temporal sequence of everyday politics. Arendt employs terms of internality and externality; the political institutions in operation are not grounded in an external foundation, such as a myth of origins. The beginning takes place constantly within them.51 It is not a mythical moment that has to be left behind for historical time to be set in motion. The role of the artice is loosely to connect the endless string of disconnected beginnings without binding them to anything permanent or eternal.
4. Concluding remark: Corporate perpetuity and the political domestication of death

If, as Foucault characterizes Hobbess fundamental position, sovereignty originates in an assertion of life, then the primary institutional manifestation of the political assertion of life is the temporal construct of corporate perpetuity. The corporate organization of society embraces life by setting time in motion and dispelling the communion of the living and the dead in communitas. The presence of the communal body tends to unleash gratuitous violence that is reminiscent of the violence to which lawyers have sometimes referred as the power over life and death. The political domestication of death proceeds by inculcating
50 . . . Hannah Arendt drew on political existentialist tradition in viewing history as an illegitimate source of constraints on freedom . . .; MARTIN JAY, The Political Existentialism of Hannah Arendt, in PERMANENT EXILES: ESSAYS ON THE INTELLECTUAL MIGRATION FROM GERMANY 243 (1985).
For Arendts critique of metaphysical or mythical accounts of the beginning as a moment which grounds the temporal order in a higher one, see ARENDT, supra note 45, at 206.
51
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in society the temporal organization of intergenerational relations. The rst task facing legal and political institutions is not to assist society in coping with temporal nitude that is accepted by society as given and imposed by nature but, rather, to induce society to accept nitude in the rst place and prize it over the timelessness of communitas. Only after the ction of corporate perpetuity, and with it time itself, has been instituted, does the need arise to alleviate the burdens of nite existence.52 Once temporality has been afrmed by society and the burdens of temporal existence endorsed, individual deaths have to be rendered meaningful. The ction of corporate perpetuity performs the two interdependent functions of making humans mortal and making their death conceivable. Where the ction of corporate perpetuity becomes embedded in symbols and institutions, individual deaths take place within a historical sequence that they cannot interrupt and which endows them with sense. Individual deaths become particularly meaningful when they contribute to the perpetuity of family or state. Kantorowicz links the ideal of death for the fatherland with the corporate structure of the state: Once the corpus mysticum has been identied with the corpus morale et politicum of the people and has become synonymous with nation and fatherland, death pro patria, that is for a mystical body corporate, regains its former nobility.53 This is death politically domesticated, integrated, and humanized; individual sacrice, however regrettable, becomes noble when exacted by the cause of corporate perpetuity. Kantorowicz has described the medieval revival of the classical ideal of death in the battleeld. For the Greeks, as Jean-Pierre Vernant has shown, death for the sake of family or state, that is, in the name of corporate perpetuity, was not only meaningful but beautiful. The Greeks, Vernant notes, distinguished the gure of Thanatos, which represented the beautiful death of the Greek hero, from the monstrous gure of Gorgo, which represented death as an undomesticated, prepolitical force that seeks to eradicate the human order altogether.54 In the terms of the present analysis, the gures of Gorgo and Thanatos designate the communal and corporate bodies, respectively. While the communal body is captured by the gure of Gorgo, the mythical image of death as a savage prepolitical force, Thanatos represents death as domesticated and politically integrated, the unavoidable termination of individual life that secures the perpetuity of the human order. The transformation of the communal into a corporate, political body implies the pacication of the communitys lawless power over life, which comes to be
52 Philippe Ariss classic account of the taming of death is concerned with the latter phase of the political domestication of death. See PHILIPPE ARIS, THE HOUR OF OUR DEATH (1991). 53 ERNST H. KANTOROWICZ, Pro Patria Mori in Medieval Political Thought, in SELECTED STUDIES, 308, 320 (1965).
JEAN-PIERRE VERNANT, Feminine Figures of Death in Greece, in MORTALS AND IMMORTALS 9597 (1991). See also JEAN-PIERRE VERNANT, Death in the Eyes: Gorgo, Figure of the Other, in MORTALS AND IMMORTALS 111140.
54
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monopolized by the corporate organization of society. The power over life and death can be domesticated because it is colonized by a corporate body that is ctively invulnerable to death. Various representations of ancestral/corporate authority and law suggest that the moral authority of ancestors is backed by an absolute power over life. Fortes writes: . . . the ancestors constitute the ultimate tribunal, the nal authority in matters of life and death. Every normal death is their doing.55 And, elsewhere, he observes: The ancestors are the ultimate source of life both for the individual and, much more obviously of course, for the descent group which would not exist if there had been no ancestors. But this implies the converse: that ancestors have the sole right and power to terminate the life of an individual or of a corporate group, phrased often in terms of summoning the deceased as if before a judicial tribunal.56 Once relegated to ancestral authority, the power over life no longer manifests itself as arbitrary sway over individual fates. It is regulated by the law and integrated into a life-afrming constitutional order. As Pierre Legendre writes, Jurisdiction . . . is comprised of the exercise of a power of life and death over the subject.57 Death is placed under the well-disposed rule of the ancestors and subordinated to the causes of life and kinship.58 Contrary to the tradition in political philosophy epitomized by Hobbesand perhaps somewhat paradoxicallythe political afrmation of time and life requires the resignation of the power over life to the dead. The states exercise of power over life and death dispossesses the communal body of that power and integrates it into the constitutional order. The power over life allows the state to conrm beyond doubt that its authority originates in the prepolitical, undomesticated violence of the communal body, and that its hold over that violence is now exclusive. It shows that the constitutional/ corporate order is not challenged by persistent unintegrated and undomesticated forces, and that it perpetually refounds that order. Rather than constituting an affront to the cause of life, the states power over life consolidates the projection of sovereignty outside the social in the face of communal aspirations for the enactment of the collective body and the arrest of time. It clears the
55
MEYER FORTES, Pietas in Ancestor Worship, in TIME AND SOCIAL STRUCTURE 164, 179 (1970). Fortes, supra note 9, at 12.
AND THE
56
57
PIERRE LEGENDRE, LAW 1997).
UNCONSCIOUS:
LEGENDRE READER 176177 (Peter Goodrich ed.,
58 The founding mothers and fathers, depositories of the power over life, are represented in a predominantly benevolent guise. Fortes writes: The lineage ancestors, incidentally (and consistently with the jural concept of the lineage as an indivisible corporation), are not visualized as mystically persecutory agencies, but rather as just and watchful arbiters and protectors of the social order. FORTES, KINSHIP, supra note 4, at 153, 159, 189.
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social space of the presence of the dead and renders the world hospitable to human reason and action. Traditional examples of the power over life include judicial killings and the authority to dispatch citizens to death in the battleeld. According to Foucault, these forms of power were largely superseded in the modern state by biopower. The modern state exercises sovereignty by means of thorough governance of the economy of life: it regulates and administers births and deaths, takes care of the nutrition, accommodation, and health of the social body, and elaborates normative classications of desires and gratications.59 Foucaults notion of biopower brings to light the full extent of the modern states claim to have colonized the power of death: not content with regulating the human iniction of death, biopower aspires to colonize nature altogether, to master all kinds and causes of death.60 In fact, the modern state seeks to incorporate the entire biological phenomenon of life, with death as part of it. Like the traditional forms of the power over life, biopower serves to refound the authority of the state by demonstrating its conquest of the violence of death and, hence, its capacity to institute time. It demonstrates the states Faustian hold over the lawless and boundless power of science. The marshalling of the miracles of science conrms the states mastery over life and death and overshadows the promises of communal presence. In wars, civil wars, plagues, natural disasters, and other moments of crisis in which social structure fails to represent its hold over death, the violence of the communal body threatens to break free from the constitutional order and reclaim its lawlessness. An arbitrary power over individual fates pervades the community. In revolutions and civil wars, terror consists precisely in the arbitrary designation of victims. Under fascism, frequent and intense occasions of sovereign presence release an arbitrary power over life.61 No distinction between founding and conserving violence can be consistently maintained. According to Carl Schmitt and other advocates of immanent sovereignty, whenever the community wishes to exercise its sovereign power over life and death, the communitys decision overrides the legal order.62 Whether avowedly fascist or not, theories of immanent sovereignty imply the transformation of the political order into a permanet cult of death and the denial of time.
59 MICHEL FOUCAULT, Right of Death and Power over Life, in THE HISTORY INTRODUCTION 133 (1981).
OF
SEXUALITY, VOL. 1: AN
60 The claims of biopower have their traditional precedents. The degree to which death is presumed to be integrated into the human/corporate order is strikingly illustrated by the belief that every human death, however natural it may appear, is the working of the ancestors. Fortes gives the following account of Tallensi views on that matter: . . . according to the Tallensi theory of the person, no one can be certainly known to have been a full human person until he is shown, at the time of his death, to have been slain by his ancestors and therefore to deserve a proper funeral. This carries the implication that the person thus marked is qualied to join his ancestors and become one of them. FORTES, TALLENSI RELIGION, supra note 4, at 257. 61
On fascism and immanence, see FRANZ NEUMANN, THE RULE OF LAW 289 (1986). On the power over life and death, see Carl Schmitt, The Concept of the Political 4553 (1995).
62

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Time and the constitution

MICHEL FOUCAULT, SOCIETY MUST BE DEFENDED 96 (2003).

Barshack | Time and the constitution

1. The corporate body

Barshack | Time and the constitution

Barshack | Time and the constitution

2. Legal continuity and the institution of historical time

Barshack | Time and the constitution

2.2. From mythical time to corporate perpetuity

HANNAH ARENDT, THE ORIGINS OF TOTALITARIANISM 466 (1948).

Barshack | Time and the constitution

FORTES, TALLENSI RELIGION, supra note 4, at 275.

Barshack | Time and the constitution

Fortes, supra note 9, at 6.

Barshack | Time and the constitution

Barshack | Time and the constitution

Id. at 234235. Id. at 121.

NEGRI, INSURGENCIES, supra note 1, at 231.

Barshack | Time and the constitution

Id. at 334. Id. at 318319. Id. at 24, 334, 335.

Id. at 322. Id. at 194196.

Barshack | Time and the constitution

4. Concluding remark: Corporate perpetuity and the political domestication of death

Barshack | Time and the constitution

PIERRE LEGENDRE, LAW 1997).

LEGENDRE READER 176177 (Peter Goodrich ed.,

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