Postmodern global governance and the Critical Legal Project.

Publication: Global Jurist Advances

Publication Date: 25-OCT-01

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COPYRIGHT 2001 Berkeley Electronic Press

It is said that the century was short. I do not wish here to discuss this statement: one thing that is certain is that the last fifty years were very short for the new deal constitutions. These were founded on work: hence they were labour-based constitutions - some more laissez-faire in their ideology, some more democratic - but rooted in any case in a 'material constitution' defined, as well as by their solid base in capitalism (but what was socialism if not the 'end result' of capitalism?), also by the combination of Taylorist industrialism, Fordist wage deals and Keynesian macroeconomics. At the same time this was energised (whatever the groups in the constitutional history of each individual country) by labour struggles between owners and trade unions - i.e. by a conflict 'disposed' by the constitutional system.

I use the verb 'to dispose' and, in the rest of the paper, the noun 'dispositif' to illustrate the forms and to stress the intensity of the dynamics of a constitution which recognises itself as a product of a constitutive conflict/accord between the different social forces and indefinitely absorbs the equilibria thus created. Before Foucault, the sense of this 'dispositif' was illustrated by Machiavelli.

Now, the conflictual model, based on labour, dominated a large part of the nineteen hundreds, or - better - of twentieth century democracy (whether liberal or socialist): it was seen as a suitable constitutional arrangement for regulating the class struggle (not only in public law but also, often, in political economy and, always, in the theory and practice of programming and/or planning human reproduction); and it was used to stabilise the development of productive society (or its reconstruction) in the face of economic crises, revolutions, wars and/or cyclic catastrophes. Not by chance this model came into being during the economic and social crisis of 1929 in the USA (a crisis that completely internalised the 'Soviet threat'), while in Europe it became widespread after the end of the Second World War; not by chance this model assumes at its base, as its essential feature, the political organisation of the working class (both internationally and within individual capitalist countries) as the opposing party in the plan for the reproduction of society (capitalist and bourgeois on one hand, socialist and increasingly intent on the redistribution of income on the other). Thus social peace in development is organised or 'disposed'. It is the Welfare State.

It is at this point that another factor must be considered when we use the term 'dispositif'. Rather than its 'intensity', as we have so far used it, we must now consider its 'extension'.

It is clear that in regulating the class struggle the 'dispositifs' of constitutional (and/or public) law affected not only production but also the terrain of reproduction (i.e. the town, that which lies outside the walls of the Fordist factory - in other words society, life itself) of which they became a constitutive part: these mechanisms organised or 'disposed' the social context, which we shall henceforth call 'biopolitical'. In other words, by means of the constitutional and juridical revolution imposed from the 1930s onward in both West and East, the constitutional (or, tout court, juridical) bodies have developed such a capacity to organise and to constitute society (one thinks of the legal configuration of the Welfare State) that, ever since then, life cannot be described or, probably, even understood outside the categories of the public initiatives, the constitutional law and the biopolitical subdivisions of the Constitution. From now on, therefore, we must not only be aware that contemporary capitalist society consists of a web of "dispositifs", but also that these have a biopolitical extension. The legal effect must be considered immediate in the context of life: on the other hand, and in the same sense, the reproduction of life directly implies and includes within itself the juridical.

The paradoxical result of this is that, at the very moment in which the Fordist constitutions (under the attack of neo-liberalism) collapse, the importance and the weight of the juridical investment on, in and of society reach their maximum: public law disposes subjects, the relations and the objects of production and of reproduction are no longer imaginable outside an effective organisation - but nevertheless these 'dispositifs' seem no longer to be in conflict (at first sight, at least), either hidden or apparent, nor do they seem to recognise themselves as the product of conflict. To pursue the argument (which lies as the centre of this paper), let us pose again the question: what is happening? Why paradoxically does the efficacy of the constitution grow weaker and disappear just at the moment in which constitutional production takes on a larger and larger role in life and disposes immediately of subjects and objects? Why does the intensity of the constitutional arrangement decline at the very moment in which its extension reaches it maximum? Why do class conflicts, after they have brought into being the intensity and extension of the 'biopolitical arrangement', no longer function either as causes of constitutional development or as the substance of social development?

If we proceed from the general to the particular we may suggest an initial answer to these interrogatives. This arises from a number of elementary observations which can be summarised as follows: the working class and its organisations (national and international) no longer exist in the form in which they existed when the democratic system of the 1900s was established; consequently the social dialectic which rendered them, in that form, transparent and which energised them is no longer valid; finally, then, those 'dispositifs' on which we dwelt no longer function and cannot be brought back to life. Such negative observations may be confirmed and strengthened by the recognition of other positive, historical facts which, in each of the constitutional systems of the West, see moments of 'neo-liberal conversion', i.e. of 'democratic devolution', or at least of a unitary recomposition (no longer conflictual) of the power of liberal hegemony.

Since the mid 1970s there has been a succession of initiatives which impose, with the affirmation of the 'limits of democracy' (according to a famous document of the Trilateral from the 1970s), the recentering of powers outside any 'strongly' (or even perhaps 'weakly') democratic apparatus.

That said, we have not yet furnished an answer to the 'paradoxical' question proposed above which explains its paradoxical aspect. This consists of the fact...

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