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Oxford Constitutional Theory has rapidly established itself as the primary point of reference for theoretical reflections on the growing interest in constitutions and constitutional law in domestic, regional and global contexts. The majority of the works published in the series are monographs that advance new understandings of their subject. But the series aims to provide a forum for further innovation in the field by also including well-conceived edited collections that bring a variety of perspectives and disciplinary approaches to bear on specific themes in constitutional thought and by publishing English translations of leading monographs in constitutional theory that have originally been written in languages other than English.
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Europe’s Functional Constitution
A Theory of Constitutionalism Beyond the State
Turkuler Isiksel
Post Sovereign Constitution Making
Learning and Legitimacy
Andrew Arato
Popular Sovereignty in Early Modern
Constitutional Thought
Daniel Lee
The Cultural Defense of Nations
A Liberal Theory of Majority Rights
Liav Orgad
The Cosmopolitan Constitution
Alexander Somek
The Structure of Pluralism
Victor M. Muniz-Fraticelli
Constitutional Courts and Deliberative Democracy
Conrado Hübner Mendes
Fault Lines of Globalization
Legal Order and the Politics of A-Legality
Hans Lindahl
The Cosmopolitan State
H Patrick Glenn
After Public Law
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A Comparative Model of Separation of Powers
Christoph Möllers
The Global Model of Constitutional Rights
Kai Möller
The Twilight of Constitutionalism?
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Beyond Constitutionalism
The Pluralist Structure of Postnational Law
Nico Krisch
Constituting Economic and Social Rights
Katharine G Young
Constitutional Referendums
The Theory and Practice of Republican Deliberation
Stephen Tierney
Beyond the People
Social Imaginary and Constituent Imagination
Zoran Oklopcic
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Acknowledgements
This book is about the importance of not closing our eyes before the situations and environments in which we struggle to achieve something that we hope will withstand the test of time. Completed almost fifteen years after I moved to an environment that made the pursuit of that aspiration possible, this book is also a polemic against what seems to be the dominant tendency in contemporary constitutional thought: to lend dignity to such aspirations through sympathetic theoretical conceptualizations of constituent power, self-determination, identity, and autonomy—collective, or personal. Captivating, pleasurable, and comforting (especially after the fact), these idea(l)s are also passivizing, distracting, and infantilizing. By providing ‘us’ with a virtual pat on the shoulder, they fail to remind us that whoever we think we are, what we really need is a helping hand. It is only because such a hand was extended by so many generous friends and colleagues that am I enjoying the privilege, and pleasure, of writing these lines.
Though an unrefined sense of what is ‘wrong’ with the way in which contemporary theoretical debates approach various aspects of the vocabulary of sovereign peoplehood could already be detected in my doctoral dissertation, which I defended at the University of Toronto Faculty of Law in 2008, it took me nearly a decade to render that initial set of convictions, assertions, and irritations more visible—and, as a result, intelligible and sensible. It is only natural that my greatest debt of gratitude goes to the person whose wisdom, friendship, encouragement, and gentle, but persistent probing, gave these initial, rudimentary intuitions a chance to survive and develop—my doctoral supervisor, Patrick Macklem. In addition to Patrick, I also wish to extend my heartfelt gratitude to the members of my dissertation committee, Simone Chambers and Sujit Choudhry, as well as to my internal and external examiners, Karen Knop and Stephen Tierney, who each in their own way helped set the stage for the development of the ideas that went into this book.
Over the last decade and a half, I have also been very fortunate to profit from conversations with a number of admirable colleagues. At the risk of omitting many of those to whom I remain indebted, my thanks goes to Adrian Smith, András Jakab, Alex Schwartz, Amy Bartholomew, Avigail Eisenberg, Benedict Kingsbury, Charles-Maxime Pannacio, Christine Bell, Cormac Mac Amlaigh, David Dyzenhaus, Dejan Stjepanović, Fleur Johns, Ida Koivisto, James Tully, Joel Colón-Ríos, Jarmila Lajčakova, Karlo Basta, Kristen Rundle, Luigi Nuzzo, Luis Eslava, Maddy Chiam, Margaret Moore, Martín Hevia, Matthew Lewans, Michael Fakhri, Miodrag Jovanović, Muhammad Shahabuddin, Nehal Bhuta, Neil Sargent, Neil Walker, Nikolas M Rajkovic, Paul Blokker, Peter Swan, Rayner Thwaites, Remo Caponi, Richard Albert, Rita Lynn Panizza, Ron Saunders, Rose Parfitt, Rueban Balasubramaniam, Stacy Douglas, Stephen Holmes, Tom Campbell, Umut Özsu, Vicky Kuek, Vidya Kumar, Vincent Kazmierski, Vito Breda, and Yaniv Roznai. In different ways and at different places—from the University of Toronto
and the Department of Law and Legal Studies at Carleton University (my home institution), to Edinburgh Law School, Victoria University Department of Political Studies, NYU Law School, and Harvard Law School’s Institute of Global Law and Policy—they have each made the years of work that went into this book personally edifying, socially enjoyable, and intellectually enriching. In particular, I wish to thank András, Fleur, Maddy, Margaret, Nehal, and Umut, who read and commented on the portions of an early version of the manuscript; Nikolas, for his path-breaking reading suggestions; Ida, for our ongoing parodic re-conceptualizations of serious theoretical concepts; Adrian, for confronting my half-developed thoughts attentively, enthusiastically, and critically; and finally—for all of the above—Karlo, my childhood friend, comrade émigré, and intellectual fellow traveler.
For her patience, generosity, and love—as well as for our innumerable conversations about the substance, style, and composition of this book—I thank above all my wife Helena Kolozetti. I also thank my parents-in-law, Nada and Vlado Kolozetti, whose selfless hospitality I continued to enjoy throughout this process, and which I will always cherish. Finally, the courage I felt I needed to summon in order to write this book didn’t come from nowhere. For that I thank my parents, Slobodanka and Zdravko Oklopčić In nurturing my early inclinations towards the world of visual arts on the one hand, and towards the world of politics and ideas on the other, they set the foundations for my more recent adventures in diagrammatic writing and visual political theorizing. This book is dedicated to my son Danilo—in hope it makes him as proud as his father is proud of him.
Zoran Oklopcic Toronto, January 2018
Chapter 1 A Different Beginning: Theory as Imagination
1. A sovereign people and its two realms
2. Videre aude: theory as imagination 5
3. Twining’s Palomar and his ‘cosmic wisdom’ 8
4. Imaginative theory as constituent imagination 12
1. Popular self-government: space, time, and spacetime 267
2. Cicero’s Ulysses: behind pre-commitment 273
3. Taking Kelsen literally (beyond Kelsen) 277
4. Self-government as a constitutional isomorph 281
5. Constitutional isomorphs and the pursuit of purpose 287
6. By the people? Imaginative plurality and its dignity 291
7. For the people? Shameful geography of liberal oligarchy 293
8. Of the people? Narrative identity, de-dramatized 295
9. Chained to the rhythm: beyond identity and hybridity 299
10. Seeing through: beyond the light and shadow 302
Chapter 9 An Isomorphic Pluriverse: Beyond Sovereign Peoples 305
1. Beyond people-Giants and people-Dwarfs 305
2. The vengeful Grossraum: Schmitt’s dark materials 308
3. The figure of Schmitt: the irritant and the reminder 313
4. The American sovereign: an amnesiac Narcissus 317
5. Multitude: the emblem of failure 321
6. The pretender Demos and the disciplinary pretensions 323
7. Cosmopolis: between Nomos and Telos 328
8. Beyond Cosmopolis: Nehru’s (isomorphic) world 333
9. For love of the purpose: Das telos der Erde 337
Chapter 10 A New Hope: Image Wars and Eutopian Imagination 343
1. The Square, the Triangle, and the Circle 343
2. Beyond circularity: transparency and its ironies 347
3. Theory, iconoclash, and the games of make-believe 351
4. Beyond image wars? ad bellum purificandum 354
5. Breaking the siege: the liberation of eutopian imagination 361
6. Striking back: the Anathema, the Nebula, and the Utopia 363
7. And again: the Aporia and the Tabula 368
8. Wishful images and partisan onlookers 372
9. Diagrams of hope and purpose 375
List of Figures
1.1 Sovereign people—the diagram of a conceptual ‘molecule’
2.1 The people: from ridiculous to ridiculous
2.2 Four sources of legitimacy
2.3 Image schemata and the construction of ‘ridiculous’
2.4 The anxious loop of popular sovereignty
2.5 Beyond the people––the steps ahead
3.1 Lefort’s vase
3.2 Semiotic square of peoplehood—the regularities of dramatism
4.1
4.2
4.3
5.1 The matrix of moders’
5.2 Kelsenian algorithm
6.1 The global histogram of self-determination
6.2 The right to self-determination, top-down and sideways
6.3 Self-determination as refracted through the stages of determination
6.4 Top-down-bottom-up legal argument visualized
6.5
7.1
7.2 The matrix of authority-challenges
7.3 Constitutional theories as problem-solving templates
8.1 The image schemata of constitutional temporalities
8.2 The alternative messages of the Ulysses and the sirens allegory
8.3 Imperatives of government and the dimensions of responsiveness
8.4 The Kelsenian ‘cone’ and the Kelsenian algorithm
8.5 Kelsenian algorithm beyond the layered constitutional hierarchy
9.1 Isomorphic pluriverse—a cross-section
10.1 Figure-ground, hierarchy-circularity
10.2 Constituent imagination—a Twining’s map
10.3 The emblem of an emancipated eutopian imagination
A Note on the Cover
Ulysses and the sirens. When students of popular self-government wish to make their case for liberal-democratic constitutionalism as vivid as possible, that’s the allegory they turn to. In popular imagination, a sovereign people looks nothing like a partially selfincapacitated ancient warlord, however. In fact, some who invoke the people’s name on the ground would be more likely to associate it with the downtrodden, exhausted masses represented in Ilya Repin’s The Barge Haulers on the Volga (1874), one of the masterpieces of nineteenth century Russian realism.
A ‘typical’ reader of the monographs published in this series—in my imagination, someone theoretically sophisticated, socially responsible, and politically cautious—will most likely remain unimpressed by either melodramatic representation of popular sovereignty. Instead, the reader I’ve just conjured is quick to agree that a sovereign people can only ever exist as a more or less useful fiction, a figure of speech, a metaphor we live by: the constitutionalist representation of a national community that is imagined, a name for a collective sovereign that is invented; a political concept whose purpose was, is, and will continue to be polemical. While this book has no quarrel with these, more theoretically self-aware, understandings of sovereign peoplehood, it nonetheless dares to ask: What does this figure look like? If it’s imagined, what exactly does its image evoke? If it’s invented, where are its blueprints? If it’s polemical, where are its battle plans? Sensible and intriguing they may be, but these questions are inadvisable, if not unmentionable, from most contemporary disciplinary perspectives on the vocabulary of sovereign peoplehood. Among other things, this book is an attempt to answer them. The name for that effort is constituent imagination: a practice which, even when approached seriously, is always one step away from parody, or a step away from being parodied, itself. Repin’s Barge Haulers is the emblem of that predicament: an illustration intended to poke fun at the solemn nautical metaphors of contemporary constitutionalism, but which, very quickly, under the inspection of my more sharp-eyed colleagues became the object of ridicule itself.1
Though partly satirical in its aesthetic and rhetorical aspirations, this book rests on an unironic conviction—an earnestly held belief that many, potentially useful, analytical insights lie in an insufficiently explored strip of intellectual landscape delineated by the tolerably indecorous and the disciplinarily undisciplined two invisible boundaries of our theoretical imaginations. To explore this zone is to find new ways of moving beyond the traditional styles of practicing theory, and, with it, beyond the enduring representations of popular sovereignty in a wider social imaginary. While this book is not an attempt to convince its readers that they ought to make that move, it intends to provoke
1 Yaniv Roznai, true to his humorous habitus, was quick to point to the cell phone in the hands of an exhausted elderly employee in the middle of the painting.
a particular theoretical and practical attitude towards the constitutive acts usually attributed to the figure of a sovereign people.
One figure from Repin’s Barge Haulers seems to be particularly evocative in that regard. Here I have in mind not the exhausted muzhik in the centre of the painting, but rather the man to his right; the one with his head held high. Is he hearing voices? Or is he seeing strange new figures in the clouds? Is he indignant, with his chin slightly downcast? Or is he just incredulous? It’s hard to say. In painting him, Repin may have wished to evoke a madman, a prophet, a rebel with(out) a cause, some combination thereof, someone else altogether, or nothing in particular. One thing is certain, though. Repin’s barge hauler is no Ulysses. Unlike Homer’s hero, he has no choice but to remain attuned to his environment. In dragging the ship (of state) through the mud, he manages to keep his ears clean and his eyes wide open. In contrast to prevailing conceptualizations in contemporary political and legal thought, the self-determination, constituent power, and political autonomy of Repin’s everyman remains inseparable from the peculiarities of his situation, from the expectant emotions that overwhelm him; from his aspirational orientations, and his prognostic calculations. It is these, imagined differently, that are beyond a variety of disciplinarily disciplined figurations of sovereign peoplehood. It is the wager of this book that these situations, emotions, orientations, and calculations may be talked about explicitly, purposefully, imaginatively, and productively—more playfully with respect to prevailing terminological mediations, and yet equally ‘theoretically’, dialogically, and seriously. What follows is the record of my attempt to show how.
A Note on Usage
This book departs from prevailing ways of writing about social imaginary and theoretical imaginations of popular sovereignty both in substance and in style. As will soon become fully obvious, my style is thoroughly visual, manifest not only in my ample use of images—diagrams, tables, and graphs—but also in my frequent reliance on visual accents, such as small caps, which appear throughout the book in the body of the text itself. Mildly anxious about the prospects of being accused of not practising what I preach (imagination), I have resorted to their use for three reasons: (1) in order to generate (in my mind, as effortlessly as possible) the effect of estrangement from dominant theoretical preoccupations with the figure of a sovereign people and its attributes—with the aim of drawing attention to the conceptual, visual, rhetorical, semiotic, and other concealed implements of theoretical imagination used to stage the manifestations of that people and its attributes, instead; (2) in order to underscore the imagined and imaginative character of allegedly superior theoretical alternatives to specific figurations of a sovereign people, or to the vocabulary of sovereign peoplehood in general; and, finally, (3) in order to make further distinctions among the diversity of background imaginative choices and half-thought considerations that inadvertently shape the way in which the figure of a sovereign people appears on the pages of a theoretical monograph. In opting for this approach, I was aware of the risk of alienating readers who expect to confront discrete chunks of unadorned text, and not lines of text interspersed with pictorial emphases, visual restatements, and diagrammatic summations. If I have failed in my ambition to deploy these visuals illuminatingly, I still hope that there will be those who will consider it as an experiment well worth the effort—an attempt to theorize fast and slow; to communicate mutually-related ideas at different levels of compression, in the hope that doing so might make them easier to disassemble, reassemble, compare, combine, adapt, discard, or deploy—and overall, situate and evaluate.
A Different Beginning Theory as Imagination
1. A so vereign people and its two realms
A sovereign people has many bodies. However it incarnates itself, it does so in two places at the same time: in the realm of theoretical inquiry and in the realm of social imaginary. In the first, it appears in two guises: either as the subject or, more rarely, as the predicate in a particular proposition of peoplehood. There, a sovereign people is a concept which is always an abstract someone to something: the bearer of constituent power, the holder of the right to selfdetermination, the subject of constitutional self-government, the source of ultimate authority, or a sovereign among other sovereign peoples. In the second realm, in contrast, its guise is fourfold. There, a sovereign people exists as a shorthand for a particular aspect of the doctrine of popular sovereignty; as a figure, set against a background that renders that doctrine meaningful; and—as a consequence of both—the catalyst of political antagonism, on the one hand, and the mediator of the popular expectations of those who invoke its name, on the other. To invoke its name, in this realm, is not only to refer to ‘deep normative notions’ about the ways in which we fit together,1 but also to imagine a godlike sovereign actor whose ambivalent image has historically proven capable of amplifying an enduring, large-scale political animosity—initially towards unaccountable monarchies, parasitic aristocracies, and exploitative empires, and over time towards ethnic majorities and great-power hegemonies.
In allowing those who invoke its name to harness its catalytic power, however, a sovereign people has always been a Janus-faced rhetorical device: not only a figure to be used, but also a figure that uses; not only a rhetorical weapon and a problem-solving device, but also the mediator of expectations among those who reach for them. As an actor in an imaginary scene of constitutionmaking, this sovereign people also acts on the plane of our anticipatory consciousness, prefiguring how we may communicate our expectations of others, for ourselves, and for the world, both in principle and specifically: here and now, not then and there; with respect to you, not to them; and vice versa. In other words: as the arbiter of the intelligibility, legality, and legitimacy of our
1 Charles Taylor, Modern Social Imaginaries (Duke University Press 2003) 23.
expectations and as the warden of the spatiotemporal boundaries of their morality and sensibility. In these roles, a sovereign people also acts as the manager of mental phenomena—emotions, attitudes, and affects—which these expectations provoke, sustain, amplify, or diminish in the context of a particular political struggle.
Among a variety of different affective attitudes that come in tandem with the vocabulary of sovereign peoplehood, one has been particularly important. Ignored by the theorists, the attitude in question—perhaps best referred to as hopeful self-confidence, or self-confident hopefulness—has allowed those who rally around the name of the people to act on the basis of a belief that has no correlate in the historical eras prior to the one defined by the social imaginary of popular sovereignty; a belief that ‘we, the people, have the right to voice on our own initiative; worthy, united, numerous, and committed, we have the capacity to change things’,2 trustful that doing so will not be in vain and that establishing a new order of, for, and by the people can only be for the better. Those who approach this figure theoretically, however, rarely pause to ask, is this still what we expect today? Is it really true, as Ernst Bloch declared in 1959—the year which, in retrospect, may be seen as the beginning of the soon to be eclipsed zenith of that imaginary—that ‘we never tire of wanting things to improve’?3 Or has the ‘continual propensity towards the better’, which Bloch detected more than half a century ago, been nothing but his own groundless projection, the result of his own overactive imagination: ‘part socialist propagandizing’, ‘part German metaphysics’,4 part echo of the mid-twentieth century anti-colonial Zeitgeist?
As they seek to interpret the meaning of specific propositions of peoplehood, theorists, for the most part, do not confront these questions, nor do they, in consequence, have an opportunity to ask themselves those that would otherwise logically follow: What is it that we expect from the figures that inhabit the realm of theoretical inquiry once we broadcast them—in the world, and for those who rely on them within the realm of social imaginary, in the field of struggle? How do we want our figurations of sovereign peoples and their predicates to arbiter, police, and mediate their own expectations? Which among their innumerable struggles do we wish to catalyse, and on the basis of what? What is it that we, the inhabitants of the realm of theoretical inquiry, envision as we assume, diagnose, prognosticate, hope, worry, regret, and yearn?
To ask these questions is to ask what is theory as a practice, and what is that practice for. To aspire to answer them is to reimagine theory as the practice of imagination, and then to practice it differently: purposefully, deliberately, actively, and interactively. To practice theory as imagination in the realm of theoretical inquiry is to violate the norms of communal decorum, which stipulate
2 Charles Tilly, Regimes and Repertoires (University of Chicago Press 2006) 56.
3 Ernst Bloch, The Principle of Hope, vol 1 (Neville Plaice, Stephen Plaice, and Paul Knight trs, first published 1959, MIT 1995) 77.
4 Alan Mittleman, Hope in a Democratic Age: Philosophy, Religion and Political Theory (OUP 2009) 182.
how to treat interlocutors’ images: always as props, always invisible, and always unmentionable—either because they successfully prop up the propositions of those who imagined them, or because the consequences of their failure to do so must be indicated differently, without pointing a finger at a picture, which, by definition, may always be pictured differently. Finger pointing, as in every other polite conversation, is strongly discouraged. To ask: What is the point of imagining a scene in which a sovereign people appears like that, like that?—is to introduce irrelevant and tone-deaf considerations, more becoming of a ‘man of business’5 than of someone appreciative of the ‘unusually conversant’ voice of theory.
Notice, however, that the same theory-as-imagination, which commits its practitioner to laugh away the reproachful gazes of those who claim that ‘barbarism may be observed to have supervened’6 whenever ‘so that what?’ and ‘on the basis of what?’ questions disrupt the flow of mellifluous theoretical conversation, also seems to commit that same practitioner to fight the ‘critical barbarism’ of those who participate in the scholarly games of make-believe for the opportunities they provide to demolish someone else’s stage props.7 While fighting critical barbarism in this arena ultimately doesn’t commit a theoristimaginer to refrain from exposing, ridiculing, or unmasking sacred cows, taboos, and fetishes, it does commit her to keep reminding herself and others that those who approach these entities purposefully are not idiots; that is, that they are not constitutively incapable of detecting a conceptual shell game, a manoeuvre of hiding the theoretical ball, or an attempt to smuggle an impermissible assumption when they see one. In the context of this book, it is to ask not only what is the point of imagining the figures of sovereign peoplehood in a certain disciplinarily disciplined way, but also what is the point of problematizing or critiquing those imaginations—specifically.
Provisionally situated between these two styles of theoretical thought, then, theory-as-imagination is neither a dispassionate conversation sustained by a system of winks and nods, nor an intramural sport of theoretical criticism whose audience is known in advance, but rather one of many possible instantiations of ‘symbolic action’. Always haunted by the oscillations between a vague and concrete sense of purposefulness, the dilettantism of its diagnostic and prognostic judgements, and the irresistible allure of the ‘adventures of thought in writing’—its aim is always to move: someone, somewhere, and for the better.8 Those who practise it are imaginers and practically minded rhetoricians, the ‘priests of the profane’,9 as Nicholas Onuf called them, and the veritable
5 Michael Oakeshott, Rationalism in Politics and Other Essays (Methuen 1962) 201. 6 ibid 212.
7 Bruno Latour, ‘Why Has Critique Run out of Steam? From Matters of Fact to Matters of Concern’ (2004) 30 Critical Inquiry 225.
8 Kenneth Burke, A Rhetoric of Motives (University of California Press 1969) 42.
9 Nicholas Onuf, World of Our Making: Rules and Rule in Social Theory and International Relations (Routledge 2012) 106.
conjurors of peoplehood. It is only by serving in those roles that their theoretical arguments may hope to make sense—both in relation to the partisans, and in relation to their fellow theoretical imaginers of sovereign peoplehood. To act in those roles—this book wagers—is to increase the chance of finding what Roberto Unger called the ‘lost and repressed sense of transformative opportunity’, which still continues to hide within the galaxy of either/or binaries, caricaturized figures, and devalued distinctions, and which revolves around its gravity centre: the cluster of the most important propositions of peoplehood. Not to act in those roles, as this book also wagers, would be to miss out on a theoretical opportunity, a professional adventure, and an increasingly urgent moment of political reckoning.
Irrespective of whether we live in an era of a new dawn, a final sunset, or an ambiguous twilight of sovereign peoplehood, we have been confronted with a sufficient amount of scenes of popular decision-making that ought to compel us to step back and reimagine the toxic, bizarre, counter-productive, and otherwise dysfunctional relationship between our popular expectations and the traditional vocabularies we use to mediate them. So far, theorists have done so either by refining their understandings of sovereignty, constituent power, or self-determination, ultimate authority, and popular selfgovernment, or by simply inventing a new agent— multitude, a transnational demos, a multipolar world—intended to fill the shoes of a sovereign people. In contrast, this book aims to move behind this figure not by setting it aside and leaving it behind, nor by going around the functions it still continues to serve in the world today, but rather through it, after having found new imaginative opportunities within the scenes in which it is staged, after having explored the work of imagination that went into staging them, behind the curtain, by the conjurors of peoplehood.
Doing so will broaden the imaginative space for new expectations, while at the same time offering new ways of articulating, arguing, and negotiating existing ones. Rather than insisting on how much is too much, how little is too little, and how good is good enough in different arenas of struggle, this book aims to raise the profile of the question. In other words, if you took a better look at the imaginative choices behind the figures and the scenes that quietly prop up the propositions of peoplehood, what stops you from stepping back and looking at them as tokens in somebody else’s game of make- believe that have no power to prevent you from asking: Are there new ways to mediate them while acting purposefully, worrying consciously, and hoping for more? All of that is at the very least imaginable: beyond friends and enemies, revolutions and amendments, the norm and the exception, demos and ethnos, inside and outside, constituent and constituted power, the nation and the national minority, and other false binaries perpetuated by self- disciplined theoretical imaginations, practised in silence across the realm of theoretical inquiry.
2. videre aude theory as imagination
Focused on understanding the meaning of the scenes of creation, foundation, institution, constitution, self-constitution, irruption, and other manifold stylizations of joint action, theorists of peoplehood think of the concept of imagination in terms of a formula Jean-Paul Sartre reserved for the concept of hell: imagination—it’s other people. It is those other people, not the theorist in question, who have established a constitutional imagination as a repository of established narratives, symbols, rituals, and myths, which stand ready to be ‘harnessed’ by contemporary constitutions.10 It is also these others—exercising their ‘universal human capacity’—who took part in ‘creative collective imagination’ by constructing powerful narratives of constitutional foundations and political beginnings.11 Finally, it is these others whose ‘communicative and performative work’ of imagination constitutes, as we speak, the world itself— together with its manifold ‘global problems’.12 In case there was any doubt, today imagination is:
No longer mere fantasy (opium for the masses whose real work is elsewhere), no longer simple escape (from a world defined principally by more concrete purposes and structures), no longer elite pastime (thus not relevant to the lives of ordinary people), and no longer mere contemplation (irrelevant for new forms of desire and subjectivity), [but] an organized field of social practices, a form of work (in the sense of both labor and culturally organized practice), and a form of negotiation between sites of agency (individuals) and globally defined fields of possibility.13
But what does it mean to participate in that practice? What are the modes and tasks of imaginative ‘labour’ more specifically? How is it that even those who openly recognize the importance of imagination still find it easier to describe it than to exercise it?14 If it is true that imagination is, indeed, no longer a ‘mere fantasy’ but a ‘form of work’, how is it that in the deluge of various academic ‘Handbooks on . . .’, there hasn’t been a single manual that would offer practical
11 Yaron Ezrahi, Imagined Democracies: Necessary Political Fictions (CUP 2012).
12 David Kennedy, A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy (Princeton University Press 2014) 98.
13 Arjun Appadurai, Modernity at Large: Cultural Dimensions of Globalization (University of Minnesota Press 1996) 156.
14 See, for example, Dilip Gaonkar, ‘Social Imaginaries: A Conversation’ (2015) 1[1] Social Imaginaries 195; John Grant, ‘On the Critique of Political Imaginaries’ (2014) 13[4] EJPT 408. For a similar complaint against the legal scholars who have embraced the ‘critical turn’ only to shy away from it ‘on the scene of their own writing’, see Pierre Schlag, ‘Normativity and the Politics of Form’ (2015) 139[4] University of Pennsylvania Law Review 801, 890.
guidance to the multitude of its global practitioners?15 How have those who take their ‘Promethean powers’ as a given, so far had so little confidence in their ability to ‘consciously harness them’?16 Isn’t it somewhat strange that while the texts of contemporary Prometheans rarely feature argumentatively consequential images (and almost never their own), the medieval anti-Prometheans had no qualms about authoring religious texts that were not only visually rich, but also replete with tables, diagrams, emblems, and other images, tasked with assisting memory, fostering meditation, and serving as the engines of ‘creative thought’?17 In contrast to medieval monks—who at least had a fairly good sense of what they wanted to achieve by embedding a variety of epistemic images at different places in their texts—their contemporary colleagues almost seem to be embarrassed when it comes to the individual dimension of their work as imaginers. Why is that so? Is the individual work of theoretical imagination so complex, elusive, and fleeting that it makes it, to those who perform it, literally unimaginable? Or is imagination one of those practices that are very easy to discuss enthusiastically, but which, at the same time, no one would be glad to be caught doing publicly?
The imagination of those who focus on the figures of popular sovereignty remains in a kind of a twilight zone, unable to identify with either of the two ideal-typical imaginative attitudes. It is neither what Charles Pierce called ‘poetimagination’; a type that ‘bodies forth the forms of things unknowne’, and which ‘riots in ornaments and accessories’, nor is it the ‘devil’s imagination’ of the scientist, ‘quick to take Dame Nature’s hints’, and ‘[make] the clothing and the flesh drop off’ so that ‘the apparition of the naked skeleton of truth . . [is] revealed before him’.18 Between the two poles, the practitioners of imagination that this book focuses on have generally veered towards the first—imagining their role to be either that of a connoisseur, a curator, or an artist. As a connoisseur, the task of a theorist is to learn to ‘appreciate the way in which certain ideas and beliefs gain acceptance as the “dominant sentiments” or “collective
15 Contrast this with the proliferation of scholarly monographs about some aspect of political imagination, including a number of recent critical approaches to politically relevant concepts, understood as the products or objects of imagination. ‘Sovereignty’ alone has managed to entice two eponymous titles: Kevin Olson, Imagined Sovereignties: The Power of the People and Other Myths of the Modern Age (CUP 2016); Kir Kuiken, Imagined Sovereignties: Toward a New Political Romanticism Age (Fordham University Press 2014). See also, Gönül Pultar, Imagined Identities: Identity Formation in the Age of Globalization (Syracuse University Press 2014); and, Willem Schinkel, Imagined Societies: A Critique of Immigrant Integration in Western Europe (CUP 2017). While Olson rightly emphasizes the constitutive power of imagination, Schinkel goes a step further and explicitly envisions ‘social theory and/as social imagination’(35).
16 James D Ingram, ‘Introduction’ in SD Chrostowska and James D Ingram (eds), Political Uses of Utopia: New Marxist, Anarchist, and Radical Democratic Perspectives (Columbia University Press 2016) xxii.
17 Mary Carruthers, The Craft of Thought: Meditation, Rhetoric and the Making of Images 400–1200 (CUP 1998) 11. For the discussions of similar aspirations in other eras, see Lina Bolzoni, The Gallery of Memory: Literary and Iconographic Models in the Age of the Printing Press (University of Toronto Press 2001).
18 Charles Pierce, Selected Writings (Dover 1966) 255, quoted from Richard Swedberg, ‘Can You Visualize Theory? On the Use of Visual Thinking in Theory Pictures, Theorizing Diagrams, and Visual Sketches’ (2016) 34[3] Sociological Theory 250.
dreams” of a society’.19 More ambitiously, they see themselves as curators skilled enough to ‘guide public ethical and pragmatic considerations for choosing from among such competing imaginaries of order’.20 Most ambitiously, Roberto Unger suggests that theorists should imitate artists, and ‘[make] the familiar strange’, for the sake of redeeming ‘the lost and repressed sense of transformative opportunity’, occluded from sight by a plethora of false necessities, manufactured by those who practise their imaginations furtively, as the partisans of a ‘necessitarian’ social and political thought.21 How can we combat this false necessitarianism as ‘artists’? Unger doesn’t say. In fact, it turns out that he doesn’t really want us to take this proposal too seriously, since on closer inspection the vital work of demolishing necessitarian assumptions consists in map-making, which would make a theorist more suited for the role of a cartographer. In any event, we need both a clearer sense of how we might actually practise our theoretical imagination differently (since we already do so anyway) once we actually choose to do so deliberately, and a clearer sense of what has kept theorists of peoplehood from attempting to do so thus far. In that respect, the question is not ‘how?’ but ‘why not?’. Whence such ‘imaginative resistance’ to theorizing more imaginatively, among the theorist-imaginers of popular sovereignty?22
Having never been stated explicitly, let alone discussed openly, we can only speculate as to whether this resistance emerges from a deflated sense of the capacity of theory to influence the social imaginary; from a conviction that the practice of constitutional theory is mostly a matter of language and grammar;23 from a belief that the role of theory ought to be to listen, not to lecture those who invoke the name of the people in the field of struggle;24 from having submitted to moral and emotional blackmail broadcast by the empty circles of liberal justification;25 or from enduring anti-totalitarian anxieties of former socialists and communists who instead of empty circles of justification, see empty places of power and other phantasms of anti-Stalinist radical democratic imagination.26 Or, more generally: Is the imaginative resistance to a less disciplinarily disciplined style of imagining attributable to a deeper affective disorder of theoretical imagination—one that causes ‘a state of interested dreamlessness’ in liberaldemocrats, the ‘nihilism of theoretical hopelessness’ in radical democrats, and
19 Martin Loughlin, Swords and Scales (Hart 2000) 32. 20 Ezrahi (n 11).
21 Roberto Unger, ‘Legal Analysis as Institutional Imagination’ (1996) 59[1] Modern L Rev 1, 22.
22 Originally, the term ‘imaginative resistance’ denoted the ‘comparative difficulty in imagining fictional worlds that we take to be morally deviant’. Tamar Szabó Gendler, (2000) 97[2] ‘The Puzzle of Imaginative Resistance’ 55, 56. In this book, I am using it to denote the comparative difficulty of imagining the practice of theory as: (a) the scholarly game of theoretical make-believe, and (b) the scholarly game of make-believe that may be ‘played’ as the practice of theoretical imagination.
23 See András Jakab, European Constitutional Language (CUP 2016).
24 James Tully, Political Philosophy in a New Key (CUP 2008).
25 Pierre Schlag, ‘The Empty Circles of Liberal Justification’ (1996) 96[1] Michigan Law Review 1, 47.
26 Andrew Jainchill and Samuel Moyn, ‘See French Democracy between Totalitarianism and Solidarity: Pierre Rosanvallon and Revisionist Historiography’ (2004) 76 Journal of Modern History 107.
an ‘aversion to forwards and to the penetrating glance forwards’ in them both?27 The answers to these questions can only be speculative. But even as speculative, they will depend on our understanding of the ways in which it is possible to do the work of theoretical imagination more imaginatively. A first step in that direction is to offer a provisional answer to the question: What is imagination as an embodied, personal and interactive ‘form of work’—performed not in isolation, but within the ‘organized field of social practice’? Notice that the answer to this question in the following section cannot take exception from the general vision of imagination that this book committed to from the outset. Call it the paradox of imagination: irrespective of the extent of scholarly research, intellectual rigour, or empirical evidence, a theoretical account of imagination can only be provided by practising theory, imaginatively.
3. Twining’s Palomar and his ‘cosmic wisdom’
What is imagination? Most simplistically, imagination is the name for exercising the ‘faculty for having . . . or making images’,28 which causes ‘a number of abstracted ideas . . . [to be] compounded into one image’.29 At a somewhat more refined level, imagination is an activity that consists in the mental acts of imaging, imagining-that, and imagining-how 30 The same elephant which is the object of each will in the first appear simply as an elephant (blue, pink, yellow); in the second as an elephant that grazes the lawn of my neighbour, and in the third as an elephant that was stressed out once the neighbour called the police. Though debates among cognitive scientists make it both impossible and unnecessary to settle on a comprehensive definition of imagination and mental imagery,31 this book cannot escape taking a stance on its character as a mental faculty, an individual activity, and a social phenomenon. In this book, imagination is understood as
central to human meaning and rationality for the simple reason that what we can experience and cognize as meaningful, and how we can reason about it, are both dependent upon structures of imagination that make our experience what it is. On this view, meaning is not situated solely in propositions; instead, it
27 Ernst Bloch, The Principle of Hope, vol 3 (Neville Plaice, Stephen Plaice, and Paul Knight trs, first published in German 1959, MIT 1986) 1199.
28 Eva Brann, The World of the Imagination: Sum and Substance (Rowman & Littlefield 1992) 18.
29 ibid 23.
30 Edward S Casey, Imagining: A Phenomenological Study (2nd edn, Indiana University Press 2000) 41 passim. For Casey, imaging, imagining-that, and imagining-how belong to the ‘act phase’ of imagining, which he distinguishes from the ‘object phase’, which is equivalent with the totality of ‘imaginative experience’, ‘of what we imagine in a specific act of imagining’ (10).
31 Cognitive scientists continue to debate the nature of these images. For the most influential critique of the pictorial character of mental imagery, see ZW Pylyshyn, ‘What the Mind’s Eye Tells the Mind’s Brain: A Critique of Mental Imagery’ (1978) 80 Psychological Bulletin 1. For an influential account of the quasi-pictorial character of imagery see SM Kosslyn, Image and Mind (Harvard University Press 1980). For a more recent summary of this position, see SM Kosslyn, WL Thompson, and G Ganis, The Case for Mental Imagery (OUP 2006).
permeates our embodied, spatial, temporal, culturally formed, and value-laden understanding.32
Imagination, then, is inescapable. Yet, we still do not seem to know enough about its character at work, in action, and in the process of theorizing. Among contemporary legal theorists, William Twining probably came closest to describing theoretical imagination in practice. By way of an illustration, consider the factors that shaped Twining’s theoretical gaze as he approached the problem of globalization:
As I pondered the point of the enterprise in various places—including Oxford, Nairobi, Hong Kong, Kampala, Wasenaar (near Leiden), Bangalore, Miami, and Boston—three points became crystallised. First, my primary concern was with the health of my discipline at a particular time—that is the institutionalized study of law—from the point of view of a scholar, educator, occasional activist, and mild agent provocateur. Secondly, although I jet-setted and networked in a number of countries, my home and my main professional base are in England, my working language—even in Kampala, Beijing, Miami, and the Netherlands––is English, and my expertise is largely Anglo-American. Thirdly, words like ‘global’, ‘globalisation’, and ‘globalism’ were a growing part of the barrage of messages from the media and they had begun to become part of the daily vocabulary of neighbouring disciplines.33
Twining’s gaze cannot be reduced to what is usually referred to as an ‘approach’. Beyond them—or beneath them—there are myriad factors, some of which Twining allows us to catch a glimpse of: geographical vantage points (Oxford, Nairobi, Hong Kong); the imagination of ‘disciplines’ and of what it means to be a good disciplinary ‘citizen’ (someone who contributes to disciplinary ‘health’); puzzlement over the meaning of increasingly influential concepts (‘globalization’); or temperamental predilections (‘mild agent provocateur’). In playing that role, Twining often feels like Mr Palomar—the protagonist of Italo Calvino’s eponymous novel.
Though very well aware of Mr Palomar’s travails, Twining nonetheless embraces him as an emblem of his own amor fati as a theorist-imaginer; someone who in an ‘increasingly interdependent’ and ‘more or less cosmopolitan’ world has no choice but to oscillate his gaze, in the pursuit of a project whose ‘achievement may be as elusive’, as Mr Palomar’s attempts at ‘describing a wave or mastering a piece of lawn en route to understanding universe’.34 Though fully aware of the bitter disappointments Palomar is forced to endure as he keeps confronting the demoralizing complexity of the images of the world that he constructs in his mind as he idly walks along the beach, what Twining omits from the portrayal of this emblematic figure is the moment at which Mr Palomar faces the consequences of imagining publicly. That is the moment, as
32 Mark Johnson, The Body in the Mind: The Bodily Basis of Meaning, Imagination, and Reason (University of Chicago Press 1987) 165.
33 William Twining, Globalization and Legal Theory (Butterworths 2000) 247. 34 ibid 175.
