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LGD 2001 (2) - Peter Fitzpatrick


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  The Law of Enduring Freedom

Peter Fitzpatrick
School of Law
Birbeck College, London

This is a Commentary published on 19 December 2001.

Fitzpatrick P, 'Law of Enduring Freedom', Law, Social Justice & Global Development (LGD), 2001 (2). <>. New citation as at 1/1/04: <>

Editors Note

This commentary is being published as part of the open forum on Law, Social Justice and Global Development (LGD). Readers are therefore welcome to submit their comments and views to the editors for publication on the journal. Please send your comments to Manish Narayan. .

1. Introduction

The unfortunately accessible phrase, enduring freedom, encapsulates the arrogations of 'liberal' imperialism and its sustaining legality. This is a freedom which may act upon a world and yet not itself be affected by what it would effect. It is a freedom that is complete in and of itself, self-validating, insulated from responsibility. And these are qualities matched in its companiate law. With this short paper, such a notion of freedom is amply instantiated in official reactions to recent 'events'. Then, with the bulk of the paper, the law embedding that freedom it traced to one pertinent origin, to the creation of the United States as an imperial republic.

2. Freedom

There has been of late an abundance of consoling claims about the self-sufficient virtue of the United States. That there could be justified hostility to the United States was for George W. Bush unbelievable 'because I know how good we are'[1]. And for Donald Rumsfeld, 'what's wrong with the world' is decidedly nothing to do with the United States[2]. Any view to the contrary can only be misapprehension. It would have to be countered by inculcating an accurate picture of the United States and of what it does[3]. And goodness which cannot be gainsaid is barely qualified by that seemingly progressive view that hostility to the United States would diminish or cease if only there were an export of that country's virtuous attributes, rather than their being checked through military and other oppressions. Pre-eminent among those virtuous attributes is freedom. The idea of freedom involved here can be given some initial content by setting it against Nietzsche's. For Nietzsche: 'freedom is measured…by the resistance which has to be overcome, by the effort it costs to stay aloft' (Nietzsche, 1968, p.92, part 38, Ch9, author's emphasis). Such freedom is an affective 'superiority over him who must obey'; it entails a readiness 'to sacrifice men to one's cause'; and, when 'viewed more closely' in the setting of liberalism, it is a 'war for liberal institutions' (Nietzsche, 1973, p.30, part 10, Ch10, author's emphasis).

The notion of freedom against which Nietzsche inveighs is one of a freedom which is quasi-transcendent and universal, yet one which is also possessed of a sealed immanence, of an enwrapped completeness. It is, for instance, the freedom espoused by Arendt when, with an apt resonance, she declares that: 'we [that is, all of 'us'] hold human freedom to be a self-evident truth', an 'axiomatic assumption' (Arendt, 1993, p 143).

As such, this freedom is not only the well-spring of 'practical' or 'political' action but also its validation (Arendt, 1993, pp.143, 151). When this elevated freedom is instantiated, when it is enclosed in particularity, there is an inexorable exclusion and sacrificing of others – of those who are 'other' to that emplacement of universal freedom. That exclusion, in turn, takes on an irreducible intensity because those excluded others, being beyond a universal good, can only 'be' absolutely and chasmically beyond. In a phrase oft-repeated nowadays, there can be no 'moral equivalence' between us and them, between our actions and theirs [4]. They can only be 'enemies of freedom', as George W. Bush put it in his address to the Congress of the United States on September 20, and this is why they 'hate us' (see Roy, 2001, p.1). Yet, being universal, that good also extends incipiently to them. Here an apt rhetorical charge is provided by Prime Minister Blair. The clarion that was his speech to the annual Conference of the Labour Party on October 2 would spread the 'values of democracy and freedom round the world', and would bring into the fold 'the wretched…those living in want and squalor from the deserts of northern Africa to the slums of Gaza, to the mountain ranges of Afghanistan: they too are our cause' (see Shannon, 2001, p.3). This combining of exclusion with inclusion is not exactly 'wanted dead or alive', to borrow another presidential aperçu, but rather 'wanted dead and alive'.

From what position can 'the lords of humankind' thus bestride such an ambivalent world? How can universal arrogation be conjoined with particular location? There are many expedients but the most prominent currently is that of the exemplar. A universal value or ideal is concentrated in the particular through an exemplar conceived in occidental or national terms. The very purchase on the universal becomes folded into and even a prerogative of this exemplar. Along with that condign ability comes the responsibility, the burden, the 'mission', the destiny of making the value or the ideal 'truly' universal (Derrida, 1992). This is a surpassing responsibility for the other, not a responsibility to the other. And so the British Prime Minister, in that same speech to his Party, could call 'us' not just to benevolent action but also to force of arms and, in responding to both, we would 'reorder the world around us', all in the name of that selfsame world: such calls can only be absolute – 'let there be no moral ambiguity'; or Bush: 'if you're not with us, you're against us' (Williams, 2001, p.21, Roy, 2001, p.2). If they were anything less, if such calls were explicitly contingent or delimited, or ambiguous, the exemplar could not longer appear as the carrier of the universal.


3. Empire

This surpassing freedom could be set readily enough in numberless incantations of the rule of law, liberal legalism, and such. It may, however, prove more challenging and more revealing to locate it in critical renditions. These are less likely to be obfuscated by empathic interest, and if this idea of freedom is found to inhabit these renditions also, that should testify further to its hold.

The critical account analysed here will be Hardt and Negri's immensely, and it seems almost instantly, influential Empire (Hardt and Negri, 2000). What will be taken out of this rattlebox of a book is only one aspect of it, albeit a central one – the elevation of American empire in its supposed origins. That may seem perverse. The book, after all, is usually taken to be a unrelieved indictment of an imperial America rather than something of a panegyric I also take it to be (e.g. Wolfe, 2001). Whatever their criticisms of the United States, Hardt and Negri's account of the origins and development of American empire is a manifest exaltation. First, however, a setting of the scene. Hardt and Negri's general descriptions of their Empire are barely distinguishable from standard accounts of globalization. So, along with globalizers generally, they discern certain quasi-universal forces or conditions such as the 'simple fact' of an enveloping 'world order', the pervasion of the market and of technologies of communication, and a political terminus in which 'government and politics come to be completely integrated into the system of transnational command' (Hardt and Negri, 2000, p 307).

So much is this so that now, with global empire, 'there is no more outside', or, less abruptly: 'In the passage from modern to postmodern and from imperialism to Empire there is progressively less distinction between inside and outside' (Hardt and Negri, 2000, pp 186-7).

The resulting, or pending, unified, yet somehow already realized, reality does not invoke a transcendent reference but, at least in its self-presentation, is 'purely positive', a situated 'universality' (Hardt and Negri, 2000, p.354). There is one consequence of this denial of an outside which seems to trigger the mainspring of their whole thesis. 'In this new historical formation it is…no longer possible to identify a sign, a subject, a value, or a practice that is 'outside' (Hardt and Negri, 2000, p.385); and the momentous consequence is that there cannot now be an explicitly ordered or even mediated containment of: 'the liberated singularities and the revolutionary constitution of the multitude' – 'the plural multitude of productive, creative subjectivities of globalization', 'a multitude within Empire and against Empire' (Hardt and Negri, 2000, pp. 60-1, 83, authors' emphasis).


It is this 'multitude' which is at the core of Hardt and Negri's project in Empire, and the same multitude is coeval with the United States, so it demands some preliminary attention.

The implanting of this 'absolute', this 'revolutionary plane of immanence' that is the multitude, is constantly contested by a global empire ever striving to negate or circumscribe it, so much so that, in this striving, global empire provokes the multitude into some delimited existence. Yet what is of more significance for Hardt and Negri is the contrary: that the multitude makes Empire and primarily so. It is this multitude that provides 'an alternative ontological basis', one which endows Empire, filling what Hardt and Negri see as a void at its heart. Thus, along with a revived revolutionary rhetoric of smashing and exploding whatever gets in its way, the liberatory assertions of the multitude and its predecessors repeatedly provide a reactive Empire and its predecessors with content (Hardt and Negri, 2000, pp.140, 249, 256, 265, 363, 368).

Although they have the multitude deriving a materiality from this relation to Empire, that for Hardt and Negri cannot be the complete picture. For them the multitude cannot now be contained within Empire but must always be able to move beyond and surpass it, 'exploding' it even while creating Empire as a reactive response to the power of the multitude (Hardt and Negri, 2000, p.368). Hardt and Negri need then to assert the multitude thetically also. Here the conceptual net of the multitude is cast very widely indeed. It extends to all those who are poor, or who feel forced to migrate; but the most sustained emphasis tends to be given to a new proletariat, one which 'includes all those whose labor is directly or indirectly exploited by and subjected to capitalist norms of production and reproduction' (Hardt and Negri, 2000, p.52).

Despite the enormous range and diversity of what makes up the multitude, despite its being beyond that Empire within which Hardt and Negri situate themselves, they are able to encompass it and articulate its primal 'demands' (Hardt and Negri, 2000, pp.46, 399-400). This feat, however, is quite oracular, dispensing as it does with any discernible source. By the work's end the advent of the multitude has become the greatest story never told. Hardt and Negri find that the multitude 'remains rather abstract' and awaits 'the construction, or rather the insurgence, of a powerful organization' (Hardt and Negri, 2000, pp.407, 408, 411). And Hardt has since confirmed that: 'it is still not at all evident how to understand the multitude in social and sociological terms. This appears to us now as the most significant shortcoming of our book. After a theory of Empire, we now need to write a theory of the multitude' (Hardt and Dumm, 2000, para. 39).

Yet the 'theory of Empire' was reliant on 'a theory of the multitude' in something like the first place. Given this vacuity, it would seem Hardt and Negri are driven to emphasise emphatically some constituent historical origin for the multitude. They see 'the contemporary idea of Empire' as being 'born through the global expansion of the internal US constitutional project' (Hardt and Negri, 2000, p.182). That project they conceive, with reassuring but quite unelaborated exactitude, as emerging 'in the first phase of the Constitution, between the presidencies of Thomas Jefferson and Andrew Jackson, [when] the open space of the frontier became the conceptual terrain of republican democracy' (Hardt and Negri, 2000, p.168).

In this first constitutional phase 'a new principle of sovereignty is affirmed, different from the European one: liberty is made sovereign and sovereignty is defined as radically democratic within an open and continuous process of expansion. The frontier is a frontier of liberty' (Hardt and Negri, 2000, p.169).

Such an 'immanent concept of sovereignty is inclusive, not exclusive', and with its constant burgeoning 'the entire sovereign body is continually reformed' (Hardt and Negri, 2000, p.166). 'This new idea of power' is an instantiation of and 'grounded on the multitude's power to construct its own political institutions and constitute society' (Hardt and Negri, 2000 , p 165). It is a power grounded in the republican idea of liberty along with that idea's incorporation of a free 'people' or a citizenry having constituent effect in forming 'their' government. It is a power unencumbered by any 'preconstituted order', 'absolute', the embodiment of 'freedom' (Hardt and Negri, 2000, pp.79, 185, 344, 350).

Hardt and Negri's account of this empire of liberty, to use Jefferson's term, does not strain originality, but they do acknowledge that there is an 'ignoble history' to this because the expansionary 'North American terrain can be imagined as empty only by wilfully ignoring the existence of the Native Americans' (Hardt and Negri, 2000, p.169).

There is more that is acknowledged as ignoble, if only cursorily, but the instance of Native Americans is the one which revealingly troubles them most[5]. That instance will be taken up shortly.


4. Law

The quality of this freedom can now be linked to Hardt and Negri's reliance on Arendt (Hardt and Negri, 2000, p.164). To repeat, Arendt declares that 'we hold human freedom to be a self-evident truth,' an 'axiomatic assumption' (Arendt, 1993, pp.143, 151).

The self-evident resonance finds its source when Arendt focuses on the United States, and she places its 'constitution of liberty' within law, a law that would especially include for her the Constitution singled out by Hardt and Negri (Arendt, 1973, pp.141, 154). The telling, if dubious, contrast she notes is with the 'great and fateful misfortune of the French Revolution' in that it proved unable to consolidate liberty in law (Arendt, 1973, p.165).

This is the idea of unbounded expansionary freedom which Hardt and Negri locate gnomically in 'first phase of the Constitution' where they peremptorily find that 'the open space of the frontier became the conceptual terrain of republican democracy', a phase when 'the conception of frontier and the idea and practice of an open space of democracy were in fact woven together with an equally open and dynamic concept of people, multitude, and gens' (Hardt and Negri, 2000, p.168).

This selfsame 'first phase', they go on to find 'already hides ingenuously a brutal form of subordination. The North American terrain can be imagined as empty only by wilfully ignoring the existence of the Native Americans'; and, furthermore, 'if they had been recognized, there would have been no real frontier on the continent and no open spaces to fill' (Hardt and Negri, 2000, pp.169, 170). But they were recognized and their brutal subordination was far from hidden in that 'first phase' or at any other time. 'The first objective of American empire', writes Francis Jennings, 'was rule over Indian peoples and their lands' (Jennings, 2001, p.16).

If one goes to that classic concentration of 'American' frontierism, Frederick Turner's 'The Significance of the Frontier in American History', there one finds a frontier indistinguishable in its ethos and expression from Hardt and Negri's except that, for Turner, the very frontier is constituted by 'the Indian' (Turner, 1893).The 'significance' of Turner's frontier lies in its encapsulating 'American life'; in revealing that 'movement has been its dominant fact'; that it is ever 'developing' and 'adapting'; and that this 'fluidity' inherent in the 'expansive character of American life' is 'incessant' and 'continually agitating' (Turner, 1893, pp.199-200, 204, 227). The fixity it came up against and which constituted it as the frontier was the 'Indian question', a question posed at 'the meeting point between savagery and civilization' (Turner, 1893, pp.200, 206).

Returning to the law which consolidates freedom, not the least engaging aspect of Arendt's genealogy of authority is its inconsistent view of the Constitution. With one such view 'the founding fathers…founded a completely new body politic without violence and with the help of a constitution' (Arendt, 1993, p.140).

There was, however, also another foundation, a ur-constitution or a constitutional substrate that 'act of foundation, namely the colonization of the American continent, [that] had preceded the Declaration of Independence, so that the framing of the Constitution, falling back on existing charters and agreements, confirmed and legalized an already existing body politic rather than made it anew' (Arendt, 1993, p.140).

Not only did the ur-constitution provide a 'preconstituted order', it also provided a preconstituted people. Looked at another way, there was no republican people effective as such in the making of 'its' government apart from a conglomeration created in the laws and constitutions of the colonized states. These were overlaid, and the operative 'people' further rendered, by the laws and the Constitution of the United States. Operatively again, for a long time this people did not extend beyond propertied, white, adult males. And no matter how much the 'open space' redolent of the frontier was later extended to include others, the successive reconstitution of the people had always to be effected by law 'in the first place'.

The definitive recognition of the ur-constitution, of its founding effect and of its enclosing frontier and its constituting of a select people, came with the so-called Indian cases decided by the Supreme Court in the early nineteenth century. These are cases rarely accorded any constitutional significance. Taking as indicative the 'leading' case of this kind, we find Johnson v M'Intosh, (1823) 'holding', in a distinctly counter-revolutionary mode, that the title to the land within the States and of the United States was held absolutely and exclusively in succession to the British colonist. This outcome meant that what, in the revolutionary modality, should have been a natural right inhering in all 'men', the right to property, had to be denied to Indian peoples. To hold otherwise would have upset the 'momentous' national settlement in its colonial foundation[6]. The very existence, and persistence, of the union was considered, with accuracy, to be at stake (see Williams, 1990, pp.231, 306-8). Denying natural right to the indigenous peoples, excluding them from the polity, was an unavoidable necessity, something 'indispensable to that system under which the country has been settled' (Johnson v M'Intosh, pp.591-2).

The Supreme Court went on to create the facts sustaining that necessity. 'However extravagant the pretension' of treating Indian peoples as if they had been conquered when they had not, 'if a country has been acquired and held under' such a pretension – transmuted here into 'a principle' – 'it becomes the law of the land and cannot be questioned' (Johnson v M'Intosh, p.591).

The existence and effect of this unprincipled principle is simply summoned up by the law. Examples of such invention in these cases abound but the particular fiction matching the principle was that of 'the Indian'. The pretension itself, with its denial of right to Indian peoples, was unavoidable because of their intractable condition, the condition of a people who could not enter the 'open' or opening arms of the republican citizenry, 'the condition of a people with whom it was impossible to mix, and who could not be governed as a distinct entity', to take the startling synopsis of Chief Justice Marshall (Johnson v M'Intosh, p.590). This ascribed condition must remain incontrovertible if the national settlement is to 'hold'. As Justice Johnson recognized in Cherokee Nation v Georgia (1831),'it is not easy to see' how any change in such condition can be 'permitted, consistently with the unquestioned rights of the States or United States, over the territory within their limits' (pp.23-4).


5. Hesitations

Frontier freedom, then, is Nietzsche's freedom. Those beyond the frontier are those sacrificed to the cause. But rather than wrest the complete monopoly of virtue from those erecting freedom as a 'lie of the ideal', it would be as well to ask how matters could be otherwise (Nietzsche, 1979, p.4, para 2, Foreword, author's emphasis). For modernism a responsive orientation towards the universal combined with a violence of exclusion would seem to be ineluctable, and Nietzsche's imprecations on freedom as ascendant force and war can be read as a recognition of the inevitable. Furthermore, characteristic notions of 'liberal' freedom already recognize and check the violence of its assertion. With such notions, freedom is tied to responsibility. It is constrained when there are delimited legal or other obligations to others or when its exercise would do 'harm' to others. These constraints, however, constitute a posterior qualification which is not allowed to disturb freedom's primal efficacy. What the qualification involves is an already regulated, formulaic calculation, one neither primarily nor openly oriented towards the other. It is also one aimed not infrequently at softening the effect of the initial free assertion, or aimed at securing its acceptance. Qualification of this kind would serve to sustain rather than disabuse claims to the prerogative possession of a 'self-evident' freedom. The enduring innocence of such freedom depends on an unknowing, on the unknowing that would embed belief in one's invariant 'goodness'. To begin to open out that encased hubris, there would have to be some recognition that free assertion and the sacrifice of others are coeval. From that recognition could flow some responsibility for the assertion and some responsibility to those others. Whether and how far such responsibility is to be assumed is a matter of judgement, but what is needful for the opening out is the heeding of judgement. Not that even the most hospitable assumption of responsibility can fully or assuredly accommodate it. The sacrifice, the knowing, the responsibility and the judgement, all escape confining calculation, and nor can they ever be fully absorbed within finitude (Derrida, 1995). In their illimitable quality, 'we' meet the plangent provocation ever to be otherwise.

There remains an apparent disjunction to be dealt with. A conspicuous recent history would suggest that the match between liberal legality and imperial freedom is incomplete. A pointed indication of this incompleteness is provided by the doyen of progressive international lawyers, Richard Falk. Taking one of his many pronouncements on the limits of a 'legalist approach', we find that it could prove deficient because'the evidence linking bin Laden to the September 11 attacks and other instances of global terrorism may well be insufficient to produce an assured conviction in an impartial legal tribunal ...' (Falk, 2001a, p.12).

Or, to take one other example, we are told of the futility of setting up an international tribunal because it would be doubtful whether such a tribunal could impose the death sentence and it would thence be 'impossible to persuade the United States government to empower such a tribunal' (Falk, 2001a, p.12).

Falk offers other instances where legal action is subordinated to what would, supposedly, prove unacceptable to the government or to the people of the United States, and even where legal means are espoused 'due allowance' would still have to be made 'for flexibility depending on the circumstances' (Falk, 2001b, p.11).

To see all this as freedom quite surpassing law would not be entirely accurate, however. It could be seen as accurate if related solely to the contained conception of the rule of law, one which enshrines fixity and predictability. Such a perspective, standard as it may be, does not recognise a contrary and essential dimension of the modern rule of law, its quality of 'everywhereness' as Carty puts it (1991, p.196). This law must incipiently extend to what is ever changing, otherwise it would cease being able to rule what changes. This is a ravening law which has aptly accompanied occidental imperialisms. More and more, the conflict over Afghanistan will be subjected to law's insistent appraisal, both in the classic terms of international law and in this law's still 'developing' out of recent contexts of 'humanitarian intervention' (see generally Baxi, 2001 ). That such appraisal eventually and predominantly accommodates imperial freedom would seem to accord with international law being imperial 'in the first place' (see Fitzpatrick, 2001, Ch 5).



1. In his press conference of October 11, 2001, see Engle, 2001, p 4.

2. In a press conference of November 13, 2001, see Rumsfeld, 2001.

3. For example, David Owen would have it that now people in the United States 'are more aware that outsiders have a distorted view of their democracy and they'll make more effort to explain their position': see Owen, 2001, p 2.

4. The phrase 'moral equivalence' has been much used of late: see e.g. Rumsfeld, 2001 – '…it's my view that the Taliban ought not to be granted moral equivalence'.

5. They note that slavery was 'paradoxically both an exception to and a foundation of the Constitution', and there was also the matter of the less than inclusive colonial rule which followed the Spanish/American war, something which Hardt and Negri tend to reduce in terms of the adventures of Teddy Roosevelt (Hardt and Negri, 2000, pp.171, 175.) Although they do not note the fact, the colonies so acquired saw the end of that Jeffersonian compromise constituting the imperial republic: in the expanding imperial mode, new teritories/states could be acquired but, in the republican mode, they had to be admitted to the Union on the basis of equality with other states. These colonies remained excluded on racial grounds.

6. See Chief Justice Marshall in Fletcher v Peck, p 142. For the point about national settlement generally see Fitzpatrick, 2001 , pp.164-75.


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