Constituent Power,Constituent Rights: Thinking Rights with Spinoza and Negri

Introduction

What does it mean to speak not only of constituent power but also of constituent rights? While constituent power has been a foundational concept in radical political thought, often associated with Antonio Negri’s Spinozist framework, the concept of constituent rights remains largely undeveloped. This paper addresses that theoretical lacuna by arguing that Baruch Spinoza’s formulation of ius sive potentia—the coincidence of right and power—offers the grounds for conceptualizing rights as constituent in the same sense that Negri conceives of constituent power: immanent, productive, and irreducible to constituted forms. Although Negri draws heavily on Spinoza’s concept of potentia conceptualizing constituent power, he does not fully pursue the ius sive potentia theorem onto rights themselves. As many critics have argued, Negri often reverts to juridical or institutional language when articulating political demands, where rights ultimately remain as something other than constituent. This paper reopens the question of rights from within Negri’s theory of constituent power by returning to a Spinozan framework. Arguing that rights and power should be understood in constitutively productive and immanent ways, we can see how they become irreducible to constituted norms.

Building on this insight, the paper proposes the concept of constituent rights that emerge from praxis rather than from juridical recognition. Situating this concept within and between Negri and Spinoza, I explore the possibilities of constituent rights that emerge from constituent and disruptive moments, rights fundamentally enacted through the immanent practices of those who experience and live them outside of legal recognition. Insofar as constituent rights would remain outside of the constituted juridico-political sphere, their fabric does not depend on being recognized as legal rights, on becoming institutionalized, or of being cemented within a static framework. That is, it is the constituent practices that themselves bring these rights into being. After exploring the politico-philosophical relevance of constituent rights in Negri and Spinoza, it is towards these aspects that the paper turns in some tentative suggestions of an underutilized and undeveloped Spinozan theory of rights.

This paper is structured around five sections. First, I briefly address Spinoza’s ontology and his conception of potentia, which is the foundation for Negri’s conceptualization of constituent power. Second, I reconstruct Negri’s interpretation of the Spinozan potentia. In understanding, furthermore, how Negri conceptualizes constituent power from potentia we arrive at an ontologically productive and democratic force of power. Third, such a reading encounters problems when power is translated into rights, and we can here address the limits of the actualization of constituent power. Fourth, by returning to Spinoza’s own writings on rights and his ius sive potentia theorem, I show some inconsistencies in Negri’s argumentation and the possibilities of reopening the question of constituent rights; this also turns towards the “sive” in Spinoza’s theorem of ius sive potentia. Fifth and finally, I end on some tentative notes on how such a constituent right might appear outside of the juridico-political inflections of rights as well as its untapped usefulness for rights thinking. This is because constituent rights offer us a way of understanding how rights praxis resists foreclosure and their translatability into constituted norms.

Spinoza’s Theory of Potentia

There are many ways of conceptualizing constituent power. In a traditional sense, constituent power has been seen as the pre-constitutional power that enacts and founds the constitution, often in revolutionary settings, making use of a range of philosophico-historical sources. For Negri and many others, Spinoza’s ontology with its emphasis on immanence, horizontality, and production has offered another point of departure, one which refrains from the typically juridical understandings. It is thus with Spinoza’s works, and especially his idea of potentia, that we start.

Spinoza’s political theology thinks the relation of human beings and God in an immanent manner. For Spinoza, we express God’s divine and productive power in inalienable ways, in a sense where human beings express a productive, creative and democratic essence of sort. His philosophy is, as its continued attractiveness proves, a powerful way of understanding the caesurae between cause and effect, God and nature, right and power, essence and existence, in their immanence to one another. For instance, Spinoza’s causa immanens, or immanent cause, means that the effect of a cause never implies a lesser perfection or lesser existence. Instead, what is presented is “a philosophy in which existence is not dependent on a higher power external to it.” ¹ This anarchic thinking has, beyond theological disciplines, been appreciated by political philosophers in conceptualizing political anarchism, communal forms of living and radical democracy insofar as it debunks, by way of analogy, the authority of the law, sovereignty and constitutionalism. Insofar as God is not an anthropomorphic deity somehow external to human beings, the representation of earthly sovereignty as an embodiment of such a transcendental power is mistaken. Neither God nor earthly sovereignty espouses divine commands. ² This becomes immediately of relevance in that the non-transcendent constitution of God is transposable to the fact that neither juridico-political constitutions, social contracts, nor political sovereignty can wholly capture our powers and rights.

The kernel of our human power relies on Spinoza’s pantheistic God as caused by himself—causa immanens—where God’s existence is immediately implied by his own essence. ³ What is important here, then, is Spinoza’s demonstration that everything other than God is conceived “in another,” that is, in God. Now, insofar as “God is the cause of himself and of all things,” ⁴ Spinoza argues that God is the immanent cause of everything that exists. ⁵ What constitutes the radical thesis of this claim as well as its relevancy for constituent power, is the fact that human beings—as being in God—express God’s essence. This is for example what Gilles Deleuze shows: Spinoza’s deconstruction of the transient cause whereby passing from cause to effect would imply a degradation or diminishment of being is replaced by the immanent cause whereby human beings become modifications of God. ⁶ In fact, “God is said to be cause of all things in the very sense (eo sensu) that he is said to be cause of himself.” ⁷ In this way, the immanent cause implicates God as a modification of himself and human beings as modifications of God in the same way. Spinoza thus defines human beings, and every other finite existence, as modes: “By mode I understand the affections of a substance, or [sive] that which is in another through which it is also conceived.” ⁸ Insofar as the cause and effect are co-implicated, human beings as modifications of God ultimately express God’s own essence in turn. ⁹

The relation between God and everything else (all of God’s modifications, or the entire nature) works through the bidirectionality of production and power. What Spinoza shows is that God is nature (Deus sive Natura). The coincidence of active and passive cause, of cause and effect, means that God becomes synonymous with the modifications of himself, that is, the entire nature or everything that exists. ¹⁰ Importantly, for Spinoza, God’s modifications of himself is a question of power (potentia) such that it lies in his power to cause everything that exists, which is an active, immanent and productive force. Seeing how there is no caesura between cause and effect, there is a symmetry between God’s power and the power of everything God affects: God’s power is the “power of all individuals together [potentiam omnium individuorum simul].” ¹¹ Not only does God effectuate everything else in as much as we are in God, but because there cannot be any caesura between cause and effect, everything constitutes God in turn: “God’s power [potentia], by which he and all things are and act, is his essence itself.” ¹² God’s producibility and production of being, as Negri explains, “is activated up to the point where it bases its own foundation on each thing, on the horizon of all things, on the power of the thing.” ¹³ As he continues, “If God is all, all is God. The difference is important: on one side an idealistic horizon, on the other side a materialistic potentiality.” ¹⁴

It is precisely here, in the complex interrelationships between God and human beings, and their co-constitution and expression of the same power, that we find the germ of a theory of constituent power. The identification of a productive power of beings—not something “possessed” in the modern sense of power—relates to Spinoza’s concept of potentia. We cannot think of being without potentia. In the readings put forth by Martial Gueroult and Negri, the differentiation between potentia and potestas comes down to the difference between a productive, creative, and transindividual power, on the one side, and an inert and stagnant power, on the other side. ¹⁵ As Spinoza thoroughly explains in the Ethics, God does not have any power equivalent to that of kings and sovereigns (potestas), God does not will or decide anything outside of his immanent essence, but only produces what is concomitant with his being (potentia). Potestas is an empty power, an emptying of the renaissance of sovereign, Hobbesian thinking, and it is here that Negri finds the “constituent” force of our being-in-common, not willed, possessed, or instrumentalized, but thoroughly productive as modifications of God’s causa immanens. As Negri puts it, potentia is “ontologically creative” and potestas is “fixed and parasitical.” ¹⁶ It is for this reason, as we will explore later, that Spinoza can argue that “Men have never surrendered their right and transferred their power to another in such a way that the people who received the right and power from them did not fear them, and that the state was not in a greater danger from its own citizens than from its enemies.” ¹⁷

Negri’s Constituent Power

Spinoza’s potentia, as our power to act and exist, can be equated to our being as such, where power is constitutive of our continued existence. As Spinoza puts it: “To be able to not exist is to lack power [impotentia], and conversely, to be able to exist is to have power [potentia].” ¹⁸ Constituted power—or potestas—violently collides with our potentia, as the productive, democratic and creative forces clash against the order of stability, insofar as constituent power is “necessary to life itself.” ¹⁹ For Negri, this ontological lifeforce expresses a democratic telos, the fact that democratic, egalitarian and horizontal powers remain an unfulfilled and inextinguishable promise that remains to be realized. Our productive being can be harnessed in political and conceptual ways to inform an understanding of our constitutive essence and the permanent existence of constituent power that does not have to rely on any external point of reference, for example, contractualism, sovereignty, or the law. ²⁰ Constituent power, moreover, becomes that which explicitly counteracts such forms of transferability and representability. This is essentially what Spinoza addresses in his critique of contractualism: “No one will be able to transfer to another his power [suam potentiam], or consequently, his right [suum ius], in such a way that he ceases to be a man [homo].” ²¹ Commenting on this passage, Negri then argues that “the passage from individuality to community does not come about either through a transfer of power or through a cession of rights; rather, it comes about within a constitutive process of the imagination that knows no logical interruption.” ²²

Rather than constituting a break or discontinuity, the accumulation and expression of power, for both Negri and Spinoza, concerns our essential desire, or what Spinoza calls our conatus. Our conatus means that “Each thing, as far as it can by its own power, strives to persevere in its being [in suo esse perseverare conatur].” ²³ Furthermore, as Spinoza puts it in the consecutive proposition: “The striving [conatus] by which each thing strives to persevere in its being [in suo esse perseverare conatur] is nothing but the actual essence of the thing [rei actualem essentiam].” ²⁴ Here again, our conatus means that our being is irreducibly productive and it “expresses, in every case, the power [puissance] of God,” ²⁵ whilst also “perfectly express[ing] the idea of an immanent movement.” ²⁶ Conatus, which Negri situates on an immanent plane of being,

is the force of being, the actual essence of the thing, of indefinite duration, and, at the same time, it is conscious of all this […] Modality is articulated by means of the theory of conatus, proposing itself as power (potentia) that is able to be passive to the same extent that it is able to be active, and therefore it presents itself as both affections gathered together in power […] it is presented as a horizon of oscillations, of existential variations, as a continuous relationship and proportion between active and passive affections, as elasticity. All this is linked by conatus, an essential element, a permanently active motor, a purely immanent causality that goes beyond the existent. It is not in any way a finalistic essence but, rather, action itself, givenness, an emergent consciousness of a nonfinalized existence. ²⁷

Constituent power becomes the political expression of our productive being, our expression of God’s potentia, our striving to persevere (conatus). Importantly for radical democratic thought, our productive being and power means its non-identification with what is existent, with the current distribution of powers and privileges. Constituent power, essentially, refuses its disappearance in finality and result. ²⁸ When the constituted juridico-political sphere attempts to capture, appropriate and represent constituent power, the latter always ends up striking and perforating its supposed grip insofar as “constituent power is an open tension; it constitutes a permanently open system.” ²⁹ Negri posits the inevitable revolution from the constituent fabric itself such that it becomes “the power of accumulated life, of an irreversible and indestructible temporality.” ³⁰ In this secularized eschatology, Negri finds an accelerative and “constitutive rhythm toward a philosophy of the future,” ³¹ and this would be something like a true democracy made possible by “the liberation of all social energies in a general conatus of organization or the freedom of all.” ³²

Constituent power is the force of social transformation, whereas constituted power (the upper-case Power or potestas) is the fixity of order, a constitutionalism and structure. Importantly, for Negri, constituent power is primary insofar as the force of constituted power remains reactionary and unable to produce itself, it can only capture and respond to a productive, constituent power. What Negri enacts, then, is a constituent power beyond the juridicism of a mainstream tradition where constituent moments are ultimately arrested and foreclosed in an order, the revolutionary spark that always becomes fixed and exhausted in the constitution of a sovereign order: “the relationship that juridical theory (and through it the constituted arrangement) wants to impose on constituent power works in the direction of neutralization, mystification, or, really, the attribution of senselessness.” ³³ Because constituent power is rooted in Spinoza’s potentia, it remains, on an ontological level, the permanence of being and life, the inalienability and inexhaustible fabric of a democratic urge. Resistance, as he argues, “is always a positive affirmation of being.” ³⁴ The insistence of constituent power as being entirely opposed to sovereignty, then, means that it cannot become resolved, as it were, in the finality of constitutional or constituted orders; insofar as constituent power is ontological, it is a permanence that is thoroughly anti-representational in juridico-political orders. ³⁵

The Limits of Negri’s Concept of Right

Negri’s writings, perhaps because of its ambitious scope in articulating a revolutionary program, has been the subject of much critique. As he himself acknowledges, one of its many points of contentions lie in Negri’s insistence that potentia and constituent power is essentially anti-hierarchical and anti-sovereign. ³⁶ Many of his critics have pointed out that the teleology of revolution and the unyielding accumulation of power that Negri develops through the ontology of Spinoza seem to lack any antagonistic articulation such that the fascination with production and innovation risks enfolding resistance into accelerationism. ³⁷ Similarly, by presupposing the autonomy of potentia vis-à-vis potestas, or constituent power vis-à-vis constituted power, Negri seems to safeguard the purity of constituent power. In this analysis, Negri may disregard historical defeats, co-optations or betrayals simply because constituent power is a priori non-coincidental with its apparently inevitable realization of constituted power. ³⁸ In this way, as Chantal Jaquet points out, there is a presupposition of constituent power being good and constituted power being bad. ³⁹ As Negri himself puts it, “potentia, as desire, is never bad, and is always excessive. Bad is what cannot be realized.” ⁴⁰ For me, Negri’s thought—bracketing the revolutionary telos of the multitude—is nevertheless crucial in understanding the relevance of constituent power, maybe not as the unstoppable and insurmountable power of a new global subject but as constituting the differential in every expression of power.

The most relevant critique for my purposes highlights the stark disconnect between Negri’s theory of constituent power and his use of rights language. Hardt and Negri conclude much of their collaborative work with programmatic lists of demands formulated in the language of constituted, juridical and constitutional rights. After following the horizontality, communism, and radical democracy of constituent power, they end up in the seemingly paradoxical language of rights. In this way, for example, the exercise of constituent power would push towards “a global initiative to provide the basic means of life for all, throughout the world, a global guaranteed income and a truly universal health care, whether furnished through global institutions such as UN agencies, citizen organizations, or other bodies.” ⁴¹ In other places they call for rights of citizenship, rights of guaranteed incomes, rights of reappropriating the means of production, ⁴² as well as “the right to have rights, both inside and outside national jurisdictions.” ⁴³ The strange jump from an immanent and horizontal power that never leaves itself to rights, claims and demands that interpellate the constituted sphere of rights “as reasonable functions in an ensemble of consensus and juridical norms,” ⁴⁴ seems to me entirely unfounded. Critics have noted that Negri’s constituent power, as the antithetical and diametrical opposite of constituted power, becomes confused and loses its meaning when it unfurls into the articulation of programmatic proposals in rights languages. ⁴⁵ Commenting on their first collaborative work, both Slavoj Žižek and Ernesto Laclau have been equally perplexed by these conclusions. Žižek argues that it remains “a paradox that Hardt and Negri, the poets of mobility, variety, hybridization, and so on, call for three demands formulated in the terminology of universal human rights.” ⁴⁶ Laclau, similarly, noted that

what sounds strange, after a whole analysis centered on the need to strike everywhere from a position of total confrontation with the present imperial system, is that these three political aims are formulated in the language of demands and rights. Because both demands and rights have to be recognized, and the instance from whom that recognition is requested cannot be in a relation of total exteriority vis-à-vis the social claims. ⁴⁷

We may conjecture that Negri translates constituent power into constituted rights through what Chris Thornhill argues is constituent power’s dialectical mediation with constituted power. The constituted order, here, can only internalize constituent power as rights. ⁴⁸ However, if this is Negri’s argumentation, and if rights are necessary representations of constituent power, then Negri sacrifices his revolutionary program through the sublation of power as rights. To think the constituency of rights and their autonomy, it is entirely insufficient to translate power into rights as if rights were, per definition, constituted things. Nevertheless, what Negri’s critics emphasize is the underdeveloped and obscured relation between power and rights in Negri, which seems to be left unarticulated in any thorough way. We ought to return to Spinoza’s explanation of the relation between power and right, not to reformulate Negri’s own stance beyond himself, but in order to conceive of what potential avenues and connections the concept of constituent rights might engender.

Ius sive Potentia: Spinoza’s Theory of Rights

Although constituent power is thoroughly developed and put to use in most of Negri’s works, the philosophical foundation of rights in his extensive collaboration with Hardt often appears as short-hands for a pragmatic and democratic programme, and this is, or so I argue, partly because the Spinozan relation between right and power is not emphasized. Negri’s conceptualization of constituent power relies, to no small extent, on Spinoza’s notion of potentia (and the modal expression of God’s power). And it is especially strange that Negri’s conclusions on rights does not apprehend the substantial relation Spinoza conceives between power and right, or potentia and ius. In order to spell out this relationship further, we should thus return to Spinoza’s idea of ius sive potentia: right, or power. If potentia and constituent power are irreducible expressions of our productive and immanent being, so too are rights, and both may thereby be conceptualized as constituent. Phrasing it somewhat simplistically, what Spinoza expresses with ius sive potentia is that someone’s power and their power to act equals their right and right to act. What is thus problematic in both the critique against Negri’s constituent project as translatable into rights and Negri’s own unarticulated understanding of the relation between power and rights, is that there is a presupposition of the juridical character of rights. However, if we accept the differential and constituent line that cuts through expressions of power, insofar as it cannot become subsumable under the constituted juridico-political sphere, neither can the constituency of rights be identified in the juridical sphere. It is for this reason that it becomes especially problematic that Laclau’s critique of Negri, for example, is far less projected onto Negri’s confused idea of the dialectical relation between power and rights and instead concerns the fact that rights as such necessitate legal recognition and are, therefore, inescapably constituted.

Understanding the constituency of rights, then, and to articulate the emplacement of rights in Negri’s theory, we will explicate Spinoza’s theory of rights and, specifically, the way rights immanate from the power (potentia) of God. If Spinoza’s theory of rights is rarely, if ever, taken up in discourses outside of Spinozan studies, many Spinozists are themselves uneasy with Spinoza’s theorem of ius sive potentia. Edwin Curley’s critique of Spinoza is exemplary in this regard. He argues that Spinoza’s dissolution of rights into powers effectively destroys the foundation of right qua right, espousing a cryptonormative account of rights that instead justifies a “might is right” miasma that constitutes a disturbing “defect in his political philosophy.” ⁴⁹ Although many Spinozists have thoroughly engaged with Spinoza’s theory of rights, these discussions rarely traverse such intradisciplinary scholarship and interdisciplinary scholarship has not attended to the possibility of constituent rights analogous to constituent power via the ius sive potentia.

In the Tractatus Theologico-Politicus, Spinoza presents the dynamic relation of Deus sive Natura as the foundation for rights,

it’s certain that nature, considered absolutely, has the supreme right [ius summum] to do everything it can, i.e., that the right of nature [ius naturae] extends as far as its power extends [potentia se extendit]. For the power of nature is the power of God itself, and God has the supreme right over all things. ⁵⁰

Subsequently, this dynamism unfolds as our modal being’s expression of God’s right insofar as

the universal power [universalis potentia] of the whole of nature is nothing but the power of all individuals together [potentiam omnium individuorum simul]. From this it follows that each individual has a supreme right [ius summum] to do everything it can, or [sive] that the right of each thing [ius uniuscuiusque] extends as far as its determinate power does [determinate potentia se extendit]. Now the supreme law of nature [lex summa naturae] is that each thing strives to persevere [conetur perseverare] in its state, as far as it can by its own power, and does this, not on account of anything else, but only of itself. From this it follows that each individual has the supreme right… to exist and have effects [ad existendum et operandum] as it is naturally determined to do. ⁵¹

To put this in the language outlined above, the causa immanens, whereby we are affections or modifications of God’s essence and power, thereby expressing this same potentia, the same is shown for our expression of rights. This modification means that we have as much right to exist and, subsequently, right to affect in turn as we have the power to exist and power to affect. For this reason, Spinoza establishes his syntagmatic theorem of ius sive potentia where we strive to persevere (conetur perseverare) with the same right and power as we are determined to in a wholly natural and immanent way. To solely speak of constituted rights in the tradition of transcendental values, moral imperatives, and legal entities, without considering the element of potentia that effectively bring these rights into being, would misrepresent the determined way rights actually work. In the Tractatus Politicus, Spinoza thus continues along a similar line of thought:

by the right of nature [per ius itaque naturae], then, I understand the laws of nature [naturae leges] themselves, or the rules according to which all things happen, i.e., the very power of nature [naturae potentiam]. So the natural Right of the whole of nature, and as a result, [the right] of each individual [individui naturale ius], extends as far as its power [potentia] does. Hence, whatever each man does according to the laws of his nature, he does with the supreme right of nature. He has as much right in nature as he has power [tantumque in naturam habet iuris, quantum potentia valet]. ⁵²

The co-implication and coincidence of right and power (ius sive potentia) means that, contrary to Hobbes, for instance, there is no transference of rights, or abandonment of natural rights, in any contractualism. As Spinoza writes, the difference “between Hobbes and me, is this: I always preserve natural Right unimpaired [naturale Jus semper sartum tectum conservo].” ⁵³ Furthermore, neither are rights and power in an inverse or negative relationship, such as the more power we have at our disposal, the less rights we would have, or the more power that is seemingly transferred to a sovereign, as in Hobbes, the less natural rights would remain. As Andre Campos Santos explains, Spinoza is here arguing that we live both in the state of nature and the state of society simultaneously. ⁵⁴ It is for this reason that we can argue with Negri that if and when we talk about natural law and rights in Spinoza, this “does not mean production of norms, as it does for Hobbes, but rather production of ‘forms of life’ in the experiences of life.” ⁵⁵

The conceptualization of rights in Spinoza is, as many have noted, a non-normative explication. As Étienne Balibar has put it, “Spinoza’s purpose here is not to justify the notion of right, but to form an adequate idea of its determinations, of the way in which it works.” ⁵⁶ Moreover, as reiterated by Hasana Sharp, Spinoza removes the “distinction between how things are in reality and how they ought to be by right.” ⁵⁷ In fact, what Deleuze calls Spinoza’s “anti-juridicism” relates to constituent rights as the differential line that cuts through the expression of rights, ⁵⁸ such that it lacks any moral or transcendental motor-being, that explains the (material) determinations of rights. This is to say, representing what rights are through the constituted juridico-political spheres of constitutional rights or human rights, predicated on a rational element or any other prerequisite as its conditions of possibility, wrongly presumes a disjunction between how things are (by their power to exist) and how things ought to be (by their right to exist). As Spinoza explains, “the natural power, or right, [naturalis potentia sive ius] of men ought to be defined not by reason, but by whatever appetite determines them to act and to strive to preserve themselves [quoque se conservare conantur].” ⁵⁹ As a matter of fact, Spinoza argues that the power and right to act, at least a priori, applies to us whether we are wise or foolish (sive sapiens sive ignarus) and thus “prohibits nothing [nihil… prohebere] except what no one desires [nemo cupit] and no one can do [nemo potest]; it does not prohibit disputes, or hatreds, or anger, or deceptions, and it is absolutely not averse to anything appetite urges.” ⁶⁰ We are not bound by reason or any prohibitive law, Spinoza argues, since that contradicts our natural conatus.

The Strategy of the Sive

There is a relationship, whether dialectical, co-coincidental or synonymous, between power and right. How to read this, however, entirely depends on how we interpret the “sive” in ius sive potentia. Negri’s reading of the sive fluctuates somewhat between what may be called an Althusserian strategy of the sive, where potentia would sublate the concept of right, whilst retaining it, “in order more effectively to subvert it” and thus make rights superfluous.” ⁶¹ Likewise, we also have the somewhat strange conclusions in his collaborative work with Hardt where the constituent power of the multitude (potentiae multitudinis) realizes itself in the constitution of rights. This indeterminacy, where one side of the sive tendentially becomes overdetermined, is not only indicative of an underdeveloped idea of constituent rights but in fact makes it impossible to conceive of constituent rights as such. If Filippo Del Lucchese posits “a strict identity and therefore full interchangeability of jus and potentia,” ⁶² Negri contrarily prioritizes potentia which becomes the a priori possibility to act through constituted rights. In this way, he reads the sive as “a sign of implication.” ⁶³ This co-implication of the parallel sides of the sive is not an equivalency as much as the strategy of the syntagma folds rights into the priority of potentia as its condition of possibility. As Warren Montag has explained, this strategy of the sive, whether in Deus sive Natura or ius sive potentia, means that “God disappears into nature (the immanent cause which does not exist prior to its effects and which cannot be without them), and right into power, that is, potentia, power in the physical sense, or force (outside of which right has no or reality).” ⁶⁴

By maintaining the primacy of potentia and the separation of ontology and history, in as much as constituent power expresses its being through the medium of rights without coinciding with itself, Negri can sustain the revolutionary telos of potentiae whilst also siphoning it through the constituted juridico-political sphere. Negri’s interpretation refuses “the tendential unity of potentia and ius” whereby potentia is still siphoned through the constituted juridico-political sphere. ⁶⁵ This reading would then be very close to Laurent Bove’s interpretation of potentia and the conatus where translating power into the constituted juridico-political sphere means to grasp “that the law itself, in the imaginary representation of the juridico-political sphere, is the necessary mediation of the power of the multitude in its affirmation and the symptom of its present condition.” ⁶⁶ Without arguing against the way potentia or constituent power is representable in the constituted juridico-political sphere, it is far more problematic to simultaneously maintain the autonomy of potentia whilst also identifying constituent power through constituted rights. At the same time, this imaginary sphere that represents rights as legal entities, wherein Negri effectively places constituent power as rights, also means that he can argue that right “is not a legal or juridical concept but rather a concept of power.” ⁶⁷ The major problem, in this sense, is not only that Negri effaces constituent rights qua constituent insofar as rights are expressed as power, but the caesura in-between power and right allows the translation of power into rights whilst keeping the autonomy and purity of potentia: constituent power is “an ongoing source of law; and therefore the legal system becomes effective through the continuous action of the constituent potenze [power].” ⁶⁸

Saul Newman and Paul Lechte, in their Agambenian critique of Negri, point towards the problem of the autonomy of constituent power vis-à-vis constituted power, as if constituent power could only be diametrically opposed to constituted power insofar as the former never becomes realizable. They argue that constituent power is entirely bound up with sovereignty: “The historical experience of revolutions has been the reinvention of state power, and this perhaps points to a sovereignising tendency that is immanent within the very logic of revolutionary politics itself.” ⁶⁹ I somewhat find the Agambenian critique of Negri unconvincing. However, it touches upon a salient problem that we have seen in Negri’s understanding of the relationship between power and right, where constituent power can become transferred and translated into the constituted juridico-political sphere without losing its autonomy. The primacy of constituent power, in this way, “gives flesh to the bare skeleton of the language of human right.” ⁷⁰ Contrarily, as we will explore in the next section, constituent rights express the same autonomous fabric as constituent power. What this means, then, is that constituent power does not have become translated and institutionalized into the juridico-political sphere of rights insofar as rights themselves are expressed constitutively. It is then a problem of presupposing that constituent power becomes actualizable in an institutional setting (in the sovereignising tendencies) whilst simultaneously remaining autonomous, that overshadows the meanwhile of the constituent moment, the lingering in these eruptions, however fleeting, that are existent there and then, not despite their transference into constituted power, but because they resist such a transference altogether. Constituent power poses this problem if we understand it in a teleological sense of an accumulation of power, in a historic realization of something, and Negri’s focus in Insurgencies, for instance, partake in such a presupposition insofar as the revolutions discussed are revolutions that ended up in sovereign and constituted powers. However, if we linger in the constituent moments outside of their realization and recognition, we can come to see the existence of powers and rights in the affective relations there and then, here and now.

In this way, beyond Giorgio Agamben’s critique of constituent power, I believe that the interpretation of the sive that he puts forth is much more relevant for a reading of the ius sive potentia. For Agamben, it is the modalization or modification of human beings as modes of God that preserves the relation between power and right. As he explains,

the Spinozist syntagma Deus sive (or) natura does not mean “God = nature”: the sive (whether sive derives from the conditional and concessive si or the anaphoric sic) expresses the modalization, that is, the neutralization and the failure as much of identity as of difference. What is divine is not being in itself, but its own sive, its own always already modifying and “naturing”—being born—in the modes. ⁷¹

It is in this way that Spinoza’s modal ontology and his geometrical system allow for the possibility of constituent power and constituent rights. The sive itself expresses the immanation of the causa immanens and modalization when it comes to Deus sive Natura, and it is precisely this sive that expresses the modalization that is maintained in the ius sive potentia.

What happens here, then, is that the sive expresses the immanent cause and co-implicates both power and right in our being. Much as constituent power and potentia are inalienable, as they remain necessary for life itself, so are constituent rights. We could say that the right of everything (ius uniuscuiusque) constitutes its own sui juris, “the positive premise of the self-constitution of right.” ⁷² It is here we should find the condition of constituent rights which like constituent power is not the translatability of itself into legal norms and the constituted juridico-political sphere, but rather the immanent expression of anyone—any movement, struggle or resistance, for instance—that constitute their own constituent rights, against any limits from the juridico-political sphere or constituted rights, in their mere being. We ought to understand Negri’s concept of constituency in relation to rights, both with and beyond Negri, as sui juris, although “not in the sense of a justus,” as Del Lucchese argues, “but in the sense of a jus sive potentia.” ⁷³ We could see then that Spinoza’s system maintains right qua right whilst simultaneously interweaving it into the complex relation of the sive, and constituent rights are, furthermore, here the same expression as power, seen in another way, insofar as “the conatus defines the right of the existing mode,” insofar as the conatus sive essentia, where the conatus is “the efficient and not the final cause,” constitutes the constituency of constituent rights. ⁷⁴

Towards a Theory of Constituent Rights

Having reconstructed Spinoza’s ius sive potentia theorem, and the complex relationship between rights and power, I now turn towards what a theory of constituent rights could imply. I am especially interested in the way right qua right may prove fruitful for thinking the immanent practices of rights that become sensed, experienced as existent in the here and now, without them necessarily being understood through the guise of the law, as claims and demands presupposing a constituted juridico-political sphere, or as the fleetingness demanding a fixity in juridico-political structures. There is a tendency within discourses on social movements, rights, and so on, where the constituent emergence only becomes intelligible through the fabric of what they effect. As Agamben explains in his studies of the Franciscan monks, there is a tendency to leave in the shadows the forms of life enacted in the lingering of the movement by the insistence to interpret movements in the disagreement and clashes they enact and in the antagonisms that appear, an eclipse that, innocuously or not, methodologically attaches the constituent moment to the constituted sphere. ⁷⁵ In a methodological sense, then, we may say with Lauren Berlant that we should linger in the “meanwhile” of the moment, however fleeting and transient such moments are, that nevertheless may say something about the rights felt regardless if they become recognizable in any legal, permanent, and intelligible fashion. ⁷⁶

It is worthwhile to address two different ways to conceptualize constituent rights, either explicitly or implicitly. The first concerns Martin Loughlin’s Rousseauian definition of constituent power in dialectical relation with rights. Despite the apparent rift between Loughlin and Negri, there seems to be a common trace of Thornhill’s dialectic here, where the constituted juridico-political sphere can only recognize and capture the messiness of constituent power as constituted rights. As Loughlin writes, this dialectic could “just as appropriately be termed constituent right since this struggle entails the attempt to explicate the meaning of political right (droit politique) […] the written constitution formalizes precepts of political right that express the political unity of a people.” ⁷⁷ Yet, in the spirit of Negri, we would want to say that constituent power can align with a radical, transformative tradition of rights which does not necessitate legal recognition for their existence.

Another approach towards the relation between constituent power and rights comes from Illan rua Wall’s work. Wall is critical of Negri’s conceptualization of constituent power without exploring its Spinozist foundation. Nevertheless, he tends toward the idea of a constituent right qua right, where constituent rights as sui juris would be the expression of radical democratic desires outside of their translatability into institutional discourses. ⁷⁸ The productive fabric of constituent moments incessantly express the possibility of new rights that are hitherto unrecognized and non-existent in any institutional sphere, what we have called constituent rights—even if Wall retains the unidirectionality of constituent power vis-à-vis rights—are “constantly emerg[ing] in constituent moments.” ⁷⁹ Furthermore, we could then say that “the right folds into its object […] the right itself that becomes self-forming […] The radical in rights is retraced, rendering the right itself in the process of creation as it acts out, creates or performs its own object.” ⁸⁰

It is here we find the core of constituent rights. In the immanent practices of social movements, resistances, and constituent moments, the existence of rights is sustained through these practices themselves. Not through an interpellation with a constitutional and institutional setting, but through the relationships between human beings. The transindividual relations of human beings, to borrow from Balibar’s work on Spinoza, express themselves as the right to act and the right to do through the immanent practice of actually acting and doing. ⁸¹ Much of the critique of rights, as epitomized in Žižek’s and Laclau’s critiques of Negri, presuppose the legal-character of rights, and thus their unusefulness, but as Balibar argues in a Spinozan registry, rights are “immanent practical problem[s].” ⁸² The plasticity and productivity of rights make them, on the one hand, perceivable as their current articulations—seen from the perspective of the law—but, on the other hand, rights are also the fleeting, uncapturable, and unrecognizable—again, from the perspective of the law practices of movements.

In returning to Spinoza’s ontology and the ius sive potentia theorem, constituent rights would be indistinguishable from their modalization, enacted through our most quotidian relations, but constituent rights would also, in a Negrean sense, be the constitutive fabric of producibility. In neither case is the necessity of their transferability and translatability into the law called for. In being attentive to the constituency of rights, we could engage with rights differently. We could thus see the actual existence of rights through the enactments of communal life forms, enacted through the mutual interdependencies of neighborhood barbeques, sustained through the improvisational commonality of revolts, called into being through the immanent practices of occupations. We would be able to hear Negri’s own suggestion that Spinozistic rights are not the production of norms but forms of life. ⁸³ By seeing constituent rights via Spinoza’s ius sive potentia theorem, we pay closer attention to the immanent practices of rights, and thereby clarify some of the confusions in Hardt and Negri’s discussions of, what we would like to call, constituted rights. In an important sense, such a politics of rights is impersonal, the protest and the social movement where chants and resistances unfold in opposition to a legislation or policy ultimately fails from the perspective of personal politics when such actions are unable to translate into transformations of the legal persona’s recognition or becoming reflected in institutional and constitutional changes. However, from an impersonal politics, we should linger in the meanwhile of the moment, on the affects and energies, on the determinations of individual and collective powers, on the formations and connections in-between human beings. ⁸⁴

We can take this further. In a methodological and political sense, the relations within constituent moments cannot remain necessarily tied to the law, as if the meanwhile is only understood in the effects it enacts. Lingering in the meanwhile means perceiving the relations in-between human beings as constituting rights; rights sustained through the affective tissue between the actions of human beings, through the power to act together. Almost prefiguratively, although not as a preface to legality or actuality but in the here and now, the movement claiming and demanding a right may, in the process, sustain the infrastructure throughout occupations and camps where such rights are maintained via the interactions of other human beings, even if such rights are not legally recognized. It is not simply that constituent power acts, externally, on the fabric of rights, thus transforming them in such and such a manner. But the power and right to act are co-implicated, and constituent rights allow us to understand how power is not merely the capacity to change and alter the already known fabric of rights, but how the power and right to act is the improvisational ground whence other rights are called into being. If in the course of an occupation or in the everydayness of a neighborhood, soup kitchens, food trucks and other im/mobile kitchens provide food for everyone, however fleeting and temporary such communal forms are, is there not a right to food sustained in the affective and connective tissues in-between such relations? By understanding Negri’s concept of constituent power, not as the horizontal actualizations in the fabric of the constituted, but as those constituent moments that only exist fleetingly in the meanwhile, that never become recognized, that remain non-historic in Louis Althusser’s sense, then we can approach more fruitfully the idea of constituent rights in such transitoriness. As Alexandre Matheron put it, “from the moment one revolts, one always has the right to revolt.”85

Conclusion

This paper has argued that ius sive potentia, which remains foundational in Spinoza’s account, is underdeveloped in Negri’s theory of constituent power, resulting in the omission of constituent rights. The constituency of rights is something which neither Negri nor his critics have paid any extensive attention to. By emphasizing the Spinozan implications of constituent power, as grasped by Negri, I have shown how rights, like power, can be understood as constituent in their immanence and productivity and as irreducible to constituted norms. This reading importantly reframes the question of rights not as secondary or accidental to the concept of constituent power, but as equal expressions of our modality. The concept of constituent rights, albeit only sketched here, addresses an often-overlooked aspect of radical rights discourses: how can we conceptualize rights by themselves without relying on their transposability into constituted and juridical forms? In recovering the ius sive potentia theorem, we may begin to think more clearly about rights as acts of immanent praxis and resistance, beyond the constituted juridico-political sphere. Spinoza’s theory of rights, especially when understood in a critical relation with Negri’s concept of constituent power, offers an underutilized way of conceptualizing rights beyond the necessity of legal recognition, institutional changes and constituted power.