On the Elusive Subject of Sovereignty

The Philosopher’s Problem?

“Sovereignty,” it would appear, confounds. It is notable that the perplexity, anxiety, and disappointment—the emotions are varied—can be discerned in a wide range of literature on a whole range of disciplinary preoccupations: in international law and international relations theory as the fate of the (sovereign) state is contemplated under conditions of “globalization;” in “citizenship studies” as the future of the “political–legal subject” and the conditions of/for subjectivity are interrogated and lamented in the presence of ruptured belongings; in interrogations of legal and political geographies and the “politics of bordering” where the precarity of inclusion/exclusion, belonging/nonbelonging, and protection/abandonment are increasingly witnessed; and in “ruptural” proclamations of the contemporary masters of “radical” philosophy (and their motley crew of followers) as the European Enlightenment’s foundations of (popular) sovereignty, “the political,” “the subject,” and “the democracy” and such are deconstructed, destructed, reclaimed, and revisioned, depending on the master’s inclination. Whatever the disciplinary preoccupation, it is safe to say that all is clearly not well with respect to the fundamental (assumed) truths of the “European legacy” of political–legal philosophy. ¹ And yet, an underlying perplexity remains: can we think otherwise than sovereignty? ²

We observe that at the root of the crisis of sovereignty, and of the sovereign subject, is a perceived betrayal, an abandonment even, of “man,” as “subject,” as the ontological originary figure of Eurocentric Enlightenment mythology. ³ Central to this crisis of the “subject” is the realization that the state, as the bounded expression of sovereign will, appears to be neither the protective, emancipative receptacle vehicle for Man’s historical march toward the future, nor the supreme actor in defining the actualities of global sociopolitical and legal relations. The long-held assumption of sovereignty, therefore, as the original point of reference for the philosopher seeking to locate the site and the boundaries of subjectivity through “political belonging” appears no longer sacrosanct under the present conditions of ruptured state formations and practices within a context of neoliberal, globalized, transterritorialized relations; indeed, not only the states of the Third World but also those of the “developed” First World today appear as little more than “cunning” states where constitutional–legal postulations of citizenship and rights merely serve the purposes of internal legitimization, as the more pressing business of negotiating the opportunities and vicissitudes of global capitalism are undertaken. ⁴

Under these conditions of global neoliberalism, two apparently contradictory tendencies now prevail. On one hand, we witness a resurgent form of violent statism. Examples include increased manifestations of state repression and terror of variously and ambiguously defined “internal security threats,” the escalation of surveillance, and the governmentality of “ban-opticons,” which render both “citizen” and “alien” as perpetual threats to “freedom” and to the continuation of “our way of life,” and the practices of naming (and unnaming), which construct diverse sites and practices of “illegalization” through malleable discourses of nationhood and belonging, of bordering, and of othering. ⁵ Thus, we appreciate the anguish of Judith Butler as she asks, “under what conditions [do] some human lives cease to become eligible for basic, if not universal, human rights,” ⁶ and understand the force of Giorgio Agamben’s oft-repeated statement that today “we are all virtually homines sacri.” ⁷

On the other hand, for all this resurgent violent statism, for all these expressions of statist bravado and the rhetoric of bounded stateness, the persistent realities of “porosity” and the waning capacity and inclination of the state to undertake the (re-)distribution of the materialities of “political belonging,” of welfare and protection, of justice, as it were, continues to be evident, and much discussed. ⁸ In this connection, we see the state challenged from all angles, sovereignty, it would seem, is questioned and undermined from all quarters; in addition to the “transnational” challenges to sovereignty, we witness regularly numerous and ever spreading subnational rejections of sovereign assertions of immutable authority—the various “Occupy” movements around the world the most recent instances of such rejections. ⁹ The contradictory realities of the presence of sovereignty—of state muscle and weakness, of authoritative assertion and popular rejection—thus stand as dual concerns for (theoretical and empirical) analysts of global politics and international law as the fate of a humanity (b)ordered, and long assumed as belonging, within sovereign polities, are considered. From the abundant literature, we identify the following as pertinent and persistent themes of critical contemplations:

how to make sense of the “anarchy problematique,” as Richard K. Ashley puts it, ¹⁰ of the messy and uncertain political–legal constellation of the national–local, on one hand, and the international–global, on the other hand, given the current blurring of identifiable locations of authority and power, of accountability and attributability, of the inside and outside of purportedly sovereign spaces in political–legal geography ¹¹ ;

This indeed is a rich and varied philosophoscape that confronts the thinker on the problem of sovereignty. Setting aside the nuances and self-constructed complexities of disciplinary and theoretical orientations, the underlying question that perplexes may be simply framed thus, how might we reconcile the ontologies of sovereignty subject in this uncertain world of ruptured and precarious belonging? Valiant efforts of rescue notwithstanding, the answer has proved elusive.

My argument in this essay is that this apparent problem/predicament/(im)possibility of sovereignty is a self-inflicted malady, the result of the colonial-modern, post-Enlightenment ontologic-epistemology of human being-ness. ¹⁵ In contrast to this orthodoxy, we view the problem of sovereignty here through a different, decolonial, perspective, one less enchanted with the mythologies of (colonial-)modernity. Such a revisioning necessarily opens to question the very assumptions that underpin the invention of sovereignty as the originary point from which our vocabulary and understanding of being “subject-in-the-political” is derived, and indeed we are here concerned to expose what Ashis Nandy calls the “imperialism of categories” ¹⁶ :

First, that sovereignty, however problematized, is a thing-in-the-world, a reality, in some way intrinsic and indispensable to being-in-the-world, whether thought of as a “cage,” as Zygmunt Bauman describes it, ¹⁷ or a malleable and “floating” possibility, in the hopeful imagination of Theodora Kostakopolou (or a whole range of other adjectivized reformulations—as degraded, suspended, disaggregated, etc.); ¹⁸ thus we repeatedly encounter in the critical literature such instances where “sovereignty is/does X,” or “sovereign power is/does/demands/imposes X/Y/Z,” as if sovereignty is an object/subject in the world, a thing in itself acting in, and making, the world. ¹⁹

Against these assumptions of the universality and inevitability of sovereignty, and of the consequent ontological categories of “subject”/“nonsubject” under a bounded inside/outside of “political belonging,” a different ontological understanding of the problem will be presented. For this purpose, we begin with an interrogation of sovereignty not as a reality in the world but as a philosophical invention. ²¹ My argument, stated briefly, is as follows: the invention of sovereignty and the operationalization of territorialized biopolitics construct the materialities of differentiated subject-beingness within a global regime of (b)ordering bodies-with(in/out)-territory based on the incommensurable rationalities of license, containments, and bans. The aim of this correction to the philosophy of sovereignty is to further the tasks of decolonial philosophy in denaming and denormalizing the coloniality of (b)ordering that has captured, emplaced, and banned imaginations of Being(-otherwise). Simply put, there is nothing natural or inevitable about the world of sovereignty, and of the ascriptions of license, burdened rights, and bans that are thus regulated and enforced. Conversely, a decolonial philosophy thereby normalizes the oppositions to sovereign presence and naturalizes the many witnessed refusals and rejections of the present normalities of violence and dispossession. To de-invent sovereignty is to therefore re-invent philosophy as decolonial praxes.

A Tale of Three Subjects: On Asserted Normalities, Exceptions, and Exemptions

The emplacement of, and the accounting for, the subject of sovereignty is indeed the concern of critical political–legal philosophy. We find most conventional discussions on the subject of the sovereign-subject framed within a post-Enlightenment ontologic-epistemology of “citizenship.” I begin however with the recognition of a differentiation that defines the real-world experience of subject-constructions and emplacements within the (b)ordered totality of a global system of territorialized states. Three figures come to view (1) the citizen-subject (that familiar, “normal” stalwart of “modern” political–legal philosophy); (2) the exceptional abject-subject (which has recently gained renewed notoriety with Agamben’s exhumation of the old Roman figure of homo sacer); and (3) the exemptional subject (the seldom talked-of inhabitants of trans-territorial, Baumanian, “liquid modernity.” ²²

Two Theses

We begin simply with an obvious, yet critical, act of philosophical de-naming.

Much of the perplexity relating to the philosopher’s attempt to reconcile sovereignty with the universal ideal of human emancipation assumes that there is something actually existing that is essentially contained and described by the concept; the task for elucidation, therefore, is to uncover this essence, and thereby, to imagine the consequential implications and possibilities that follow such an understanding of truth. ³⁶ Two features of sovereignty-thinking may thus be observed.

First, we find much critical engagement with sovereignty begins with an apparent concern that there is something wrong, corrupted, or inadequate, with sovereignty in the present, its condition, its fate, and future therefore uncertain, requiring recovery, reconceptualization, and restatement. And so we have the various problematizations of sovereignty in the world, and following this, the many adjectives attached to sovereignty-as-verb as it is understood to be in the present. But if we cease to merely engage in an exercise of repetition and pause to interrogate the truth of sovereignty, we see this supposed thing, Being, power, presence that so fixates does not exist outside of its name. Not unlike the problematic of God for philosophy, as Peter Fitzpatrick reminds us, the problem of sovereignty therefore appears as a problem of metaphysical unknowability, of an elusiveness in the very nature of the thing, but of a thing existing and present nevertheless. ³⁷

I see a different problem. Philosophy has struggled with sovereignty not because it is unknowable in some metaphysical sense, not because it continues to be elusive in its stubbornness to reveal to reason its true nature, but because it is as it simply is, a philosophical invention, a rationalization, an apologia even, of particular configurations of (b)ordering, both of territory and bodies.

Second, and on the point of invention, it is interesting to observe just how often critical engagements with the problem of sovereignty begins not with an examination of the materialities of the world but with a detailed consideration of the definition of sovereignty by some past (chosen) philosopher of the idea as if these previous assertions and rationalizations constitute the material truth of the thing that is sovereignty in the world. Although we might understand that in the past, the exalted ancestors of (colonial-)modern Western political–legal philosophy—let us cite, for example, Bodin, Hobbes, Locke, Rousseau, and Schmitt as the most popular among many—might have set out to rationalize a mode of ordering bodies and territory, and bodies in territory, through the invention of (modern) sovereignty variously and contextually thought, nowadays we (critical philosophers) appear to have forgotten this contingent past of the invented idea and speak instead of sovereignty as a truth. This is indeed wizardry in the name of philosophy; the conjuring up of a thing in the world (sovereignty) through the inventions of philosophers which then through repetition and circularity appears to become a thing in itself. Thus, we find in so many discussions, with little thought and every confidence, the assertion that sovereignty or sovereign power is this, that, or the other because Bodin, Hobbes, Schmitt, Agamben, or whoever else might be the philosopher of choice said so, defined it so, from which then thinking on sovereignty must continue in all its sophisticated perplexity! Little contemplation of the world of actual social relations forms the starting point of such considerations of the idea of sovereignty (apart from as an impetus for the philosopher to creatively rethink sovereignty), little is questioned the very assumption of the normality of sovereignty itself (even as the boundaries of (b)ordering are questioned), little suspicion is evidenced that what we are confronted with here is an idea conjured by the (Western) mind to both rationalize and mystify the world of (b)ordered human relations (even as it is recognized that sovereignty was a colonial construct and imposition). Instead it is simply assumed that the condition of sovereignty and sovereign power exists as the normality from which then the exception is identified, analyzed, and lamented. For those of us less indoctrinated in the presumed truths of Eurocentric thought, and less invested in perpetuating such thinking, this kind of philosophical work neither impresses nor satisfies. What is required instead is a de-naming, an erasure, of sovereignty as philosophical invention. We begin.

A now popular statement, one which has returned to excite, to inform, if not haunt, most contemporary critical considerations of sovereignty, is Carl Schmitt’s Hobbesian formula: “Sovereign is he who decides on the exception.” ³⁸ From this definition of the asserted essence of the right/power to “decision” flows, then the various critical engagements with the (im)possibilities of freedom within sovereign orders. The question which then vexes the philosopher is this: how can sovereignty as decisionism—whereby the law is constitutively extralegal in its originary exceptionalism, whereby the lawmaker is instantaneously transgressor, whereby the rules and the rules of order exist by virtue of the precarity of a transgressive decision—be the basis on which a normality of universal freedom may coexist with the exception? ³⁹ How indeed? This is no insignificant predicament for the post-Enlightenment philosopher as it points to a loss of hope so invested in modernity with the birth of the secular subject of sovereignty. ⁴⁰ All this anguish, we recall, arises from a Schmittian clarity on the subject.

Let us reconsider Schmitt’s formulation; “sovereignty as decision” needs to be read in conjunction with Schmitt’s other assertion of the existential “is” of the “political” as characterized by the simple quality of a distinction between friend and enemy. ⁴¹ Together these form the essential correlation between the apparent fact of sovereignty (as the ontological expression of the political in its most fundamental sense) and the bordered state as the locus of the political decision in the world. Aside from an elegant philosophical postulation, how does this thesis on sovereignty bear out in the world?

We first note that there is nothing exceptional about the power of “decision” outside of the philosophical assertion of it as such in the idea of sovereignty. The decision over life and death, embrace and banishment, is everywhere and every time in the world present, enforced and delivered in manifold locales, each life space itself being subject to various and diffused sources of encouragement and discipline, benefits, and risks. No doubt it may appear that in any given time and location there might be embodied a supreme force, as a matter of actuality, an overarching identity of a recognized and authorized (by a collection of “the ruled”) power—and it is merely a postulate that needs factual corroboration that the state is such an identity at any given time—as Leviathan, as sovereign. But this would be wholly a contingent historical reality; the “King” (or in context-specific terms, the village head, or the abusive husband, or the local police chief, or the corporate financed militia, the gang leader, overseer, corrupt politician, the almighty state [democratic or otherwise], international institution, the global market, and so on) is after all already itself constituted through a conglomeration of names and associated meanings in a wider world of meaning attached to entities as Kings, dependent on the contingencies of interaction in any given historical context that accord King meaning and content. Schmitt was not unaware of the manifold existential locations of the power to decide; the significance of the sovereignty-state link, however, for Schmitt (and his followers), is the assertion that here lies, more than the power, the right to decision as the authority over the political, the centrifugal force of friends bound together against enemies outside; significantly, this is an authority linked to territoriality via the Schmittian notion of nomos. Two questions arise in this context: first, what critical significance attaches to the territoriality of the state–political configuration should the existential, actual, power of decision be realized to be uncontained by the asserted monopoly of the state sovereign right to decision? and second, what significance is retained in the notion of sovereignty if we are willing to remove, or distil, sovereignty out of the political/state/sovereignty constellation and instill it in other contingent sites and configurations of actual decisional power?

The notion of an abstract (dis)embodied territorialized presence of a sovereign, as an exceptional wielder of the power (and right) of decision, answerable and subject to no other within a definable (even if shiftable) geographical–political space is, simply, nothing but a useful philosophical invention which frames the world and its viewing within certain borders of meaning. Uttering the claim sovereignty therefore is a performative assertion that repeats the colonial, imperial, globalized rationalization for the (b)ordered architecture of legitimization and normalization—through the constitution of the territorialized legal orders—as a constructed and enforced global system. The actual (and perpetual) contestations over both the territory and the management of human bodies, however, unfold regardless of the bounded formalities of “jurisdictional” fantasies. To put it differently, sovereignty is merely a particular affirmative assertion of “reign” over human and territorial geography, with every repetition of the assertion sovereignty thus is sought to be naturalized such a (b)ordering of meaning and imagination. Who wields the power to decide at any given temporal conjuncture and locale—and this is what really matters—is a matter less of an essential sovereign content in the nature of power than a sociohistoric contingency, given the multifarious relations that combine to define a present. If examples of the meaninglessness of sovereignty in the face of actual (as opposed to ideal) power in the world were needed, we might refer to the many lamentations that speak of corporate power and of the powerlessness of sovereign states to prevent the usurpation of privilege that places corporate rights over those of citizens; indeed, Upendra Baxi’s notion of “trade-related market-friendly human rights” describes in clear terms the supra-jurisdictional reach of power–desire notwithstanding the many grand gestures of state-constitutional human rights iterations. ⁴² Of course, we might still insist that this decision itself—the state’s “consent” to a corporate-regime of privilege, for example—is that which is sovereign, or we might instead countenance the possibility that we have an emergent global, corporate sovereignty, or Empire, emerging out of and breaking free from the boundedness of territoriality, but then, in my view, the concept loses its definitive and organizational import, particularly as it relies on the territorial integrity of the political place bound by the sovereign decision. ⁴³ More than this, it reveals itself as entirely of a different register to its usual association (however problematically) with order freedom, protection obligation, as presented by post-Enlightenment thought.

A point to note at this juncture is that while academic philosophical engagements with the perplexity of sovereignty abound, the “world” moves apace in the present with continuing enforcements of globalized reconfigurations of power—in terms of both assertions of might and right—oblivious to, and uncaring of, the anguished ontological excavations conducted by philosophers of sovereignty. Assertions of sovereignty indeed remain routinely iterated, the enactments of sovereignty routinely performed in ritualistic and discursive aplomb the world over. At the same time, the realities of privilege and burdens, rights and rightlessness, protections and abandonments, identifications of friends and enemies, all continue, it is clear, with little fidelity to the purported ontology of sovereignty, regardless of purported “constitutional” norms, or of territorial boundaries. We find, everyday, the trans-territorial privileges of the exemptional subject being facilitated, and the very territorialized prohibitions and incarcerations of the exceptional subject, being enforced. Descending, therefore, from the sublime heights of critical political–legal philosophy—where philosophy considers philosophy—down to the more banal plains of transnational relations (and their accompanying pragmatic discourses), we see more clearly the essential contingency, and nonsense of sovereignty.

Strikingly we find, in contrast with the perplexed anguish of philosophers of sovereignty, the pragmatic thinkers of the practice of transnational relations and international law, concerned as they are more with the contextual/historical actuality of sovereignty-in-the-world, are less moved by anxieties about intrinsic content than organizational and managerial relevance and efficiency in the context of actually existing contemporary global ordering practices and visions. Thus, we understand the wholly actual rationalization of Mary-Ann Slaughter, for example, who finds no philosophical qualms in calling for, as a novelty in the world, an order of “disaggregated sovereignty” which is entirely cognizant of the manifold contexts of the contemporary “horizontal” and “vertical” realities of political–legal relations. ⁴⁴ Or, to take another example, we find no resort to the language of immanence or transcendentalism, or of the impossibility of “decision” within the order/freedom dialectic, in the evolving language and discourse of “sovereignty as responsibility” inaugurated by the International Commission on Intervention and State Sovereignty, and which has since become part of the UN lexicon. ⁴⁵ Similarly, there is little theoretical vacillation and philosophical soul-searching regarding sovereignty in the discourse of failed states, rogue states, quasi-sovereign states, and so on. ⁴⁶ Sovereignty, in all these accounts, is invoked, and operates, as a functional precept of order, organization, regulation, management, and government, in order to facilitate the smooth operation of whatever the desired conception of the good in terms of both national and international/global governance might be. Little in such deliberations on the present and future of the state in “international/global” relations is found the anguished and perplexed contemplations of philosophical incommensurability between freedom and order; the freedom-order calculation is instead presented as a pragmatic balancing of “freedom-in-security” where the limits of subjectivity and associated freedoms are defined less by the ontologies of sovereignty and political belonging and more by the vicissitudes of “securitization” and the effective management of a stable neoliberal order, national, and international/global. It would appear, the troubled perplexities of the philosopher of sovereignty has little import on the continued utilization of the sovereignty as a rationalization of global (b)ordering.

So, no, there is nothing useful, or even particularly interesting, that comes from a pursuit of some meaning of sovereignty, for in itself, it is nothing. This quest for the elusive nature of sovereignty is, quite simply, a distraction. We might usefully remember Foucault’s insight in this regard of the need to abandon the “model of Leviathan,” and move beyond the fixation with sovereignty, to interrogate instead the actual embodied operations/relationalities of power (disciplinary and biopolitical) and the ways in which, as a consequence, subjectivities within orders are constructed and self-generated. ⁴⁷ The significant question therefore is not what sovereignty reveals about the fate of the subject, but rather, what kind of (b)ordered world and what kind of subject-beingness are enabled, rationalized, and enforced by the idea and assertion of sovereignty. When viewed in this way we see that in this work of (b)ordering—and here we move away from Foucault—the invention of sovereignty indeed has been critical.

Thesis 2: Underpinning the invention of sovereignty is the territorialized (b)ordering of differentiated subject-beingness through the biopolitical government of license, containment, and bans.

We address here the central fantasy of Eurocentric, post-Enlightenment mythology. The invention of sovereignty has little to do with the emancipatory birth/becoming and protection of the citizen-subject within the embrace of a bounded political–legal society of friends against enemies. If conventional wisdom is that sovereignty decides on “letting in” (inclusion) and “keeping out” (exclusion), my argument is that a prior logic of letting out (license) and keeping in (containment) underpins the invention of sovereignty. Thus I argue are the three subjects—the citizen (as normal), the abject (as exceptional), and the supraterritorial (as exemptional)—precisely, the differentiated ontologies of being constructed through the invention of sovereignty as a territorialized technology of (b)ordering bodies.

To begin, we note that central to the conventional understanding of state sovereignty and its constitutive relationship with the citizen-subject is the assumed connection between sovereign protection and political belonging. Let us consider, however, this assumed philosophical constellation—state/sovereignty/political belonging—more fully. We turn to Tracy B. Strong’s introductory remarks to Schmitt’s Political Theology as a useful start:

Underlying the state is a community of people—necessarily not universal—a “we” that, as it defines itself necessarily in opposition to that which it is not, presupposes and is defined, by conflict. It derives its definition from the friend/enemy distinction. That distinction, however, is an us/them distinction, in which the “us” is of primary and necessary importance. ⁴⁸

The defining orthodoxy of (modern) political–legal theory is therefore one which posits, as foundational, the bordered duality of the inside/outside of the national and international space, the inside being a space of order, friendship, protection, and freedom (the space of law that demands allegiance and obedience), the outside a mire of anarchy, enmity, and insecurity/threat (the nonspace of lawlessness and outlawry). ⁵² Hence, the significance of the “border” within conventional political–legal imaginary as the sovereign/biopolitical decisional site that defines the us and the them of belonging/nonbelonging. For the critical philosopher, this demarcation clearly also defines the problem, that is, how to emplace the othered, the excluded from belonging, the one denied the protection of care, within a reconceptualized order of protection and belonging.

But what happens if we interrogate, rather than assume this nexus between sovereignty and the protective rationality of political-belonging? We are indeed dealing here with unraveling what Michael Dillon understands as the “grids of intelligibility” constructed by sovereignty as an “idiom of power.” ⁵³

What I am suggesting is this: the invention and evolution of the idea of sovereignty serve as a historically contingent philosophical rationalization of/for a territorialized global order of appropriation-licence enabled through the enforcement of the “legitimated” violence of bordering (the assertion of the authority of decision) and the ideologies of control and management (biopolitical regulation) of contained and banned bodies in territory. Rather than an inside and an outside fixed by a Schmittian decisional boundary, therefore, sovereignty (as a philosophical invention) constructs, naturalizes, and normalizes (b)orders of differentiation, thereby enabling and enforcing a differentiated management and regulation of territorialization. Put differently, the work performed by sovereignty is to construct and enforce the differentiated subjectivities of trans-territorial license, on one hand, and territorialized containment, and bans, on the other hand. In this respect, territorialized borders serve, intrinsically, and coherently, as both barriers and gateways, simultaneously keeping in and letting out as keeping out and letting in, simultaneously making it possible/impossible to think of a (non)spatialized/temporalized world. All said, what is important to remember is that first and foremost, sovereignty, as a philosophical rationalization of the power to name (b)orders, is an assertion and an exercise of exemptional license, that is, to conquer, to claim, to name, and to make subject.

This view may be a little clearer if we replace the lens of the (European) Enlightenment with those that reveal the colonial underside of modernity. It is useful here to recall the profound significance of Enrique Dussel’s counter-insight to the Cartesian ontological assertion, “[b]efore the ego cogito there is an ego conquiro.” ⁵⁴ From this we understand that the universal (sovereign) I that so enchants Eurocentric thought is less a construct of universal emancipation and more the privilege of conquest; “I conquer” is the very point in which the (European) I of sovereignty is philosophically invented. In this regard, it is precisely Schmitt’s (Eurocentric) assertion, “[a]bout an abstract concept [of the definition of sovereignty] there will in general be no argument, least of all in the history of sovereignty,” ⁵⁵ that we do here fundamentally argue against.

When seen through this other(ed) vantage point, what becomes clear is that there is nothing natural in the tripartite conflation of the state/sovereignty/political belonging imaginary. Instead it is conquest that originates the (b)ordered sovereign-subject construction, and conquest here involves the following dual aspects of subjectification: first, the engulfing inclusion and the violently inflicted transmogrification of already-being into an existential condition of subjected “bare(d)-life,” and second, the philosophical construction of the totalizing ontology of being-nonbeing/becoming. ⁵⁶ Sovereignty is thus invented as the radical presence of an-other (already)being—that had to be conquered, made subject, brought into the fold of its “jurisdiction” of managed care or abandonment—is encountered. In this process of naming and making subject is totality, as a particular normalization of being/non-being, asserted and affirmed.

This is a significant philosophical move, its colonizing force all the more evidenced by the apparent universalization, and normalization, in political–legal imaginary of the “state-constitutional” model of the bounded, (b)ordered political society, even as it stands now variously challenged. But the underlying rationale of the invention of sovereignty remains; prior to the constitutional “we” of political belonging that enframes the (b)orders of preservation/protection of bodies-in-territory, the emergence of sovereignty as a philosophical invention coincides with an exertion of a trans-territorial and universal license to name and appropriate whereby philosophized/constructed/conquered bodies are made to be subject in territory, surveyed, mapped, and territorialized by the colonizer. ⁵⁷ Life itself is thus constructed, disciplined, and contained by the enclosed space and regulatory frame of the (bio)political as prescribed by naming, as ontological categories, “sovereign” and “subject”. The various philosophical technologies of license and conquest of the past and present—the notion of terra nullius and the “frontier,” the graded distinctions between human, savage, and barbarian, the construct of (un)civilization, the postulate of trusteeship/protectorates, the naming of failed/weak/rogue postcolonial states, the assumption of the right (duty only where and when convenient) of (humanitarian) intervention—all evidence this original, authorial, expansive, acquisitive, assertion, and assumption of license as a (righteous) right to (b)order bodies in territory and to make subject(ed)-being out of already-being. ⁵⁸ A view from the location of the colonial difference, we see, clearly reveals that first comes the brutality of the appropriation of bodies and their beingness in territory, then comes the “invention” of sovereignty, and its fixing in territory, in thought.

And so it continues. Sovereignty is constantly adapted to the necessities of globalized license, constantly reworked to construct frames of inclusions and exclusions, containments and bans. And for this purpose, and notwithstanding the claims of the demise or relegation of the state, the role of the state is indeed critical. Territoriality remains a crucial rationality. The evidence of this is everywhere present, and here we see the coherence in the apparently contradictory tendencies of state muscle and weakness in matters of (b)ordering. As a result of the dual imperatives of the denationalization and internationalization of the state, whereby the rights to appropriation and profits are privatized, transnationalized, and enabled enhanced trans-territorial mobility while the burdens of losses (economic, social, and environmental) are nationalized and contained in territory, the neoliberal state functions as a domain for the territorial containment of harm while the governance of trans-territorial license is enabled global reach and access into various (de-/re-)regulated regimes of appropriation and dispossession. Sklair said it simply, “in the global capitalist system, agents and agencies of the state (among other institutions) fulfil the role of facilitators of the global capitalist project.” ⁵⁹ State territory therefore is critical to this project of global governance as a globalized biopolitical regulatory regime for it demarcates both the regulatory boundaries of policed opportunities/profits and risks/harms. ⁶⁰ Precisely to construct such a differentiated materiality of emplacement and bordering—as gateway and barrier, conduit and snare—is the securitization of borders and bodies, and the resulting extra- and infra-territorial regulation of (b)ordered residence and movement, enforced, thus creating interconnected local–global regimes of license, containments and bans; ⁶¹ indeed, the imaginary of the territorialized homeland as the bulwark in the “war on terror” represents precisely the (b)ordered field of biopolitical regulation that both separates and conjoins the inside and the outside of government. ⁶² Simply translated, what this means is that borders serve both to facilitate transnational mobility (of moneyed trans-territorial subjects in a borderless world) and to simultaneously restrict, if not prohibit, the movement of supposedly dangerous and unwanted transients. In this respect, along with the territoriality of the border, equally significant to contemporary global subjectification is the (b)ordering of corporeal bodies themselves, as exemplified by the biometric visa regime, which enables the microregulation of license/containments/bans of individual bodies in the global space. ⁶³ All this is known and documented. The question however is how such observed practices of differentiated (b)ordering are read in the scheme of sovereignty.

My argument is that the dual technologies of geopolitical and biopolitical (b)ordering are not aberrations to the normal, not the features of some state of exception ⁶⁴ ; such a misunderstanding arises from the Eurocentric reification of sovereignty. When seen through a lens that visibilizes the coloniality of modernity, we see the normality of exception differently; universal categories of humanity and citizenship have always been namings of denial and negation, subjectifications of violence and othering. ⁶⁵ Thus, we understand that languages of insecurity and threat associated with unregulated migration, terrorism, the refugee, the contemporary undeserving poor—the other to the desired us—are resorted to precisely in order to effect the “government of unease,” as Bigo puts it, ⁶⁶ to govern the specific and contextual application of ideologies of selfing and othering, of connection and separation, precisely to reconstitute domesticated and docile (contained) subjects (as aspirant entrepreneurial consumers) as the idealized normality that strives (and there is now an obligation to so strive) for fulfillment under the sovereign embrace of regulated permissions. What this means is that while the discourses and technologies of subjectification—of selfing and othering, of naming us and them—perpetuate to construct constitutionally territorialized grids of intelligibility, its internal (b)ordering work does little to effect the actual materialities of friendships (and enmities) that are enabled and enforced. So we see in the cordoned off militarized zones of global summits, in export zones, in gated communities, in the fast lanes of expedited transborder movements, the so-called transnational capitalist classes feted and protected behind protective cordons that keep off unruly citizenry; certain “others” are indeed afforded all manners of protections and privileges against certain (amorphous, insidious) dangerous and undesirable elements of the “we”. ⁶⁷ Securitization in this sense is not an exceptional feature of a temporary restricting of the freedom to be and to move; on the contrary, it is the necessary configuration of borders so that such freedoms may be differentially enabled and enforced between the three conditions of subject-beingness as constructed through the territoriality of sovereignty. And this is critical: all the work of (b)ordering that the invention of sovereignty enables, all the hard work constantly undertaken to construct the “imagined communities” of political–legal belonging (and exclusions/bans), functions to service the desires of appropriative license and to manage the vicissitudes of the containment of (unpredictable) subjected populations.

Seen from this perspective of conquest/license and containment, therefore, we understand the ontologies of citizenship and bans differently than commonly assumed. Rather than some existential, decisional, inside/outside defining the geopolitical spatiality of friends/enemies, the politics of (b)ordering—that is, to say, politics as the technology of subjectification—is informed and defined by the necessitates of constructing and maintaining domesticated bodies in and of territory be it through normal or exceptional subjectivity as either citizen (in all its legalized senses) or banned, all as part of a geographical configuration designed to facilitate a globally organized and territorialized order of exemptional, transterritorial, freedoms. Citizenship-bans thereby emerge as a biopolitical consequent of the logic of conquest and appropriation, as an ontological by-product of the asserted license to name, claim, and make subject. From the early crude necessities of “Leviathanic” rule, to enhanced possibilities of appropriation and subjugation enabled first by the technological capabilities of institutionalized wage-labor enslavement, and second by the present realities of a globalized, hyperreal interconnectivity of networks of appropriation, the problem of government translates into the ever-complex problem of “biopolitical governmentality”; thus, we witness the significant evolution of biopolitics out of the invention of sovereignty as an adaptive technology of subjectification—of making, and keeping, subject, “to make live and let die,” as it were. ⁶⁸ Understood in this light, citizenship—as belonging-in-the political—no longer appears as the prize and expression of enlightened sovereignty. Rather, it is the precarious and contingent condition of subject-beingness within a globally fluid and continuously bordered biopolitical “society”; as Barry Hindess rightly argues, it is a “conspiracy,” to divide and rule. ⁶⁹ So is the abject-subjects of bans also made to be “other”, as the constituted we of belongings are constantly renegotiated and reconfigured. In this sense, the abject-subject is neither the exceptional ontological coconstitutive moment of sovereignty-subjectivity that Agamben describes as homo sacer, nor an Arendtian aberration whose subject-belongingness is to be recovered by philosophical expansions of the ontologies of inclusion/belonging. Rather, abandonments/exclusions/bans function as coresponding technologies of containment, as the task of making subject is constantly and contextually renegotiated through the diverse constructions (philosophically and ideologically rationalized) of the included us and the excluded (and if necessary banned) them. ⁷⁰

So much then for the mythologies of political belonging. “We the People”—the people made and kept subject as citizens in territory—are indeed the transmogrified subjects of colonization, made (to be) subjects, whose belonging always is susceptible to be one of expulsion. And so is this collective we of precarity the frontline protectors of (political–legal) society to denounce in fervent hysteria the demonic threat of all manners of enemies whose banned subjectivities in turn affirm the subjectivities of belonging, of the “we” who are not (yet made) “them”. The ban in this way, therefore, serves an important function—the banned-other(ed) is a necessary mirror of antibeing (enemy) to being-subject (citizen–consumer); as bans are constructed though manifold philosophical inventions of othering, as asserted rationalities of borders and boundaries of belonging (us) and strangeness/threat (them) are exerted and built, are containments reframed, reaffirmed, and represented to domesticated, subjected, bodies in territory. All the while, as these exigencies of governmentality are discursively and materially pursued and effected, are the elusive figures of supraterritorial exemptionality set free, allowed anonymity and invisibility, and the penetrations of appropriative license facilitated, even enforced, across territories. Borrowing from Mark Duffield, we see that the old colonial strategy of “getting savages to fight barbarians” remains the defining trope of contemporary governmentality. ⁷¹ Thus serve scripts of sovereignty to enforce and govern, through territorialized biopolitical regimes, the three differentiated and incommensurable conditions of subject-beingness of exemptional license, normalized containment, and exceptional bans.

To Conclude: Decolonial De-invention and the Normalization of Refusal

I have argued that sovereignty is nothing but a philosophical invention for the rationalization of territorial and biopolitical (b)ordering. By such a de-invention, as I call it, we take the first step in denaturalizing the assumption of sovereignty in the world, laying bare in its stead the sheer (mostly violent, even if sometimes paternalistic) materiality of biopolitical (b)ordering that enforces the differentiated worlds of license, containments, and bans. From this decolonial point of departure, we might understand the problems and possibilities of the present and the future differently.

The (post-Enlightenment) critical philosopher of sovereignty, we have noted, is moved by the apparent abandonment of the subject to abject fates. Exceptionality is thus everywhere identified, bare life and the Ban perceived as the contemporary normality of the exception. This then, indeed, is the abject reality of the abandoned subject of Eurocentric philosophy.

The decolonial lens however enables us to see that the problem is not the exceptional ban; this is not to diminish in any way the immense violence of the corporeality of bans as they are enforced. Philosophically however—and philosophy matters here precisely because its colonial-modern function has been to normalize (b)ordered worlds—it is not the moment of the exception, of abandonment, that portends the negation of being. Before the relationality of sovereignty-banned there is first the violence of subjectification through the transmogrification of (already) being into being-as-subject, made subject. There is no confusion, no perplexity, about this other “history of sovereignty” for anyone who thinks sovereignty from the locations of the othered and the obliterated. But of course, as Maldonado-Torres reminds us, the operation of “the will-to-ignorance” and “forgetfulness of damnation” that informs Eurocentric political–legal philosophy, means that the colonial memory of the history of the modern state and the international state system is ignored or forgotten, and the ongoing colonial difference invisibilized constantly from view and thought. ⁷² Here, philosophy plays its part, its inventions critical to the creation of colonial-modern worlds.

The implication of this view of the subject of sovereignty is that it overturns the fundamental (and cherished) presumptions of post-Enlightenment thought as it relates to the belonging-subject in the political; all but the most gullible, deluded, and colonized would see citizenship to be a precarious, if not empty, naming of purported collective belonging in any material sense of a We. Notwithstanding the hopeful and enthusiastic urgings of those advocates for cosmopolitan citizenship, for universal human rights, for political-belonging as such our reading of the invention of sovereignty suggests that the logic of territorial containment—of citizenship and bans, inclusions and exclusions—is unlikely to be jettisoned, precisely because it serves to rationalize and effect the containment of subject-beings who are made to live and let to die. The rationalized differentiation of humanity into licensed, contained and banned conditions of subject-beingness, and the normalizations of appropriation and dispossession, and, dispensations and prohibitions, thus continue unabated under the constituted orders of political-belonging-under-sovereignty, not as a new manifestation of exceptionality but as the very normality of territorialized biopolitical-(b)ordering.

What direction then for a decolonial philosophy of the present? What implications follow from our other telling of the invention of sovereignty? How might we begin to think otherwise?

Simply, we begin by de-inventing sovereignty. Equally, we abandon the quest for the mythic appearance of the universal subject that we see in the manifold philosophical endeavors to envision, proclaim, predict, a becoming that is anticipated to portend such a resurrection. This involves a radical unlearning, no doubt. It means abandoning the fundamental ontological categories of post-Enlightenment political–legal philosophy. Admittedly, such a philosophical project extends little assurances of familiarity, with respect to both the journey and its end. No universal purpose of humanity holds out for us to know or realize, no comforting mantras of universality—of human rights or progress or emancipation—avail for our repetition. But this is no reason for despair. And this is the first lesson for a decolonial journey into political–legal philosophy, that is, to understand that the invention of sovereignty is less convincing and less totalizing to the consciousness of human beings than assumed.

The philosopher bemoaning the fate of humanity needs to be assured that to be human in all its wonderful and diverse possibilities does not require ontological birth into the (b)ordered biopolitical diagram of the political in order to flourish. Indeed other philosophoscapes do exist. These are ones that are grounded in the pasts and presents of (extra)ordinary everydayness of survival and being together, otherwise to being-subject, uncolonized even in the ordinariness of apparent docility, even as these may be invisible and unspectacular to the heroic philosopher in search of ruptural and evental becomings. ⁷³ A realization that the invention of sovereignty, for all the ferocity of its repetition, does not deny the presents and presence of desubjectified (Already/Other)Being directs necessary attention (particularly urgent for colonized post-Enlightenment philosophers of Eurocentric myths) to discovering and affirming the many diverse and vital ways of sociality that exist despite the desires of colonizing power. Such an enquiry might divest the critical philosopher of the burden of the perplexity of sovereignty and clear open vistas of being outside of the political. This is necessarily a burden of unlearning and of reeducation, of relinquishing the arrogance of the colonial ontologic-epistemology that continues to infect even the most critical of the so-called radical left in order that the experiences of the ordinary rather than that of the heroic become the signs from which a philosophy of hope may be learnt and thought. It is a necessary lesson indeed that the world of imagination and of creativity in the face of appropriative and biopolitical power far exceeds the reified categories of Western philosophical traditions of the human, the subject, and the political.

Mindful of the diverse presence of other possibilities of being, we might more humbly pursue some necessary, uncertain, and unspectacular, tasks of denaturalizing the universal truths of human being-in-the-world presented to us by the colonial-modern invention of sovereignty. Two immediate directions for decolonial philosophical praxis are apparent: first, to return our critical attention to the disruptive task of de-naming the normalities of subjectification, to denaturalize the biopolitical strategies that construct names and meanings of self and other, inside and outside, friend and enemy; and second, to refocus attention, to direct the spotlight of denunciation, on the truly elusive subject-being facilitated by the inventions of sovereignty—the exemptional wielders of supraterritorial license. Let me briefly suggest what these tasks might entail.

From the unheroic practice of de-inventing sovereignty might the philosophical tasks of de-naming begin, to expose the contingent and particularistic foundations of diagrammatic namings and biopolitical normalizations. Categories of purported relationalities-under-sovereignty—of the political collective of friends, of citizens, of (un)belonging—need to be divested of its reified status (and recognized for its utter absurdity) and in its stead, material, and institutional relationalities of license, containments and bans be explicated. In this respect, the radical affirmation of a resurrected subject-to-come—in the manner of Badiou, Douzinas, Zizek, and so on—while enthralling, even intoxicating, in its mystical fervor, is quite simply a useless gesture; it is instead precisely Ranciere’s notion of “the police”—that which radicals, including Ranciere, denigrate—through which subject-beingness is regularized and normalized that is significant for elucidation. ⁷⁴ Radical philosophers of becoming, being so eager in their efforts to resurrect the true subject, erroneously regard the abject, the “inexistent,” the “excluded,” as “uncounted” within the diagram of subjectivity, thus failing to understand that it is in the sphere of the ordinary, in the domain of the police that the differentiated and incommensurable ontologies of subject-beingness are constructed and enforced. An important task for a decolonial philosophy in this connection is to make visible and to bring to the fore the encounter between the contained and the banned subject, on one hand, and the exemptional subject of license, on the other. Instead of seeking to attach meanings of political becoming, event and dissensus on recent irruptions such as the occupy, indignados, and migrant movements we might instead understand these as instances of precisely such encounters rooted in the materiality of territorial containments/bans and transterritorial license, the task at hand being to explicate the material and ideological framings of differentiated subject-beingness and to demystify the sloganistic reworkings of “we the people” that so often follow the maneuverings of “cunning states.”

And indeed, it is this cunning that deserves focused attention. The identification of the specific functions and role of the state (and its territoriality) in constructing legal and institutional frames of license/containments/bans is critical. Put differently, what is required is a dismantling of the architecture of the mythological-bounded “political society” of “sovereignty,” so that the material functioning of the philosophical–ideological constructions of (b)ordering, of governmentality, and of “(de)regulation,” may be better understood. The task of emplacing the elusive subjects of supraterritorial license—Sklair’s transnational capitalist class—however, involves something other than merely recognizing and describing the plurality of legal orders, as recent commentators of “global law” have sought to do, something more than simply identifying the realities of differentiated (b)orderings of bodies in territory. It requires the explicit counterposing of the regimes of license that define the global neoliberal project with those of containments and bans that are its coconstitutive, and constitutional, other. And for this purpose, again might the extraordinariness of ordinary struggles to be otherwise than subject(ed) be a guide to the philosopher. By de-inventing sovereignty thus, we begin the affirmation, naturalization, and normalization of the refusal of being-subject to global coloniality.