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LCH0010.1177/1743872113501840Law, Culture and the HumanitiesWall

LAW, CULTURE
AND
THE HUMANITIES
Commentary

Law, Culture and the Humanities

2015, Vol. 11(3) 378­–392
Notes on an ‘‘Open’’ © The Author(s) 2013
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DOI: 10.1177/1743872113501840
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Illan rua Wall

University of Warwick, UK

Abstract
This article examines critical responses to the question of constituent power. Rather than a
closed, meaning-giving moment, which originates the constitutional structure, the article looks at
the various ways in which constituent power can be viewed as ‘‘open’’ and anti-underdetermined.
It looks at two issues in particular: the ‘‘subject’’ of constituent power, and the nature of the
‘‘power’’ involved. The article concludes with the suggestion that we think of these works as a
series of ‘‘strategic hypotheses’’ which might structure action, rather than a collection of ‘‘models’’
that would have to be applied faithfully to the world.

Keywords
Constituent power, constitutionalism, the people, the multitude, potentia, Virno, Laclau,
Agamben, Rancière, Negri, Dussel

I. Introduction
In many ways, the question of constituent power correlates directly to that of democracy,
etymologically at least. Constituent power is democracy – the force (cracy) of the demos
– in its most raw and unattenuated of senses. It is the moment when a people, a nation, a
multitude or a proletariat come forth and overthrow the preceding order. Its force is
destructive to the established interests of the constituted order. As such, it presents a nega-
tivity of constitution (qua system of ordering). It is both a negation of a constitutional
system, where such a move dialectically invites the negation of the negation in the new
constituted order, but also a moment of negativity or openness without any necessary end
or telos, and it is this second sense of negation that I would like to trace in this article.
The term ‘‘constituent power’’ stems from classical constitutionalism. Emmanuel
Sieyes coined the term in the context of the French Revolution. He demanded that the

Corresponding author:
Illan rua Wall, Associate Professor of Law, School of Law, University of Warwick, Gibbet Hill Rd,
Coventry CV4 7AL, UK.
Email: I.R.Wall@warwick.ac.uk
Wall 379

people had the power over the juridical nature of the state – as the substance of the nation
they could determine the juridical form that the state should take.1 This was the power of
constituents – a constituent’s and constituting power. Thus, from the first usage of the
term it signified an essential relation between the people and the state. For most legal
philosophers, constituent power signified a closed, meaning-giving moment which origi-
nates and determines the constitutional structure.2 Constituent power is, thus, the manner
in which legal philosophy captures the contingency, openness and creativity of the
moment of revolt and renders it as the fixed origin of the constitutional order.
Unsurprisingly, such a usage is less than satisfactory for critical (legal) theorists and the
post-structuralist left. This article seeks to draw out a number of critical responses to the
traditional characterization of constituent power. I will suggest that each of these phi-
losophers seek to think an ‘‘open constituent power,’’ although none but Antonio Negri
would use such terms. The article will do so through two themes: the question of the
‘‘subject’’ of constituent power, and the question of its ‘‘power.’’

II. The Subject of Constituent Power

In traditional democratic constitutionalism the people is the subject of constituent power.
From the Huguenot constitutionalists, throughout the canon of popular sovereignty, it is
the people’s unity which gives the power of self-legislation. In response to this hege-
monic idea of the people, Paolo Virno refuses to accept it as the subject of constituent
power. He explains the idea of the people through Hobbes:

1. For further discussion see chapter 4 of Illan rua Wall, Human Rights and Constituent Power
(Abingdon: Routledge, 2011).
2. Of course there are a number of crucial exceptions to this characterization: Hannah Arendt’s
On Revolution (New York: Penguin, 2006), Walter Benjamin’s ‘‘Critique of Violence’’ in
Reflections (New York: Schocken Books, 1978), or Carl Schmitt’s Constitutional Theory
(Durham, NC: Duke University Press, 2008), all present a far more nuanced picture of the rela-
tion between constituent power and the constituted order than I could deal with in this space.
More recently, there have been a number of studies that have maintained a much more sus-
tained and intense view on constituent power, often starting from a refusal of the simple origin
story. See for instance: Martin Loughlin and Neil Walker, The Paradox of Constitutionalism
(Oxford: Oxford University Press, 2007). But also: Emilios Christodoulidis, ‘‘Strategies
of Rupture,’’ Law and Critique, 20(1) (2009), 3; Emilios Christodoulidis, ‘‘European
Constitutionalism: the Improbability of Self-determination,’’ No Foundations (2008), 5; Joel
Colón-Ríos, Weak Constitutionalism: Constituent Power and the Question of Democratic
Legitimacy (New York: Routledge, 2012); Joel Colón-Ríos, ‘‘The Legitimacy of the Juridical:
Constituent Power, Democracy, and the Limits of Constitutional Reform,’’ Osgoode Hall
Law Journal 48 (2010), 199; Joel Colón-Ríos, ‘‘Carl Schmitt and Constituent Power in
Latin American Courts: The Cases of Colombia and Venezuela,’’ Constellations 18 (2011),
365; Hans Lindahl, ‘‘A-legality: Postnationalism and the Question of Legal Boundaries,’’
The Modern Law Review 73(1) (2010), 30; Hans Lindahl, ‘‘Collective Self-Legislation as
an Actus Impurus: A Response to Heidegger’s Critique of European Nihilism,’’ Continental
Philosophy Review 41(3) (2008), 323; Martin Loughlin, Foundations of Public Law (Oxford:
Oxford University Press, 2010); Martin Loughlin, The Idea of Public Law (Oxford: Oxford
University Press, 2003); Panu Minkkinen, Sovereignty, Knowledge, Law (Abingdon:
Routledge, 2009); Wall, Human Rights and Constituent Power.
380 Law, Culture and the Humanities 11(3)

The concept of ‘‘people’’ in Hobbes … is tightly correlated to the existence of the State and is
in fact a reverberation of it: ‘‘The people is somewhat that is one, having one will, and to whom
one action may be attributed; none of these can properly be said of a Multitude. The people
rules in all Governments,’’ and reciprocally, ‘‘the King is the People.’’3

This identity of people and King occurs when the commonwealth is constituted from
the state of nature, the monarch gives unity to the people through their subjection to
him. Because of this identification between the people and the sovereign, Virno argues
that as a concept for political mobilization, the people does not provide a useful way of
thinking about constituent power. Instead, ‘‘the people’’ pre-determines the movement,
fixing the state as its destiny. Ultimately, the concept of ‘‘the people’’ acts as a centrip-
etal force – that is a force that pulls distinct entities towards a center, thereby gathering
them into one.4 ‘‘The people’’ leads to coalescence of interests and operates to gather
the multiplicity of the many into a unity under the sovereign. ‘‘Before the State, there
was the many; after the establishment of the State, there is the One-people, endowed
with a single will.’’5
Before moving to consider the multitude, with which Virno replaces the people, it is
useful to pause a moment on the necessity of this characterization of the people. Both
Virno and Negri share a certainty that the people is a grounded unity under the sover-
eign, for which they cite Hobbes. However, we could contrast this with the recent work
of Ernesto Laclau. Laclau develops the idea of the people as generated by the linguistic
practice of counter-hegemonic mass movements. Populism, as the approach which
emphasizes the people as the constituent subject, is not ‘‘a type of movement … but a
political logic.’’6 The people, he insists, is constructed when particular social demands
(those of workers, feminists, indigenous peoples, etc.) begin to gather together in a
chain of equivalence, under the moniker of the people. Laclau accepts the charge that
this is the gathering of a unity, but refuses the identity of this unity with sovereignty.
‘‘The heterogeneity of the demands that the popular identity brings to a precarious unity
has to be irreducible.’’7 The heterogeneity, and not the unity, is irreducible. Furthermore,
this unity is nominal rather than conceptual. In other words, the people is a ‘‘floating
signifier,’’ capable of being filled by the groups that claim it. Certainly this signifier
exercises a gravity (force) of its own, but as a nominal unity the people cannot ground
the sovereign unity as it does in the Hobbesian paradigm. Laclau’s people is something
to be generated in counter-hegemonic struggle rather than something given in the con-
stituted power.

3. Virno quoting Hobbes’ De Cive, 151, in Paolo Virno, ‘‘Virtuosity and Revolution’’ available
http://www.16beavergroup.org/mtarchive/archives/000941.php, viewed on 15 December
2012. For further explorations in conceptions of the people, see Margaret Canovan, The
People (Cambridge: Polity Press, 2005).
4. Paolo Virno, A Grammar of the Multitude (New York: Semiotext(e), 2004), p. 22.
5. Ibid., p. 23.
6. Ernesto Laclau, On Populist Reason (London: Verso, 2007), p. 117.
7. Ibid., p. 118.
Wall 381

Instead of the people, Virno looks to the multitude as an organizing political concept.
Unlike the Hobbesian people’s centripetal force, the multitude operates as a centrifugal
force, pushing away from the center. It starts from that which is held in common, and
through individuation, generates a plurality of perspectives and trajectories. Reading
Spinoza, he suggests that

the multitudo indicates a plurality which persists as such in the public scene, in collective
action, in the handling of communal affairs, without converging into a One, without evaporating
within a centripetal form of motion. Multitude is the form of social and political existence for
the many, seen as being many: a permanent form, not an episodic or interstitial form.8

For Virno, this is not simply a matter of rejecting unity as totalitarian and celebrating
multiplicity in some post-modern fashion. He tells us that the multitude needs a unity,
however, the site of this unity is displaced: ‘‘this unity is no longer the State; rather it is
language, intellect, the communal faculties of the human race. The One is no longer a
promise [of a people united under the state], it is a premise [a unity given from that which
we share].’’9 Unity (now constituted as that which is held in-common) is the precondi-
tion from which the many individualize. With the multitude as the driving force behind
constituent power, it becomes a principle of political organization that leads away from
the state, away from sovereign power.
Virno and Laclau’s disagreement about the people and multitude is a useful starting
point precisely because it sets out the stakes of the question. For Laclau it is a matter of
generating new hegemonic groups operating within a political chain of equivalence,
whereas for Virno it is a question of operating on the in-common and investigating the
power of labor in a neo-liberal hegemony. In both, therefore, the determination of con-
stituent power’s subject is nothing less than the attempt to think of what is possible in the
constituent moment. Giorgio Agamben’s framing of the question of the people demon-
strates precisely this. In Means Without End, he suggests that ‘‘the people’’ is not the
simple and unitary entity that Virno and others describe. For Agamben, the people con-
tains a crucial fracture.

Any interpretation of the political meaning of the term people ought to start from the peculiar
fact that in modern European languages this term always indicates also the poor, the
underprivileged, and the excluded. The same term names the constitutive political subject as
well as the class that is excluded – de facto, if not de jure – from politics.10

The people is not simply a monological concept. It entails a constitutive rupture between
the denigration of ‘‘the common people’’ and legitimation of the sovereign order. For
Agamben, these two senses of the people entail

8. Virno, A Grammar of the Multitude, p. 22.

9. Ibid., p. 25.
10. Giorgio Agamben, Means Without End (Minneapolis, MN: University of Minnesota Press,
2000), p. 29.
382 Law, Culture and the Humanities 11(3)

a dialectical oscillation between two opposite poles: on the one hand, the People as a whole and
as an integral body politic and, on the other hand, the people as a subset and as a fragmentary
multiplicity of needy and excluded bodies; on the one hand, an inclusive concept that pretends
to be without remainder while, on the other hand, an exclusive concept known to afford no
hope; at one pole, the total state of the sovereign and integrated citizens and, at the other pole,
banishment … of the wretched, the oppressed, and the vanquished.11

The oscillation between the people of sovereignty and the common people corresponds
to Agamben’s rendering of biopolitics.12 The work of sovereignty, then, is to eliminate
bare life by generating a people without biopolitical fracture – that is a people that does
not include within it a fundamental exclusion, an impossible communion.13
This fractured people ultimately leads to Agamben’s dismissal of the thought of con-
stituent power, as we will see in the next section. However, there are others who make a
similar move of differencing the people from itself, without ultimately dismissing the
moment of constituent rupture. Jacques Rancière identifies the people as the subject of
politics, but politics itself is given a very different meaning. It ‘‘is not a matter of ties
between individuals or of relationships between individuals and the community. Politics
arises from a count of community ‘parts’, which is always a false count, a double count,
or a miscount.’’14 In Rancière’s analysis, the question of ‘‘who counts’’ and ‘‘who is
counted’’ is constitutive of the established order. However, every count (qua claim to
totality), by its nature will constitute an exclusion. Yet the counting itself is not politics,
but rather a ‘‘police order.’’ Politics occurs when those who have been excluded rupture
the given order. Rancière’s is not a liberal paean to ‘‘inclusion,’’ it is not a plea for the
poor to be ‘‘considered’’ in policy making. Politics is not the everyday intrigues of
Westminster or Washington. Rather, it is an occurrence that takes place when the excluded
come forth and interrupt their exclusion by asserting their equality. ‘‘Politics exists when
the natural order of domination is interrupted by the institution of a part of those who
have no part.’’15

11. Ibid., p. 31.

12. This is not the place to stage a further discussion of this. See: Giorgio Agamben, Homo
Sacer, Leyland De La Durantaye, Giorgio Agamben (Stanford, CA: Stanford University
Press, 2009); Catherine Mills, The Philosophy of Agamben (Acumen Publishing, Durham,
UK: 2008); Thanos Zartaloudis, Giorgio Agamben: Power, Law and the Uses of Criticism
(Abingdon: Routledge, 2011).
13. Agamben continues this discussion in State of Exception (Chicago, IL: University of Chicago
Press, 2005) and Homo Sacer. For other versions of this biopolitics of the people, see Eric L.
Santner’s The Royal Remains (Chicago, IL: University of Chicago Press, 2011), or chapter
5 of Roberto Esposito’s Bíos: Biopolitics and Philosophy (Minneapolis, MN: University of
Minnesota Press, 2008). For a discussion of the ‘‘thanatopolitical’’ nature of this attempt to
purify bios see Timothy Campbell’s excellent Improper Life: Technology and Biopolitics from
Heidegger to Agamben (Minneapolis, MN: University of Minnesota Press, 2012).
14. Jacques Rancière, Disagreement: Politics and Philosophy (Minneapolis, MN: University of
Minnesota Press, 2004), p. 6.
15. Ibid., p. 11.
Wall 383

For Rancière the people is precisely not all-subjects-under-the-sovereign, it is the part

of the populace that finds no part in the everyday order. The people is thus the name of a
truly political subject that emerges occasionally. It is the remainder left over after the
fundamental exclusion, and politics occurs when the excluded part comes forth and
claims its title (the people). This exclusion can be associated with the question of pov-
erty. The poor ‘‘are simply the constitutive wrong or torsion of politics as such. The party
of the poor embodies nothing other than the politics itself as setting-up of a part of those
who have no part.’’16 In the nineteenth century, Rancière explains, this conflict between
the rich and the poor took on a familiar and direct visage: elites and the unwashed masses,
experts and ignorant fools. However, today it becomes far more subtle. In managerial or
biopolitical society, ‘‘there are only parts of society – social majorities and minorities,
socioprofessional categories, interest groups, communities, and so on. There are only
parts that must be converted into partners.’’17 This conversion of everyone that is rele-
vant into partners hides the fundamental exclusion: Certain discourses, demands and
subject-positions are rendered already irrelevant. The position of the poor is rendered
only through the language of welfare and intervention, the market and labor (in the sense
of alienation rather than organization), and order and the police. This generates popula-
tions that do not fit the specific logics of these interventions. These populations, for
Rancière, are counted only by way of not finding a place in the sensible and ‘‘rational’’
political sphere. Thus, Rancière insists in his fifth thesis on politics:

The ‘‘people’’ that is the subject of democracy – and thus the principal subject of politics – is
not the collection of members in a community, or the laboring classes of the population. It is the
supplementary part, in relation to any counting of parts of the population that makes it possible
to identify ‘‘the part of those who have no-part’’ with the whole of the community.18

The people are an-archic, in the sense that they exist ‘‘only as a rupture of the logic of
arche [origin], a rupture of the logic of beginning/ruling.’’19 Rancière emphasizes that
this is a structural difference, the people as supplement (the part of no part) are precisely
not just another part of society. Rather their supplementary character means that all new
claims to political totality simply reproduce a new supplement.20
Crucial to each of these critical responses to the question of the subject of constituent
power, is an attempt to escape the limitation of a unitary subject, whose presence and
meaning could be guaranteed. In other words, each of these thinkers seeks to escape the
liberal concept of the people as given in the rule of law, the republican conception as a

16. Ibid., p. 14: Rancière continues: ‘‘Symetrically, the party of the rich embodies nothing other
than the antipolitical. From Athens in the fifth century B.C. up until our own governments, the
party of the rich has only ever said one thing, which is most precisely the negation of politics:
there is no part for those who have no part.’’
17. Ibid., p. 14.
18. Jacques Rancière, ‘‘Ten Theses on Politics,’’ Theory & Event 5(3) (2001).
19. Ibid.
20. See Simon Critchley, Infinitely Demanding (London: Verso, 2007), pp. 128–9, or Michael
Dillon, ‘‘(De)void of Politics: A Response to Jacques Rancière’s Ten Theses on Politics,’’
Theory and Event 6(4) (2003).
384 Law, Culture and the Humanities 11(3)

founding presence, and the traditional communist attempt to lead the proletariat through
the party. When unity is presented, it never binds the people (or multitude) together in a
manner that might be policed. This eschewal is an attempt to escape the figuring of a
unity that could be co-opted as an origin story for a constituted order. Aside from this
refusal, each philosopher works towards his own unworked and multiple collective. But
these collectives of revolt operate on different levels: for Negri and Virno the multitude
is a social being-against, for Laclau the people is a political chain of equivalence within
the symbollic, with Agamben we find an ontological or onto-theological coming com-
munity,21 and for Rancière the people is a political operation of an aesthetic rupture.
Rather than try to choose between these ‘‘models’’ or even synthesize their incommen-
surable structures, I suggest that we think about both their historical and strategic signifi-
cance. To do this, we might turn to the nature of the power itself, and stage a three-way
debate between Negri, Agamben and Dussel.

III. Constituent Potentia or Potestas

In romance languages there are two terms for power: in Latin potentia and potestas: in
Italian potenza and potere; in French puissance and pouvoir, in Spanish potencia and
poder. In English these are usually simply translated as ‘‘power,’’ but we might begin
distinguishing them as ‘‘power-to’’ or potentiality and ‘‘power-over.’’ For Antonio Negri,
this distinction is crucial as it allows him to differentiate, on a fundamental level, between
constituent and constituted power. The nature of the power that they exercise is of differ-
ent orders he insists. Potentia is the power of the constituent moment. It ‘‘is a radically
democratic force that resides in the desire of the multitude and is aimed at revolutioniz-
ing the status quo through social and political change.’’ It is ‘‘the force that produces (but
cannot be contained within) power and its institutions,’’22 and it is ultimately of a radi-
cally different order to the power of the constituted order (potestas). Potestas ‘‘refers to
the power shaped by and into existing State and political institutions.’’23 Where state and
empire hold the power-over their subjects, the multitude are a creative and productive
grouping whose power is not captured in the constituted order. Sovereignty is a ‘‘tran-
scendental apparatus’’ which renders constituted power absolute and transcendent.24 In
other words, Negri insists that these two ideas of power are of utterly different orders.
Where potentia is creative, immanent, multi-directional and open to new modes of
being-in-time, potestas is parasitic, transcendent, disciplining and closed.
Perhaps the best way to trace the difference is to look at the different temporality that
Negri suggests is to be found in potentia. At its crudest, in Insurgencies, Negri argues:

21. G. Agamben, The Coming Community (Minneapolis, MN: University of Minnesota Press,
1993).
22. Maurizia Boscagli, (Translator) in Negri, A., Insurgencies (Minneapolis, MN: University of
Minnesota Press, 1999), pp. 1, 337.
23. Ibid.
24. Kevin Attell, ‘‘Potentiality, Actuality, Constituent Power,’’ Diacritics 39(3) (2009), 45.
Wall 385

Constitutionalism’s claim of regulating constituent power juridically is nonsense not only

because it wants to divide this power but also because it seeks to block its constitutive
temporality. Constitutionalism is a juridical doctrine that knows only the past: it is continually
referring to time past, to consolidated strengths and to their inertia, to the tamed spirit. In
contrast, constituent power always refers to the future.25

Potentia is future-oriented and potestas is past-oriented. But such a crude distinction

appears at the outset to be less than helpful as Negri’s is a much more complex temporal-
ity. While it may be that constitutionalism, as a question of authority of the constitution,
is oriented towards the past,26 Negri is certainly not saying that constituted power is so
simple. For instance, it is marked by what Hardt and Negri call biopolitical production.27
However, it is the temporality of constituent power that is more interesting for us here.
In Insurgencies Negri uses Machiavelli to frame the temporality of constituent power.
In the traditional telling, Machiavelli is a base and ruthless realist who instrumentalizes
political power, orienting it towards the conservation of the constituted order. This view
sees the prince as an immoral, cunning and violent person who must stabilize his power
and repress his subjects implicitly. For Negri, however, Machiavelli is the writer of con-
stituent power who reveals the temporality at the heart of the question.28 The prince is
constituent power, in that he is the figure of creation within the political who does not
seek settlement or fundament. As such the manner in which the prince operates (qua
time), reveals much of the flux of the constituent moment. He refuses to predetermine or
render teleological the production of time, precisely because there is no constitution that
he is in search of. Machiavelli is

not the theoretician of a constituent power that wants a constitution – he is a theoretician of the
absence of all the conditions of a principle and a democracy; and it is from this absence, from
this void, that Machiavelli, literally, wrenches away the desire for a subject and constitutes it
into a program.29

The temporality that Machiavelli reveals is an unclosable openness: ‘‘The prince’s

strength [potenza] organizes … the logic of time – but it does so without reaching any
conclusion.’’30 In other words, constituent power has an open sense of temporality. There
is no closure of the constituent moment. ‘‘Constituent power never materializes except
in instances: vortex, insurrection, prince. Machiavelli’s historical materialism never

25. Negri, Insurgencies, p. 11.

26. See, for instance Hannah Arendt, ‘‘On Authority’’ in Between Past and Future (London:
Penguin, 2006).
27. See chapter 1.2 in Michael Hardt and Antonio Negri, Empire (Cambridge, MA: Harvard
University Press, 2001).
28. What others see as quintessential Machiavellianism, Negri understands as temporalization.
‘‘The temporal game, on its surface, is made of exemplary fraud, deceit, and violence but
actually consists of slowdowns or accelerations of time, or long silences, sinister waitings,
savage assaults, fierce surprises, and a frenzy of action.’’ (Negri, Insurgencies, p. 42).
29. Ibid., p. 97.
30. Ibid., p. 56.
386 Law, Culture and the Humanities 11(3)

becomes, to use modern terms, dialectical materialism. It finds moments of neither syn-
thesis nor subsumption. But it is precisely this rupture that is constitutive.’’31 Negri
rejects the idea that the constitution is the culmination and truth of the constituent
moment. There is no dialectic of constitution-revolution-constitution at play. Rather con-
stituent power entails a slowing and pausing of time, as well as a speeding up and accel-
erating of events. It is an attempt to operate upon time from within time in a manner
which creates.32
While Negri is useful in his introduction of the distinction between potentia with its
open temporality, and potestas with its tendency to close down and suckle from the cre-
ativity of the constituent moment, the dichotomy at times remains stark and pre-emptory.
In the Homo Sacer series, Agamben suggests that there is nothing in his idea of constitu-
ent power which allows us to escape sovereignty. He argues that the term constituent
power, and the thinking that goes with it, has ‘‘to be abandoned or, at least, thought all
over again.’’33 Addressing himself to Negri’s use of the term, Agamben insists that any
notion of constituent power is ultimately tied to sovereignty by way of the ‘‘ban’’ struc-
ture – that is, it is included by way of its exclusion.34 Thus, while Negri insists that con-
stituent power is of a different order to the constituted power, Agamben suggests that
Sovereignty can transcend this distinction. The people as subject of constituent power is
also subjected to the constitution. For Agamben, this means that there is nothing in the
people that allows us to think beyond sovereign power. Sovereignty consumes the com-
mon people’s power, by transposing it into a power to constitute sovereignty differently.
He rejects both the sense of the people as constitutive of sovereign power and the under-
standing of the multitude as constitutive of a different constituent power. The problem
for Agamben is that sovereign power contains within itself both the constituted power of
the state, but also the constituent power of the people. This is the case because the peo-
ple’s power is used to generate and authorize the sovereign’s power. As such, Agamben
insists that constituent power as it is currently thought does not hold the potential of
escaping the trap of sovereignty.
This power to transcend apparent opposite powers is crucial to Agamben’s thought of
sovereignty. However, it presents a difficulty for him when it comes to understanding

31. Ibid., p. 89.

32. Ibid., p. 61.
33. Agamben, Means Without End, p. 112.
34. Few have explained the ‘‘ban’’ with greater clarity than Jess Whyte: ‘‘Agamben uses the term
‘ban’, borrowed from Jean-Luc Nancy, to signify the exposure through which life is at once
excluded from the political community and captured in the realm of sovereign power . . . Nancy
highlights the double meaning of the term ‘ban’ – the one who is banned is both abandoned, or
banished, and held in a ban. The one who is banned is ‘therefore not simply set outside the law
and made indifferent to it but is rather abandoned by it, that is, exposed and threatened on the
threshold in which life and law, outside and inside become indistinguishable’. This ability to
hold life in a ban by abandoning it is, for Agamben, the originary political relation. Agamben
uses the term ‘inclusive exclusion’ to define this limit relation, in which people are included in
the political community purely by virtue of their exclusion – an exclusion which leaves them
utterly exposed to sovereign violence.’’ Jess Whyte, ‘‘Particular Rights and Absolute Wrongs:
Giorgio Agamben on Life and Politics’’ Law and Critique, 20 (2009), 152.
Wall 387

resistance in our time. At the heart of the matter lies Agamben’s fidelity to Heidegger’s
critique of the will. Constituent power too often seems to place the willing subject as the
point around which the constituent moment is generated. The constituent moment ulti-
mately represents an ‘‘operative’’ potential, that is the possibility of a community consti-
tuting itself around its will to constitute. For Agamben, the question is of escaping such
a conception of potential.35 Throughout his writing, he searches for a different ‘‘inopera-
tive’’ conception of politics, a manner of disrupting the turn to the juridical. In his won-
derfully careful study of the argument between Negri and Agamben, Kevin Attell
identifies the differing understandings of potentia.36 Agamben’s conception of potential-
ity (as prioritizing the potentiality not-to be or do),37 which is loosely Heideggerian, radi-
cally differs from Negri’s understanding which stems from his reading of Spinoza. The
difference Attell suggests might be reduced to the question of whether Negri’s ever-
productive constituent power would be ‘‘free not to work?’’38 Constituent power is ulti-
mately the principle of production which subsists in the multitude, it is ‘‘living labor.’’
Attell’s question of whether it could ‘‘rest or pause’’ underlines Agamben’s ‘‘potentiality
critique’’ with a deftness. He says: ‘‘if and when … [living labor and by extension con-
stituent power] does [rest or pause], in that interval between working and not working,
what is the status of the being who equally can and can not?’’39
There is much more to be said about this debate, but rather than rehearsing the problem
of potentiality in Negri and Agamben, which has been extensively studied,40 I want to
shift focus to examine the work of Enrique Dussel. In particular, I will contrast his view
of potentia which presents a very different approach. On a biographical level, Agamben
and Negri’s views on power may be located against the backdrop of the radical left in
Italy. It is hard to imagine a starker contrast than with the history of Latin American

35. See Giorgio Agamben, Potentialities: Collected Essays in Philosophy (Stanford, CA: Stanford
University Press, 2000).
36. Attell, ‘‘Potentiality, Actuality, Constituent Power,’’ 35.
37. Agamben’s take on potentiality comes from his reading of book Theta of Aristotle’s
Metaphysics. He argues that potentiality remains potential only for as long as it may or may
not be. Aristotle says: ‘‘what is potential can both be and not be, for the same is potential
both to be and not to be (to ara dynaton einai endekhetai kai einai kai me einai)’’ (Agamben,
Potentialities, p. 16, citing Aristotle’s Metaphysics (1050 b 10)). As Hamacher and Wellbery
argue: ‘‘Unlike mere possibilities, which can be considered from a purely logical standpoint,
potentialities or capacities present themselves above all as things that exist but that, at the
same time, do not exist as actual things; they are present, yet they do not appear in the form
of present things. What is at issue in the concept of potentiality is nothing less than a mode
of existence that is irreducible to actuality.’’ (Werner Hamacher and David E. Wellbery,
‘‘Editor’s Introduction,’’ in Agamben, Potentialities, p. 11).
38. Attell, ‘‘Potentiality, Actuality, Constituent Power,’’ 49.
39. Ibid.
40. See, Illan rua Wall, ‘‘A Different Constituent Power: Agamben and Tunisia,’’ in Costas
Douzinas, Matthew Stone, and Illan rua Wall, New Critical Legal Thinking: Law and the
Political (Abingdon: Routledge, 2012), but also see issue 5 of Contretemps (http://sydney.
edu.au/contretemps/, viewed on 23 April 2013), particularly: Brett Neilson, ‘‘Potenza Nuda?
Sovereignty, Biopolitics, Capitalism,’’ Contretemps 5 (2004), 63, Stefano Franchi, ‘‘Passive
Politics,’’ Contretemps, 5 (2004), 30; and Attell, ‘‘Potentiality, Actuality, Constituent Power.’’
388 Law, Culture and the Humanities 11(3)

radical politics and liberation theology. Such differences of situation and backdrop should
not blind us to the shared questions, and to some extent, the same texts under consider-
ation.41 Dussel provides a stark contrast to Agamben and Negri.42 This is evidenced when
he turns his attention to them in Twenty Theses on Politics. He begins by agreeing with
Negri regarding the splitting of potentia and potestas, while simultaneously insisting that
it is necessary to move beyond these terms.43 For Dussel, there is neither a pure differen-
tiation between these powers, as we find in Negri, nor is there a simple collapsing of the
two together in a zone of indistinction, that we find in Agamben. Rather, potentia flows
into potestas which seeks to free itself of its relation to potentia. When Dussel says that
we must ‘‘go beyond’’ Negri, he means that we must think about the manners in which the
constituent moment (potentia) threads through the constituted processes.
For Dussel potentia remains in being, but precisely lacks the actualization that would
give it place thereby making it a being-there (this is a more traditional reading of Aristotle’s
questioning of potentiality, than Agamben’s). Put simply, potentia is the capacity (faculty
or potentiality) of the people which is actualized in the potestas of a constituted order.
Potestas is the ‘‘noble vocation of politics’’ if and when ‘‘institutional powers … remain
attentive to the demands, desire and complaints of the community, especially the com-
munity of victims of globalization, sexism, racism, anti-Semitism, heterosexism, colo-
nialism … [etc.].’’44 However, such a constituted order may become ‘‘self-referential,’’
that is, it begins to authorize its power based on its own continued existence rather than
the underlying potentia of the people. A self-referential potestas is a constituted order that
has become enamored with its own power. Crucially, for Dussel, constituted orders tend
to produce and perpetuate such a self-referentiality. Miguel Abensour’s reading of Marx
is useful here, as it allows us to clarify Dussel’s logic.45 Abensour argues:

41. Dussel tarries with St Paul, Spinoza, Heidegger, Gramsci, Levinas and many others familiar
to Negri and Agamben. Although one would doubt the latter’s familiarity of many of those
that Dussel engages with in his colonial modernity group.
42. It has been noted that Dussel at times appears to be far more modernist than the post-structuralists
to whom he tends to make reference (for instance, see Diego von Vacano, ‘‘Review: Twenty
Theses on Politics,’’ Perspectives on Politics 8(1) (2010), 339). But while there are certainly
more traditional themes in Dussel (like political foundations), his is certainly not a conventional
modernism. This is particularly the case, given the strident critique of Eurocentric modernism
that threads throughout his oeuvre. Paradiso-Michau suggests that Dussel’s is a deconstructive
task which ‘‘transversally cuts across the modern/postmodern divide.’’ (Michael R. Paradiso-
Michau, ‘‘The Widow, the Orphan, and the Stranger: Levinasian Themes in Dussel’s Political
Theory,’’ Radical Philosophy Review 11(2) (2008), 91).
43. In a not so veiled comment on Negri, Dussel suggests: ‘‘The anarchist dreams of the lost
paradise of potentia, of undifferentiated power in-itself (in which injustice is impossible),
and the conservative adores the fixed and controlled power of potestas (and accordingly
exercises institutional power as domination).’’ (Enrique Dussel, Twenty Theses on Politics
(Duke University Press, 2008), pp. 81–2).
44. Paradiso-Michau, ‘‘The Widow, the Orphan, and the Stranger,’’ 91.
45. Miguel Abensour, Democracy Against the State: Marx and the Machiavellian Moment
(Cambridge: Polity Press, 2011).
Wall 389

[T]he State-form makes itself independent, develops its specific logic … to the point of
forgetting in its arrogance the source from which it stems – to the point of turning against the
life of the people and crushing all manifestations that do not fit into its perspective. In short
there is a structural conflict between the logic of the state on one hand and the logic of
democracy on the other.46

In this, democracy is not an organizational structure of states, but the name of a struggle
against the State-form. Dussel’s relation between potentia and potestas, however, refuses
to see the State-form itself as the problem, or perhaps sunders the arrogance of self-
referentiality from the state itself which may still be faithful to the potentia of the people.
The problem for Dussel remains that potentia is the potential of the people, to which
the state must remain faithful. However, it does not, in contradistinction to Negri, sug-
gest a ‘‘strength.’’ Thus, Dussel introduces his term hyperpotentia. Hyperpotentia is the
‘‘strength’’ of the people, although ‘‘the people’’ here should be understood through
Laclau and de Sousa Santos. The people’s potentia stems from their excluded status.
Dussel suggests that gradually, one movement recognizes other causes within their own
– Laclau’s chain of equivalence. Feminism sees the position of the female worker or the
woman of color. Indigenous movements see their position under capitalism and within
the dominant culture. In this way, gradually, the singular demands gather together, with-
out losing their singularity. ‘‘Now,’’ Dussel tells us, ‘‘we can understand that the ‘popu-
lar’ is that which is proper to the people in the strict sense (referring to the ‘social bloc of
the oppressed’) and which represents the last point of reference and regenerative reserve
of politics (hyperpotentia).’’47
It is not difficult to see the Negrean objection to such a thematization of the relation
between potentia and potestas. Dussel himself demands that Hardt and Negri do not cor-
rectly situate the people’s potentia, simply eliminating any possibility of a relation
between the multitude and constituted power.48 However, perhaps more interesting is the
insight that hyperpotentia does much of the work of the multitude’s potentia in Negri.
Hyperpotentia subsists beyond the constituted power. It remains creative and generative,
even when potestas becomes self-referential, that is, when constituted power loses sight
of its proper relation to the people – as the ‘‘social bloc of the oppressed.’’ Of course
there are as many differences as similarities here, but what appears in Dussel’s shifting
of terms is the possibility of a radical state.49
Dussel’s relation to Agamben is also fraught. He insists that we must move beyond the
totalizing biopolitical framework of bare life, the camp and the ontologized state of
exception. In particular, he plays with a contrast between the ‘‘state of exception’’ and the
‘‘state of rebellion.’’

46. Ibid., p. 93.

47. Dussel, Twenty Theses, p. 76.
48. Ibid., p. 81.
49. Interestingly, the paucity of Negri’s thought when it comes to imagining another constituted
order can be see after the Tunisian revolution of 2011, when Negri writes to a Tunisian friend
(‘‘A Letter to a Tunisian Friend,’’ (http://antonionegriinenglish.wordpress.com/2011/02/14/
negri-letter-to-a-tunisian-friend/ viewed on 23 April 2013)).
390 Law, Culture and the Humanities 11(3)

Against liberalism’s fetishism of the ‘‘government by law’’ (over and above the lives of the
excluded), Schmitt proposed the case of the ‘‘state of exception’’ to show the constituent will
that exists behind the law. Agamben continues this line of argument, and so too we hope to
develop it to its ultimate conclusion … [T]he people can suspend the ‘‘state of exception’’
through what I will call the ‘‘state of rebellion.’’ In Buenos Aires, the Argentinean people,
having been swindled by the World Bank and the International Monetary Fund … took to the
streets en masse on December 20, 2001, to oppose a decree that declared a ‘‘state of exception’’
meant to paralyze the mobilizations. Under the slogal ‘‘Que se vayan todos,’’ or ‘‘Out with them
all!’’ – in which hyperpotentia reminded potestas that it remains the last instance of power – the
government of Fernando de la Ruá was brought down. That is, the ‘‘state of rebellion’’ disarmed
the ‘‘state of exception.’’ The will of delegated auctoritas – to recall Agamben’s distinction –
ended up being annulled by a prior will: the will of the people, as hyperpotentia.50

For Agamben, presumably, this is a theory of sovereignty and so simply represents

another instance of the ontology developed in Homo Sacer. Dussel’s hyperpotentia, like
Negri’s potentia, does not escape the ban-logic of law and exception that Agamben sees
in sovereignty. However, by emphasizing the ‘‘state of rebellion’’ beyond the state of
exception, Dussel disavows the all encompassing (and thanatopolitical)51 nature of
Agamben’s paradigm. The ‘‘state of rebellion’’ (estado de rebellion) entails an indeter-
minacy between state (qua constituted power) and state (qua state or condition of being).
Where Schmitt and Agamben use this indeterminacy of ‘‘state’’ to underline the manner
in which the exception functions to destroy the liberal paradigm, Dussel’s ‘‘state of
rebellion’’ unworks the all-encompassing power of indistinction between rule of law and
state of exception. Within the exception it maintains the different strands of power
(potentia and potestas), beyond legality. Hyperpotentia as the state of rebellion is beyond
the state, but itself creates a radically new possibility of a state. Whether this is a continu-
ation of Schmitt and Agamben’s logic, as Dussel suggests, is doubtful. Yet such a quibble
does not dispute the power of such an assertion.
The danger of Agamben is that while his ‘‘ban structure’’ utterly negates the possibil-
ity of ontological purity, ultimately, by drawing everything towards sovereignty, the
state-of-exception becomes an inescapable horizon. Constituent power, as a counter-
power becomes sullied by its inescapable relation to constituted power. But in this, a
strange purity emerges – the purity of sovereignty as the capturer-of-all-things. Negri
also suffers from the problem of purity, but in a much more straightforward way. The
multitude is gathered by nothing other than its being-against empire. For Laclau, this is
a ‘‘gift from heaven’’ – a mystical category which transcends the otherwise immanent
grouping. It is precisely in the starkness of the dichotomy between empire and multitude
that Negri’s counter-power gets its purity. Dussel’s constituent power, on the other hand,
is messy. It is not always-already damned as in Agamben or always-already guaranteed
as in Negri. While potentia, potestas and hyperpotentia each hold a certain inner logic,
they constantly slip and slide. For instance, potestas may demonstrate a fidelity to the
common people or it may slide into self-referentiality. But this is not to say that Dussel

50. Dussel, Twenty Theses, p. 82.

51. Campbell, Improper Life.
Wall 391

is without problems of his own. In fact, Dussel is perhaps more problematic with his mix
of modernist liberation theology and post-structural political theory. But perhaps instead
of posing the author as sovereign, a method whereby I could pronounce the best concep-
tion of constituent power, I might instead turn to a different question: strategy.

IV. Conclusion
What unites these dissonances within the critical approaches to constituent power is
ultimately the refusal of a ‘‘closed’’ idea of the constituent moment. Put otherwise, these
views ultimately deny any sense in which constituent power could be pre-structured, pre-
determined. Constituent power, in each view (except perhaps Agamben’s) is radically
open, creative and fluid. Each (anti-)philosopher refuses the closure of the constituent
power in a constituted order, whether this is the self-referential state, the State-form or
sovereignty itself. They ultimately see different constituencies, terrains, and modes of
being in the constituent moment. In a sense there is an incommensurability between each
of the theorizations, although we can see loose alignments. Virno and Negri are perhaps
theoretically the closest, unlike the others, to a large extent they share a common project
born from a reading of Spinoza with Marx, and the shared background in the Italian
autonomist (operaismo) movement. Laclau and Dussel are more disimular in their back-
grounds, although in varying ways both of their theories were fashioned in the fires of
Latin American radical movements and the subsequent right-wing dictatorships, as well
as in relation to the so-called generation of ’68. Neither of them eschew sovereignty with
the same virulence as the others. Finally, perhaps Rancière and Agamben are the most
extreme. Where Agamben insists that constituent power is entirely consumed by an onto-
logical (at times even an ahistorical) logic of sovereignty, Rancière sees the part of no
part as a structural supplement which is bound to reappear in every new iteration of the
distribution of the sensible. For Agamben, the possibility of maintaining any differentia-
tion collapses in the ban structure, whereas Rancière sees an absolute distinction which
fleetingly reappears through time.
It is perhaps worthwhile to finish by framing these notes on an ‘‘open’’ constituent
power in a slightly different manner. Daniel Bensaïd suggested in 2007, that it was
important to turn away from ‘‘models’’ of political change and towards questions of
strategy. ‘‘Models are something to be copied; they are instructions for use. A [strategic]
hypothesis is a guide to action that starts from past experience but is open and can be
modified in the light of new experience or unexpected circumstances.’’52 In Bensaïd’s
sense, each of these theorists eschews ‘‘models.’’ However, the danger of reconstructions
such as this article is that they become ‘‘models,’’ from which you, as readers, should
choose. While it is certainly important to think about the internal coherence of each of
their approaches, to understand future moment of constituent power it is crucial that we
see them as a series of strategic hypotheses, small wagers as to future organization and
activity. Each of these wagers must then be understood temporally, in their historicity

52. Daniel Bensaïd, ‘‘The Return of Strategy,’’ International Socialism 113, February (2007).
Available at http://www.isj.org.uk/?id=287 (viewed on 11 July 2013).
392 Law, Culture and the Humanities 11(3)

and futurity. Each strategic hypothesis is open to the coming to presence of being, open
to the radical openness of the future, but also given in a (local) field of the possible, i.e.
constructed historically. Negri’s insistence upon the multitude or Dussel’s radical state
then become invitations to think about the possibilities of constituent power in Ecuador
or Italy, Ireland or Turkey. The entire idea of these disparate ‘‘notes’’ then, is to provoke
reflection upon a series of ‘‘strategic hypotheses’’ rather than to provide a synthesized
‘‘model’’ of what is to be done.

Acknowledgements
I would like to thank Carolina Olarte, Ricardo Sanín, Stacy Douglas, Ben Golder and Bríd Spillane
who read early drafts of this article. Any errors are, of course, my own.