As for the legitimacy: once again, this is a relative term - Canada is legitimate relative to Canadians and America is legitimate relative to Americans. Canadians cannot make laws for Americans and vice versa.

In terms of the whole Agamben/Schmitt etc. situation I’ve come to them fairly recently and am of the opinion that they have to be put within a more systematic framework. Like, for instance, the concept of Homo Sacer, which I find useful, but I reckon misses the point as to the way in which legal subjects are not just posited through the negation of the ‘other’ but also through dispute with other legal subjects, where they recognise themselves as such. This in turn leads to the linkage between the legal form and the commodity form , which has formed the bedrock for most Marxist jurisprudence.

I attempt to do that here and here.

If you want to know what law without a state would look like just think about international law. Although one might argue that the UN is a state, this is spurious because:

1. International Law has been around longer than the UN or the League of Nations;
2. The UN has no proper monopoly on legitimate violence

What you get here therefore is a series of subjects with a violent lawmaking capacity who are locked in dispute. This resembles how law historically arose, as a subject of dispute rather than a series of ‘rules’. Furthermore, whilst sovereignty may be producesd it is a diffuse, contingent sovereignty which resides within specifc legal actors, and as such ust be constrasted with the unitary model one sees in the state.

To be fair I am actually quite fond of Agamben and Schmitt’s explanations and mostly think of them as being fairly accurate. But I suppose what is particularly interesting is that if they acknowledge a state can differentiate it’s own action as that which is ‘legal’ and that which exists in a legal vacuum they are crying out for an explanation as to th e specifity of the legal form as against other state action.

I’d also say that law is able to be used against the sovereign insofar as its contestible. As a fan of Schmitt [in whatever way shape of form] you should know that he essentially characterises the law as an empty form through which politics are able to be articulated [decisionism]. As Marxists we know that whenever this sort of thing happens it is foolish to just say that this is only going to be decided by the sovereign power [or capital etc.], as we prioritise class struggle as important. Now the impact of class struggle upon decisions is heavily curtailed by a number of factors, but it is there. I mean an examination of the way in which judicial review is used to curtail state action shows that law can at least sometimes be used against the sovereign [and one could consider Marx’s classic comments on the lenghth of the working day].

Anyway these are some fragmentary thoughts on something that has essentially been consuming me for two years.

Thanks for your comments.

Fair enough re: the equation of law and state. Some questions, if you please -

When you say a juridical order doesn’t necessarily presuppose a sovereign power in a unitary way, do you mean it presuppose on in a non-unitary way? (And if so, what’s that mean?) Or do you mean that it’s not required to make this presupposition?

If the latter, which I assume is what you’re saying but I want to make sure, can you explain or point me toward a (short-ish, preferably online) resouce that would explain? What would law sans state look like? I’ve never thought about these things this way. One thing this would entail is a production of law(s) that doesn’t also produce sovereignty. I’m suspicious of this, but like I said I’ve not thought of this before and am willing to be swayed.

Lastly, do you think what you’re saying challenges the operation of law/sovereign in relation to the exception, as described by Schmitt/Agamben? Because it seems to me one could concede your point that there’s law sans state/sovereign, but still say that, when law and state/sovereign are articulated togething in the fashion described, the ensemble does act the way Schmitt/Agamben describes. That ensemble seems to operate such that sovereignty is above law and capable of suspending it. You seem to be saying that law is not reducible to this.

That would seem to imply a space for the use of law (or the distance between law and sovereignty or the act of separating law from sovereignty) against the sovereign. Is that right? (I don’t really know what that would look like but it’s an interesting idea.)

take care,
Nate