On Global Constitutionalism's Philosophical and Biopolitical Significance: The Case of Implied Legal Principles and Rules
(2017) 26 Tulane J. Int'l & Comp Law (Forthcoming)
51 Pages Posted: 9 Oct 2017
Date Written: October 4, 2017
Global constitutionalism is a scholarly agenda characterized by a positive and normative component—the former taking the form of positive inquiry, the latter of normative thinking. Delving into this double-feature essence, this article argues that global constitutionalism has a philosophical and bio-political significance that escapes the rationalist purview of positive analysis. For the very same reason, however, an engagement with this ‘surplus’ might benefit its normative potential. The article shows this by drawing from the view which understands phenomenology as the negative (i.e., normative and non-positive) analytical method of philosophy conceived as ontology. More particularly, it shows that globalist discourse’s philosophical and bio-political significance can be grasped through a post-national phenomenology of authority and sovereignty’s supra-logical negativity centered around the functioning of implied (i.e., negative and non-posited) legal principles and rules on the global and transnational scale. Using global constitutionalism’s ‘domestic analogy’ against itself, it sets out the conditions under which the operativity of such provisions creates a post-national ‘space’ in which the modern secularization of naked/bare life and political/public existence that Giorgio Agamben assigns to the negativity of the modern nation-state’s constituting process recurs.
Keywords: Global Constitutionalism; Giorgio Agamben; Implied Legal Principles and Rules
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