3
Potentiality and Law
3.1. Perhaps nowhere else does the paradox of sovereignty show itself so
fully as in the problem of constituting power and its relation to con-
stituted power. Both theory and positive legislation have always encountered dif-
ficulties in formulating and maintaining this distinction in all its weight. “The
reason for this,” a recent treatise of political science reads,
is that if one really means to give the distinction between constituting power
and constituted power its true meaning, it is necessary to place contituting and
constituted powers on two different levels. Constituted powers exist only in the
State: inseparable from a preestablished constitutional order, they need the State
frame, whose reality they manifest. Constituting power, on the other hand, is
situated outside the State; it owes nothing to the State, it exists without it, it is the spring whose current no use can ever exhaust. (Burdeau, Traité, p. 173)
Hence the impossibility of harmoniously constructing the relation between
the two powers—an impossibility that emerges in particular not only when one
attempts to understand the juridical nature of dictatorship and of the state of
exception, but also when the text of constitutions themselves foresees, as it often
does, the power of revision. Today, in the context of the general tendency to
regulate everything by means of rules, fewer and fewer are willing to claim that
constituting power is originary and irreducible, that it cannot be conditioned
and constrained in any way by a determinate legal system and that it necessarily
maintains itself outside every constituted power. The power from which the
constitution is born is increasingly dismissed as a prejudice or a merely factual
matter, and constituting power is more and more frequently reduced to the
power of revision foreseen in the constitution.
As early as the end of the First World War, Benjamin criticized this tendency
with words that have lost none of their currency. He presented the relation be-
tween constituting power and constituted power as the relation between the
violence that posits law and the violence that preserves it:
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HOMO SACER
37
If the awareness of the latent presence of violence in a legal institution disappears,
the juridical institution decays. An example of this is provided today by the par-
liaments. They present such a well-known, sad spectacle because they have not
remained aware of the revolutionary forces to which they owe their existence.
. . . They lack a sense of the creative violence of law that is represented in them.
One need not then be surprised that they do not arrive at decisions worthy of
this violence, but instead oversee a course of political affairs that avoids violence
through compromise. (Benjamin, “Zur Kritik der Gewalt,” p. 144)
But the other position (that of the democratico-revolutionary tradition), which
wants to maintain constituting power in its sovereign transcendence with respect
to every constituted order, threatens to remain just as imprisoned within the par-
adox that we have tried to describe until now. For if constituting power is, as the
violence that posits law, certainly more noble than the violence that preserves it,
constituting power still possesses no title that might legitimate something other
than law-preserving violence and even maintains an ambiguous and ineradicable
relation with constituted power.
From this perspective, Emmanuel-Joseph Sieyès’s famous statement, “The
constitution first of all presupposes a constituting power,” is not, as has been
claimed, a simple truism: it must rather be understood in the sense that the
constitution presupposes itself as constituting power and, in this form, expresses the paradox of sovereignty in the most telling way. Just as sovereign power presupposes itself as the state of nature, which is thus maintained in a relation of
ban with the state of law, so the sovereign power divides itself into constituting
power and constituted power and maintains itself in relation to both, position-
ing itself at their point of indistinction. Sieyès himself was so conscious of this
implication as to place constituting power (identified in the “nation”) in a state
of nature outside the social tie: “One must think of the nations of the earth,” he
writes, “as individuals, outside the social tie . . . in the state of nature” (Sieyès,
Qu’est ce que le Tiers État? , p. 83).
3.2. Hannah Arendt, who cites this line in On Revolution, describes how sovereignty was demanded in the course of the French Revolution in the form of an
absolute principle capable of founding the legislative act of constituting power.
And she shows well how this demand (which is also present in Robespierre’s idea
of a Supreme Being) ultimately winds up in a vicious circle:
What he [Robespierre] needed was by no means just a “Supreme Being”—a term
which was not his—he needed rather what he himself called an “Immortal Leg-
islator” and what, in a different context, he also named a “continuous appeal to
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HOMO SACER I
Justice.” In terms of the French Revolution, he needed an ever-present transcen-
dent source of authority that could not be identified with the general will of either
the nation or the Revolution itself, so that an absolute Sovereignty—Blackstone’s
“despotic power”—might bestow sovereignty upon the nation, that an absolute
Immortality might guarantee, if not immortality, then at least some permanence
and stability to the republic. (Arendt, On Revolution, p. 185)
Here the basic problem is not so much how to conceive a constituting
power that does not exhaust itself in a constituted power (which is not easy,
but still theoretically resolvable), as how clearly to differentiate constituting
from constituted power, which is surely a more difficult problem. Attempts to
think the preservation of constituting power are certainly not lacking in our
age, and they have become familiar to us through the Trotskyite notion of a
“permanent revolution” and the Maoist concept of “uninterrupted revolution.”
Even the power of councils (which there is no reason not to think of as stable,
even if de facto constituted revolutionary powers have done everything in their
power to eliminate them) can, from this perspective, be considered as a survival
of constituting power within constituted power. But the two great destroyers of
spontaneous councils in our time—the Leninist party and the Nazi party—also
present themselves, in a certain sense, as the preservers of a constituting mo-
ment [ istanza] alongside constituted power. It is in this light that we ought to consider the characteristic “dual” structure of the great totalitarian states of our
century (the Soviet Union and Nazi Germany), which has made things so dif-
ficult for historians of public law. The structure by which the State party tends
to appear as a duplicate of the State structure can then be considered as a par-
adoxical and interesting technico-juridical solu tion to the problem of how to
maintain constituting power. Yet it is just as certain that in both of these cases,
constituting power e
ither appears as the expression of a sovereign power or does
not let itself easily be separated from sovereign power. The analogy between the
Soviet Union and the Nazi Reich is even more compelling insofar as in both
cases, the question “Where?” is the essential one once neither the constituting
power nor the sovereign can be situated wholly inside or altogether outside the
constituted order.
א Schmitt considers constituting power as a “political will” capable of “making the
concrete, fundamental decision on the nature and form of one’s own political existence.”
As such, constituting power stands “before and above every constitutional legislative
procedure” and is irreducible to the level of juridical rules as well as theoretically distinct from sovereign power ( Verfassungslehre, pp. 75–76). But if constituting power is identified
HOMO SACER
39
with the constituting will of the people or the nation, as already happens (according to
Schmitt) with Sieyès, then the criterion that makes it possible to distinguish constituting power from popular or national sovereignty becomes unclear, and the constituting subject
and the sovereign subject begin to become indistinguishable. Schmitt criticizes the liberal attempt to “contain and delimit the use of state power by means of written laws,” and
he affirms the sovereignty of the constitution or the fundamental charte: the instances competent for the revision of the constitution “do not, following this competence, become either sovereign or titular of a constituting power” (ibid., pp. 107–8). From this
perspective, both constituting power and sovereign power exceed the level of the juridical rule (even of the fundamental juridical rule), but the symmetry of this excess attests to a proximity that fades away into indistinction.
In a recent book, Antonio Negri has undertaken to show the irreducibility of consti-
tuting power (defined as “the praxis of a constituting act, renewed in freedom, organized
in the continuity of a free praxis”) to every form of constituted order, and, at the same
time, to deny that constituting power is reducible to the principle of sovereignty. “The
truth of constituting power,” he writes,
is not the one that can (in any way whatsoever) be attributed to the concept of
sovereignty. This is not the truth of constituting power not only because consti-
tuting power is not (as is obvious) an emanation of constituted power, but also
because constituting power is not the institution of constituted power: it is the act
of choice, the punctual determination that opens a horizon, the radical enacting
of something that did not exist before and whose conditions of existence stipulate
that the creative act cannot lose its characteristics in creating. When constituting
power sets the constituting process in motion, every determination is free and
remains free. Sovereignty, on the other hand, arises as the establishment—and
therefore as the end—of constituting power, as the consumption of the freedom
brought by constituting power. (Negri, Il potere costituente, p. 31)
The problem of the difference between constituting power and sovereign power is,
certainly, essential. Yet the fact that constituting power neither derives from the con-
stituted order nor limits itself to instituting it—being, rather, free praxis—still says
nothing as to constituting power’s alterity with respect to sovereign power. If our
analysis of the original ban-structure of sovereignty is exact, these attributes do indeed belong to sovereign power, and Negri cannot find any criterion, in his wide analysis of
the historical phenomenology of constituting power, by which to isolate constituting
power from sovereign power.
The strength of Negri’s book lies instead in the final perspective it opens insofar
as it shows how constituting power, when conceived in all its radicality, ceases to be
a strictly political concept and necessarily presents itself as a category of ontology.
The problem of constituting power then becomes the problem of the “constitution of
potentiality” ( II potere costituente, p. 383), and the unresolved dialectic between consti-
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HOMO SACER I
tuting power and constituted power opens the way for a new articulation of the relation
between potentiality and actuality, which requires nothing less than a rethinking of
the ontological categories of modality in their totality. The problem is therefore moved
from political philosophy to first philosophy (or, if one likes, politics is returned to
its ontological position). Only an entirely new conjunction of possibility and reality,
contingency and necessity, and the other pathē tou ontos, will make it possible to cut the knot that binds sovereignty to constituting power. And only if it is possible to
think the relation between potentiality and actuality differently—and even to think
beyond this relation—will it be possible to think a constituting power wholly released
from the sovereign ban. Until a new and coherent ontology of potentiality (beyond
the steps that have been made in this direction by Spinoza, Schelling, Nietzsche, and
Heidegger) has replaced the ontology founded on the primacy of actuality and its re-
lation to potentiality, a political theory freed from the aporias of sovereignty remains
unthinkable.
3.3. The relation between constituting power and constituted power is just
as complicated as the relation Aristotle establishes between potentiality and
act, dynamis and energeia; and, in the last analysis, the relation between constituting and constituted power (perhaps like every authentic understanding of
the problem of sovereignty) depends on how one thinks the existence and au-
tonomy of potentiality. According to Aristotle’s thought, potentiality precedes
actuality and conditions it, but also seems to remain essentially subordinate
to it. Against the Megarians, who (like those politicians today who want to
reduce all constituting power to constituted power) affirm that potentiality
exists only in act ( energē monon dynasthai), Aristotle always takes great care to affirm the autonomous existence of potentiality—the fact that the kithara
player keeps his ability [ potenza] to play even when he does not play, and that the architect keeps his ability [ potenza] to build even when he does not build.
What Aristotle undertakes to consider in Book Theta of the Metaphysics is,
in other words, not potentiality as a merely logical possibility but rather the
effective modes of potentiality’s existence. This is why, if potentiality is to have
its own consistency and not always disappear immediately into actuality, it is
necessary that potentiality be able not to pass over into actuality, that poten-
tiality constitutively be the potentiality not to (do or be), or, as Aristotle says, that potentiality be also im-potentiality ( adynamia) . Aristotle decisively states this principle—which, in a certain sense, is the cardinal point on which his
entire theory of dynamis turns—in a lapidary formula: “Every potentiality is
impotentiality of the same and with respect to the same” ( tou autou kai kata
to auto pasa dynamis adynamiai) ( Metaphysics, 1046a, 32). Or, even more ex-
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41
plicitly: “What is potential can both be and not be. For the same is potential
as much with respect to being as to not being” ( to dynaton endekhetai kai einai
kai mē einai) (1050b, 10).
The potentiality that exists is precisely the potentiality that can not pass over
into actuality (this is why Avicenna, faithful to the Aristotelian intention, calls
it “the perfect potentiality’’ and chooses as its example the figure of the scribe
in the moment in which he does not write). This potentiality maintains itself in
relation to actuality in the form of its suspension; it is capable of the act in not realizing it, it is sovereignly capable of its own im-potentiality [ impotenza] . But how, from this perspective, to think the passage into actuality? If every potentiality (to be or do) is also originarily the potentiality not to (be or do), how will
it be possible for an act to be realized?
Aristotle’s answer is contained in a definition that constitutes one of the
most acute testimonies to his genius and that has for this very reason often been
misunderstood: “A thing is said to be potential if, when the act of which it is
said to be potential is realized, there will be nothing im-potential (that is, there
will be nothing able not to be)” ( Metaphysics, 1047a, 24–26). The last three words of the definition ( ouden estai adynaton) do not mean, as the usual and completely trivializing reading maintains, “there will be nothing impossible”
(that is, what is not impossible is possible). They specify, rather, the condition
into which potentiality—which can both be and not be—can realize itself.
What is potential can pass over into actuality only at the point at which it sets
aside its own potential not to be (its adynamia) . To set im-potentiality aside is not to destroy it but, on the contrary, to fulfill it, to turn potentiality back
upon itself in order to give itself to itself. In a passage of De anima, Aristotle expresses the nature of perfect potentiality perhaps most fully, and he describes
the passage to actuality (in the case of the technai and human skills, which also stands at the center of Book Theta of the Metaphysics) not as an alteration or destruction of potentiality in actuality but as a preservation and “giving of the
self to itself ” of potentiality:
To suffer is not a simple term, but is in one sense a certain destruction through
the opposite principle and, in another sense, the preservation [ sōtēria, salvation]
The Omnibus Homo Sacer Page 6
