LAWLESS SOVEREIGNTY: CHALLENGING THE STATE OF EXCEPTION SUSAN DIANNE BROPHY York University, Canada ABSTRACT Giorgio Agamben describes the origins of sovereign power, that power which constitutes the state of exception, as a force that gains its strength in the ‘unlocalizable’ space between fact and law. Terming this space the ‘zone of indistinction’, Agamben illustrates the particular manner in which the state employs law through exception, helping to reveal the paradoxical and omnipotent qualities of sovereign power. While the implications of his analysis hold that this form of power should be confronted and challenged, Agamben does not arrive at how this may be pursued. By reading Agamben’s writings alongside selected anti-colonialist texts by Frantz Fanon and Aimé Césaire, it is possible to gain insights regarding both the dangers inherent to this type of sovereign power, and how it can be challenged. It is argued that the type of state that governs by means of exception creates the conditions that lead to its own undoing. Groups whose consent to the state’s juridical order was historically tenuous, if not altogether absent, lay claim to a distinct position that is always already external to state sovereignty and law. Challenges from this position gain force by appealing to an extra-state sovereignty that represents universalized justice rooted in lawlessness. KEY WORDS anti-colonialism; justice; law; legal studies; sovereignty; state; universality INTRODUCTION G AGAMBEN’S (1995/1998) interpretation of the state of exception points to the mystical basis of sovereign power, namely its ability to include individuals under its authority by means of a decision to abandon or exclude these same subjects. Explaining this, he writes, ‘what IORGIO SOCIAL & LEGAL STUDIES © The Author(s), 2009 Reprints and Permissions: http://www.sagepub.co.uk/journalsPermissions.nav 0964 6639, Vol. 18(2), 199–220 DOI: 10.1177/0964663909103635 200 SOCIAL & LEGAL STUDIES 18(2) defines the character of the sovereign claim is precisely that it applies to the exception in no longer applying to it, that it includes what is outside itself . . . What cannot be included in any way is included in the form of the exception’ (p. 24). The best example of this peculiar form of sovereign authority is the instance of the concentration camp, a paradigm of analysis that Agamben frequently refers to in Homo Sacer, and expands upon in Remnants of Auschwitz. In that context, sovereign power exposes its totality by visibly applying towards the absolute inclusion of individuals under its jurisdiction, but doing so only by suspending law to enact the abandonment and exclusion of the subjects in question, with obviously detrimental consequences. When studying this example of gross injustice in relation to Agamben’s notion of the state of exception, it is important to ask, what happens to the sovereign’s relationship with justice under the conditions of this exception? Furthermore, if the state of exception is a state of suspended law but not of lawlessness, can any act of dissent directed against the sovereign (in the name of justice) ever be conceived of as a challenge from truly outside the law, or is every act already included through a relation of non-law by virtue of its originary exclusion? These two questions are the focal point of the discussion that takes place in following pages of this article, which picks up where Agamben leaves off in State of Exception. Agamben (1995/1998: 20) recounts, ‘in our age, the state of exception . . . ultimately begins to become the rule. When our age tried to grant the unlocalizable a permanent and visible location, the result was the concentration camp.’ When the exception becomes the rule and liberal democracies stand on the brink of fascism, we bear witness to, borrowing from Aimé Césaire (1955/2000: 68), ‘a law of progressive dehumanization’. Borrowing from and moving beyond Agamben’s deconstructive project, the aim is to contextualize and construct an image of sovereign power, as it is enacted today to argue that sovereign power is not the exclusive domain of the nation state; rather, another form of sovereignty can be appealed to as a means of challenging the state of exception. In this article, colonialism, rather than the concentration camp, stands as a prime example of this rule of exception. References to specific anti-colonial texts by Césaire and Frantz Fanon lend greater clarity and insight on two fronts: first, in the development of an understanding of the type of sovereign power that places life secondary (or in service) to the state, and second, in contributing to the task of theorizing the type of dissent that could effectively challenge the state of exception as it represents a distinct form of sovereign power, as well as state law as a force of sovereignty in general. This notion of all-encompassing state sovereignty stands to be kept in check by an ‘always already’ externalized force, the potency of which lies not in the unlocalizability of its power, but rather in the historical instance of its universal distinctiveness. As it is argued here, only a universalized justice claim, which gains its legitimacy in reference to the localizable particular, both represents and reproduces a form of lawlessness that lends itself to the inversion and gradual destruction of not only the sovereign power that rules by permanent exception, but also any state-centered version of sovereign power that rules by making false appeals to justice.1 BROPHY: LAWLESS SOVEREIGNTY 201 To support these claims, this article is divided into three sections. The first section addresses key theoretical concerns and their terminological counterparts, focusing specifically on the details of Agamben’s ‘state of exception’ on its own, and as it can further be studied alongside the writings of Fanon insofar as they implicate questions of life and justice in relation to state law. The second section offers a sketch of what will come to be known as the ‘universalized justice claim’, the concept that stands to corrupt the state of exception from the outside by appealing to a form of sovereign power that is inimical to state, and therefore is always already outside state law. This section again borrows from Fanon, specifically his concept of the ‘global stance’, to link universality to the particular as a strategy of advancing a justice claim for the purposes of mounting a challenge against a sovereign power, as illustrated with reference to the current Six Nations’ land reclamation effort.2 To conclude, the collision between the universalized justice claim and the state of exception is analyzed, providing an opportunity to theorize how the yawning gap between law and fact, and therefore law and life, that nurtures (and is necessitated by) the state of exception can be exploited from the outside in an effort to ‘invert’ the power of the state unto itself. This is what is meant by an act of dissent, in the name of a universalized justice claim, causing an inversion of the sovereign power: the reversal of power positions towards different ends by means of exposing this fiction from the standpoint of lawlessness creates a new realm of sovereignty. This inversion is ultimately intended to rescue life from law as it is administered in the state of exception, which moves beyond Agamben’s own objective of wanting to save life and law. THE STATE OF EXCEPTION: LAW OVER LIFE AND JUSTICE To fully develop the arguments being made in this article pertaining to state authority, sovereignty, and law, it is necessary to provide a suitable terminological foundation at the outset. A brief recapitulation of the dominant trajectory in legal theory helps to focus this discussion around sovereign power as it is expressed in state law, which uncovers the manner in which justice and violence are implicated over the course of this article. In light of Weber’s (1922/1968: 314) definitive claim that ‘today legal coercion by violence is the monopoly of the state’, questions pertaining to the validity and limits of sovereign power are intimately bound to state claims of legal jurisdiction. The state’s capacity to create a sphere of applicability in which it can develop, exercise, and preserve its monopoly of violence is thus an expression of its sovereignty (Benjamin, 1921/1978). In this sense, sovereign power corresponds to the degree to which state authority is legitimated through the validating processes and functions of the juridical order. Recognizing that the legitimacy of state sovereignty depends on the production of order and obedience, the validity of any given state’s authority can therefore be measured in terms of whether or not its citizens act in accordance with a ‘general obligation to obey’ those duties bestowed upon them by the juridical order of state 202 SOCIAL & LEGAL STUDIES 18(2) (Dworkin, 1986: 191). It is in the creation and enforcement of state law, particularly in the most banal of these instances, that the sovereign power makes its grandest gestures in the name of its own perpetuation, as Michel Foucault (2003: 50) explains: ‘law is not pacification, for beneath the law, war continues to rages in all the mechanisms of power, even in the most regular’. Building on this view, Alan Hunt (1993: 18) claims that to achieve this façade of pacification that sustains obedience, ‘law comes to be seen as the embodiment of the universal notions of “justice” and “right”’, which provides the first glimpse of the fictitious appeal to justice that underpins state authority and perpetuates sovereign power. Through its legal apparatus, state everywhere invokes principles of justice as a strategy of legitimating its authority and monopoly on violence, doing so because ‘the law sees violence in the hands of individuals as a danger undermining the legal system’ (Benjamin, 1921/1978: 280). Fittingly, it is at this juncture of Benjamin and Foucault where Agamben enters the scene to elaborate on this intermingling of sovereign power, law, and violence. Focusing his attention on the source of sovereign power, that is, state authority in relation to ‘the coincidence of violence and law’, Agamben (1995/1998: 34) explains that ‘the sovereign is the point of indistinction between violence and law, the threshold on which violence passes over into law and law passes over into violence’ (p. 32). This inextractability of law and violence corresponds to the unlocalizability of sovereign power, constituting and constituted by a form of state authority that is ultimately inimical to justice. Emphasizing the importance of this Derridean-inspired ‘juridical void’ (Agamben, 2003/2005: 41) created by the sovereign’s power over law and violence, Agamben (1995/1998: 37) asserts that ‘it is precisely this topological zone of indistinction, which had to remain hidden from the eyes of justice, that we must try to fix under our gaze’. For Agamben, this ‘zone of indistinction’ represents the space where the state of exception comes into force. The most effective strategy when attempting to situate and explain the state of exception is to approach the matter as Agamben himself does, with a discussion of the ‘paradox of sovereignty’. Interestingly, as this article proceeds, an undoing of one component of the paradox is arguably achieved through this conceptual inversion of power, which itself is pursued by means of detaching the concept of sovereignty from state itself. For the purposes of this section, an explication of the paradox of sovereignty is foundationally important, but the manner in which this paradox is partially undone is a matter that is discussed in the later sections. The following paragraphs aim to clarify key terms and to localize Agamben’s conceptualization of sovereign power in relation to the state of exception, as it pertains to this aforementioned ‘zone of distinction’, which is understood more deeply through an account of the sovereign’s capacity towards inclusive exclusion. However, as the references to Fanon and Césaire imply, there is very little that is novel about the normalized state of exception in the colonial context, where power has always been expressed as a power over life, and where control lies not in the rule of law, but in the rule of exception: the power to pursue whatever BROPHY: LAWLESS SOVEREIGNTY 203 exceptional means were necessary for the sake of the colonial state or colony itself. In the first part of Homo Sacer, Agamben (1995/1998) focuses on developing an awareness of the complexities that underlie sovereignty and sovereign power.3 To initiate this undertaking, he begins the first chapter by stating, ‘the paradox of sovereignty consists in the fact the sovereign is, at the same time, outside and inside the juridical order’, which serves as the reader’s first taste of what comes to be known as ‘inclusive exclusion’ (p. 15). The essence of the paradox of sovereignty is the idea that the sovereign claims that there is nothing outside the law from a position of exception outside the law, as Agamben goes on to explain that what is at issue in the sovereign exception is, according to Schmitt, the very condition of possibility of juridical rule and, along with it, the very meaning of State authority. Through the state of exception, the sovereign ‘creates and guarantees the situation’ that the law needs for its own validity. (p. 17) According to this interpretation of juridical rule and sovereign power, the force-of-law rests in the sovereign’s ability to include the excluded; in this instance, the mode of relation of the sovereign to that which is excluded is by suspension or withdrawal. The point of contention that Agamben (1995/ 1998) attributes to this inclusive exclusion is that the sovereign power, through this reworking of the juridico-political order, signifies ‘not only a “taking of land” . . . but above all a “taking of the outside,” an exception’ (p. 19). It is the ‘unlocalizable’ nature of this zone of indistinction as it relates to the sovereign’s ordering power that is at issue, and stands to be the root of great injustices and violence. Agamben (2003/2005) expands on this initial account of the juridical power of sovereignty in State of Exception, where he explains that ‘the state of exception is the opening of a space in which application and norm reveal their separation and a pure force-of-––– law realizes (that is, applies by ceasing to apply) a norm whose application has been suspended’, clarifying the relevance of this point by claiming the impossible task of welding norm and reality together . . . is carried out in the form of the exception, that is to say, by presupposing their nexus. This means that in order to apply a norm it is ultimately necessary to suspend its application, to produce an exception. (p. 40) What is unlocalizable is the real application of the norm; in this sense, the norm that is applied represents an ‘enunciation without any real reference’ (Agamben, 2003/2005: 40). The application of a norm that produces an exception can similarly be interpreted as an instance of inclusive exclusion. By suspending the reality of the application of the norm, the norm applies through a relation of non-application; therefore the exception that is produced through this relation allows the sovereign to include that which is excluded in reality through the force-of-––– law (where law applies by not applying). While Agamben does not make any substantial effort to clarify in precise terms what he means by ‘norm’, this tension and notion of application 204 SOCIAL & LEGAL STUDIES 18(2) through exception are better understood as they relate to fact and law, which in turn provides relevant insights on the nature of life in relation to law in a state of exception. In studying the manner in which law relates to fact in the state of exception, what is really being studied is how the bounds of life are constituted by sovereign power. To this end, Agamben comments that the sovereign’s decision of exclusion concerns the very relation between law and fact, and therefore concerns the most inner nature of the law. Offering an insightful commentary on the inner nature of law, Agamben (1995/1998: 26) states that ‘law has a regulative character and is a “rule” not because it commands and proscribes, but because it must first of all create the sphere of its own reference in real life and make that reference regular’, wherein the preceding transgressive act determines the law. In other words, the transgressive fact is included in the juridical order on the grounds of its originary exclusion, or as Agamben says: ‘the exception is the originary form of law’ (p. 26). Life is therefore assumed in law on the grounds of the sovereign’s decision as it constitutes the juridical order through inclusive exclusion. The means of life’s implication in the juridical order is described by Agamben as follows: life . . . can in the last instance be implicated in the sphere of law only through the presupposition of its inclusive exclusion, only in an exceptio. There is a limit-figure of life, a threshold in which life is both inside and outside the juridical order, and this threshold is the place of sovereignty. (p. 27) The sovereign’s place of undecidability between fact and law is the ‘limitfigure’ of life, summarily including by exclusion life as an exception in the juridical order, demonstrating the manner in which sovereign power, in the state of exception, assumes the position of both constituting and constituted power, understood paradoxically by the idea that the source of sovereign power is in the fact of sovereign power. In adopting a deconstructive methodological approach that focuses on opposing relations, Agamben repeatedly invokes images of distance, separation, and proximity, images that are also central to understanding the essence of colonial rule. To demonstrate this affinity, a closer look at Agamben’s concept of sovereignty is warranted, this time from a different perspective, which will link it to the anti-colonial writings of Fanon. Sovereign power in the colonial context operates in much the same way that Agamben describes in his account of the state of exception, which suggests that sites of colonialism have always been instances of exceptionality within the broader global context. The most effective strategy of maintaining order in the colonies is by means of inclusive exclusion, where the force of sovereignty lay in the acts of suspension that it performs with respect to norm, law, and most importantly, life. To strengthen the affinities between the two conceptions of sovereign power, it helps to interpret Agamben’s relational concepts along a proximal continuum, emphasizing the shared sense that it is in the normalization of the rule, the settling of sovereign power at the extremes of this proximal continuum, that the danger lies. It is not the case that sovereign power gains BROPHY: LAWLESS SOVEREIGNTY 205 and substantiates its force through the permanent and immediate separation of law and fact, or norm and reality; it is more accurate to view these relations as occurring along a continuum, wherein law and fact will approximate more or less at different stages, depending on the objectives of the sovereign prior to the complete normalization of the state of exception. Agamben (2003/2005) describes the two points of this tension by explaining that on one side, there is the force that ‘institutes and makes’, and on the other side lies the force that ‘deactivates and deposes’, stating that ‘the state of exception is both the point of their maximum tension and – as it coincides with the rule – that which threatens today to render them indiscernible’ (p. 87). In the colonial context, this concept of proximal relations as a mode of governance is expressed in a number of ways. In Fanon’s The Wretched of the Earth (1961/2004), there is a sense in his account of the colonizer’s strategies of governance that the separation between law and life, or between norm and reality, is variably constituted according to the objectives of the colonizing state. Upon arrival, the colonizers institute a state of exception within a given territory, thereby organizing an empty space ‘in which a human action with no relation to law stands before a norm with no relation to life’ (Agamben, 2003/2005: 86). This is apparent in Fanon’s (1961/2004: 5) description of the colonial world as being divided into two, stating that ‘the ruling species is first and foremost the outsider’, which is reminiscent of Agamben’s claim that the originary source of sovereign power lies in the exclusion, except this time the norm is applied in reality through the fact of physical exclusions in the form of ‘forbidden cities’ where the colonized could not tread. What is apparent is that the state of exception rapidly becomes the norm of governance, reaching its destructive climax with the complete dehumanization of the colonizer, which follows from the dehumanization of the colonized (Fanon, 1961/2004). In this sense, as the outsider, everything is external to the sovereign power, and to include it, the sovereign must permanently separate fact and law in order to achieve the desired juridico-political order, which can only be done through the, inevitably violent, ‘taking of land’ and ‘taking of the outside’. It warrants noting that it is at this stage that, based on this acknowledgement of the ‘taking of land’ as a component of the state of exception, the propensity for colonial expansionism and governance can easily be read into this form of sovereign power. This proximal continuum of relation is another way of conceptualizing the zone of indistinction, such that where the sovereign locates itself on the continuum of the unlocalizable depends on the degree of approximation that it necessitates between life and law for the purposes of specific ends. With permanent separation, when the proximal relation between life and law is consistently one that governs (uninterrupted) by exception, that is when ‘the juridico-political system transforms itself into a killing machine’ (Agamben, 2003/2005: 86). When the exception becomes the rule and the disparity between life and law becomes regularized to meet the sovereign’s ends, this normalization comes to constitute a form of banality that, borrowing from 206 SOCIAL & LEGAL STUDIES 18(2) Césaire (1955/2000: 68), represents the rule of progressive dehumanization, which leads to ‘nothing but violence, corruption, and barbarism’. Understanding the power dynamics at play in the colonial context, it is therefore conceivable to view how the state of exception is in every way the limit-figure of life. That sovereign power dwells as much in the non-application of law as it does in its application, life itself stands to be limited according to the whims of the sovereign, who eradicates the ‘normative aspect of law’ and replaces it with violence as a force-of-––– law, while still claiming to be applying the law (Agamben, 2003/2005). To the colonizers, the colonized are exceptions insofar as they are humans who cannot claim the same stature as they; for this reason, the colonized are to be controlled by including them in the juridical order in a manner that upholds their position of essentialized exceptionality. However, as the next section demonstrates, this position of externality is, in a specific sense, a necessary standpoint for the colonized, particularly as it reflects their distinctiveness from the colonizer, but also because this externality constitutes the universalized standpoint from which the state of exception can effectively be challenged. Colonialism as the best example of the state of exception in practice is everywhere evidenced in Fanon’s writings, as he frequently recounts how the colonized are animalized and dehumanized (exclusion), while paradoxically they are also shamed for not possessing the western liberal value of dignity (inclusion). The sovereign-colonizer’s every act is a performance, a re-presentation of the divide that exists between the values of humanity (which they assume themselves to be the best example of) and law (which they also represent), and the valueless existence of the animalistic colonized, which to the colonizer represents the life that law must regularly suspend in order to achieve normalized application. This mode of inclusive exclusion serves as the power-granting mechanism for the regularized violence that takes place in the colonies, and the normalization of violence in the colonies is an instance of this strategy of governing by suspension, wherein the juridical order requires that law is required to suspend life as a means of including it in the law itself. In the midst of this, justice quickly becomes one of the greatest casualties of this sovereign power that thrives in the zone of indistinction, as Agamben (2003/2005: 64), borrowing from Walter Benjamin, states that the law – no longer practiced, but studied – is not justice, but only the gate that leads to it. What opens a passage toward justice is not the erasure of law, but its deactivation and inactivity – that is, another use of the law. This is precisely what the force-of-––– law (which keeps the law working . . . beyond its formal suspension) seeks to prevent. In the midst of this violence, justice itself is always already external to the sovereign. It stands as a constituting power to which, prior to exception becoming the rule, the sovereign falsely appeals to in order to substantiate the given juridico-political order (Agamben, 1995/1998: 41). However, the tenuous relationship between law and justice under the conditions that promote the normalization of the state of exception becomes even more obvious. BROPHY: LAWLESS SOVEREIGNTY 207 According to Agamben (2003/2005: 41), under conditions of the suspension that the state of exception necessitates, there is not only a suspension of law, but there is also a corresponding suspension of the administration of justice, which he explains by employing and defining the term ‘iustitium’ (meaning ‘standstill’). The state of exception sustains injustice by means of inclusive exclusion, making it such that all laws substantiate and are substantiated by fictitious (suspended) norms that serve the ends of the closed system of indistinction, wherein nothing lies external to the juridical order. A sovereign that upholds laws that serve interests other than the state’s own is a sovereign built on lawlessness, which is distinct from the state of exception in that it substantiates the always already externalized standpoint of universalized justice, as the second part of this article explains. THE UNIVERSALIZED JUSTICE CLAIM AND FANON’S ‘GLOBAL STANCE’ More than a recounting of Agamben’s notion of the state of exception, this article extends the concept to have it attain a more normatively inspired political objective, an extension that the deconstructive nature of his methodology is inclined to preclude. The depoliticizing capacity of this method is palpable at the conclusion of State of Exception, where he writes, from the real state of exception in which we live, it is not possible to return to the state of law, for at issue now are the very concepts of ‘state’ and ‘law.’ But if it is possible to attempt to halt the machine, to show its central fiction, this is because between violence and law, between life and norm, there is no substantial articulation. (Agamben, 2003/2005: 87) To claim that the same machine of sovereign power that produces and normalizes concentration camps and colonialism ultimately utters ‘no substantial articulation’ is to do a disservice to the radical political message he purports to uphold. Against this inarticulation which is the essence of Agamben’s deconstructive project, it is necessary to reconstruct and contextualize, to give dimension and meaning to abstraction. Henceforth, this article builds upon a number of his findings as well as his implicit emancipatory agenda, recognizing that to challenge the state on political grounds the depoliticizing tendency of deconstructive methodology needs to be set aside. Having achieved what is intended to be at least a working understanding of Agamben’s conceptualization of the state of exception, the direction of this article shifts from focusing on the structure and complexities of sovereign power to an account of the strategies that would constitute a meaningful challenge against these forces of state. In the previous section, it was demonstrated that colonial relations exemplify the nature of the sovereign/subject relationship under conditions of exception, and so it follows that anti-colonial (liberation) movements are similarly strong examples of how effective challenges to sovereign power can and should be pursued.4 The objective in this section is to go beyond simply developing an awareness of the type of force 208 SOCIAL & LEGAL STUDIES 18(2) that could challenge the sovereign’s power, but to begin to extend this analysis by conceptualizing in a more intricate sense the precise nature and constitution of this challenge. To further concretize and substantiate this concept of the ‘universalized justice claim’, which is the core of the legitimate dissent, brief references to the ongoing Six Nations’ land reclamation effort are also offered in the course of this discussion. The aim is to refer to, and further develop, Fanon’s notion of the ‘global stance’ and to conceptualize it alongside the example of the Six Nations’ reclamation as a strategy of dislocating the state from sovereign power from a position that represents lawlessness, effectively building on the previous section and Agamben’s account of the state of exception towards the eventual rescue of life and justice from state law. One deeply contentious theoretical consideration that must be clarified pertains to the concept of dissent. An act of dissent insofar as it is conceptually ‘universalized’ in the context of this analysis is different from an act of dissent in the standard, state-centered context as theorized by Joseph Raz (1979) and John Rawls (1971). At the centre of the concept of dissent are two related assumptions: that the dissention presumes a prior consent (even if it was what Max Weber (1922/1968: 312) would consider ‘habituated consent’); that, by virtue of it proceeding consent, the act of dissent presupposes inclusion in the juridical order, and therefore cannot be considered wholly ‘externalized’ as such. This latter point is also reminiscent of a statement that Hannah Arendt (1969: 88) offers, writing that we all live and survive by a kind of tacit consent, which, however, it would be difficult to call voluntary . . . Dissent implies consent, and is the hallmark of free government; one who knows that he may dissent knows also that he somehow consents when he does not dissent. This notion of tacit consent assumes that the probability and extent to which any given group or individual is subject to state law are equal and constant: all individuals experience state law in an identical fashion with identical outcomes. Accordingly, all individuals experience the same sovereign techniques of inclusion, and all suffer similar tactics of exclusion. This presumptuous oversight forms the basis of Agamben’s account of the ‘bare life’, which represents the form of life that results from the state of exception. Miles away from an accurate depiction of the tendency of law to apply unevenly in response to differential such as class, race, gender, and so on, Agamben fails to see the ways in which sovereign power essentializes externalities in its ‘taking of the outside’, and suggests that bare life has an equalizing effect. Unlike Agamben, Arendt’s account of tacit consent strives to appreciate the varied manner of law’s application through an understanding of the degree to which valid law presumes equal representation and consent. In her description of the ‘tacit agreement’ or ‘consensus universalis’ that underpins the American Constitution, Arendt (1969) explains that the civil rights movements of the 1960s were to be expected because of ‘the simple and frightening fact that [Negroes and Indians] had never been included in the original consensus universalis of the American republic’ (p. 90). This insight precisely BROPHY: LAWLESS SOVEREIGNTY 209 reflects that nuance that forms the foundation of law’s applicability or even its non-applicability. The force-of-law/––– law is differentiated by the degree to which the state itself can claim legitimate authority, which is dictated in part by the extent to which it is seen to be representative of the community unto which it exacts its power. In all instances where the law that is in place is the result of a colonial imposition, the realm of externality not only threatens the legitimacy of that state’s authority, but also become essentialized through mechanisms of governance inherent to the state of exception. The distinguishing feature of the type of dissent that is being conceptualized in this article is that it is representative of a standpoint that is always and already external to the juridico-political order of the sovereign; in an important sense, it is always outside state and state control. That this standpoint is ‘already’ external to the sovereign suggests an immediate nullification of the suspension mechanism that the sovereign employs as a strategy of rendering the exception for the purposes of juridical order. Correspondingly, that this standpoint is ‘always’ external to the sovereign means that the failed attempts to exclude the standpoint also ensures that it cannot be included in the juridical order through non-application. As such, those acts of dissent that imply consent by virtue of their originary position within the order itself stand a weaker chance of constituting legitimate, and therefore effective, challenges to the state of exception. Acts of dissent which originate from a proximal relation that is always external to the state, despite sovereign attempts at the ‘taking of the outside’, represent a standpoint that is necessarily always already universalized, as the remainder of the article explains. The only form of consent that can be presupposed by acts of dissent which originate from this universalized standpoint is one wherein it is a mutual consent in the form of a compromise, which holds that one party remains external to the juridico-political order. In the colonial context, this notion of consent as compromise is by no means a ‘happy’ or ‘easy’ compromise from the perspective of either adversary. As Fanon’s chronological account in Wretched (1961/2004) illustrates, in the process of the sovereign’s initial attempts to include the colonized in its order for the purposes of expanding the scope of its jurisdiction, such a compromise is everywhere implied and concretized, but at the same time, such a compromise is everywhere violently under threat from the colonizer. Insofar as the colonized and colonizers are always external to each other, the hostile compromise is implied in the colonizers’ constant underlining, by means of exception, the externality of the colonized as a substratum of humanity. The colonized agree to this externalized standpoint, certainly not because they view themselves as ‘lesser’, but rather on the grounds of their conceptualization of the colonizer as the ‘outsider’, which expresses itself in the way that the colonized externalize the ‘universal values of the colonizer’, as evidenced by Fanon’s (1961/2004: 9) commentary on the concept of ‘human dignity’. At the apex of the dehumanization of the colonized, the extent to which both parties have entrenched their positions of externality in relation to the other comes to be represented by a reversal of roles, wherein the colonizer comes to be the target of 210 SOCIAL & LEGAL STUDIES 18(2) dehumanization tactics. Césaire (1955/2000: 36) refers to this reversal as the ‘boomerang effect’, when the sovereign-colonizer is one day surprised to have its own dehumanizing tactics, which are generally reserved for use against what it views as the substratum of humanity, used against it by those it thought were lesser. This concept of the ‘boomerang effect’ represents, at least in part, the foundation of the inversion of power that results from the act of dissent that upholds a universalized justice claim, and it involves a reconstituting of sovereign power from a position of lawlessness that is external to the state of exception. The first of the two most relevant points to take from this discussion is that consent, in the way that it is traditionally conceived, is never offered by the colonized in the same way that it is often attributed to citizens of a sovereign state because the colonized represent an always already externalized position, whereas citizens of a sovereign state are almost always already internalized. As a result, the notion of immediate and implied consent in the enactment of dissent cannot be taken for granted in the colonial context, which is important to understand as it relates to the universal nature of the colonized standpoint itself, or what Fanon terms the ‘global stance’. The second point is that ‘lawlessness’ is a strategic aspect that is central to the nature of the originary position of the challenge; in other words, the act of dissent emerges from, reflects, and supports lawlessness in that it originates from outside the state of exception and necessarily negates the juridical power of that given state.5 The challenge against the state of exception is not a question of the (non)application of the force-of-––– law, it is, and in order for it to be effective, it must (re)present lawlessness in challenging the state so as to make the inversion of power possible. This strategic conception of lawlessness underlines two key features of the inversion itself: first, that the inversion is possible because the challenge that leads to this reconstitution of power is targeted against a state-centered view of sovereign power from a position where the constituting power lies external to the state, and second, that this lawlessness, in appealing to a universalized constituting power that is external to the state, leads to the inversion by uncovering the fiction that is at the centre of the state of exception, which exhibits itself in the manipulation of fact and law towards the suspension of the administration of justice. Prior to a detailed account of this inversion, however, it is important to address the forces that contribute to this originary position of lawlessness, such forces that encompass the universalized standpoint that challenges the state-centrist conception of sovereign power towards the reconstitution of sovereignty at a global level. In Wretched, Fanon (1961/2004) speaks to the global place of the peoples of colonized countries as that which connects them beyond state borders and, arguably, beyond race by appealing to class divisions as they are concretized by the capitalist mode of production. As he writes, Fanon places the question of agency squarely in the centre in this exploration of strategic methods of empowerment, particularly in terms of how the empowerment of the masses may take place for the purposes of challenging the sovereign-colonizer BROPHY: LAWLESS SOVEREIGNTY 211 through acts of (usually violent) dissent. On this subject, he writes of a distinction between the colonized and the colonizer, that while the latter preach of universalistic values, the colonized ‘take a global stance from the very start’ (p. 14). This global stance is indicative of two features that the colonized can lay claim to: that colonization links them, via an historical chain of events, to Europe – or to western capitalist countries more broadly – and that in fighting for land, they are fighting for a basic common principle of existence insofar as the land represents bread and dignity and therefore sustenance and recognition.6 On the relevance of land, Fanon writes, for a colonized people, the most essential value, because it is the most meaningful, is first and foremost the land: the land, which must provide bread and dignity; but this dignity has nothing to do with ‘human’ dignity, the colonized subject has never heard of such an ideal. (p. 9) To the colonized, land stands to represent not simply ‘property’ in a western liberalist sense, but humanity; it is in reclaiming land that colonized peoples feel as though a recuperation of dignity is also possible, not ‘human’ dignity in terms of the legal language of individualism, autonomy, and privacy, but dignity as a people. The land is what links the colonized, or in the specific sense, the people of the Six Nations, to the global struggle through a universalized justice claim, as explained later. This standpoint and subsequent claim reach beyond statehood and nationality to connect peoples engaged in the same struggle for land and dignity against the developed world, or ‘global capitalism’. This concept of the universalized justice claim is inexorably bound to the fact that an always already externalized standpoint can be claimed, and the universal aspect of this standpoint is this shared externality.7 The extent to which this shared standpoint represents an important universalized position is accurately expressed by Fanon (1961/2004: 40), as he states that ‘the colonized, underdeveloped man is today a political creature in the most global sense of the term’. The past, present and future of the always already externalized are connected at every level, tangible and imagined, to the global struggles of people who challenge the state’s capacity to achieve order by exception. The current land reclamation effort being undertaking by the peoples of the Six Nations is an example of a universalized justice claim that embodies this struggle. This reclamation effort represents a strong challenge to the state of exception in that it (re)produces lawlessness by assuming a standpoint of universalized externality to the juridical order of the sovereign power. Reflecting this point in his controversial decision (which was not enforced and was later appealed), Judge Marshall states that ‘it is common knowledge that the people of Caledonia, after 5 months of occupation, have seen security in their town replaced by lawlessness’ (Henco Industries Ltd. v Haudenosaunee Six Nations Confederacy Council, 2006: 75). As it is often the case when speaking of colonized/colonizer relationships, the history of the Six Nations people is one marked by multiple instances of displacement and great hostility, both among the constituting Nations and towards the colonizer. The effectiveness of this challenge to the sovereign 212 SOCIAL & LEGAL STUDIES 18(2) power of the Canadian state is evidenced in the sovereign’s inability to definitely include this legal exception for the purposes of juridical order. The various levels and incarnations of sovereign power (in the form of governmental regulatory bodies, the surrounding community’s business representatives, and law enforcement) have converged on the site of this land reclamation and have arrived at fundamentally contradictory legal conclusions, evidenced by the fact that no clear legal ruling can be achieved, and so the disputed land remains populated by the Six Nations people.8 The Six Nations’ history of displacement, the granting of these lands in exchange for past losses, the selling of the same lands by the Government of Ontario to the commercial interests of Henco Industries, and the commencement of the building of homes on the lands are all occurrences that reinforce the position of externality of the Six Nations peoples. Their being external to the juridical order leaves them in a zone of legal undecidability where challenges are not necessarily advanced through traditional court proceedings, which would have the unfavourable consequence of lending legitimacy to the sovereign’s power over them. Instead, challenges are mounted against the state-centered sovereign power in the most effective manner, by appealing to a different form of constituting power that does not require law to supplement its force, such a power that gains its force from the universalized externality itself wherein the legitimacy of the justice claim resides in the historical distinctiveness insofar as it reflects a shared standpoint, ultimately helping to demonstrate the discrepancy between fact and law, and the fiction of law’s relation to life in the state of exception. In terms of proximal relations, the people of the Six Nations have generally preferred to remain external to the sovereign powers of the state, as made apparent by the constant attempts to reinstate the Haudenosaunee Confederacy as the governing body that presides over the territory. This position of externality has been entrenched over the centuries, although the dividing of territories into native reservations signifies attempts by the Canadian government to include the Six Nations (and other Nations) in the juridical order by exclusion. Ultimately, this present-day land reclamation effort is an example of how the attempted application of the force-of-––– law results in the suspension of justice, made possible by the separation of fact and law, or norm and reality. The global stance is thus reflected in the universalized justice claim in two ways: first, to the extent that the standpoint of the claim or struggle of the group links the historical distinctiveness of a given group to the shared externality at a global level, and second, as it implicates not only the sovereign power of the colonizer-states but also the citizens of those nations that have benefited, and continue to benefit, from colonialism. In other words, this bifurcated interpretation of the universalized justice claim can be thought of as referring to two commonalities that mutually constitute the universality of the claim, as well as the justice claim itself, and these commonalities refer to a common plight against a common enemy. Far from appealing to undifferentiated sameness, which is what Agamben’s theoretical trajectory would necessitate, it is an appeal to a sharedness based on the differentiation BROPHY: LAWLESS SOVEREIGNTY 213 of experiences related to the violence of state law. To draw inspiration from Himani Bannerji’s (1995) acuity on this point is to clarify the importance of distinction attendant to the conception of sharedness being discussed, as she warns of the silencing effects inherent to the practice of ‘creating seamless narratives’ that preclude ‘experiential and subjective terms’ (p. 178). From Bannerji, it is imperative that the concept of ‘universality’ be taken to represent the distinctive experiences of violence that link movements across peoples and borders; what is universalized is the desire for justice, and not the singular experience that informs the grounds of the challenge to state law in the first instance. The utility of the universalized justice claim with respect to its propensity to challenge the state of exception culminates in the equally relevant concepts of lawlessness and inversion. The above reference to the current Six Nations land reclamation stands to demonstrate how these concepts interrelate towards the rupturing of the normalized practices of inclusive exclusion that are performed by the sovereign. As is explained in the concluding section of this article, only a universalized justice claim, which gains its legitimacy in reference to the particular, both represents and reproduces a form of lawlessness that tends towards the inversion and potential undoing of the sovereign power that rules by permanent exception. THE COLLISION AND INVERSION: EXPOSING THE FICTION At this stage, attention is concentrated around the processes implicated in the potential inversion of power relations as such processes represent an attempt to rescue life from the state of exception. Agamben (2003/2005: 87) himself speaks to the importance of this ‘rescue mission’, as he writes, from the real state of exception in which we live, it is not possible to return to the state of law, for at issue now are the very concepts of ‘state’ and ‘law’. But if it is possible to attempt to halt the machine, to show its central fiction, this is because between violence and law, between life and norm, there is no substantial articulation. This statement that Agamben offers raises two relevant points. First, this insight is the penultimate argument of his book, which is to say that he does not go much beyond this statement to further articulate the nature of how this halting of the machine of exception could take place. Second, what he exposes as the weak point in the armour of exception is the proximal relation between life and law; this is what he comes to term the source of a great ‘fiction’ in the state of exception. This article as a whole represents a picking-up of where Agamben leaves off with respect to thinking through the manner of this halting. The two preceding sections of this article lay the groundwork for this intervention, and having arrived at this final section, it is possible to link back to Agamben’s own thoughts on how a successful challenge might occur as a way of demonstrating how the concepts of ‘lawlessness’ and ‘inversion’ 214 SOCIAL & LEGAL STUDIES 18(2) both represent and go beyond Agamben’s cursory insights on how this machine can be stopped. As the following paragraphs explain, the grounds of this affinity can be found in Agamben’s conceptualization of the fiction that the state of exception essentializes as a strategy of governance. Describing the fiction that constitutes the state of exception, Agamben (2003/2005: 88) writes, ‘Life and law . . . result from the fracture of something to which we have no other access than through the fiction of their articulation and the patient work that, by unmasking this fiction, separates what it had claimed to unite.’ The fiction of the state of exception is also characterized by the idea that the relation of inclusive exclusion, that is, the force-oflaw, represents the dissolution of law and a diminution of juridical order with ––– respect to sovereign power. The state of exception, however, regularizes and depends upon the tension that dwells within the ‘zone of indistinction’ or the proximal relation of life and law; the separating of life and law, or using Agamben’s term, the ‘fracture’, is a strategy of governing that secures sovereign power in the state of exception. As the discussion in previous sections explains, this notion of ‘separation’ or ‘fracture’ does not symbolize the nonrelation of life and law. In fact, it is in separating the two that they can become violently united in the state itself as points of relation that can be simultaneously essentialized and negated. It is this fracture and subsequent unification that make the threat of dehumanization such a real possibility in the state of exception. When Agamben writes of ‘unmasking this fiction’ as a way of separating what this fiction ‘claims to unite’, he speaks of exposing the problematic nature of the state’s relationship to life and law. To this end, he contends that ‘to show law in its nonrelation to life and life in its nonrelation to law means to open a space between them for human action, which once claimed for itself the name of “politics”’, eventually coming to claim that the only truly political action . . . is that which severs the nexus between violence and law. And only beginning from the space thus opened will it be possible to pose the question of a possible use of law after the deactivation of the device that, in the state of exception, tied it to life. (p. 88) Based on these assertions, it is clear that an effective challenge to the state of exception must expose this fictional relation between law and life, not by clinging to law as the means of revealing its misappropriation, but by appealing to a sphere of constituting power wherein law and life are not assumed to be essentially related. With this understanding, it is now possible to begin to appreciate how lawlessness is central to the inversion of power that aims to rescue life from law. What is universal about the universalized justice claim is the experience of exteriority in response to the form of state authority that appeals to justice as a strategy of legitimating its laws towards perpetuating its sovereignty. What is also universal about the universalized justice claim is that it develops in relation to violence experienced as a result of the measures of inclusion that have been exercised towards this perpetuation of state sovereignty. Correspondingly, to carry the emergent conception of ‘lawless sovereignty’ further, BROPHY: LAWLESS SOVEREIGNTY 215 tacit consent is granted to an authority that is not wed to any given state; the ‘lawlessness’ of this form of sovereignty necessitates its disjuncture from the nation-state as the grounds for its force, it of course is not to say that this form of challenge may not proceed according to a different set of ‘laws’. The space between life and law is the universalized space of externality, which, by virtue of this externalized standpoint, is a ‘lawless’ space in the sense that it is a space not governed by state law. The mechanism that both constitutes power and legitimacy in this space of lawlessness is precisely that in its universality, it need not appeal to any specific juridical order, but its legitimacy lies no less in the particularities of human relations. This universalized externality can therefore successfully promote legitimate justice claims against the state without having to merely negotiate within an already contaminated legal structure (Agamben, 2003/2005). What stands to take place happens to be, at least speculatively, what Agamben would want to have occur: the inversion of power, wherein the non-relation of life to law and law to life means that justice need no longer be suspended, but instead steadfastly promoted. There is nonetheless critical divergence in ultimate objectives between Agamben and the central aim of this article. Agamben is intent on saving life from law as much as he is intent on saving law from life, whereas the key objective of this article is the rescuing of life, with little or no regard for the law. It is clear from Agamben’s texts that he believes that the concurrent saving of life and law could eventually lead to the ‘better’ administration of justice within the state, in that law would no longer relate to life in nonapplication and suspension as it does in the state of exception. Unfortunately, this viewpoint stands to perpetuate the compromising of life and justice by always placing them in subordinate relation to state law as functions of the administration of state. For that reason, what is being argued here is the importance of this universalized justice claim as it relates to lawlessness, which can conceptually stand as a constituting power for a type of sovereign power that is always already external to state, and therefore external to law. As important as it is to challenge the state of exception, this conceptualization of the lawlessness of the universalized justice claim is meant also to challenge law as an expression of state-centric sovereign power that often falsely appeals to its function in the administration of justice to substantiate laws that concretize inequalities for the sake of the state. This leads to the question of the inversion itself, which has long been alluded to in this article, but never directly formulated. In bowing to Agamben’s conception of sovereign power as it relates to the state of exception – which is necessary to do in order to understand externality thus conceived, particularly in the colonial context – the potential to formulate a version of non-state sovereignty also presents itself as the basis for challenging state authority. By formulating a version of ‘lawless sovereignty’, the concept of sovereignty itself is necessarily under dispute by virtue of nullifying the very notion that there could be such a thing as an ultimate power that can call itself ‘sovereign’. In Agamben’s text, there is at most a subtle questioning of the state’s given right as sovereign power but this never seems to develop into any deep 216 SOCIAL & LEGAL STUDIES 18(2) inquiry as to the possibility that sovereignty can exist in a lawless capacity outside of the state. The constituting power of this always already externalized universal standpoint rests in the fact that it is not intricately related to any one state, but rather all states and no states simultaneously, as illustrated in the aforementioned bridging of historical distinctiveness (the particular) and universalized externality (the general). ‘Sovereignty’, as the instance of supreme power within a given state, remains unchallenged as long as the concept of sovereignty itself is never questioned. A universalized perspective of sovereignty must therefore be brought to bear on the state-centered version in a way that not only challenges the state of exception by exposing the fiction of law and life from the perspective of lawlessness, but also supplants the state as the ultimate sovereign power by breaking the fictitiousness of the relationship between state law and justice. To clarify and concretize this conception of universality as it relates to justice, lawlessness, and externality, references have been made to Fanon’s insights on the how strategies of exception implicate life in the colonial context. As a way of further anchoring theoretical postulations, the case of the current Six Nations’ land reclamation effort was introduced in the second section to illustrate how the universalized external standpoint legitimizes justice claims that can be mounted against the state. These references to colonial relations allow for a better appreciation of how the state of exception operates by means of inclusive exclusion, which contributes to a deeper understanding of the dangers of the state of exception as it has been realized in colonial relations, as well as in the contemporary context (arguably, what can be considered the era of capitalist-colonialism). Fanon (1961/2004: 23) writes that ‘colonialism is not a machine capable of thinking, a body endowed with reason. It is naked violence and only gives in when confronted with greater violence.’ From the previous section, it is possible to ascertain that colonialism, as an irrational machine, governs by the rule of exception which necessitates violence, with its irrationality expressed in the violence inherent to the suspension of life and justice. Although, according to Fanon, the only way of effectively corrupting this form of sovereign power is through ‘greater violence’, a point which he insists should be interpreted literally, it is also possible to read the universalized justice claim as a form of violence, albeit not in the literal or physical sense that Fanon upholds as indispensable to the struggle for national liberation. This article has thus far attempted to outline an alternative approach that could challenge the state of exception from the always already externalized standpoint, a standpoint that causes violence to the juridical order of the state of exception by virtue of its being constituted by a power that lies in extra-juridical relation to the sovereign state. The force of this extra-juridical position lies in its linking historical distinctiveness to universalism, each being simultaneously located within, and in relation to, the other, the product of this relation being a legitimate claim to justice that is universalized by virtue of its relation to particular experiences and histories. What ensues is a form of the ‘boomerang effect’: the constituting power of justice, which was once fictitiously held by the state, lies not in the state’s BROPHY: LAWLESS SOVEREIGNTY 217 juridical order but in the universalized externality represented in the act of dissent itself. This stands to undo, at least partially, the paradox of sovereignty by placing the limiting and limited version of state sovereignty alongside and in opposition to a form of sovereignty that lies extra-juridically, and therefore, outside state. In that case, state sovereignty cannot claim that there is nothing outside the law because, as this article has come to demonstrate, justice itself is outside the law and it thereby presides as the constituting force that substantiates the sovereign power of the (lawless) universalized standpoint. The references to colonialism have helped to demonstrate (a) the degree to which the state of exception gets normalized at the expense of life and justice, and (b) the importance of challenging the state of exception from outside the juridical order so as to expose the fictional quality of the relations between law and life from a universalized standpoint. In the capitalistcolonial sense, acts of dissent against the state of exception can be similarly conceptualized as having to emerge from the universal externality that upholds lawlessness. There are numerous distinctive experiences of the state of exception as the limit-figure on life, which is a mode of governance that is highly conducive to reckless capitalist growth (hence the term ‘capitalistcolonialism’), and has deep affinities with the ever-expanding ‘war on terror’. Whether these universalizable distinctions are experienced at the level of class, gender, race and/or ethnicity, they nonetheless stand to represent a shared externality that can never truly be ‘included’ in the juridical order of any given sovereign power. The compromised form of consent that characterizes these externalities in relation to the state of exception makes it such that the excluded, despite short-term attempts at inclusion, will always find their footing in the constituting power of universal justice. If the sovereign power of state lies in indistinction, meaning in the power of inclusive exclusion, then challenges to the state of exception must appeal to universalized distinctions, to that which is always external and must always be external to state insofar as universality itself can never be ‘included’ in the juridico-political operations of any given state. The state will always choose the state; it exists for itself, and the state of exception is an extreme example of the truth of this fate. NOTES 1. 2. While one may contend that sovereign power is by its essence always centralized, what I offer here is a challenge to this conceptualization of sovereignty, arguing instead for a differently conceived notion of sovereign power, the force of which lies not in state, but in extra-state (universalized) relations. As such, I am suggesting that there is a form of sovereign power whose appeal to justice need not be ‘false’ in the sense that I demonstrate herein. The Six Nations, known conversely as ‘Haudenosaunee’, or by their given French name of ‘Iroquois’, is comprised of the Cayuga, Mohawk, Onondaga, Oneida, Seneca, and Tuscarora, and spans territories through upstate New York and Pennsylvania, to southern Ontario and parts of western Quebec. Historically governed internally by the ‘Haudenosaunee Confederacy’ or ‘League of 218 3. 4. 5. SOCIAL & LEGAL STUDIES 18(2) the Six Nations’, the relative position of authority of this group with respect to self-government and control of lands has eroded since the Europeans first made contact, most notably towards the end of the 16th century with French movement along the St. Lawrence (Noon, 1949). Historian William Fenton (1998: 13) summarizes the epoch as follows: ‘In short, military affairs, the missions, the Westward Movement, land cessions, trade, politics, and war were one package called Anglo-French rivalry, and the Iroquois were the string around it.’ During these centuries of battles, disputes and broken promises, attitudes varied and shifted among the Six Nations, meanwhile the mythic ‘Great Law of Peace’ was the foundation of the Charter of the Confederacy, represented a thinly veiled position of neutrality during much of the 18th century. Behind this veil, the American Revolution pitted Mohawk, Onondaga, Cayuga, and Seneca warriors, fighting on the side of the British, against the Oneidas and Tuscaroras, who fought on the side of the Americans. The loss of life and land among the Haudenosaunee was addressed by the British in the form of a compensation deal that included land in Ontario, to replace the land lost in New York. Referred to today as the ‘Haldimand grant’, it was Governor Haldimand who bought land from the Mississauga Nation that stretched six miles wide on both sides of the Grand River between Lake Erie and Georgian Bay, and gave it to the people of the Six Nations; here the Haudenosaunee Confederacy was established once again, and operated as the central political body for the territory and its peoples. The deed to these lands was later revoked in 1793 by the lieutenant-governor of Upper Canada, which effectively cut the land by one-third. Over the following 50 years, sections of the Grand River Territory were sold piece-by-piece by the government, leaving the people of the Six Nations what is today the Six Nations Reserve. In his discussion of the relation between life and law, Agamben leads into a detailed conceptualization of homo sacer, or ‘bare life’. Understood not as ‘original’ life that pre-exists law, Agamben speaks to this concept of homo sacer as a consequence of the state of exception, which, by means of inclusive exclusion, fundamentally alters the relationship between life and law in such a way that life can only be conceived of in constitutive relation to law. In this constitutive relation, the sovereign power and homo sacer can be seen as reflections of each other, or are one and the same; each the result of specific instances of the suspension of law, life, and justice, both of which are products of the ‘zone of indistinction’ that the state of exception normalizes. Here lies an affinity between sovereignty and sacredness, specifically illustrating the sacred quality of sovereignty in relation to life and law (see Agamben, 1995/1998: 71–4; Agamben, 2003/2005: 87). The degree to which liberation movements can stand as examples of effective challenges to sovereign power is not dependent on the relative success of a given movement. This accommodation is meant to recognize two significant points: first, that liberation movements are multi-faceted and multi-directional, as illustrated in the often conflicting notions of ‘liberation’ that the varied factions within any single-movement lay claim to, and second, that remnants of colonialism pervade colonized states and individuals long after formal independence has been achieved (see Fanon, 1961/2004). Whether it is possible to go from inside to outside sovereignty towards a position of externality, specifically for the purposes of challenging the state of exception, depends on the vantage point. To begin with, recognizing that externality is a relational concept defined in terms of its opposite, to be external to state sovereignty is to still be in relation to that sovereign power. From the state’s perspective, as long as an individual resides within the jurisdiction of state law, BROPHY: LAWLESS SOVEREIGNTY 6. 7. 8. 219 then that person is also subject to that law by virtue of their inclusion, even if the result of that inclusion is exclusion. On this count, it is impossible to be outside the grasp of state authority given the individual’s physical presence inside the juridical parameters of the sovereign power. From the perspective of a competing conception of sovereignty, such as that which is on offer in this article, it is possible to exist within the authoritative jurisdiction of any given state but still be external to the authority of that territory. Though how it might be that one could move from a position of tacit consent and inclusion to a position of externality is not the central concern of this contribution, it is an important consideration. The grounds of the legitimacy of the dissent engineered from this position of externality are twofold: first, that the impetus guiding the dissension reflects a shared standpoint, and second, that the laws of the state reveal themselves to be less and less reflective of the community itself, to the extent that the sovereign power cannot reasonably presume the tacit consent of the community. In many respects, the propensity of the sovereign power of state to be challenged from a competing notion of sovereignty grounded in externality depends on the depth of the fictitiousness that substantiates state authority in the first instance. The more violence that state exacts in its instrumentalization of justice, the less it can assume consent, and the more it can be expected to be challenged on the basis of a universalized justice claim. For the purposes of this article, the analysis is restricted to western colonial relations, but this viewpoint would similarly hold for relations that apply outside the European colonial context. Internality is not negated by shared externality; one dimension cannot be essentialized without essentializing the other. The question of inclusion in this article is taken out of the context of state sovereignty and is placed in the realm of a competing notion of non-state sovereignty, which comes to constitute a form of internality with respect to the shared position of externality. The problem of arriving at a ruling on this matter is compounded by an admixture of jurisdictional disputes, tragic precedent, and judicial activism; the result is that the land is still being held by certain members of Six Nations three years since the beginning of the reclamation efforts. On the first point, the provincial government and the federal government claim, in turn, that it is not their jurisdiction, each interpreting sections 91 and 92 of the Constitution Act that stipulate the division of federal/provincial powers in a manner that suits their own interests. Furthermore, there is great hesitancy to act with any swiftness on both parts. On one hand, the Government of Ontario has the recent memory of the incident at Ipperwash Provincial Park, where Native protestor Dudley George was shot by the police in 1995 (see Report of the Ipperwash Inquiry, 2007); on the other hand, the Government of Canada refuses to set a new precedent regarding land claims for other territories in question by resolving this dispute in any manner that might be viewed as a concession. Finally, questions pertaining to the soundness of the decision to suspend negotiations rendered by Judge Marshall at the Superior Court of Ontario, a decision that was later challenged by the government of Ontario, made both sides wary of returning to the courts (see Henco Industries Ltd. v Haudenosaunee Six Nations Confederacy Council, 2006). CASE CITED Henco Industries Ltd. v Haudenosaunee Six Nations Confederacy Council [2006] 3285 O.J. 220 SOCIAL & LEGAL STUDIES 18(2) REFERENCES Agamben, Giorgio (1995/1998) Homo Sacer. Stanford, CA: Stanford University Press. Agamben, Giorgio (2003/2005) The State of Exception. Chicago, IL: University of Chicago Press. Arendt, Hannah (1969) Crises of the Republic. New York: Harcourt Brace Jovanovich. Bannerji, Himani (1995) Thinking Through: Essays on Feminism, Marxism, and Antiracism. Toronto: Women’s Press. Benjamin, Walter (1921/1978) ‘Critique of Violence’, pp. 277–300 in Peter Demetz (ed.) Reflections. New York: Schocken Books. Césaire, Aimé (1955/2000) Discourse on Colonialism. New York: Monthly Review Press. Derrida, Jacques (2002) Acts of Religion. New York: Routledge. Dworkin, Ronald M. (1986) Law’s Empire. Cambridge, MA: Harvard University Press. Fanon, Frantz (1961/2004) The Wretched of the Earth. New York: Grove Press. Fenton, William N. (1998) The Great Law and the Longhouse: A Political History of the Iroquois Confederacy. Norman, OK: University of Oklahoma Press. Foucault, Michel (2003) ‘Society Must Be Defended’: Lectures at the Collège de France 1975–1976. New York: Picador. Hunt, Alan (1993) Explorations in Law and Society: Toward a Constitutive Theory of Law. New York: Routledge. Noon, John A. (1949) Law and Government of the Grand River Iroquois. New York: Johnson Reprint. Rawls, John (1971) A Theory of Justice. Cambridge, MA: Belknap Press of Harvard University Press. Raz, Joseph (1979) The Authority of Law: Essays on Law and Morality. New York: Oxford University Press. Report of the Ipperwash Inquiry (2007) Commissioned by the Government of Ontario, S. B. Linden (Commissioner). Weber, Max (1922/1968) Economy and Society. Berkeley, CA: University of California Press.