barschack, lior - time and the constitution

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The Author 2009. Oxford University Press and New York University School of Law.

All rights reserved. For permissions, please e-mail: [email protected], Volume 7, Number 4, pp. 553576 doi:10.1093/icon/mop022

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553

ARTICLE

Time and the constitution

Lior Barshack*

The idea that sovereignty can be characterized in terms of the opposition betweenimmanence and transcendence has gained increasing currency in constitutional theory.

Roughly characterized, immanent sovereignty belongs to the livingto a Hobbesianmonarch, for example, or to a group of individualswhile transcendent sovereignty

belongs, at least partly, to the dead. The essay puts forward one argument in support

of transcendent conceptions of sovereignty, namely, that only such conceptions canaccount for the temporal organization of social life. The relegation of sovereignty toancestors and offspring and the distinction between constitutional moments andconstitutional routine open up society to the temporal horizons of past and future. By

affirming temporality, theories of sovereignty as transcending social and legal systemsaffirm the burdens of human, temporal existence. The sovereign power over life and

death, like other attributes of sovereignty, is relegated by such theories to ancestralauthority in order to safeguard life. The proposed account of sovereignty and time is

contrasted with the theories of Arendt, Marcuse, Negri, and Maurice Bloch.

The idea that sovereignty can be characterized in terms of immanence or tran-scendence in relation to the legal system is gaining ever-more currency inpolitical and constitutional theory. Claude Lefort draws on theological notionsof transcendence in his account of sovereignty. Antonio Negris thought pro-ceeds from an advocacy of all things immanent. Contrary to Negris own pro-

nounced intentions, his work follows in the footsteps of Carl Schmitt, whopersistently subscribed to an immanent conception of sovereignty albeit withfrequent shifts of position on other issues. This essay proposes an understand-ing of immanence and transcendence as alternative configurations of the rela-tions between generations.1 To put it generally, immanent sovereignty belongsto the livingto a Hobbesian monarch, for example, or to a group of individu-als. Transcendent sovereignty belongs, at least in part, to the dead and to thoseyet to be born.

* Radzyner School of Law, The Interdisciplinary Center, Herzliya, Israel. Email: [email protected]

1 In a way that almost turns constitutional theory into a branch of the study of kinship. See LiorBarshack, Constituent Power as Body: Outline of a Constitutional Theology, 56 UNIV. TORONTO L.J. 185(2006). For Negris and Leforts views, see ANTONIO NEGRI, INSURGENCIES: CONSTITUENT POWERANDTHEMODERN STATE (Maurizia Boscagli trans., 1999); CLAUDE LEFORT, DEMOCRACY AND POLITICAL THEORY(1989). Schmitts clearest statement of his immanent view of constituent power can be found inCARL SCHMITT, CONSTITUTIONAL THEORY 149 (2008) (Chapter 10).

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554 ICON October 2009 Vol. 7: 553

In the following pages, I will outline one claim in support of notions oftranscendent sovereignty, namely, that only such conceptions can explain thetemporal organization of social life. Historical consciousness and the flow of

historical time depend on a partial or complete surrender of sovereignty to pastand future generations.2 The assignment of sovereignty to ancestors and off-spring renders society open to the temporal horizons of the past and the future.Because immanent theories consider sovereignty to be permanently presentand active, they imply a self-sufficient and omnipotent eternal present. Denyingthe past and the future a share in the making of higher law, these theorieserase memory and anticipation.

By affirming temporality, transcendent notions of sovereignty undertake acommitment to endure the burdens of temporal existence. The denial of timeimplicit in immanent conceptions of sovereignty amounts to a repudiation of thetoils of reproduction and production, the burdens of living and dying. Few rendi-tions of Hobbess political philosophy have captured its spirit as succinctly asMichel Foucaults statement that [f]or sovereignty to exist, there must beandthis is all there must bea certain radical will that makes us want to live. . . .3Hobbes saw that the states brutal power is grounded in an unwavering affirma-tion of life. While Hobbes deposited sovereignty in the hands of the living, in orderto institute time and safeguard life, sovereignty has to be entrusted to the dead.

The projection of sovereignty outside the realm of the living does not neces-sarily confine sovereignty to the realm of the dead. According to the version oftranscendent sovereignty outlined in the following section, sovereignty doesnot vest exclusively in the past. Rather, it belongs to the group as an immortalentity that retains its identity through past, present, and future generations. Itbelongs to present and future generations much as it belongs to the dead.Sovereignty vests, I will argue, in an imaginary, collective body in which allgenerations are consubstantial, and that normally resides outside the social.Thus, according to a refined formulation of the distinction between transcend-ent and immanent theories of sovereignty, transcendent theories place thecommon body of all generations outside society while immanent theories con-ceive of society as permanently enacting its intergenerational unity. I willargue that the simultaneous presence of all generations that is envisaged byimmanent theories of sovereignty arrests the flow of time. It is the projection ofthe sovereign body, in which all generations are consubstantial, onto an exter-nal realm that sets historical time in motion. That projected collective bodyis referred to by lawyers as the corporation. Time, I will suggest, rests on the

2 For a different account of the relations between time and the constitution, see JED RUBENFELD, FREEDOMAND TIME: A THEORY OF CONSTITUTIONAL SELF-GOVERNMENT (2001). Rubenfeld argues that selfhood andfreedom are constituted by long-term personal and social commitments in a way that justifies limi-tations on the power of majorities in democracy. The legal implications of Rubenfelds account andmy own are similar.

3 MICHEL FOUCAULT, SOCIETY MUST BE DEFENDED 96 (2003).




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555Barshack | Time and the constitution

corporate structure of society, which severs the group from its collective body,and in particular on the legal fiction of corporate perpetuity.

1. The corporate body

The idea of an absent and immortal sovereign body, of which all generationspartake, can be identified with the legal construct of the corporate body. Theproposed account of absent sovereignty is, thus, an account of corporate sover-eignty. In order to describe the legal institution of time through the projectionof the sovereign body outside the social, the concept of the corporation has tobe introduced in some detail. As Henry Maine, F. W. Maitland, and ErnstKantorowicz have shown in their works on the corporation, the legal constructof the corporate body ties the idea of authority, or sovereignty, to that of perpe-tuity. The account of the corporation in terms of sovereignty and perpetuitycan be supplemented with several characterizations.

1.1. The separate corporate personality of the family and the state isassociated with the mythical person of their founding ancestors

The examples of the family and state suggest that the corporation is personifiedby ancestral figures, such as the mythical, heroic founder of a Roman family, the

founder of a royal dynasty, or the founding fathers of modern nation-states. Thesymbols and names of descent groups often refer, directly or indirectly, to theirreal or fictional founding ancestors. The modern state came into being througha gradual appropriation of the corporate familys role of postulating origins andstories of descent. The rise of civil religion over and above the different historicalreligions, with its increased capacity to administer the most important rites ofpassage in the citizens life cycle and to render death for the nation beautiful andexemplary, depended on the political colonization of ancestral authority.

As Meyer Fortes explains, the corporate group is personified by ancestral

authority since all members of descent groups are perceived as extensions ofthe same ancestral body or substance:

The notion of a descent group as constituting one person takes manyforms. The essential idea is that the living plurality of persons constitutesa single body by reason of being the current representation and continu-ation of a single founder. Whether this is conceptualized and expressed inbeliefs about being the children of so and so, or of one womb, or ofone blood, or of one penis, ormore metaphysicallyof one spiritual

essence or totemic origin, or of common ritual allegiance to ancestors orother supernatural agencies, the implications are the same. The group isone by physical perpetuation and moral identity.4

4 MEYER FORTES, KINSHIPANDTHE SOCIAL ORDER, 304 (1969). See also MEYER FORTES, The Concept of the Person,in RELIGION, MORALITYANDTHEPERSON: ESSAYSON TALLENSIRELIGION, 283 (1987) (. . . [A] lineage is a collectiveperson because it is the perpetuation of its founding ancestor in each of his descendants . . .).




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In his analysis, Fortes refers to the corporate unity that looms behind theliving plurality of persons, thus focusing his attention on living members ofthe corporation and holding out the sibling group as the paradigm of corporate

unity. It is clear, however, that the image of the corporate body implies thatboth living and dead members of a descent group partake of a single body. Thecross-generational nature of membership in the corporate body suggests thatthe corporate body dwells outside the social sphere.

Through its corporate personalityits mythical ancestors and their multi-ple totemic representationsthe group represents itself to itself. According toHegel and Durkheim, notwithstanding the differences between their theoriesof religion, societys self-representation is its object of worship. If the corpora-tion is associated with ancestral figuresand ancestral lawand constitutesthe self-representation of the group, it cannot fail to be sacred. Corporations,like the gods, are invisible; they are absent and act through representatives.The religious dimension of political systems and families inheres in their corpo-rate structure.

1.2. The corporate body originates in the projection of sovereigntyoutside the social

Before the creation of a corporate body, sovereignty dwells within society. The

presence of sovereignty leaves no room for a secular social realm of everydaypragmatic interaction. Sovereignty is typically considered, at this stage, to bevested in the private body of a divine kingor, in modern terms, a charismaticleaderwhose authority is neither sanctioned nor constrained by a superim-posed ancestral law. Divine kingship may be highly effective in periods of foun-dation but is hardly consistent with stable and continuous structures of rule.Thus, the sovereignty of the divine king is projected onto an authority thatdwells outside the social.5 From this moment onward, sovereignty vests in thecorporate, as opposed to the private, body of the king, in the dynasty and the

constitution. The king is seen as an ordinary mortal, an organ of a corporateorderthe dynastyand his rights as grounded in ancestral law rather thanpersonal charisma.

It is the sacred communal bodynot merely the sanctity of the kings pri-vate bodythat is projected outside the group and transformed into its corpo-rate body. By the notion of the communal body I refer to the group as a simple,

5 For a seminal discussion of the constitutional significance of divine kingship from the perspectiveof political anthropology, see LUC DE HEUSCH, Pour une dialectique de la sacralit du pouvoir [For adialectic of the sacredness of power], reprinted in CRITS SUR LA ROYAUT SACRE [WRITINGS ON SACREDROYALTY] 215 (1987). Contractarian foundation narratives, such as Hobbess and Rousseaus,according to which the state originates in the voluntary transfer of natural rights and freedoms tothe sovereign, capture the process of projection on which social structure is premised. As Hobbessaccount suggests, the founding projection is not a single historical event but a permanent processof refoundation of the polis by its individual members.




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inarticulate, immanent unity, generated through the dissolution of interper-sonal boundaries. The communal body is the communion of group membersthat occurs in rites of passage, carnivals, natural disasters, fascist regimes,

wars, revolutions, referenda, elections, and other instances of communitas.During these episodes, the group contains and enacts its unity.6 The concept ofthe corporate body, too, refers to the group as a single, sacred, collective body,but one that dwells outside the social, and which comes into being through theprojection of the communal body. Sovereignty always vests in the collectivebody: ordinarily, it assumes the form of a corporate body and dwells outsidesociety, occasionally it pervades society in the form of a communal body.

The social body comprises not only living members of society. It is the com-mon body of the dead, the living, and the yet-to-be born. All generations par-take of the social body in either of the forms that it may assume: as a communalor a corporate body.7 When the social body is enacted, that is, when it appearsas a communal body, the dead and the unborn are rendered present alongsidethe living. The communal body dissolves intergenerational as well as interper-sonal boundaries. The communion of the living with the dead in the commu-nal body shatters the social space. It leaves no room for exclusive occupationby the living and for the business of life. As we shall see in the last section, anarbitrary, ruthless power over life and death, which has been associated, tradi-

tionally, with sovereignty pervades society with the enactment of the commu-nal body. Episodes of sovereign presence tend to result in bloodshed and cannotlast for long. The transitional nature of communal presence undermines theidea of immanent sovereignty. The projection of intergenerational unity out-side society and its transformation into a corporate body allow for an advanceddegree of interpersonal separation and individual autonomy in the regularcourse of social life, as well as for the emergence of spheres of everyday, prag-matic action and interaction. The projection of such unity attests to societysacceptance of division and absence and of the toils of everyday life.

1.3. The corporate body and the communal body correspond to socialstructure and communitas respectively

In an earlier work, I proposed reading into Victor Turners distinction betweensocial structure and communitas two subdistinctions that Turner himself did

6 On the imaginary identification of the group with a single, all-embracing body, see, for example,

WILFRED R. BION, EXPERIENCES IN GROUPS 162 (1961); DIDIER ANZIEU, THE GROUP AND THE UNCONSCIOUS120124 (1985); OTTO KERNBERG, Regression in Groups, in INTERNAL WORLDAND EXTERNAL REALITY 211(1980).

7 Bloch describes the perennial notion that the bodies of the living are made of the bodies of thedead: . . . different generations are consubstantial so that the body of one generation is the sourceof life and substance for the next. Maurice Bloch, Almost Eating the Ancestors 20(4) MAN 631, 633(1985). This image is different from that of a single collective body of which the dead and the livingpartake.




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not consider.8 The first is the psychoanalytic distinction between relations ofmutual recognition among autonomous individuals and relations of violentfusion. Different versions of this distinction can be found in the works of Melanie

Klein and Erich Fromm and in other psychoanalytic theories. The second sub-distinction is that between absence and presence. Social structures can beunderstood in terms of interpersonal separation and absence; communitas, interms of fusion and presence. The combination of these characterizationsentails a view ofcommunitas as a moment of presence of social unitynamely,as a communal bodyand an understanding of social structure as a state ofabsence of communal unity, that is, as a corporate body.

The distinction between social structure and communitas corresponds, then,to the distinction between corporate and communal bodies. The differentiationbetween the corporate and communal instances of the collective body allowsfor the integration of accounts of social structure and ritual into a single con-ceptual framework. In communitas, society enacts its communal body, whereasin the course of social structure the communal body is projected, transformedinto a corporate body, and worshipped from afar by autonomous individuals.Interaction in social structure takes place between separate individuals and ismediated by their differentiated, normative social roles. These normative iden-tities, which consolidate interpersonal separation in social structure, dissolve

in communitas. The personal self expands and coincides then with the collectiveself. Social stratification, legal mediation, and conflicts of status and interest,which in social structure enhance individual autonomy and the alienation ofthe subject from his own and other selves, give way to an experience of univer-sal twinship. Communitas is an essentially lawless form of interaction: the nor-mative system, which structures everyday life, is suspended, challenged, andoccasionally reformed. Fundamental interdictions are violated and traditionalauthority replaced by a charismatic leadership devoid of a genuine legal sanc-tion. Society is pervaded by constituent, seemingly boundless power and assertsits freedom from superimposed laws and constraints.

1.4. The corporate structure as a legal order

In the passage from communitas to social structure, from a communal to a corpo-rate body, the law steps forward. Traditional representations of the law in differ-ent medialearned, figurative, ritual, or oral-popularpoint to its origin inancestral/corporate authority.9 The standard opposition between the rule of law

8

See, e.g., Lior Barshack, The Communal Body, The Corporate Body and the Clerical Body: An Anthro-pological Reading of the Gregorian Reform, in SACRED AND SECULAR IN MEDIEVAL AND EARLY MODERNCULTURES: NEW ESSAYS 102 (Lawrence Besserman ed., 2006). For the distinction between structureand communitas, the locus classicus is VICTOR TURNER, THE RITUAL PROCESS (1971).

9 Moreover, cultural representations of ancestors rarely omit reference to their juridical capacities:. . . ancestors are projected as figures of authority to whom powers of life and death are attributedjudicial figures . . . rather than bountiful deities. Meyer Fortes, An Introductory Commentary, inANCESTORS 1, 14 (William H. Newell ed., 1976).




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and the rule of men reflects the intuition that ultimate lawmaking power doesnot reside among the living. Lawgiving is the predominant function of corporate/ancestral authority; the more transcendent an authority the more its function is

reduced to that of lawgiving. The continuous existence of corporate social struc-tures depends on the regular enforcement of the law. Legal categories divide soci-ety into independent institutions and alienated groups and individuals in orderto prevent it from embodying its unity, which finds refuge outside the social, inthe realm of the corporate body. By dividing the group, ancestral law becomesthe embodiment of its absent unity. As the origin and anchor of division, it func-tions as a common reference for the different segments of social structure.

2. Legal continuity and the institution of historical timeThe description of the corporate body in the preceding section hinted at severalmoral and sociotheoretical arguments for the absence of sovereignty. The pres-ence of sovereignty dissolves interpersonal boundaries and leads, sooner orlater, to the violation of human rights. Moreover, immanent sovereigntyendows the community with arbitrary power over individual fates and tends toprecipitate senseless violence. Economy and politics seem to depend on socie-tys relinquishment of sovereignty insofar as everyday social action assumes

interpersonal rivalries of various sorts and the demarcation of a secular, tem-poral realm that is devoted to the satisfaction of individual appetites and pur-suits. To this blend of considerations the claim that immanent conceptions ofsovereignty cannot account for the temporal organization of social life lendsadditional support. The flow of historical time depends on the projection of thecommunal body outside society and on its transformation into a corporatebody. In particular, it depends on the legal fiction of corporate perpetuity.Without belief in corporate perpetuity, society would have been confined to anexperience of temporality known to anthropologists as mythical time.

2.1. Mythical time

Anthropologists have employed the term mythical time to refer to the experi-ence of temporality in communitas. In a way, the term is imprecise because com-munitas allows for neither mythology nor time. It is characterized by anatemporal liminal experience that interrupts historical time. The arrest of timein communitas can be understood in light of the proposed concept of the socialbody. If the dead, the living, and the unborn are consubstantial in the collec-

tive body, societys enactment of its body occasions the simultaneous presenceof all generations and arrests the flow of time. It generates an experience ofpermanent immediacy, an eternal present.10 Mythical time is self-sufficient

10 Numerous accounts of ritual describe an interruption of the normal flow of time. See, for example,VICTOR TURNER, Images of Anti-temporality, in ONTHE EDGEOFTHE BUSH 227 (1985); TIME OUT OF TIME:ESSAYSONTHE FESTIVAL (Alessandro Falassi ed., 1987).




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and carefree, a time of complete and immediate realization. The exuberance ofthe founding episode coincides, here and now, with the promised, posthistori-cal bliss of salvation.

Like time and like law, national and other myths dissolve in communitasbecause, like time and law, they are premised on the separation between thegenerations and, in particular, between the living and the dead. While com-munitas often occasions an intense reenactment of myth, such a celebration ofmyth actually involves its suspension. Myth remains in effect only as long asthe ancestors dwell in a separate realm and the corporate structure is intact.Then, myth provides the group with prototypical representations of its ances-tors and corporate perpetuity, and of past episodes of communitas in whichsocial structure was founded and refounded. Communitas suspends mythologyin order to rejuvenate time and social structure, and to be recorded in a newmyth, a new collective memory, once time has been relaunched.

The simultaneous presence of all generations in the communal body andthe consequent arrest of time in communitas imply the identification of the liv-ing with death and the dead. The affirmation, or enactment, of death in ritualhas been repeatedly observed in studies of myth and ritual.11 Anthropologicalaccounts of funerary and sacrificial rituals often recorded manifestations ofcollective identification with the dead. At funerals, Arnold Van Gennep noted,

all members pass through death.12 In certain societies, the living masqueradeduring funerals as dead. The entire process of mourning is sometimes referredto as a phase of death.13 The assertion of life over death through the projectionof the communal body and its transformation into a corporate body is per-formed by means of the corpses disposal. The boundary between the living andthe dead is then reestablished; the deceased is transformed into an ancestor, apersonification of the corporate body and the corporate structure of society.Affirmations of death and the identification of the living with the dead are notconfined solely to rituals that are explicitly concerned with death, such asfunerals and sacrifices.14 In other rituals, too, the enactment of the communalbody implies an arrest of time and a withdrawal of societys endorsement of theburdens of temporal existence.

11See, e.g., EDMUND R. LEACH, Time and False Noses, in RETHINKING ANTHROPOLOGY 132 (1961).

12 ARNOLD VAN GENNEP, THE RITESOF PASSAGE 147 (1960).

13

Benjamin Ray, The Story of Kintu: Myth, Death and Ontology in Buganda, in EXPLORATIONSIN AFRICANSYSTEMSOF THOUGHT 70 (Ivan Karp & Charles S. Bird eds., 1980)

14 Sacrificial rites occasion a social surrender to death insofar as the victim stands for the sacrificingcommunity. See GODFREY LIENHARDT, The Control of Experience: Symbolic Action, in DIVINITYAND EXPERI-ENCE: THE RELIGIONOFTHE DINKA 282297 (1961) (summing up a long tradition of anthropologicalreflection on sacrifice: . . . an important feature of sacrifice is that the people for whom it is madeenact the death of a victim which in important respects represents themselves, in order to survivethat death).




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2.2. From mythical time to corporate perpetuity

In the passage from communitas to structure, the renunciation of sovereigntyon the part of the living launches the flow of time. The projection of the collec-

tive body institutes social space much as it sets social time in motion. It setsapart the living and the dead, clearing a space for exclusive habitation andexploitation by the living. Social space, as a network of interpersonal distances,is produced through the separation of the individual from the communal body.Hannah Arendt saw that space is constituted through the legal establishmentof boundaries between individuals. Already in The Origins of Totalitarianism shenoted that [b]y pressing men against each other, total terror destroys thespace between them. . . .15 Time, as a configuration of intergenerational rela-tions, is set in motion through the disentanglement of the communion of gen-erations that occurs in communitas. Time is launched by means of separationbetween successive generations of the living,16 as well as between the livingand the dead.

With the laying down of interpersonal and intergenerational boundaries,the collective body does not disintegrate. It is relegated to a realm outside soci-ety, where it assumes the form of an immortal corporate body. From thismoment onward, the unity of the generations unfolds in the course of a his-tory, with every new generation extending the life story of the collective body

forward in time. History is launched in the passage from communitas to socialstructure once the founding moment of intergenerational communion isinscribed in a refashioned collective memory. No longer immediately present,intergenerational unity becomes the subject of mythical representations of cor-porate perpetuity, of Roma Aeterna, which convey the idea that an infinitenumber of generations partake of the sovereign body. Kantorowicz explains theimage of corporate immortality: . . . the most significant feature of the personi-fied collectives and corporate bodies was that they projected into past and future,that they preserved their identity despite changes, and that therefore they werelegally immortal.17 The specters of corporate perpetuity, such as myth, law,monumental architecture, and the symbols and sites of civil religion, endow the

15 HANNAH ARENDT, THE ORIGINSOF TOTALITARIANISM 466 (1948).

16 On the structural advantages of norms of distance, avoidance, and authority between successivegenerations, see A. R. RADCLIFFE-BROWN, STRUCTUREAND FUNCTION IN PRIMITIVE SOCIETY 68, 96 (1965).

Pathological cases ofcommunitas, such as the Nazi regime, originate in repudiation of the norma-tive and temporal hierarchies between generations. On pathological reversals of these hierarchies,see JANINE CHASSEGUET-SMIRGEL, THE EGO IDEAL 1518 (1984).

17 ERNST H. KANTOROWICZ, THE KINGS TWO BODIES 311 (Princeton Univ. Press 1957). In a Lacanian vein,Pierre Legendre observes that historical time, which, following earlier authors, he distinguishesfrom mythical time and associates with the succession of generations, is represented by names-effigies and the figure of the Father. See PIERRE LEGENDRE, LINESTIMABLE OBJET DE LA TRANSMISSION [ThePriceless Object of Transmission] 270, 279 (Fayard 1985).




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social with unity and with a sense of identity with past and future generations.As Jed Rubenfeld argues, The Constitution is what continues to gather up gen-eration upon generation of Americans into a single political subject. A written

constitutions normative force depends ultimately on whether it works to recalla people to itself over time: a means by which a people re-collects itself and itsfundamental commitments.18 I would add that the constitution is capableof relating the generations in time by virtue of the fact that it fabricates timeitself by disentangling the communion of the generations.

The flow of historical time depends on the fiction of corporate perpetuity,because it is this fiction that provides the conceptual bedrock for the successionof generations and dispels their simultaneous presence. The relegation of sov-ereignty to ancestors and offspring and the different representations of corpo-rate perpetuity, such as symbols of nation, monuments, and the constitution,open up the present to the horizons of the past and the future. Corporate perpe-tuity is not only the conceptual premise of time reckoning but, as well, theobject of civic faith. The ritual experience of timelessness and intergenerationalcommunion gives way to a belief in corporate perpetuity. This belief, bound upwith recognition of ancestral authorities, conditions societys willingness toembrace the burdens of temporal existence. It is embedded in legal institutionsand animates their efforts to curb aspirations for communal presence through

the regulation of everyday life.In order to sustain the flow of time, the corporate body and the political

center that represents corporate unity claim to be not only enduring but alsoeverlasting. The passage from mythical to historical time would not have beentolerable had it doomed society to temporal finitude. Through the fiction of cor-porate immortality, the group as a whole and, indirectly, each of its individualorgans embrace time yet transcend temporal finitude. In the passage to socialstructure, the corporate body comes to stand in the place of the communalbody, enabling humans to resist the allure of immanence and imminencethrough the promise of corporate immortality. Law and the other specters ofcorporate perpetuity offer humans a vicarious access to the collective body, anaccess that is indirect, tame, and within time.

The idea that time is grounded in fixed and sacred collective representationsis familiar to the sociology of time since its beginning. For Durkheim, temporal-ity is primarily social and public. It consists of a social rhythm of collectiveactivities that is largely codified in societys calendar.19 However, the manyauthors who, following Durkheim, have asserted the primacy of public, official

time generally have failed to identify the fictional perpetuity of the corporatebody as the imaginary axis along which historical time unfolds.

18 RUBENFELD, supra note 2, at 177.

19 EMILE DURKHEIM, THE ELEMENTARY FORMSOF RELIGIOUS LIFE 10 (Karen E. Fields trans., 1995).




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The claim that time is grounded in corporate perpetuity implies that timepresumes the existence of a higher law that binds all generations behind thechanging positive articulations of the law. From an anthropological, as opposed

to a metaphysical, perspective on time, it matters little whether the eternity ofhigher law is taken to be enshrined in custom or in the unchanging order ofnature.20 A further manifestation of corporate perpetuity alongside the ideaof eternal law is the continuity of legal systems. Corporate perpetuity endows legalsystems with cross-generational continuity. Immanent theories of sovereignty,such as Hobbess and J. L. Austins, cannot conceive of legal continuity thatextends beyond the life of a sovereign king or group of individuals.21 In constitu-tional thought, the import of the fiction of corporate perpetuity consists in thechallenge that it poses to immanent notions of sovereignty. The claim advocatedby theorists of immanent sovereigntythat there is no distinction, in WalterBenjamins terms, between founding and conserving violence or that sovereignviolence is not renounced with the establishment of a constitutional orderis at odds with the view of corporate perpetuity as the institutional premise oftemporality. The flow of time depends on a passage, however partial andincomplete, from founding to conserving violence. It rests on the relegation ofsovereignty outside the social that proceeds through the transformation of thecommunal body into a corporate body and the postulation of corporate perpetuity.

2.3. Corporate perpetuity, ancestral immortality

Corporate groups, we have seen, represent themselves to themselves and toother groups by reference to ancestral figures. This applies to modern nationsas much as it does to traditional societies. Mythical lawgivers, founders ofdynasties, and the founding fathers and mothers of modern nation-states countamong the more familiar instances of ancestral authority. As personificationsof corporate bodies, ancestors serve as guardians of time. Having already died,ancestors are immortal, and their immortality represents corporate perpetuity,

the perpetuity of the cultural process by which generations of descendants suc-ceed each other in time. The fiction of descent from common ancestors paveslinear time, as the path along which generations succeed each other, by unit-ing and separating the generations. It dispels the simultaneous communion ofthe generations and transforms communal into corporate unity.

20 On custom and the immemorial in the history of the common law, see J.G.A. POCOCK, THE ANCIENT

CONSTITUTIONAND THE FEUDAL LAW (1987). In France it was the Salic law which symbolized unchangingcustom and national identity. See Ralph Giesey, The Juristic Basis of Dynastic Right to the FrenchThrone, 51 TRANSACTIONSOFTHE AMERICAN PHILOSOPHICAL SOCIETY (1961); COLETTE BEAUNE, THE BIRTHOFANIDEOLOGY: MYTHSAND SYMBOLSOF NATIONIN LATE-MEDIEVAL FRANCE 245265 (Susan Ross trans., 1991).The arduous crystallization of the modern concept of legislation testifies for the tenacity of the ideaof eternal law, an idea which ultimately refers to the basic principles of the corporate organizationof society.

21 For Harts critique of Austins position, see H.L.A. HART, THE CONCEPTOF LAW 58 (1961).




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The claim that historical time rests on ideas and fictions of descent becomesall the more plausible in light of the fact that these ideas open up the horizon ofthe future much as they open up the past. The deference to ancestral authority

and law binds the subject to the horizons of past and future alike. While thedead enjoy a special position as personifications of corporate perpetuity, theidea of corporate perpetuity, as such, does not privilege the past. The prestige ofthe generation of the founders can be reconciled with the equal status of pastand future in a temporal order that is based on the legal construct of corporateperpetuity. Insofar as descent refers to a fictively perpetual process by whichthe descendants of a certain ancestor succeed each other, it postulates genea-logical links with past and future generations. The relations of the living withpast and future generations are premised on, and mediated by, the legal fic-tions of an everlasting succession of generations and corporate perpetuity. Thisentails that our relations with future generations presuppose relations withpast generations, and vice versathat we cannot relate to past generationswithout the anticipation of future generations, which, as Fortes writes, areunited with the ancestors in complementary continuity, laced with opposi-tion, as if they were mirror images of one another.22

The first point is that the living relate to their children and to all future off-spring through the mediation of notions of descent and ancestral authority. In

the terminology advocated by Fortes, relations offiliation (between parents andchildren) always assume relations of descent (between ancestors anddescendants).23 The second, less evident, point is that the presupposition of theperpetuation of the corporate group into the future is built into our relationswith past generations. If our relations to the past are mediated by the idea ofdescent as the uninterrupted succession of generations, then they presupposefuture offspring. In a typically perceptive remark, Fortes suggests that ances-tors preside not only over the horizon of the past, and that the reverence towardpast generations isfuture-oriented. Fortes writes:

[C]orporate groups . . . are kept in existence by mobilizing the successionof generations regulated by the principle of filiation. . . . The dead are . . .thought of as having a stake in the continuity, i.e. in the future persistence

22 FORTES, TALLENSI RELIGION, supra note 4, at 275.

23 On the distinction between filiation and descent, see Meyer Fortes, Descent, Filiation and Affinity: ARejoinder to Dr. Leach, 59 MAN 207 (1959). It is unlikely, though, that Fortes would have affirmed a

necessary and universal dependence of filiation upon notions of descent. In his recent overview of thetheory of kinship, Godelier captures the universal significance of descent as the underlying premiseof human reproduction. Godelier: [N]ulle part, dans aucune socit, un homme et une femme ne suff-isent eux seuls pour faire un enfant. Ce quils fabriquent ensemble, dans des proportions qui varientde socit socit et avec des substances diverses (sperme, sang menstruel, graisse, souffl, etc.),cest un ftus mais jamais un enfant humain, complet, viable. Dautre agents doivent pour cela in-tervenir:. . . des dfunts, des anctres, des esprits, des divinits. MAURICE GODELIER, MTAMORPHOSESDELA PARENT 325 (2004).




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of the society to which they belonged in life. In ancestor worship this is ac-cepted as just and natural; it is this that, paradoxical as it may sound, givesancestor worship a future orientation, rather than, as might superficially

be thought to be the case, a fixation on the past.24In his celebrated study of the Nuer, E. E. Evans-Pritchard tackled the issue of

the relationship between time and descent, a relationship which Nuer tempo-ral terminology makes explicit and inescapable. Evans-Pritchard noted thatNuer locate events in time by reference to generations and age-sets as timeunits. On the basis of this terminological observation, Evans-Pritchard con-cluded, in passing, that time is not a continuum, but is a constant structuralrelationship between two points, the first and last persons in a line of agnatic

descent.25

Here, Evans-Pritchard adds the mythical identification of the begin-ning of time with the beginning of a line of descent to the role of generations asunits of time reckoning. If my argument is correct then the dependence of tem-porality on descent goes deeper than Evans-Pritchard had thought. Descentserves not only for time reckoning and for fixing the external boundaries, thebeginning and end, of history, but also for overcoming ritual time. In that way,descent allows for the formation of elementary temporal notions such as dura-tion, past, and future. These notions depend on the dispersion of the communalbody through the recognition of descent. They depend on the attribution oftranscendence, perpetuity, and sovereignty to the imaginary collective body ofall generations.

2.4. Constitutional moments as interruptions of time

While the fiction of an immortal corporate body may be thought to entail socialand legal stagnation, it produces the opposite consequences. The succession ofgenerations in time and the relegation of intergenerational unity outside thesocial will encourage, if not prescribe, development, change, and renewal

24 Fortes, supra note 9, at 6.

25 E. E. EVANS-PRITCHARD, THE NUER 108 (1940). The fiction of corporate perpetuity, which Evans-Pritchard does not count among the constituents of temporality, allows time to be both a continu-um and a structural relation. By the constancy of the structural relationship, Evans-Pritchardrefers to an observation he makes earlier that the temporal depth of Nuer lineage structure nevergrows, so that there is a constant number of steps between living members and the founder of

their clan. A particular aspect of the relations between kinship and time concerns the role of kin-ship terminology in the representation of time. Lvi-Strauss has argued that kin terms that lumptogether members of successive generations, such as the use of a single term to designate mothersbrother and mothers brother son in so-called Omaha type terminologies, reflect an empty notion oftime with no change taking place whatsoever.See CLAUDE LVI-STRAUSS, STRUCTURAL ANTHROPOLOGY74 (trans. Claire Jacobson & Brooke Schoepf, Basic Books 1963). For an illuminating discussionand critique of Lvi-Strausss position, see ROBERT HARRISON BARNES, TWO CROWS DENIES IT. A HISTORYOF CONTROVERSYIN OMAHA SOCIOLOGY 224226 (Univ. Nebraska Press 2005).




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within the social.26 The distance of corporate unity from society implies thatinterpretations of what successive generations consistently consider as eternallaw vary from generation to generation, as they do among the living. The

diversity of interpretations of the same law allows society to administer its rela-tions with other generations as relations that combine identity and difference.Moreover, the meaning of what is taken to constitute the unchanging core ofthe law, in fact, also changes over time. While the social body and fundamentallaw are represented, at any given moment, as eternal, they undergo constantdevelopments. Legal historians have often noted how the idea of unchangingcustom had been used to forge a sense of overarching continuity and to con-ceal changes and developments.27 Similarly, while the social body is repre-sented as immortal, the hegemonic representations of man and woman,through which the social body is visualized and operates as an ethical ideal,change with time. These hegemonic representations can accommodate noveland diverse identities and forms of life without breaking the temporal continu-ity of the body politic. Since descent is imaginary and manipulable, the fictionof the body politic does not preclude the integration of new groups.28 Whilechanges and developments are usually interwoven into the continuous historyof the body politic, in moments of crisis such as revolutions and civil wars thecontinuity of historical time is interrupted and challenged.

The corporate group is defined by reference to extraordinary moments inwhich the communion of generations arrests the flow of time. The ongoingsuccession of generations is represented as bracketed by a founding momentand subsequent turning points. Corporate perpetuity is grounded fictively in aprehistorical founding episode in which the corporate body was born and thelaw given. The moment of foundation presides over the horizon of the past butalso gives society a future orientation, a destiny. History stretches between,and is driven by, a founding moment in which the ideas to be pursued by soci-ety were announced, and the moment of final redemption in which they will berealized. Between the imaginary moments of the beginning and end of history,the founding moment is periodically reenacted in order to sustain societys

26 In contrast to the immutability that is characteristic of the corporate realm. The world of theancestors is typically depicted as bereft of change and renewal. In AN AFRICAN ARISTOCRACY, Kupernoted that the activities of ancestors . . . are similar to those of the living, but the spirits do notmarry or reproduce. It is a static life. HILDA KUPER, AN AFRICAN ARISTOCRACY 186 (1947). On the

eventlessness of ancestral life, see also JEFFREY BURTON RUSSELL, A HISTORY OF HEAVEN: THE SINGINGSILENCE 57, 81 (1997).

27 T.F.T PLUCKNETT, LEGISLATIONOF EDWARD I 20 (1962). See also Fredric L. Cheyette, Custom, Case Law,and Medieval Constitutionalism: A Re-Examination, 78 POL. SCI. Q. 362 (1963).

28 As Radcliffe-Browns discussion of marriage suggests, novel alliances are concluded through thefabrication of shared descent. A. R. Radcliffe-Brown, Introduction to AFRICAN SYSTEMSOF KINSHIPANDMARRIAGE 1, 54 (A.R. Radcliffe-Brown & Daryll Forde eds., 1950).




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adherence to time and to the corporate order as a whole. The corporate, tem-poral organization of society is refounded in large-scale rituals during whichmythical time permeates and paralyses spheres of everyday social interaction.

Temporal continuity breaks down in order for it to be renewed. Any large-scaleritual resembles a constitutional moment insofar as it revitalizes the legal orderthrough its relaxation. Some rituals are constitutional in the narrower sense ofhaving formal constitutional consequences. These include declarations ofindependence, constitutional amendments, referenda, states of emergency,and broad amnesties. The general significance of constitutional moments con-sists in their contribution to the production of time. Thus the fiction of corpo-rate perpetuity acquaints the living with the temporal horizons of past andfuture through the idea of cross-generational legal continuity as well asthrough representations of mythical episodes which interrupt and bracket his-torical time.

3. Critical perspectives on the alliance of law and time(Arendt, Bloch, Marcuse, Negri)

The view of time as a legal construct runs up against naturalist and Marxistperspectives on time. According to the former perspective, time is not legally

constructed. Its structure is dictated by nature and grasped in the course ofmans laborious encounters with nature. According to Marxist accounts, suchas Marcuses and Negris, time, or a certain distorted form of it, is indeed legallyinstituted; however, as such, it is a repressive institution. Human liberationrequires the overthrow of the temporal organization decreed by the law.Arendts reflections on time in relation to society and politics are predictablynot quite Marxist in their inspiration. I will conclude the section with a shortdiscussion of her views on the temporal significance of the law.

3.1. Blochs critique of social-constructivist theories of time

According to Maurice Bloch, societies employ two sets of temporal concepts.One set consists of ordinary notions of duration that humans form in the courseof their productive activities through the confrontation with nature. Sincethese notions are imposed by nature they can be found in all societies. In thecontext of ritual, society employs a different set of concepts, which is character-ized by denial of everyday notions of duration. These notions of time are,according to Bloch, not universal. They differ from one society to another.

Bloch seems to contradict himself in arguing that ritual notions of time areboth culturally variable and universally characterized by the reversal of ordi-nary notions of duration. However, my main critique of Bloch concerns hisunderstanding of corporate perpetuity. Bloch recognizes that corporate perpe-tuity plays a role in shaping societys notions of time but misconceives thatrole. While I have argued that the fiction of corporate perpetuity underpinsthe temporality of everyday life as opposed to mythical time, Bloch associates




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corporate perpetuity with ritual breakdowns of time because he considers cor-porate perpetuity an otherworldly, fanciful idea that is inconsistent with every-day experiences of duration.29

Bloch claims that notions of ritual timelessness are culturally variable; how-ever, his examples suggest that they are as universal as everyday notions ofduration. If different societies express similar ideas about the temporality ofritual, the dichotomy between temporal concepts that are natural and univer-sal, on the one hand, and those that are religious and culturally variable, onthe other, breaks down. Like notions of ritual time, everyday notions of dura-tion are both universal and socially constructed. They are socially constructedbecause they are premised on the fictional perpetuity of corporate bodies. Sincethe publication of Lvi-Strausss major work on kinship, the paradigm of a uni-versal social construct is the incest taboo.30 For Lvi-Strauss, the incest taboolies at the origin of all cultures because it marks the threshold between natureand culture. Corporate perpetuity is analogous to the incest taboo in being atonce universal and socially constructed. Moreover, the two social constructsare closely tied to each other: corporate perpetuity is premised upon the incesttaboo insofar as time rests on boundaries between the generations that are laiddown by the incest taboo.

Bloch fails to recognize the possibility that everyday notions of duration

may be grounded in the fiction of corporate perpetuity because he does notdistinguish between corporate perpetuity, on the one hand, and the timeless-ness of the communal body, on the other. As a result, he associates corporateperpetuity with the temporality of ritual, while it is, in fact, the timelessness ofthe communal body that seems to be captured in the multiple descriptions of

29 Bloch writes: On the one hand there is a system used in normal communication based on uni-versal notions of time and cognition, and in which people are visualised in ways which seem to

differ little from culture to culture, a system which is used for the organisation of practical activi-ties, especially productive activities, and on the other hand there is another totally different sys-tem, referred to by Radcliffe-Brown as social structure, based on a stranger and much moreculturally specific system of classification. The presence of the past in the present is therefore one ofthe components of that other system of cognition which is characteristic of ritual communication,another world which unlike that manifested in the cognitive system of everyday communicationdoes not directly link up with empirical experiences. It is therefore a world peopled by invisibleentities. On the one hand roles and corporate groups and on the other gods and ancestors, bothtypes of manifestations fusing into each other as is shown so subtly by Fortes study of the repre-sentation of Tallensi descent groups. Another world whose two main characteristics, the dissolu-

tion of time and the depersonalization of individuals, can be linked, as I have argued elsewhere,with the mechanics of the semantic system of formalised, ritual communication.

Maurice Bloch, The Past and the Present in the Present, 12(2) MAN 278, 287 (1977).

30 LVI-STRAUSS, THE ELEMENTARY STRUCTURESOF KINSHIP (1969). In contrast to approaches to kinshipthat emphasize the ideas of corporateness and descent, theories that revolve around the ideaof exchange, such as Lvi-Strausss, accord priority to horizontal incest prohibitions that applybetween siblings over lineal prohibitions that apply between generations.




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ritual time. Corporate perpetuity is diametrically opposed to the eternal presentand permanent immediacy of ritual. Rather than epitomizing ritual notions oftime, corporate perpetuity underlies everyday notions of temporal and histori-

cal continuity.

3.2. Time and emancipation in Eros and Civilization

Marcuse, unlike Bloch, distinguished between eternity and timelessness, andrecognized that notions of duration are socially constructed. In Eros andCivilization Marcuse denounced the alliance between law and time as the foun-dation of repressive civilization. According to Marcuse, a nonrepressive civili-zation is characterized by the convergence of the reality principle and thepleasure principle in a state of abundance. Under conditions of abundance, the

temporal dimension of biological decay and time, generally, will lose their all-importance. Marcuse writes: . . . the fatal enemy of lasting gratification is time,the inner finiteness, the brevity of all conditions. The idea of integral humanliberation therefore necessarily contains the vision of the struggle againsttime. . . . If the aesthetic state is really to be the state of freedom, then it mustultimately defeat the destructive course of time. Only this is the token of a non-repressive civilization.31Man comes to himself only when the transcendencehas been conqueredwhen eternity has become present in the here and

now.32

According to Marcuse, law and order champion time as their strongest ally.The law and the temporal organization of social life are mutually reinforcing.Both epitomize the type of rationality dictated by the reality principle underhistorical conditions of want and, accordingly, prescribe sober, down-to-earthrealism. Every sound reason is on the side of law and order in their insistencethat the eternity of joy be reserved for the hereafter, and in their endeavour tosubordinate the struggle against death and disease to the never-ceasingrequirements of national and international security.33 Furthermore, law cel-

ebrates time because temporal finitude accustoms man to resignation and sub-mission generally: The flux of time is societys most natural ally in maintaininglaw and order, conformity, and the institutions that relegate freedom to a per-petual utopia; the flux of time helps men to forget what was and what can be:it makes them oblivious to the better past and the better future.34

If the foregoing account of corporate perpetuity is tenable, Marcuse is wrongto argue that law and time form an alliance under the auspices of the realityprinciple as mutually reinforcing strategies of coping with given conditions of

31 HERBERT MARCUSE, EROSAND CIVILIZATION 191 (1956).

32Id. at 122.

33Id. at 234.

34Id. at 231.




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shortage. Rather, absence itself appears to be legally fabricated, primarilythrough the transformation of the communal into a corporate body. Absence,and with it law and time, must be reproduced in order to safeguard life in the

face of the destructiveness of the communal body. Marcuse rejects the meta-psychological assumptions implicit in the concepts of the communal and cor-porate bodies, which entail a cultural imperative to reproduce absenceartificially in order to keep communal presence in abeyance. For Marcuse, thestate of complete gratification and abundanceor, in the present terms, thestate of immediate presence of the communal bodywill see the diminution,not the outbreak, of the death instinct.35

If Marcuse is correct, the affirmation of life requires the overthrow of theprevailing temporal regime, to which he refers as the deification of time.36According to Marcuse, destructiveness will be minimized under conditions ofabundance, lawlessness, and timelessness. Marcuses metapsychology wouldbe, and largely has been, rejected by most schools of psychoanalytic thought.Kleinians would anticipate the release of violence with the loosening of collec-tive projective mechanisms in communitas, and Lacanians would insist on theinherent destructiveness ofjouissance. Leaving aside the metapsychologicalcontroversy, my doubts about Marcuses profoundly humanist position ema-nate primarily from the sort of anthropological evidence cited earlier.

Anthropologists have repeatedly observed that the arrest of time in ritual typi-cally occasions the blurring of boundaries between the living and the dead ifnot an outright celebration of death. These observations suggest that the arrestof time releases rather than abates violence and self-destructiveness. Marcusestates that . . . the struggle against time becomes a decisive moment in thestruggle against domination . . . and proceeds to quote Benjamins assertion,in the Theses on the Philosophy of History, that [t]he conscious wish to breakthe continuum of history belongs to the revolutionary classes in the moment ofaction.37 However, the revolt against time is by no means unique to progres-sive forces. In its most extreme instances, it was not mounted by the workingclasses but by sinister regimes that turned themselves into cults of death.

3.3. Negri on constituent power as real time

Like Marcuse, Negri recognizes and criticizes the alliance of time and law. Negriblames the law for petrifying real time by setting up stagnant constitutionalstructures. Real time is time of labor as opposed to time of property,opentime as opposed to consolidated time.38 Negri identifies real time with

35Id. at 234235.

36Id. at 121.

37Id. at 233. Marcuse translates Walter Benjamin, ber den Begriff der Geschichte [Theses on thePhilosophy of History], 61.3 DIE NEUE RUNDSCHAU [THE NEW REVIEW] 568 (1950).

38 NEGRI, INSURGENCIES, supra note 1, at 231.




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constituent power, as opposed to constituted power and protests against itssubordination to fixed constitutional structures. He characterizes constituentpower as love of time39 and celebration of temporality, and as an endorse-

ment and affirmation of the crisis inherent in a genuine experience of time.40Constituent power is a permanent revolution gushing toward an open future.41The political is . . . production par excellence, collective and non-teleological.Innovation constitutes the political. . . .42 For Negri, the affirmation of realtime calls for the permanent galvanization of the peoples constituent powerand repudiation of any enduring constituted structure.

Contrary to Negris remarks on sovereignty and time, the immanence ofsovereignty betrays an aversion to time and change, a quest for a perpetualpresent. The exercise of constituent power dissolves the horizons of past andfuture into a sprawling present. Negri makes this point himself when he insiststhat constituent power cannot be guided by a utopian vision. Utopia, he speci-fies, is a blueprint for a movement toward a determinate future and, as such, itrepresses the genuine, necessarily traumatic, experience of time.43 Releasedfrom the hold of linear time, constituent power cannot be recruited to the reali-zation of any utopian projection. Negri champions the implacable temporal-ity of the French Revolution. He accuses Michelet of class hatred for havingobserved a thirst for blood in that phase of the Revolution that saw revolu-

tionary time at its utmost intensity.44 Contrary to Negris accusation, the thirstfor blood identified by Michelet is an inherent aspect of constituent power andof all interruptions of historical time. Negri correctly associates ordinary his-torical time with the transcendence of sovereignty; however, he fails to describea viable alternative temporality, since the time of constituent power is afflictedwith violence and self-destructiveness. The absolute presence of constituentpower negates present lives much as it erases the memory of past generationsand the anticipation of future ones.

3.4. Time and the constitution in Arendts On RevolutionIn The Human Condition and other works, Arendt claimed that political actionwould be inconceivable without a belief in immortality. The idea of immortality

39Id. at 334.

40Id. at 318319.

41

Id. at 24, 334, 335.42Id. at 28. Negri laments that Constitutions can come one after the othereach time or, rather,each historical period has its own constitutionbut time must always be constitutionalized. Anddifferent times must be reduced to zero. The machination of this reduction is temporal and theconstitution is a temporal machine.Id. at 315.

43Id. at 322.

44Id. at 194196.




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plays a crucial role in her accounts of both action and work. Political actionassumes a collective memory in which it aspires to be immortalized. The indif-ference to immortality in the modern world was, for Arendt, a clear indication

of the decline of the political.45 Like action, work, too, becomes meaningfulthrough the anticipation of permanence. In her account of work in The HumanCondition, Arendt lays emphasis on the durability of artifices. By outliving theirmakers, artifices establish a link between the generations. It is by virtue of theirdurability that artifices can endow the world inhabited by humanity with real-ity and reliability.46 In On Revolution, Arendt applies her general ideas aboutthe artifice to the law and the constitution. For Arendt, lawmaking belongs inthe category of work rather than action since the purpose of makers of laws andconstitutions is to produce enduring artifices. Like other artifices, the constitu-tion forges a link between the generations.47 While this is an important func-tion of the constitution, I will argue that Arendt does not recognize laws morefundamental role of fabricating time itself. The law, as an enduring artifice,makes possible the succession in time of separate generations before it connectsthem to each other.

Arendt does recognize the role of the law and other artifices in the fabrica-tion of space. The law is the wall, Arendt asserts in The Human Condition, layingdown spatial, interpersonal boundaries. A few pages earlier she states, more

generally, that the common world of things . . . relates and separates men atthe same time.48 In other words, artifices permit the fabrication of space byseparating individuals. Under fascism, when the rule of law collapses, the socialspace disintegrates.49 When Arendt describes the intermediate position of theartifice between generations no mention is made of the need to separate thegenerations from each other. Here, the role of the artifice is limited to that ofcreating links. There is an asymmetry between the synchronic and diachronicfunctions that Arendt attributes to the artifice. While the artifice, according toArendt, mediates between the living by separating and relating them at thesame time, as far as intergenerational mediation is concerned the function ofthe artifice is only that of relating the generations to each other.

Implicit here is an asymmetry between Arendts conceptions of space andtime. Space, Arendt states repeatedly, needs to be artificially fabricated. The arti-fact is indispensable if a space between individuals is to be opened. By contrast,

45 HANNAH ARENDT, The Concept of History: Ancient and Modern, in BETWEEN PASTAND FUTURE 41, 74

(2006).

46 HANNAH ARENDT, THE HUMAN CONDITION 95 (1958).

47 HANNAH ARENDT, ON REVOLUTION 203 (1963).

48 ARENDT, supra note 45, at 52.

49By pressing men against each other, total terror destroys the space between them . . . ARENDT,TOTALITARIANISM, supra note 15.




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time does not have to be artificially fabricated. The temporal distance betweengenerations, as opposed to the spatial distances among the living, is given.Nature, mortality, takes care of separating the generations; culture then enters

the scene, endeavoring to connect the living and the dead. Contrary to Arendtsposition, the diachronic and synchronic functions of the law are analogous.The law, and the corporate structure of society as a whole, not only relate gen-erations to each other but drive a wedge between them. Before the law canrelate the generations to each other, it has to dispel their simultaneous pres-ence in the communal body. The temporal distances between the generationshave to be legally, artificially fabricated.

Arendt could not recognize the role of the law and other enduring artificesin the production of time because, as Martin Jay has suggested, she subscribedto an immanent understanding of ultimate lawmaking power.50 Arendt makesno room for the distinction between normal politics and constitutionalmoments and undertakes to demythologize constitutional beginnings. For her,every moment is a constitutional moment, a singular and unconstrainedbeginning. Historical beginnings are denied both authority over the presentand a position outside the temporal sequence of everyday politics. Arendtemploys terms of internality and externality; the political institutions in opera-tion are not grounded in an external foundation, such as a myth of origins. The

beginning takes place constantly within them.51 It is not a mythical momentthat has to be left behind for historical time to be set in motion. The role of theartifice is loosely to connect the endless string of disconnected beginnings with-out binding them to anything permanent or eternal.

4. Concluding remark: Corporate perpetuity and thepolitical domestication of death

If, as Foucault characterizes Hobbess fundamental positi

barschack, lior - time and the constitution

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