Photographs by Rohan Quinby

Le Zigoto Café
5731 ave. du Parc
Montreal, Quebec
10 July – 30 August

new york: spectre

What is the relationship of cities to time? How do cities contain time? How do they express temporality? These are some of the questions I have tried to address in this series of photographs, taken in New York, Dublin, Barcelona, Hong Kong, Vancouver and Montreal. My understanding of urban temporality comes in part from my reading of the great urban theorist Lewis Mumford. Mumford viewed the city as both a material and immaterial container; as such, cities possess the capacity to contain different experiences of temporality. Beyond Mumford’s vision of a simple co-presence of different times, his conception of urban space opens the possibility of times other than the dead, repetitive time of contemporary capitalism. It is an analysis suggesting the development of multiple times within the urban container, times exceeding contemporary capitalism’s apparatuses of capture.

Prints may be purchased for $100.00 cdn each on photographic paper, $175 on canvas.

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new york: organic time

barcelona: house of spirits

montreal: jacques cartier

chicago: stratigraphy

barcelona: veiled

hong kong: presenting chungking

dublin: remembrance

montreal: summer

barcelona: shroud

When analyzing the spectacle one speaks, to some extent, the language of the spectacular itself in the sense that one moves through the methodological terrain of the very society which expresses itself in the spectacle. But the spectacle is nothing other than the sense of the total practice of a social-economic formation, its use of time. It is the historical movement in which we are caught. (Debord, Thesis 9)

Henri Lefebvre broke new ground in urban theory by giving an analytical priority to the consideration of space. Reacting against the overwhelming emphasis on time and history prevalent in critical philosophy at the time, Lefebvre’s work appeared to indicate that capitalist appropriation of space was a key source of alienation in contemporary life. Although he had been Lefebvre’s pupil and was his friend, Debord differed with Lefebvre on the significance of time within the urban order, arguing that despite the importance of space, the principle source of capitalist domination lay in “the spectacle’s seizure and denigration of history and memory”. For Debord, the abstraction of space was a moment of a much larger process; that of capital’s establishment of a universal and equivalent time of the commodity. Demonstrating both the proximity and divergences between Lefebvre and Debord, Merrifield writes that “Lefebvre had brought the commodity form to bear on everyday life, and extended abstract time (value) to incorporate abstract space; now, suggested Debord, everyday abstract space was but one aspect of the spectacle itself”.

The difference between the two writers turns upon Debord’s critique of production as it appears within class society. While Lefebvre produces a sophisticated analysis of the production of space, Debord shows that the production of time is an intrinsic aspect of capital itself. Beginning with the temporal experience of pre-capitalist societies, Debord sees the social appropriation of time as fundamental to domination. As he writes: “the class which organizes the social labor and appropriates the limited surplus value, simultaneously appropriates the temporal surplus value of its organization of social time: it possesses for itself alone the irreversible time of the living” (Thesis 128). Whereas pre-capitalist society expropriated the time of living labour openly, either through coercion of force or tradition, the great achievement of capitalism is that it manages to build the appropriation of time into the process of production itself, albeit invisibly. As David Harvey writes, time “is a vital magnitude under capitalism because social labor time is the measure of value and surplus social labor time lies at the origin of profit” (1989 p 425). Thus hidden within the cloak of production, the advantage to capital is that it accumulates surplus labour-time voluntarily, without recourse to constant coercion. To manage this, however, capital must organise all time so that it reflects the logic of equivalence that is the very secret of commodity production. Debord writes that:

The time of production, commodity-time, is an infinite accumulation of equivalent intervals. It is the abstraction of irreversible time, all of whose segments must prove on the chronometer their merely quantitative equality. This time is in reality exactly what it is in its exchangeable character. In this social domination by commodity-time, “time is everything, man is nothing; he is at most the carcass of time” (Poverty of Philosophy). This is time devalued, the complete inversion of time as “the field of human development.” (Thesis 147)

Capitalism thus replaces cyclical times of traditional societies with its own ordering of time, one characterised by the positing of an homogenous temporal “direction” or linearity to the flow of time itself. By irreversibility, Debord means to indicate that capital struggles to impose a unified time over the entire field of social subjectivity, thus annihilating any other temporal order that might threaten the domination of capital. The accumulation of abstract, empty and exchangeable time becomes the teleology of capitalist progress, and history becomes capitalist history: all other conceptions of time are swept before the onset of capitalist commodity production.

With the development of capitalism, irreversible time is unified on a world scale. Universal history becomes a reality because the entire world is gathered under the development of this time. But this history, which is everywhere simultaneously the same, is still only the refusal within history of history itself. What appears the world over as the same day is the time of economic production cut up into equal abstract fragments. (Thesis 145)

Despite the unprecedented force and clarity of his thesis, it could be argued that there is little at this point to distinguish Debord’s analysis of temporality from the writing of Lefebvre or even, should one look carefully enough, from that of Marx himself in the Grundrisse. But it is exactly here that Debord strikes out in an entirely new direction, one that will have significance for our understanding of the relation between capitalism, temporality and the city. As we saw above, one of Debord’s great insights is to recognise that the nature of the capitalist order has changed fundamentally from what it was in Marx’s day. Now, Henri Lefebvre was also attentive to the transformation of capitalism in the late 20th century, but situated this transformation in the emergence of an urban order. Debord, on the other hand, argues that it is the appearance of the spectacle that defines contemporary capitalism. While this distinction might appear simple, in reality it is more complicated than it seems. The Society of the Spectacle links the advent of the spectacular order to the development of the modern capitalist city, and as a result, it might appear as though Debord and Lefebvre have simply arrived at different ways of expressing the same thing. However, the consequence of Debord’s position is that he sees the urban as a spatialisation of the spectacular order, so much so that it is the spectacle’s logic and temporal structure that determines urban reality in late capitalism.

What is most innovative about Debord’s approach is that he is not simply arguing that it is the temporal logic of the classic commodity that determines the physical landscape of the urban. Were this the case, we would need only understand the temporality of classical commodity production in order to grasp the way in which urban space conforms to, and reproduces, the domination of capital. Such an approach fits within the scope of much traditional marxist political economy, concerned as it is with the analysis of the temporal rhythms of capital. It might even be argued that much of David Harvey’s urban geography proceeds in this direction; that is, despite his careful understanding of both space and time, in essence his work imports temporality through the deployment of classical marxist political economy. In his 1973 Social Justice and the City as well as in his 1985 Consciousness and Urban Experience, Harvey exhaustively analyses the relational character of time and space as it relates to urban geography through a deft grasp of marxist economics. While I am certainly not arguing against this method of approach, I am saying that we need to be careful that our understanding of political economy keeps pace with transformations of late capitalism. The strength of Debord’s Society of the Spectacle is that it develops our understanding of marxist political economy and the temporality of capitalism by positing the spectacle as a new form of the commodity, one that modifies the conditions of capitalist production and temporality.

As an illustration of the specificity of this spectacular time, let us turn now to a final aspect of Debord’s work, one having to do with his account of how capital struggles to impose its temporality upon all of social life. For Debord, the imposition of capitalist time is akin to a form of “primitive accumulation” or expropriation. However, once capital asserts its social and temporal dominance, it begins the work of returning carefully delimited temporality to the producers in a manner that is more complex than the simple imposition of abstract and homogenous time discussed above. How does it work? Debord understands that this gift of time is not given freely by capital. Rather, as capitalism passes beyond the era of basic industrial manufacture, producers must be gradually converted into consumers. Debord writes that,

The preliminary condition required for propelling workers to the status of “free” producers and consumers of commodity time” was the violent expropriation of their own time. The spectacular return of time became possible only after this first dispossession of the producer. (Thesis 159)

In the section titled “Spectacular Time,” Debord notes that, with the full development of the spectacular society, a particular form of cyclical time is re-introduced into the temporal experience of capitalism. According to Conrad Russell, “in the ‘spectacle’, linear ‘commodity time’ acquires a cyclical double. The surviving rhythms of everyday life do not ‘hang in tatters’ – they are reconstructed as commodified products. As abstract and homogeneous as commodity time itself, they constitute its ‘consumable disguise’” (Russell 2002, p 198). Thus, in addition to abstract and homogenous commodity time, the spectacular order imposes what Debord calls “pseudo-cyclical” time, a time that corresponds to the temporality of the spectacle and one that therefore helps define urban terrain. Reading Debord, it is not difficult to see how the temporal order of spectacular time maps out onto our contemporary urban areas:

Consumable pseudo-cyclical time is spectacular time, both as the time of consumption of images in the narrow sense, and as the image of consumption of time in the broad sense. The time of image-consumption, the medium of all commodities, is inseparably the field where the instruments of the spectacle exert themselves fully, and also their goal, the location and main form of all specific consumption… The social image of the consumption of time, in turn, is exclusively dominated by moments of leisure and vacation, moments presented at a distance and desirable by definition, like every spectacular commodity. Here this commodity is explicitly presented as the moment of real life, and the point is to wait for its cyclical return. What was represented as genuine life reveals itself simply as more genuinely spectacular life. (Debord, Thesis 153)

Antonio Negri’s multitude is at least rhetorically identified with the new social movements that announced themselves so spectacularly in cities such as Seattle, Quebec and Genoa. Popular protests in these and other cities highlighted demands of subjects the industrialised West knew only theoretically, particularly the rural poor and indigenous peoples from the developing South. But despite the attention Negri has paid to the global multitude with its billions of rural poor, it is clear that cities are the key terrain in his work.

In Negri’s writing the metropolis is both a problem and a solution, a space of biopolitical exploitation par excellence and a place of potential resistance and creativity. The city is a privileged site of communicative co-operation, affective production and immaterial labour. More: If the urban subject is a tendency, it is a hegemonic tendency. The vicissitudes of urban life therefore help to shape the experience of the contemporary subject; and if it is true that the age of capital has passed and that of Empire has begun, then it is also true that despite the radical heterogeneity of the Multitude, its critical centre lies in the metropolis.

From this point of view, the problem of anti-capitalist transformation must be bound up with the problem of the human subject dwelling within contemporary urban society. Put together in this way it seems to me that Negri opens up a vital new horizon in urban studies, by placing the question of the possibility of transformational subjectivity at their centre. Put another way, Negri writes as though he believed that we must return to a consideration of the urban if we wish to take the possibility of change seriously. What then, do we discover when we read Negri through the eyes of the cosmopolitan urbanist?

Quickly we learn that Negri’s interpretation of the urban is heterogeneous and often the result of acute and irreducibly local political struggle. And despite his careful reading of sociologists such as Saskia Sassen and Manuel Castells, two of the most noted commentators on the urban today, Negri’s theorisations of the city are both sophisticated and naïve. Anyone interested in the urban puts down Negri in frustration: where is the city? Where are the suburbs? What is the metropolis? Despite our frustrations, or perhaps because of them, we are compelled to pick him up again.

There is something deeply productive, if not always coherent, about the manner in which Negri elides the distinction between the material and the philosophical in his work. And it is in his characterisation of the urban that we can trace some of the most interesting aspects of this elision, an elision that prompts us to ask what exactly are we doing when we read a philosophical text looking for the contours of a material, historical object? What is a philosopher doing when she employs a philosophical discourse to understand something that is generally made knowable through engineering, social science and the discipline of planning?

What is the relation of the city to time? Analysis of temporality has emerged as a critical theme of contemporary political theory, but thinking about time has not made much of an impact in the field of urban theory. Yet if we understand power as the capacity to determine not only the space, but also the temporality of subjectivity, it seems clear that the vector of time is critical to understanding how urban and suburban spaces work.

The basic mode of understanding the relation between time and the city is that of the city as a site layered with different times. The best source for this account of time and urban space is Lewis Mumford’s conception of the city as both a spatial and temporal container, a physical and spiritual field (or magnet) that produces power, meaning, symbol and time. As Mumford writes in The Culture of Cities:

“Cities are a product of time. They are the molds in which men’s lifetimes have cooled and congealed, giving lasting shape, by way of art, to monuments that would otherwise vanish with the living and give no means of renewal or wider participation behind them. In the city, time becomes visible: buildings and monuments and public ways, more open than the written record, more subject to the gaze of many men than the scattered artifacts of the countryside, leave an imprint on the minds even of the ignorant or the indifferent. Through the material fact of preservation, time challenges time, time clashes with time: habits and values carry over beyond the living group, streaking with different strata of time the character of any single generation.”

For Mumford, the temporal layering of a city is most often a hierarchical layering, and it is this insight that helps him situate the city as the most important site for the production of power. Despite the simple force of this passage, with its image of the city as a space typified by a kind of archaeological layering, I think it is important to note that Mumford does not simply see the temporality of the city as a uniform field in which remnants of the past are only visible, giving us only a sense of the past as a linear progression littered with historically superseded temporalities. Mumford indicates that the city, perhaps because of its complexity and heterogeneity, may contain different temporal modalities (ie, may contain social ways of being that do not correspond to the most dominant at any given moment).

Thus not only built forms, but also fragments of social worlds corresponding to these forms, may survive in the urban environment. Obviously, older forms of life and associated built environments can exist outside of an urban milieu, but what is unique about the city is its capacity to contain these moments and forms contemporaneously, opening the possibility of a communicative relation between different temporalities. As an example of such a survival, Mumford cites the persistence of medieval life-forms in 18^th and 19^th century Paris.

While much of this may no doubt be true, it can lead to a rather romantic conception of temporality that contrasts the accelerated time of capitalism to the slower time of more traditional or more “organic” societies. Thus a relation is posited between duration and subjectivity, implying that accelerated duration is bad (in the sense that this acceleration is an effect of capitalist command) and slower duration is good (in the sense that elongated temporality opens the possibility of communicative relationships capable of resisting capitalist command.

Perhaps a better way of thinking about time is to think about it spatially; that is, understand capitalist temporality not in terms of its duration, but rather in terms of its tendency to uniformity. Capitalist time is indeed accelerated, but at the same time, and perhaps more importantly, it is also monopolistic, substituting circulation, time-of-consumption, the temporality of the wage and simple time-as-measure for all other experiences of time.

The source of my understanding of time and its relation to subjectivity comes from Negri’s Constitution of Time, as well as through Cesare Casarino’s essay Time Matters: Marx, Negri, Agamben, and the Corporeal. Casarino charts the relationship between Negri’s critique of the traditional metaphysics of time and his project of liberation, showing that the project of transformation rests upon the possibility of resisting the capitalist organisation of time. Capital must colonise and command time, but time is also a refuge and a source of productive creativity vital to the appropriation of wealth. As Casarino writes:

For Negri, the temporality of production – that is, the time most expressive of our productive and creative energies – is at once a temporality that cannot be measured as quantity and yet the temporality that capital endeavours to quantify and to measure all the time so as to control it and employ it in the extraction of surplus-value: the logic of equivalence is identified here as the harness of the incommensurable, as the strategy of containment that becomes instrumental for the continued exploitation of that which is fundamentally uncontainable about time.

On this reading, it would be then possible to think suburban space as a terrain of uniform, capitalist temporality. The production of new suburban built environments is not simply an effort to house the population; it is also an attempt to materially encode capitalist temporality at the expense of the more dense temporal possibilities that inhere in the classic urban environment. Thus it is the uniformity of time, not so much as the duration of time, that must be resisted in the suburban.

There exists among us … a profound conviction that the South is another land, sharply differentiated from the rest of the American nation, and exhibiting within itself a remarkable homogeneity.

W. J. Cash, The Mind of the South

I arrived in Nashville late at night, on a near empty plane from San Francisco that had emptied out at Dallas, Fort Worth. The night air in Nashville was humid and hot. So hot that I kept thinking that I must be standing in direct sunlight. But outside it was dark and I could hear crickets and cicadas. No sunlight yet. That was to come in the morning.

I had been nervous about getting into the United States. Lisa and I had got our visas relatively easily, but the man who interviewed us at the U.S. consulate in Auckland had warned me that as my passport expired in September, there was a possibility I might be refused entry at the border. “I have no problem letting you in to my country,” he said putting his elbows on the desk in front of us and showing us his purplish tattooed arms: “After all, you’re our friendly neighbours to the North. But the guy at the border might just be havin’ a bad day…”

I had delayed my ticket by two days to help my chances of getting my replacement passport in time, but a paperwork error meant that I was forced to travel on the old passport. Worse: it also meant that I was travelling alone, without Lisa and her mysterious boundary-crossing powers. But I had prepared a dossier of papers to help me with my case should the need arise.

It did. At San Francisco, the guy wasn’t necessarily having a bad day, but he was thorough. He checked my visa, examined the papers that I had brought, and asked me more than a few questions. But crucially, he failed to notice the expiration date on my passport, and instead silently stapled an entry permit into it. “Have a nice day” he said. I was pretty sure he didn’t mean it. But it did make me think that Americans are pretty attuned to good days and bad days.

Vanderbilt University had put Lisa and myself up in a crappy hotel on a suburban strip in West Nashville. The most that could be said about the place was that it came with a small kitchenette and that it had air conditioning. Other than that, there was nothing to recommend it. Nor, for that matter, was there anything good to say about this part of West Nashville. Broad, blank and bordered by low, flat suburban buildings, there was little shade and few people walking anywhere. But we were without a car, and in the morning I had to find a cup of coffee. I found myself walking through the campus of Vanderbilt University, founded in 1867 by Commodore Cornelius Vanderbilt as a way of bringing more erudition and respectability to the South. Shaded by great waxy magnolias and other enormous trees, the university thrives on an endowment that has since grown to over four billion dollars. And it looks the part.

Searching Craigslist, Lisa found us a beautiful house to rent in East Nashville. Our landlord is a spunky Nashville dyke who has bought in an area that is experiencing sharp gentrification. “Don’t go walking by there,” she said as she drove us past a couple of red brick apartments. “Gunshots there all the time…” We looked, and all I could see was a black woman taking in her laundry from a clothesline. Near where we live, it is quiet and peaceful, and the streets are canopied with large, cool trees. Fireflies hover over the grasses in the evening. At night we can hear the train whistle from the nearby L&N railroad. Just a few blocks in one direction, there is an excellent Tex-Mex restaurant and a westcoast-style café. A few blocks in the other direction and across a large busy road is an area we have been told to avoid. It is no coincidence that it is a primarily black area.

Nashville is not a beautiful city. It slouches, gap-toothed, against low lumps of land formed by the Cumberland river as it winds its way through middle Tennessee. This state used to be the traditional territory of the Cherokee, Choctaw and Chickasaw people, until they were either killed or driven off by the new American state. Andrew Jackson made his career as an Indian killer here in Tennessee. In 1812, Tennessee became known as the “Volunteer State” because of the large number of men who signed up to fight against the British and the two Canadas. Sometime in the 19^th century, the invention of the cotton gin made Tennessee rich, and thousands of slaves were brought in to work the fields. Despite this, Tennessee was apparently reluctant to join the Confederacy and was the last state to secede from the Union before the Civil War.

Tennessee emerged from Reconstruction relatively unscathed, and although it was better off than neighbouring states such as Alabama and Georgia, it is not now a wealthy place. Development arrived with Roosevelt’s New Deal and the creation of the Tennessee Valley Authority, but it seems there has been little progress since. Such wealth as there is has certainly not made its way into the hands of its black population, over twenty-five percent of whom live in poverty, according to a 2000 census. Guidebooks will tell you that Tennessee’s biggest industries are electricity, education, healthcare and religious publishing, but the reality, it seems to me, is that Tennessee’s major industry is the production of both privilege and exclusion. Advertisements for hospitals, medical insurance and open-heart surgery (“We mend broken hearts”) remind you that the poor and the vulnerable go without adequate healthcare. And this state’s “Right-to-work” laws are targeted against unionisation in a manner that goes well beyond New Zealand’s infamous anti-union employment legislation. I have yet to confirm that there is no minimum wage here.

Of course there is the music. But there is also the war. For the last few days I have been listening to the radio. It’s what I do when I need to figure out how a new place works. On the phone-in shows and in the reports from Washington, you can feel that the disapproval ratings that have begun to dog the Bush administration and its prosecution of the war have started to transform into something a little harder and angrier, but almost wholly inactive. There is a feeling of defensiveness and hostility against those who would say outright that the invasion of Iraq was wrong from the beginning. After 9-11, there can be no culture of dissent against the American Imperium and its war machine. What opposition there is has focused on the poor management of the war and on the best way to fight “Al Qaeda”. There will be no movement that ends this war. There will be no occupation of the streets or of buildings. Instead, following the strategy of the Bush administration, much of the blame for the violence of the occupation has been levelled at the American-backed government cowering behind the Green Zone in Baghdad. Here, there will only be resolutions passed in Congress and ratified by the Senate. Without a defeat or a victory, the occupation of Iraq will be placed in the hands of others and will be gradually forgotten. Listening to radio in the kitchen while neighbourhood windows flicker blue with television, I do not think that Americans will learn anything from what may be their worst mistake of the 21^st century. I am not sure that I want to live here long enough to find out if I am right or wrong.

Some of the most important work on the urban comes from the Marxist tradition. It’s not too difficult to understand why. Given the acknowledged historical connections between industrial development and modern urbanisation, an approach that acknowledges the relationship between urban forms and the productive processes of capitalism will have some appeal.

For urban analysts as different from each other as Lefebvre, Castells and Soja, transformations in urban space are related to transformations in the sphere of commodity production and its corresponding relations of production. While this may appear obvious to some, it does present important explanatory challenges. For instance, while modern urban forms of the 19^th and 20^th century present clearly visible spaces of industrial production (factories) and the social reproduction of labour (housing), such a neat bifurcation no longer seems applicable to the contemporary world of multi-centred and relatively dispersed urban space, characterised (at least in the West) by the relative absence of industrialisation as traditionally understood. The task for contemporary urbanologists, it seems, is twofold: First, to analyse new dynamics in our economic and social life and second, to demonstrate how these dynamics give rise to new spatial forms of urban development.

However, the attraction of both classical Marxist and post-Marxist interpretations of the urban lies in more than just the tradition’s explanatory power. Aside from its insights into the fields of economic production and culture, the Marxist tradition generally contains a commitment to a transformative politics that seeks to overcome capitalist relations of exploitation. As a result, the work of contemporary Marxist urbanism needs to address not just the structure and form of the urban in contemporary Western society but also whether our new urban spaces and populations are capable of producing counter-capitalist political change.

The connection between political practice and social analysis suggests that as long as we remain tied to a conception of the social world strongly determined by capitalist industrialisation, for so long shall we remain within models of political action that privilege capitalist agency over the possibility of resistance and transformation. But another consequence of this connection between theory and practice is that new and emergent practices of political transformation provide clues about the nature of the social world by revealing significant changes in structures of production and domination. With this formulation – one drawn from Autonomism and Negri – an intimate connection is revealed between knowledge, action and the practice of social transformation.

The theorists of the Autonomist movement began to sketch out an entirely new form of labouring subject that has become what is now popularly called the Multitude. Provisionally, it could be said that the concept of Multitude replaces the proletarian subject of classical Marxism, but there are important differences that point to the radical departure that Negri and other theorists of the Autonomist school propose to take from Marxism as it is generally understood. These differences have their basis in the forms of labour that that are characterise post-Fordist economies, and they are therefore relevant to the study of urban form. What is important to bear in mind is that these new forms of labour are affective; they involve communication, relation, and subjectivity. Much of what is distinctive about the analysis of the Multitude can be traced to Maurizio Lazzarato’s seminal essay on immaterial labour:

The concept of immaterial labour presupposes and results in an enlargement of productive cooperation that even includes the production and reproduction of communication and hence of its most important contents: subjectivity. If Fordism integrates consumption into the cycle of the reproduction of capital, post-Fordism integrates communication into it.

These themes of immateriality, productive cooperation, communication and subjectivity are, in my mind, central to any understanding of the urban in today’s Western societies. Provisionally, they seem to allow for the decentralisation and dispersal so visually apparent to most urban critics, while the emphasis on production allows for the persistence of those material characteristics of capitalism still prevalent in most so-called “global cities”: exclusion, poverty, exploitation and its characteristic urban forms.

Introduction

What I would like to speak about today is the question of the limit, both of sovereignty and of the common law, in the context of colonialism and the presence of aboriginal polity. Taking this notion of “limit” as a starting point, I want to question the capacity of law to deliver justice to aboriginal peoples. I will argue that despite its pretensions to universality, the common law is the historical tradition of a particular group and cannot be applied, as it were, neutrally.

As with the common law, so too with the culturally particular concept of sovereignty deployed in modern Western constitutional law and jurisprudence. I am going to assume that, as in other settler states, New Zealand’s configuration of law and sovereignty has failed Maori. I am also going to assume that my audience will share my desire for justice. I will go a little further by stating that paradoxically, each time we try to push the law (and its field of sovereignty) toward justice, we risk re-inscribing colonialism on to Maori, and we therefore delay our own project of decolonisation. Not only does our law and sovereignty fail Maori, it also fails us as colonial peoples.

So while colonial settler states have moved away from the assimilationist policies of the past (in the face of determined opposition from aboriginal peoples ), settler notions of law and sovereignty still function for the most part in a space of universalism that assumes the fixity and applicability of European law traditions for all peoples, regardless of the vast cultural and indeed legal differences that exist between us as colonial people and aboriginals . Colonial ideas of law and sovereignty – legality and power – presuppose and support one another.

My argument will have to show that law is not always synonymous with justice and that one field of sovereignty is not sufficient in terms of the promise of te tino rangatiratanga . If we can, for now, accept the premise that law itself might prevent justice, then it is a short step to recognising that the particular configuration of common law and sovereignty in New Zealand requires limits. What I am arguing seems contradictory: that law can stand in the way of justice and that sovereignty must divide in order to succeed. What I need to do now, then, is to show why sovereignty and the common law require limits and point to two possible sources for that limit: international law on the one hand and the Treaty of Waitangi on the other.

The position that I am working towards will find that for a number of reasons, international jurisprudence is an insufficient constraint to the common law of a sovereign country and that the Treaty of Waitangi is better placed to provide this limit. So placed, the Treaty of Waitangi might provide a fundamental basis for a new jurisprudential and legislative project for New Zealand, reconfiguring law and sovereignty toward the project of justice by refusing their assumptions of timeless universality.

Sovereignty, Common Law and their Limits

New Zealand is a colonial state. Through the expansion of the British Empire, what we call the “Crown” acquired sovereignty in New Zealand. The colonists brought with them a conception of law and sovereignty fundamentally different to the political and legal traditions of Maori. To a large degree, the colonial state forcibly replaced the law-ways of the Maori with its own. The colonial state used its law-ways to its own advantage to the detriment of Maori. Despite the resistance of Maori, the exercise of te tino rangatiratanga promised in the Treaty was restricted. The question is, how do we best address this injustice? Can we do so entirely through colonial courts, using colonial law and operating within a colonial conception of sovereignty? My answer is, ultimately, no.

I want to signal here that for the purposes of this presentation, I am going to take a pragmatic position vis-à-vis the question of the cession of sovereignty and the Treaty of Waitangi: the basis of fact that I will work from is that New Zealand’s constitutional framework and government both assume that sovereignty was ceded, and for better or for worse, there is a considerable amount of legislation and jurisprudence to this effect. However, this pragmatism will not extend to the question of the utility of common law as something applicable to all people, particularly to Maori as an aboriginal and colonised people. Nor will it extend to the idea that our conception of sovereignty as unitary and indivisible is adequate for the project of justice. My position here is to recognise the sovereign reality of the New Zealand state and its common law tradition.

At the same time, I want to say that despite the real and substantive efforts that government and common law have made in order to accommodate aboriginality, justice requires that we go further than the common law tradition allows . My opinion is that justice requires two sets of limits: the first to our notion of sovereignty and the second to the common law, the code, if you will, of modern colonial sovereignty. Let me schematise my argument so far using the following five points:

1. The historical practices of colonialism have generated a series of injustices;
2. Colonialism operated in a sphere of legalism containing two related practices: sovereignty and common law;
3. Through the efforts of indigenous activists and communities, the colonial state has become aware of injustice vis-à-vis aboriginal people and has attempted remedy through the common law tradition;
4. Because the common law is bound up with the colonial conception of sovereignty as exclusive and indivisible, any remedy through the common law fails to accord justice because in the end, it is only our law and our conception of sovereignty that is deployed.
5. Law thus functions as a form of what James Tully refers to as ‘internal colonisation’ .

Illustration of the Limit

It would be too easy for me to force an argument by saying that all law is an injustice and that there can be no accommodation between settler societies and aboriginals. This is not, however, what I am saying. On a pragmatic level, colonialism has brought Europeans and Maori together and I believe that both cultures possess the legal and philosophical resources to live in justice with one another. There can be no question of any kind of radical geographical and social separation between indigenous peoples and settler societies in the present day. More importantly, however, I do not want to argue for any kind of separation that would limit the right of indigenous peoples to participate fully in the colonial polity. What I want to argue is that the concept of te tino rangatiratanga needs to be given the legal and political space for its own self-development by demarcating the limit to the law-ways of the settler polity.

Finally, following the aboriginal tradition of justice – one that is also a part of our own western conception – I want to stress that what we are seeking is also reconciliation. Reconciliation is not satisfied with punishment or estrangement from one another. Reconciliation instead seeks to bring people together under conditions of justice. It is worth noting here that the practice of common law can sometimes compel the Crown to give justice and achieve reconciliation, as with court decisions that lead to substantive negotiation. The Sealords agreement may be an example of this.

Clearly common law jurisprudence in New Zealand has, from time to time, attempted to recognise aboriginal claims. There have been many important occasions when legislators and judges have found within the law the means to accord Maori claimants certain rights and privileges that in some way derive from their status as aboriginals, that is, as the first inhabitants of the land. From its feudal beginnings, the common law possessed certain resources for understanding the legal status of others brought into the view of the sovereign through cession or conquest . As jurisprudence and the forms of state and sovereignty transformed over time, so too did the ways in which that recognition was extended. It can, however, be argued that there is a kind of relentless circularity in these exercises. To put it philosophically, as soon as the law comprehends the Other, it extends its own field of cultural value over the Other that it comprehends.

Paul McHugh writes that by the time of the British colonial project in New Zealand, a new interpretation of both law and sovereignty was beginning to shape British (and colonial) jurisprudence. The mid to late 19th century milieu of British colonialism was one of positivism, that is, a tradition of legal interpretation

that purported to render law a ‘science’. The lawyer’s task was the forensic and objective role of extracting the legal rule or command contained in the mass of legal sources. These sources…were now simply the ‘positive’ law of statute and case report.

If I understand McHugh correctly, he is saying that before positivism, the common law contained a kind of limit in that it recognised certain principles of justice that inhered within the community. These principles were thought to be immanent and reflected a relatively direct relationship between society and its law. As ‘natural’ principles, they might even serve as a check on the power of the sovereign. Positivism, on the other hand, sought to deduce the principles of law from the positive sources of case law and state practice. So the organic relationship that might have existed between a community and its law was transformed as law became a ‘scientific’ practice that often legitimated the actions of the state by reference to that state’s own self-interested actions.

When we combine this tradition of legal positivism with the particular constitutional machinery of New Zealand, where Parliament (in right of the Crown) is sovereign and where the judiciary has a legal power of review but can only recommend, we are left with an interesting situation. If law as science looked to the practice of state, there was little doubt that the Crown had recognised a certain degree of Maori sovereignty and autonomy. Clearly this had to be, and was, taken on board by New Zealand’s colonial judges.

But at the same time, the principle of undivided Parliamentary sovereignty meant that a New Zealand Parliament could, and did, enact statutes that expressly denied Maori rights that might have accrued to them under the traditional common law. This, I feel, is a tension that exists even in the present day, and as an example I would point first to the Court of Appeal decision in the Marlborough Sounds case and then to the Foreshore and Seabed Act passed shortly thereafter.

Ultimately, my argument is that progressive legislation and far-sighted legal decisions have not sufficed from the point of view of justice and that the sources of this insufficiency lie in two places: the first being the unchecked ability of Parliament to legislate without a limit that recognises the autonomous law-ways and te tino rangatiratanga of Maori, and the second being the culturally particular nature of the common law deployed by the courts.

Conclusion: Sources of the Limit

I am mindful of the fact that I have not proven beyond a reasonable doubt that both sovereignty and the common law require limits. But if you can accept what I have just said for the sake of argument, I need to conclude by looking at the solutions that may be at hand. The first limit that we might look to would be international law. Particularly after the Second World War and the establishment of the United Nations, a new source of jurisprudence arose that spoke in the language of internationally recognised rights. Nations that wished to do so adopted the conventions of the United Nations through the machines of their own domestic legislatures. These conventions thus became legally binding upon sovereign nations to the extent that executive power could be held accountable internally on the one hand and internationally on the other.

There are a number of these conventions that New Zealand has adopted and several of them have been used sources of rights for Maori. Examples of these include the 1948 Universal Declaration of Human Rights, the 1966 Convention on the Elimination of All Forms of Racial Discrimination and in that same year, the Covenant on Economic, Social and Cultural Rights.

The problem with these covenants is that they fail to act as sufficient limits given the fact that they derive from a context that is premised upon the ideal of undivided and exclusive state sovereignty. Further, and like all settler colonial states, New Zealand has shown itself to be relatively unmindful of international criticism in relation to the treatment of aboriginal peoples (as was evidenced by the reception of the report of the UN special rapporteur on indigenous rights) and rather active in making certain that special aboriginal rights that are seen to impinge on the unitary notion of Western sovereignty do not become part of international law.

Instead, I would like to suggest that an effective limit to the problematic exercise of Parliamentary sovereignty and the culturally limited reach of common law lies in the Treaty of Waitangi. The Treaty contains provisions that, properly understood, draw a line between the exercise of the common law and sovereignty on the one hand, and te tino rangatiratanga on the other. Paradoxically, what I suggest is that Parliament should decide to limit its own power by incorporating the Treaty as a justiciable instrument. This is not a new suggestion. In 1985, a White Paper on a proposed Bill of Rights argued that Parliament had the power to limit its own power if it saw fit and this power was cited as a possible mechanism for entrenching a Bill of Rights that would provide Parliament with a supreme law and include statutory reference to the Treaty of Waitangi.

Clearly, there are hazards with such an approach, and as when the idea was first introduced, it is likely that there would be opposition even from Maori. In my paper I expect to show that the inclusion of the Treaty as part of Parliament’s supreme law would encourage the opening and development of the promise of te tino rangatiratanga and accelerate our journey towards justice and reconciliation.

It’s hot up here on the tenth floor. In the afternoon, the sun hangs over the low mountains along the Slovenian border so that our small flat fills with strong heat and light until well into the evening. During these summer days there are usually a few boys taking shots on a net at one end of a concrete soccer court below us. Sometimes girls shoot baskets at the other end.

We have been in the Croatian capital of Zagreb for just over a week now. Our flat is in a large, dirty concrete apartment building in a working-class suburb – part of complex of three or four such buildings. The flat belongs to the parents of our friend S., but during the summers her parents don’t stay in the city. From our window we can see suburbs of small plain houses with terra-cotta roofs. Many of these houses were built illegally during Communist times and as a result they have a temporary quality to them: Mostly unplastered, unfinished, dull and blank, many are nevertheless dilapidated and in need of repair.

Farther away and scattered like islands there are other complexes like ours. To the south, we can see a few suburbs of more pleasant, condominium-style buildings put up just before the war. Behind us, invisible, is the centre of Zagreb with its shabby Austro-Hungarian administrative palaces and on a small rise of land, a medieval district being restored with the assistance of large international loans.

Before the wars of the 1990’s, S.’s parents lived and worked in a small town in Bosnia. Both were successful professionals. At that time, Bosnia was a republic of the former Yugoslavia. When the war began, our friend’s parents decided to stay in Bosnia even though as ethnic Croats their position was risky. Under new nationalist leaderships, Serb and Croat forces were beginning their war to divide Bosnia and thousands of refugees of all ethnicities were on the move. But S.’s parents believed they were Yugoslavs, and theirs was a country where people of different nationalities had lived with each other in peace.

The situation changed quickly. Neighbours came one evening and set fire to the house, taking what they wanted and leaving the rest to burn. S.’s mother fled to Zagreb, which would escape the war nearly unscathed. Her father remained, taking shelter in what was left of the family home. But the war in Bosnia was getting worse and staying hidden in the village wasn’t safe. After many months he was rescued by a NATO soldier and made his way to Zagreb. S. tells us she remembers going back to the village many years later and seeing children riding bicycles that had belonged to her and her brother.

After the war, attempts were made to resettle those who had been displaced and give compensation to those who lost property and more. For a variety of reasons, S.’s parents never received anything. They returned to their village in Bosnia to clean up what remained of their house. Some neighbours came to greet them and spoke of how terrible the war had been. Others didn’t. Now, each summer S.’s parents go back to the village in Bosnia and continue to repair the house. Only one room is habitable.

This is a city that still bears the traces of terrible conflict, but not in ways you would expect. Most of the fighting took place in Bosnia as Serb, Croat and then Bosniak forces confronted each other in the aftermath of Yugoslavia’s demise. Zagreb sustained little physical damage during the war. Instead the after-effects of the war here are psychological, emotional; almost atmospheric. At one end of the soccer pitch beside our building complex is another apartment building. But this building is near derelict; leaking pipes have rotted away the plaster in many places, exposing bricks that have turned green with thick algae. Trees and grasses grow on the roof. S. tells us that before the war the building was a dormitory for Bosniak industrial workers who spent part of the year in Zagreb. When the war began the workers left and the building was used as a shelter for Bosnian Croats displaced by fighting. Now the building is nearly empty; at night it is completely dark except for one or two lighted windows. We don’t know who these people are or what their story might be: Bosniaks, Croat refugees, or someone else.

It is difficult for me to escape the sense of darkness war brought to this region. It is a darkness that persists in plain sight, in wide squares and sunny boulevards as well as in shadows and musty dilapidation. There is a contradiction between the catastrophe of the war and the present-day surface of life in Zagreb that makes me uneasy. I have never lived in a country torn apart by war so I cannot understand how people here carry on a normal life. I am from a country that is convinced its wars were just, so I cannot imagine how a people can remember its own culpability in such a terrible conflict. I keep looking for signs that point to the enormity of what happened here, but what I find always appears to be obscured, ignored or forgotten. What I fail to see is that people here have little choice but to accommodate themselves to the abnormality of post-war Croatia. What I fail to see is that forgetting both works and doesn’t work at the same time. Time passes and lives change; terrible events are both repressed and simply overlaid with layers of other, more mundane things. But what happened still reverberates. What happened here still lies just under the surface of things.

Transition is a word you meet often when you read about Zagreb. The word is easily transposable, ideal for use in a variety of different situations and contexts. Perhaps that is why it has been used so frequently to describe the capital of what is now the republic of Croatia. On the surface of things the word does its job: After all, in just under one hundred years, Zagreb has wandered through different countries, empires, governments and ideologies. The city has travelled through periods of war and peace to emerge at the very edge of Europe, waiting for admittance to the European Union. Now, well after the collapse of the Soviet Union and the break up of Yugoslavia, academics and bureaucrats use the word transition to speak about this region’s post-socialist countries and the journey towards capitalism and the West.

But “transition” may be too tidy a word. Here in Zagreb, with its crumbling Medieval core, its shabby Austro-Hungarian administrative palaces and its rings of suburbs and massive housing projects from the Communist era, you begin to suspect that there are difficulties with the West’s interpretation of the way other places change. For example, reading various studies and reports on the city of Zagreb makes it clear that “transition” implies a change from one definite quality into another, as though apart from its general location the city had ever been one definable entity.

Apart from the question of what kind of place Zagreb may or may not have been, I find myself asking just what it is that this city is assumed to be moving to. Shifting priorities in the European Union, quiet struggles for influence between the United States, the E.U. and its various member countries as well as the changing nature of advanced capitalism means that we cannot use the concept of transition to mean that Zagreb or any other post-socialist city will ever reach the place we think it will. Behind our Western use of words such as “transition” and “transitional” is a belief that Zagreb is not quite where we want it to be. In a sense, we are trying to designate the manner in which the city always seems to have lagged slightly behind the events and forces that have shaped this region’s history. It is as though Zagreb, baggage in hand, has been constantly late for its appointments and is compelled to catch up with something or other depending on the direction of the historical winds. And what the word “transition” misses is the fact that Zagreb may not ever arrive in time for the appointments we have set for it.

In our contemporary capitalism, we have ceased to exist as any kind of traditional unity. We are not one people. We are the multitude. The multitude, according to its theorists, is not simply a new subject that replaces the proletariat corresponding to the era of industrial capitalism. Indeed, this new “presence” appears to escape the field of traditional Marxist analysis. Perhaps it might be better to say that the concept of the multitude expands this traditional field. But what is this new object? What potentiality does it contain to overcome capitalist relations of exploitation?

The concept of multitude has entered into general discourse mainly through the efforts of Antonio Negri and Michael Hardt. To me there is something profoundly dissatisfying in their two co-productions, Multitude and Empire, though I recognise the extent to which these works have articulated and disseminated the politics of contemporary dissent. Both works are pitched at a level of triumphalism that seems terribly out of step with what seems a pessimistic age. And there appears to be a contradiction between the tone of confidence the works exhibit and their actual content: There is little to grasp on to. Concepts seem poorly developed and merely descriptive passages lack rigour.

Currently I am grappling with the idea that at least one source of the difficulty encountered in these works lies in the return to ethics. Understand that I am not opposed to a concern with the ethical itself; what I worry about is the way in which much post-Marxist mining of the ethical appears to be a kind of programme of producing philosophical answers to political problems, in an exact reversal of Marx’s approach in the Theses on Feuerbach. Understand also that I believe that there is a great deal to be gained through the analysis of ethics, particularly within a political tradition that has tended to ignore the ethics of its own practice to terrible effect. But nevertheless, it is critical to understand the idea of multitude politically, and for this we should examine the concept’s roots in Italian Marxism. In A Grammar of the Multitude, Paolo Virno writes that:

The multitude is defined by the feeling of not-feeling-at-home, just as it [is] defined by the consequent familiarity with “common places”, with the abstract intellect.

Let me look at the first part of this definition. For Virno, the multitude is displaced from any feeling of security or shelter for several reasons and on several different levels. He explains the feeling of displacement by examining the relationship between dread and refuge. Dread is composed of two elements: Fear and anguish. The difference between the two lies in where they are situated. Traditionally, fear has a public character that is collective while anguish is more indeterminate and private. Previously, fear was definite and known, and as such it was experienced as a public feeling. People sought refuge from the things that they feared in the forms of public life, such as the village, government or the state.

Anguish, on the other hand, is generally a private experience. Anguish is “outside” the community and the sources of anguish cannot be addressed by any state. If we fear death, this fear is experienced as anguish: it is “ubiquitous, unforeseeable” and our possible sources of refuge escape immanence. Threatened with anguish, we search for the transcendence of religious feeling.

In contemporary capitalism, what was once experienced as private anguish has become externalised. What defines being multitudinous is this convergence: “What we have,” says Virno, “is a complete overlapping of fear and anguish.” Thus, in the work of writers attempting to delineate the new politics of the multitude, a great deal of attention is paid to the new post-Fordist conditions of social production. Social production because, as Jason Read deftly shows in The Micro-Politics of Capital, there is no longer any part of social life outside of capital.

Simply by choosing to begin with subjective experiences of dread, fear and refuge, we become aware that the multitude is not necessarily capable of being understood within the familiar confines of economic analysis. Or to put it another way, this is an analysis made possible by the new forms of economic production: Contemporary capitalism has achieved such a transformation of its conditions that it has collapsed categories that were previously distinct. Virno’s assumption is that capitalism has reached into the heart of subjectivity itself: It now produces subjectivity as its own object. If this is the case, analysis of the contemporary mode of production need not necessarily begin with external properties of relations and forces of production. Production takes on a subjective, internal character, but is at the same time always material and historical.

It is exactly here that we can see the opportunity for the posing of ethical questions, for we appear to be operating within the experience of subjectivity. But – and this is entirely provisional – to descend entirely to the ethical here would be to miss a perhaps more important opportunity, that of mapping and describing the political reality of subjectivity as the result of capitalist production. Virno steers close by the waters of contemporary ethical philosophy without running aground on the desire to solve philosophically what can only be accomplished in the field of practice. Or to put it another way, his philosophy always leads back to politics, by providing political practice with a deeper understanding of what is necessary for the transformation of capitalist relations.