On Global Constitutionalism’s Philosophical and Biopolitical Significance: The Case of Implied Legal Principles and Rules

Abstract

Global constitutionalism is a scholarly agenda characterized by a positive and normative
component—the former taking the form of positive inquiry, the latter of normative thinking.
Delving into this double-feature essence, this Article argues that global constitutionalism has a
philosophical and biopolitical significance that escapes the rationalist purview of positive analysis.
For the very same reason, however, an engagement with this “surplus” might benefit its normative
potential. The Article shows this by drawing from the view which understands phenomenology as
the negative (i.e., normative and non-positive) analytical method of philosophy conceived as
ontology. More particularly, it shows that globalist discourse’s philosophical and biopolitical
significance can be grasped through a postnational phenomenology of authority and sovereignty’s
supra-logical negativity centred around the functioning of implied (i.e., negative and non-posited)
legal principles and rules on the global and transnational scale. Using global constitutionalism’s
“domestic analogy” against itself, it sets out the conditions under which the operativity of such
provisions creates a postnational “space” in which the modern secularisation of naked/bare life and
political/public existence that Giorgio Agamben assigns to the negativity of the modern nationstate’s
constituting process recurs.