Giorgio Agamben refers to a basic problem in the constitution of the modern nation state: the state as a nation implies that “bare life” becomes the foundation of sovereignty. With the loss of their citizenship, refugees lose not only all their rights, but more fundamentally the “right to have rights” (Arendt). This dilemma of modern statehood does not vanish under conditions of European integration; it is rather re‐scaled. Applying a state‐theoretical approach to the European border regime, we will concentrate on the two main techniques by which the EU produces “bare life”: the “camp” and the invisible “police state.” It will become apparent that the institutionalization of “the right of every human being to belong to mankind” is still lacking. Yet, in contrast to Agamben, we do not trace this constellation back to the collapse of the concept of human rights, but to hegemonies and power relations.
This article focuses on Antonio Gramsci's hegemony theory. Hegemony, for Gramsci, is a particular way of living and thinking, a Weltanschauung (world-view), on which the preferences, taste, morality, ethics, and philosophical principles of the majority are based. Social struggles are transformed into legal ones in the course of processes in which juridical intellectuals are organizing hegemony under the special conditions of the legal system. We try to use this concept to contrast it with the prevailing readings of hegemony in international relations and in international law. ‘Hegemonic law’, we argue, is not the law of any superpower, but an asymmetric consensus which relies on a climate of world-society-wide recognition. The concrete form of hegemonic law under particular social conditions depends on the ‘historical bloc’, in which it is coupled with other social praxes. In the post-Westphalian system the historical bloc is fragmented into transnational and colliding legal regimes and law-generating processes in civil society.
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