ontologies of law

7/29/2019 Ontologies of Law

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new left review 13 jan feb 2002 107

alain supiot

ONTOLOGIES OF LAW

H

ow should we understand the role of lawsof order-ing, causality, positive lawwithin our modes of thought?As a starting point, we might consider Marcel Granetsformulationone calculated to floor a Western juristin

summing up all he had encompassed in his classic work on China:Bearing in mind, Granet wrote, that the Chinese never voluntarilysubmit to any constraint, not even a doctrinal one, I shall restrict myselfto the observation: Neither God Nor Law.1 This attempt to situate themost immense and most durable civilization ever known may help usto position Western thought as well. Granet was, of course, not imply-ing that China lacked any notion of law: the Middle Kingdom had both

administrative and penal codes.2 But it never developed the broader ideaof civil law, on which the Wests concept of civilization is founded. Inthe Confucian tradition, a civilized man has no need of law: he hasalready internalized the whole art of social etiquette. Lawin its mostrustic and brutal form: the penal codewould do well enough for thosebarbarians incapable of attaining such sophistication.3

There was a school of thought, flourishing towards the end of the

era of Warring States, that attacked the hypocrisy of this governmentby meni.e., by mandarinsin the name of a government by law.But when they came to power at the beginning of the First Empirethese Legalists, making do with what they had, merely set about extend-ing the vicious penal code across all aspects of social life. Confucianswere brutally repressed and, in 213 BC, their books were burnt.4 TheLegalists victory was short-lived; their theories were abandoned withthe overthrow of the Qin dynasty in 206 BC and thereafter they were

remembered only for their cruelty and excess.


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The Legalists were said to have engraved their law on the iron cauldronsin which transgressors were boiled alivethus giving it maximum pub-licity, and rendering its content and sanctions immediately intelligible toall. Kafkas In The Penal Colonyportrays precisely the opposite principle:

the machine inscribes the occult text into the flesh of the condemnedman who, by this means alone, in the ecstasy of his final breath, under-stands what secret interdiction he has transgressed. Kafkas texts are inthe image of the same lawlending themselves to an endless labour ofinterpretation. Three comments are in order here. Firstly, the idea thatthe law is an enigma is typically Western; it would never have occurredto the Legalists. According to one of the schools classics, the Shangjun-shu: The people are easy to govern, for they are stupid. The law canprovide for this and will function well as long as it is clear and easy tounderstand.5 Secondly, the notion that the human body is the site parexcellence on which the law should be inscribed was one of the breakingpoints between the Jewish and Christian traditions, on the question ofcircumcision.6 Thirdly, the Western mind has always been fascinated bythe thought that to incarnate the law literally, as do Kafkas condemned,could be a form of revelation.7

At no point in the history of Chinese thought, not even among the

Legalists, is there any concept of the law as guarantee of the rights of theindividual. How are we to explain this fundamental difference betweenEastern and Western thought? Andr Haudricourtethnologist, bota-nist, technologist and Orientalisthas argued that the relationshipsbetween man and nature are infinitely more important than the shapeof his skull, or the colour of his skin, in explaining his behaviour and

1

La pense chinoise (1934), Paris 1988, pp. 4756.2 See E. Balsz, La bureaucratie cleste, Paris 1968, p. 15ff.3 See J. Escarra, Le droit chinois, conception et volution, Paris 1936; for a morenaunced view, see Xiaoping Li, Lesprit du loi chinois, Revue internationale de droitcomparatif, 1, 1997; for a terminological analysis, see T. Tsien, Le concept de loi en Chine, Archives de philosophie du droit, vol. 25, Paris 1980.4 Lon Vandermeersch, La formation du lgisme, Paris 1965, 2nd ed. 1987.5 Cited in Vandermeersch, La formation du lgisme, p. 200.6 See the debate in Acts 15:134 and Romans 2:25; also Pierre Legendre, Les enfantsdu Texte, Paris 1992, pp. 220 and 243.7 Michel Foucault, Surveiller et punir, Paris 1975, p. 9, and the pages Georges Batailledevoted to Chinese torture in Les larmes dros, Paris 1971, p. 237, or to execution ofGilles de Rais, in Gilles de Rais, Paris 1965, p. 92.


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the social history he transmits. Haudricourt proposed a symbolic repre-sentation of these relationships: the models of gardener and shepherd,represented in Genesis by Cain and Abel. A social formation may com-bine these two; but it will be defined by whichever model is dominant

in its relation to nature. In the pastoral societies of the Mediterraneanit was the domestication of animals that predominatedYahweh pre-ferred the aroma of Abels grill to Cains vegetarian offerings (Genesis4:3). Asian societies, by contrast, depended for their survival on rice oryams. Plant cultivation is an indirect, sometimes even a negative proc-ess. The gardener does not make seeds sprout by tugging at them but bygiving them the best possible conditions for growth: light, humidity, soilquality, freedom from weeds and so on; it involves working with naturerather than restraining it. Restraint, on the other hand, is an essentialelement of animal husbandry, which relies on sticks, pens, dogs andropes. In each culture, the dominant mode exerts its influence over theregressive one. In the West, the concept of taming nature is evident inattitudes towards plantswitness the formal French garden; or worse,the thinking behind EU agricultural directives. In China, similarly, theidea of being in harmony with nature informs the relationship betweenman and beast: The ox has the same breath and blood as man, and itsfeelings must be taken into account.8 Whereas for Aristotle, There is

no friendship or justice possible between ox and man, any more thanbetween slave and master.9

Power and order

As Aristotles dictum suggests, the relationship between man and naturein any given social formation reflects that between rulers and ruled. Ittook sailors and fishermen to conceive government in terms of a hand

on a tiller, and the dominance of the pastoral in Western religious andpolitical discourse is widely recognized: the shepherd, the Lamb, thefaithful flock, the crosier, the sceptre. Power manifests itself in the formof an order, an imperative; leaders and commanders are venerated. Inthe Confucian tradition, the role of political power is to guarantee theharmony necessary for all to develop their own potential, and anyone

8

Andr Haudricourt, La technologie, science humaine, Paris 1987, p. 2825 andDomestication des animaux, culture des plantes et traitement dautrui, LHomme,Paris 1962, p. 4050.9Nichomachean Ethics, VIII, 2.


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possessed of such virtue deserves to wield it: He who is right is fol-lowed without giving a command. He who is not right commandswithout being followed.10 One can understand from this how govern-ment by law prospered in the West, while Asia preferred government

by men. The idea of applying the law does not make much sense in agarden. The good shepherd, on the other hand, is one who makes thesheep abide by his will. In Christian Europe the concept of ordersocial,natural or celestialhas naturally referred back to that of lawhuman,scientific or divine. Lawyers have had no monopoly on the subject.

Montesquieu gives the most famous definition: Laws, in the widest pos-sible sense, are the necessary relations derived from the fundamentalnature of all things; in this sense, all forms of being [divine, humanand natural] have their own laws. All three types of law share the ideaof causalityof necessary relations. Rationality here is the universalgoverning principle, encompassing heaven, the natural world and man.Thus Montesquieus conclusion: The law in general is human reason,inasmuch as it governs all people on Earth.11

This conception of law is profoundly characteristic of Western thought.Its ramifications go far beyond the legal domainitself now placed

within the much wider setting of a universal causality that encompassesdivine and scientific laws. This is quite different from the standardapproach to the relationship between science and law, usually dis-cussed today in terms of the legal, moral or ethical limits that mightrestrict the exploitation of scientific discoveries, especially biologicalones: using law, in the sense of legislation, as a possible remedy for themalaise of a science without a conscience.If, on the contrary, we see lawas something common both to legislation and to science, we can trace

the problem in their relationship back to its origins: religion.

Divine tables

The relationship between science and law was posed in comparable termsby Joseph Needham when he asked why the Chinesewhose knowl-edge and skills far surpassed those of Europeans in every respect untilthe sixteenth centurynevertheless missed the turning for modern

10Analects, XIII, 6.11De lesprit des lois, Paris 1951, vol. II, p. 232.


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science. The chief explanation Needham offered was that European sci-ence was based on a conception of law wholly absent from Chinesethought.12 Within the Western tradition, the Ancient Babylonianswhoenvisioned the Sun God Marduk as lawgiver to the starsare the earli-

est source for the idea of the divine ordinance of laws of nature, alsoarticulated in human laws, that is portrayed in the eighteenth-centuryBC Hammurabi Code. The image recurs in Hebrew writings; the impor-tance of the divine legislator in Judaismand therefore in Christianthoughtis well known. Thus, God gave his orders to the sea, that thewaters should not exceed his commands. Roman jurisconsuls tried toestablish a common legal denominator for the practices of all knownpeoples in thejus gentium, whence the modernconcept of natural lawis derived. Under Stoic influence, the jus naturale came to encompassboth man and naturein the words of Ulpian: Natural law is that whichall animals learn from nature; it is not specific to the human race.In mediaeval Europe, too, the laws of nature formed part of a divinelegislation that all must obey. Needham reports that as late as 1474 arooster was condemned to be burnt alive in Basel for the abominableand unnatural act of laying an egg.

Today the bird would no doubt end up in the hands of a biologist who,

rather than punishing such an infraction of genetic law, would endeav-our to understand it. The breakthrough in modern science came whenscholars stopped setting themselves up as guardians of divine laws andturned to deciphering them instead. It was the hypothesis that thereexisted, in Descartess phrase, laws that God has established in Naturethat, in effect, made it possible to discover these laws and then to expressthem mathematicallyat which point, God stopped speaking Latin andspoke in numbers. In Europe, writes Needham,

positivist law contributed to the development of natural science by wayof its precise formulation, and because it implied that the Earth-boundlegislator had his counterpart in the heavens, whose ordinance unfurledwherever material objects existed. In order to believe in the rational intel-ligibility of nature, the European mind had to presuppose (or found itvery convenient to presuppose) the existence of a Supreme Being who,rational itself, had placed this intelligibility in nature . . . We do not findthis in Chinese thought. Even the Chinese translation of law of nature,

12 Joseph Needham, Human Law and the Laws of Nature,Journal of the History ofIdeas, vol. 12, no. 3 (1951).


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zi-ran fa, means spontaneous law, a wording which rigorously adheresto the old Taoist denial of a personal God, and which all but leads to acontradiction in terms.

The religious antecedents common to both human and scientific lawsare even clearer when viewed in historical rather than epistemologicalterms. The concept of natural laws took on a scientific value only withthe emerging distinctionand articulationbetween Church and State,between spiritual and temporal power. Needham locates the point ofrupture at the moment when centralized royal authority triumphedover feudalism: Descartes wrote just forty years after Bodin developedhis theory of sovereignty; scientific ideas of natural law flourished atthe height of absolutism in the work Spinoza, Boyle and Newton.13But the origins of monarchist-state theory lie earlier, in the GregorianRevolution of the eleventh and twelfth centuries, which both separatedreligious and secular powers and established the Church as model ofthe centralized state.14

It is thanks to this revolution of interpretation, in Pierre Legendresphrase, to Gratian and to the legalists of the Bologna school, thatlaws were bound to the principle of rationality, through their inscrip-

tion in a systematic body of texts. It was in the twelfth century, too,that Abelard formulated the distinction between natural and mirac-ulous causes, and affirmed the powers of reason against those oftradition. Western thought began to tear itself away from the practiceof seeking concrete, singular causes, and turned towards the investiga-tion of formal correspondences; for which algebra would provide themost sophisticated terms.

It was not until the French Revolution and the dawn of the nineteenthcentury, however, that science and the state fully emancipated them-selves from religion, and Grotiuss impious hypothesis of a jurist

13 See Needham, Human Law, pp. 2389 and 2223; he refers to the work of E.Zilsel, notably The Genesis of the Concept of Physical Law, Philosophical Review,May 1942.14 See Ernst Kantorowicz, The Kings Two Bodies: a Study in Medieval Political

Theory, Princeton 1957; Pierre Legendre, La pntration du droit romain dans ledroit canonique classique, Paris 1964, and Les enfants du Texte; and Harold Berman,Law and Revolution: The Formation of the Western Legal Tradition, Cambridge,MA 1983, p. 85.


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without God became flesh.15 In the realm of science the leap was madeby Laplace, who declared that he could explain the universe withoutrecourse to the idea of God. There was, therefore, no further need torefer to the divine legislator in raising the veilof our ignorance; scien-

tific discovery could now replace revelation.

II

It had taken seven centuries to dissipate the confusion caused by havingreligious, human and natural planes all confounded under one law; andfor science and state to assert their modern meanings. We might ask,however, whether the mayhem is not returning today, in new forms. Tounderstand the contemporary situation, we have first to grasp the ambiv-alent nature of this laicizationthe disembeddedness, as Berman putsit, of laws that, like the Renaissance statues, have torn themselves fromcathedrals to populate public squares and gardens. One way of under-standing this ambivalence is through the history of art, running parallelto those of law and sciencealthough the mathematization of pictorialspace through the discovery of the laws of perspective preceded Keplerslaws. The ancient civilizations of the East, of classical Greece and media-

eval Europe objected to the use of perspective on the grounds that itseemed to introduce an individual, accidental factor into a world thatwas otherwise extra-subjective or supra-subjective.

This was particularly true for religious art; the image of heaven couldscarcely be subordinated to an individual viewpoint, since this was pre-cisely what it was meant to transcend. Within the laws of perspective,however, the image is rigorously reordered around the perception of

an individual subject. Herein lies the ambivalence of their discovery, somasterfully analysed by Panofsky:

One can justly conceive the history of perspective as the triumph of thesense of the real, the constitution of distance and objectivity; but equally, asthe triumph of that lust for power that denies all distance; as a systematiza-tion and stabilization of the outside world, but also as an expansion of theegos sphere.16

15 See Pierre Legendre, Le dsir politique de Dieu, Paris 1988, p. 21.16 Erwin Panofsky, Die Perspektive als symbolische Form, Leipzig 1927.


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Panofskys comments on the laws of perspective are equally applicableto the invention of human and scientific laws, freed from metaphysics.They, too, effect a systematization and stabilization of the outside world,subordinating relations between men, or between men and nature, to

the rule of reason. In the abstract, human law is equally applicable to all,including even the constituted state from which it springs. Scientific lawsubjects our relation to the world to rational principles, excluding thepossibility of miracles or divine intervention.

Both sets of laws are reinforced by being seen as elements of a largerbody of logic, linking them together. But here they also, in a sense,expand the egos sphere. For the centrethe headof this body of logicis reason; ultimately, it lies in the mind of man. The painters perspec-tive corresponds to the Cartesian cogito, in scientific theory, or to thelegislators will in theories of the state. Mastering these laws through hisreason, man can aspire to take the place of God: determing the socialorder, or submitting nature to his rule. The two ambitions have beenintimately linked since the Enlightenment, when the project of a lawfounded on human nature, drawing on the methods of mathematics andphysics, was first propounded. We will need to follow their trajectoriesfuther if we are to situate the place of law in contemporary thought.

Uncertainty principles

Throughout the twentieth century, the law has become progressivelymore inaccessible to human reason in the very realm of its seculartriumphs; giving way to the other notionsparadigms, models, idealtypes, structures, markets, fields, systems, conventionsthat become itsavatars. In the nineteenth century, natural scientists still met at interna-

tional congresses to establish what the law was on controversial points.Nowadays, the idea that there are such definitive lawsin the sense ofNewtons, sayis held only for very limited sets of circumstances. WithHeisenbergs uncertainty principle, physicists have admitted that theinfinitely small is inaccessible to law: it cannot be accurately observed ormeasured. In the human sciences, Freuds discovery of the unconsciouswas the recognition that there was an obscure region within man thatdefies logical determination, even if it operates as a language. In the

political sphere, the constituted state and the law are still standing, orstill propping each other up; but they have lost their former solidity. Asif fallen prey to a new forms of feudalism, the state seems to have given


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up on the attempt to apply general and enduring laws to a world whosecomplexity eludes its grasp: the law restricts itself to a limited validity,or simply retreats in the face of markets and conventions.17 For SaintPaul, as for Luther, law was infinitely more powerful than man. Drers

Melancolia Iexpressed, at the dawn of the modern age, this sense of rea-sons powerlessness to grasp the worlds complexity, and nostalgia for abygone time when thought could rest within the law of God. Now, asin Kafkas parable, a man could spend his life waiting for the gates ofthe law to open, while counting the fleas jumping from the gatekeepersbeard. And even if he got through that gate and deciphered that law,he would find a thousand more behind it, each one a thousand timesmore difficult to get beyond.

Cut off from its religious antecedents, however, the law could liberatethat lust for power that denies all distance. The role of divine legislatorhad fallen vacant; man could not but try to fill itto grasp control ofthe foundational discourse of all law. But such a discourse needed alegitimacy comparable to that of the natural sciences; the latters meth-ods were therefore transferred to the domain of man. Auguste Comtehoped it would then be possible, in the words of his mentor Saint-Simon, to replace the government of men by the administration of

things.18 Such certainty that a scientific, technical norm was destined towholly supplant human law is also found in Marxist legal criticism.19Confronted with the injustices of their time, Saint-Simon, Comteand Marx dreamed of humanitys liberation when, having overthrowndivinity, it would find in the laws of science the means of emancipationfrom the power of states.

Enlightenment thinkers had replaced the trinity of laws with a duality,

natural and human law, united under the aegis of reason. To reducethis duality further, the nascent social sciences attempted to establishthe unity of scientific laws, and thereby render redundant both theol-ogywhose position they would usurp in the universitiesand law,

17 See Legendre, Les enfants du Texte, p. 279, and Remarques sur la refodalisation dela France, Paris 1997 ; also Ph. Grard, F. Ost and M. Van de Kerchove, eds, La loidvore par la convention, in Droit ngoci, droit impos?, Brussels 1996, p. 631.18

See Wolfgang Lepenies, Die drei Kulturen. Soziologie zwischen Literatur undWissenschaft, Munich 1985.19 See, notably, E.-B. Pasukanis, La thorie gnrale du droit et le marxisme (1924),Paris 1970.


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in its strictly juridical sense. On a purely scientific basis this projectwas doomed to failure, since to commit ones thought to the search forlaws requires an awareness of the limits of ones understanding. As thesocial sciences slowly accumulated an unprecedented stock of knowl-

edge, the sheer complexity of what they discovered demonstrated thevanity of promulgating cast-iron lawsof history, economics, societythat would determine the outcome of human destiny.

On the other hand, this project enjoyed extraordinary political andideological success, as it offered the lust for power literally unlimitedhorizons. Which is to say, it opened the door to madness. The totalitar-ian systems that marked the twentieth century enable us to see preciselywhere this project for the scientific regulation of society crosses overinto delirium. It was not in their resemblance to religion, however mani-fold; though granted, there is more than a little in common betweenthose who see themselves as instruments of a divine law and thosewho see themselves as instruments of historysurvival of the mostprogressive classor of naturesurvival of the fittest. Numerical com-parisons of those massacred in their name reveals little; the differencelies elsewhere. Biblical law, like the law of the French Republic, alwaysaddresses man as subject; it grants his identity in the same instance

that it postulates his responsibility and his freedomeven the freedomto break the law and therefore incur its sanctions. The laws of science,on the other hand, view man as object; they explain him by relatingwhat he is and what he does to objective determinants that are clearlybeyond his responsibility.

Reasons failures

Scientific laws know neither innocence nor guilt, only the linkages ofcause and effect. It was in this sense that, as early as the sixteenth cen-tury, the Spanish theologian Suarez wrote that one could only speakof law by metaphors regarding things which reason fails.20 To aim atfounding the laws of society on science assumes that one no longerenvisages men as subjects, endowed with reason, but as objects, parti-cles in a magnetic field, animals on a stock-farm, things which reasonfails. The elimination of the subject of law in the name of science is

the delirious ground on which totalitarian thought is anchored. Hannah

20Tractatus de legibus, 1612, cited by Needham, Human Law, p. 221.


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Arendt expressed it better: the first essential step on the road to totaldomination is to kill the legal character in man.21

Negation of the legal guarantee of individual rights is therefore the hall-

mark of the totalitarian regime, which sees itself as the instrument of ahigher law, scientific and superhuman, that renders the state and posi-tivist law redundant. Both Communism and Nazism conceived of thestate as a puppet at the service of the Party, an ostensible governmentobscuring the true location of power. The state, wrote Hitler in MeinKampf, does not represent substance, but form. Both doctrines also ridpositivist law of its substance, leaving only the name. We shape thelife of our people and our legislation in accordance with the verdict ofgenetics, the Hitler Youth manual stated. Hitler himself repeated manytimes: It is not the State who commands us, but we the State, and thatThe State is merely a means to an end, that of preserving our race.22

The distinctive trait of the Nazis extermination policies did not lie intaking the lives of millions of innocent men, women and children, but instripping them of the different layers that made them subjects of law:depriving them not just of their jobs, but of their professional status;not just of their property, but of their right to ownership; not just of

their homeland, but of their nationality; depriving them finally of theirname, by turning them into numbersdestroying their human statusbefore taking their lives. The murderers themselves, too, did not simplyact in the name of racial lawthey were that law incarnate, all distancebetween the two denied. They were to consider themselves as cogs ina wheel moved by superior forces, and to discount any sentiment ofresponsibility or guilt.

The political application of these supposedly scientific lawsthe bio-logical survival of the fittest race, class domination by the engine ofhistorythus implies the liquidation of the anthropological function ofpositivist law. According to Arendt, such laws have the role of

marking out boundaries and forming the means of communicationbetween men, as the community is always threatened by the new arrivalsborn into it. Each new birth is a new start in the world, virtually a whole newworld that has been born. The stability of laws is an answer to this perpetual

21Le systme totalitaire, Paris 1972, p. 185.22 See Arendt, Le systme totalitaire, pp. 76 and 258.


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movement which affects all human affairs, a movement that will carry on aslong as men and women are born and die. The law surrounds each new lifewith barriers and, at the same time, guarantees its freedom of movement,the possibility that something totally new and unforeseen may occur. Thebarriers of positivist law are to mans political existence what memory is to

his past; they guarantee the pre-existence of a common world, the reality ofa certain continuity which transcends the lifespan of one generation, whichabsorbs all new beginnings and profits from them.23

Arendts call to establish a new understanding of man following thetotalitarian experience has been largely unanswered; even among jurists,the anthropological function of positivist laws is still denied. Yet thenecessity of guaranteeing each new generation a givena commonworld, that transcends the lifespan of one generationremains auniquely human need. Not that Western legal constructions are thesole means of managing this: there have been many others, notablythe Chinese tradition, based not on laws but on relations, not onrules but on rites.

III

What role does the idea of law play in our modes of thought today? Itssteady decline seems, at first glance, the most salient feature. Juristsspeak of the inflation of laws, their volatility, their inability to retain ahold on an overly complex world; it is the contract whose stock is risingon the legal Bourse. The social sciences seem to have abandoned theattempt to reduce the order of things to fundamental laws. In the natu-ral sciences, what haunts our nightmares is the fear of a technology or

biology beyond all human control. As for divine law, while killings andmassacres in the name of various Gods go on in front of our very eyes,the separation of Church and State has nevertheless limited their effect.

The definition of law as a linear sequence, linking cause and effect, wasalready in decline in the twelfth century, when the revolution of inter-pretation moved from a conception of law as a principle of causalityto the inscription of laws into a systematic body of texts. The idea of

corpus juris had been absent from Justinian compilations; it was first

23 Arendt, Le systme totalitaire, p. 211.


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introduced in medival times. Thenceforth, a single law no longer suf-ficed; it only had sense and value when related to a larger framework. Itis this concept of a system, of a logical matrix of laws, that continues toexercise a hold on Western thought. We admit that laws are relative, but

immediately go on to say they are relative to each other; it must there-fore be possible to devise a theory ofhowthey relate. As, at the dawn ofmodern times, the search for laws replaced the search for causes, so nowthe search for an order of orders, in Lvi-Strausss phrase, has super-seded the search for laws.

Yet there is more disagreement than ever on how to define this system,and new versions proliferate at bewildering speed. But of course Iminformed! cried Witold Gombrowicz in his auto-interview I was aStructuralist before everyone else:

Believe me, Ive read here, there, a bit of Greimas, Bourdieu, Jakobson,Macherey, Ehrmann, Barbut, Althusser, Bopp, Lvi-Strauss, Saint-Hilaire,Foucault, Genette, Godelier, Bourbaki, Marx, Dombrowski, Schucking,Lacan, Poulet, as well as some Goldmann, Starobinski, Barthes, Maurronand Barrera. Im up to date, even if Im not sure which date exactly . . . thereare just too many of them.24

Too many indeed. I will therefore limit myself to considering justtwo paradigms for such systems of rules: language and the market.According to Jakobsons general theory of linguistics, itself adaptedfrom physics, the increasing number of laws we discover highlightsthe problem of the universal rules that provide the phonological basisof the worlds languages, as their ostensible multiplicity is largely illu-sory . . . the same laws of implication underlie all languages, from botha static and dynamic point of view.25 For Lvi-Strauss, the strength of

the linguistic model was to bring to light such syntactic and morpho-logical laws. The task of anthropology, too, must be to derive fromthe most diverse forms of social life systems of behaviour that areeach a projection onto conscious, socialized thought; universal lawswhich govern the minds unconscious activity. The force of structuralanalysis rests ultimately upon the presumed identity both of laws ofthe world, and those of thought. What interests the anthropologisthere is unconscious laws, determining mens behaviour without their

24Gombrowicz, Paris, no date, p. 228.25 Cited in Claude Lvi-Strauss, Anthropologie structurale, Paris 1974, p. 100; empha-sis added.


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knowledge. The goal is to construct a social model whose systematicnature has hitherto been unperceived in that society, by penetrating theconscious models that mask societys fundamental structure from thecollective consciousness.26

Lvi-Strauss envisaged the extension of the paradigm to encompass eco-nomics and even genetics. In every society, he wrote,

communication occurs on at least three levels: the exchange of womenbetween men, the exchange of goods and services, and the relaying ofmessages . . . One could even add that the rules of kinship and marriageconstitute a fourth form, that of genes between phenotypes. Culture doesnot simply consist of immediately recognizable forms of communicationsuch as language, but alsoperhaps more importantlyit consists ofrulesapplicable to all communication games, whether played out on the planeof nature or of culture.27

The exchange of goods and services, however, has already beensubsumed by another paradigm, threatening to eclipse that of struc-turalism. The market, like language, also presents itself as a systemof unconscious rules which spontaneously govern human relations.28Until recently, however, political economy was defined by its object:

the production and exchange of material goods. A decisive step wastaken when economists advanced the notion that their science wasdefined not so much by its object as by its analytical method, whichmight legitimately be applied to all aspects of human life. This propo-sition has been rigorously defended by Gary Becker, who argued thateconomic analysis is based on three axioms from which numeroustheorems of human behaviour can be derived: maximizing behaviour,market equilibrium and stable preferences. The laws of the market

operate beyond mens consciousness and independently of the rational-ity or otherwise of their behaviour, driven by an invisble hand. Beckersees heuristic qualities in economic analysis at least equivalent to those

26 Lvi-Strauss, Anthropologie structurale, pp. 71, 74, 107 and 3345; emphasis added.27Anthropologie structurale, p. 353; emphasis in original. Note the reference to gametheory, which is itself founded on the idea of a system of rules.28 The analogy between the exchange of words and the exchange of goods is already

present in Adam Smith. Jean-Claude Perrot underscores the longstanding natureof the connection between language and money in the work of thinkers such asLocke, Hume, Turgot or Condillac: Histoire intellectuelle de lconomique politique,Paris 1992, p. 333.


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attributed to structure in sociology. Everything can be seen through thefilter of the market: politics, law, marriage, sex, bringing up children,relating to ones times.

The market paradigm has been applied across ever wider spheresRichard Posners Economic Analysis of Lawis a case in pointnot leastby those who seek to expose the inequalities of its relations. Such isthe case with Pierre Bourdieu, who, although he has made much useof the concept of fields, drawn from physicsin which individualscan be regarded as particles subject to the magnetic forces of attrac-tion and repulsionessentially derives his categories of thought fromeconomics. Metaphors of capital, prices, interest, and so forth dominatehis work. It is one and the same thing, he has written, to determinewhat constitutes a field and its limits, and to determine what form ofcapital operates there, and under what constraints. In these marketsor fields, individuals deploy three types of capital: economic, culturaland social. As for the power of the State, it is a type of meta-capital capa-ble of exerting power over the others, and particularly over the rate ofexchange between them.29

Like Becker, Bourdieu applies concepts derived from economic analysis

on a much wider scale: a general science of economic practices . . .is not artificially restricted simply to those practices socially recognizedas economic. Here too, extending this method to social relations as awhole should make it possible to reveal the unconscious determinantsof human behaviour. There are general laws of fields: fields as varied aspolitics, philosophy and religion all have constant functional laws (whichis what makes the project of a general theory a reasonable one).30

Both linguistic structure and the market offer models of rules-systemsthat (a) do not have to be recognized in order to be effective, (b) are

29 Pierre Bourdieu, Rponses, Paris 1992, pp. 734, 82 and 90; and La distinction.Critique sociale du jugement, Paris 1979, p. 93; emphasis in original. Bourdieudefends himself from the charge of economism by claiming that the only thing heshares with orthodox economics is a certain number of words (Rponses, p. 94).But here one could refer him to his own critique of the philosophical use of lan-

guage as a sum of partially intersecting idiolects which can only be properly usedby interlocutors capable of referring each word to the system in which it obtains themeaning they intend it to have: Ce que parler veut dire, Paris 1982, p. 188.30 Bourdieu, Questions de sociologie, Paris 1980, p. 113.


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capable of self-regulation, (c) leave space for human initiative, whilst (d)submitting humans to the implacable decrees of a hidden legislator, beit Platos Cratyle or Adam Smiths invisible hand. Numerous categoriesof thought currently emerging out of the social sciences, such as that of

the network, appear as hybrids of market and structure.31

Darwins subjects

What of positivist laws themselves? Within the social sciences, theyappear to have been swallowed up inside each rules-system. The struc-tural anthropologist considers them a screen onto which beliefs areprojected, masking societys deeper structure; the economist will analysethem as administrative instruments, whose effectiveness depends ontheir compatibility with the laws of the market; the sociologist of fieldswill see them as instruments of symbolic domination, to be analysedaccording to the logic of the legal field.32 Difficulties emerge, however,when one thus dissolves positivist law into a science that is to revealthe true laws of humanity. Not only does one lose the notion of thelegal subjectreduced to a particle, economic or linguisticbut the con-cept of justiceto which mens (false) consciousness ordinarily refersall lawsis also dissolved. Put another way, we now arrive at a social

science without conscience.

On what, then, are the ideas of justice and solidarity to be based ifnot on law? Becker, who describes himself as performing his investi-gations relentlessly and unflinchingly, does not attempt to minimizethe difficulty of this question. The answer, he claims, is to be foundin genetic law. Altruism towards ones peers is a condition for survivalamong many species, and has therefore been genetically selected; and

what is true for animals must be true for man.33 Becker, too, like Lvi-Strauss, ends by looking to genetics to discover the essential laws ofhuman behaviour. Many others are currently negotiating this slipperyslope. Certain biologists, whilst keeping their distance from sociobiol-ogy, are currently developing an evolutionary anthropology which would

31 See, in particular, Manuel Castells, The Rise of the Networked Society, Oxford1996.

32 Pierre Bourdieu, La force du droit. lments pour une sociologie du champjuridique, Actes de la Recherche en sciences sociales, 64, 1986, p. 5.33 See the chapter entitled Altruism, Egoism and Genetic Fitness: Economics andSociobiology in his Economic Approach to Human Behaviour, Chicago 1976.


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connect adaptive strategies to universal genetic givens.34 Concurrently,a progressive Darwinian Left is emerging which would adapt the ideaof social justice to genetic determinants. It seems important to reassert,in this context, the anthropological functions of positivist lawthat is,

to recognize the role it plays in constructing collective and individualidentities and in providing each new life with a humanly created socialgiven. Of course we should share the indignation of Bourdieu or VivianeForrester at the manner in which whole swathes of humanity are cur-rently precipitated into the social abyss in the name of the market.35 Butthis indignation can neither guide nor be guided by intellectual labour ifone totally abandons the notion of positivist law.

One final consideration on the dual trajectories of scientific and positiv-ist law: the idea of scientific law reasserted itself at the same time asthe nation-state. A careful study of the way in which that institutionspillars are now cracking, and of new articulations of laws and codes,could permit one to elucidate the relationship of the two today. EU reg-ulation would provide an ideal specimen: here, at first glance, thereare neither laws nor state. What concept can one use to describe thatunidentified legal entity, the European Union? Under what categoryare we to classify those non-lawsCommission directives and rulings?

In law, the EU is neither a state nor an empire, simply a system oftextsbut one that lays down the law for member states and has nowproduced its own currency.

The state is receding as central organ for juridical responsibility, but lawsthemselves are surviving this retreat, just as their value becomes morerelative and local. The idea of law endures within this formnationallaws inserted into an overarching EU rules-system that is now their

lawbut which still leaves room for diverse national and local realities.One cannot help but draw a parallel with the evolution of contemporaryphysics, which has also renounced the notion of caging reality within the

34 For Richard Dawkins, we are survival machinesrobots blindly programmed topreserve the egoist molecules known as genes: The Selfish Gene, Oxford 1976, p.7. See also Matt Ridley, The Origin of Virtue: Human Instincts and the Evolution ofCooperation, London 1997; Jerome Barkow, Leda Cosmides, John Tooby, eds, The

Adapted Mind: Evolutionary Psychology and the Generation of Culture, Oxford 1992.35 Viviane Forrester, Lhorreur conomique, Paris 1996; on the striking parallelsbetween the economic vulgate and totalitarian discourse, see C. Dejours, Souffranceen France. La banalisation de linjustice sociale, Paris 1998.


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text of laws. It also confirms the heuristic value of Montesquieus theoryof the relativity of positivist laws:

They must relate to their locations physicality, to a freezing, burning ortemperate climate, to the quality of the terrain, its situation, its size; to its

peoples way of life, be they labourers, hunters or shepherds; they mustrelate to the degree of liberty the constitution can allow; to the religion of theinhabitants, their inclinations, wealth, number, trade, mores and manners.Finally, they have their relations between themselves, with their origin, withthe intentions of the legislator, with the order on which they are established.

It is in the light of all these aspects that they must be considered.36

36 Montesquieu, LEsprit des lois, 1, p. 238, emphasis in original.

ontologies of law

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