Mikhaïl Xifaras | The Role of the Law in Critical Theory

By Mikhaïl Xifaras

Note: This is a draft. Please do not quote or circulate more widely.

The Role of the Law in Critical Theory

— The case of Property and the Commons —

As a Commentary of the first chapter of Négri and Hardt’s Commonwealth

 

This is a shorter version of a longer initial draft.

In a nutshell, my argument is that Critical Theory (hereafter, CT) is no less radical, but much more concrete (or into “real life praxis”, to use the title of the seminar) when it is not only an external but also an internal critique of the Law.

In the first section I will try to state that “the role of the Law in CT” is emerging as a problem at the intersection of two CT’s ordinary claims: “there is no outside” and “the legal base of the system is structuring our lives”. In the second section of the paper I do suggest a pretty vague phenomenology of critical attitudes toward the Law. In this version, I only keep the paragraphs related to the “anti-juristic stance” (in French: anti-juridism). In the third section of the paper, I will try to describe the epistemic context in which critical attitudes are deployed (the Conflict of the Faculties). This will lead me to expose the four theoretical moves initiated in the same time, at the end of the 18th C., by various authors, and which were, according to me, seminal to the conception and foundation of modern Law.  This will allow me to expose this structure and from there, to show that, too often, Critical theory is incomplete when only focusing on the critique of the “Law of the philosophers” and ignoring the “Law of the Jurists,”. I have omitted the fourth section in this version for the sake of brevity. In the fifth section, I will propose a quick summary of the history of the internal critique of Law, which will lead me to propose a different (less “modern”) conceptualization of the concrete operations of the “Law of the Jurists”. In the section six, I will illustrate this conceptualization with the example of the copyleft. This will lead me, in the seventh section, to express my core argument: Law is not just a bad guy and a blinder, it is malleable and open enough to allow the thinking and practicing of radical alternatives from within the legal system. I will also argue that alternatives spoken in the language of the Law can be no less radical, but for sure more concrete than others.

 

  1. THE “ROLE OF THE LAW” PROBLEM IN CT.

 

In the longer version of this paper, I started with focusing on two ordinary views in the critical literature, which are expressed in Negri and Hardt’s Commonwealth: “There is no outside” and “Law structures our lives”.

 

1.1. There Is No Outside

 

This idea is very common in CT. Domination and oppression are not coming from the outside (God punishment, Nature’s necessary functioning etc.), but are mere consequences of the inner logic of the systems and institutions which are shaping our world. The alternatives to oppression and domination are also to be found within our societies, emancipation will not come from the outside, no call for divine intervention, coming back to Pure Nature (as opposed to Society) or any other external principle or force is possible. Such calls cannot, by any means, seriously ground emancipatory projects.  Plus, “There is no outside” does not only mean that the alternatives are already here, somewhere in our world (in its margins), but moreover that they are produced within the system of oppression and domination, by its inner logic of development.

 

Négri and Hardt are, for sure, on this line. For them: “One primary effect of globalization, however, is the creation of a common world, a world that, for the better or worse, we all share, a world that has no “outside”.” [1] The revolutionary forces are emerging from within the system, are produced by the system, but are antagonistic to the system: “Since the dominant form of the republic is defined by property, the multitude, insofar as it is characterized by poverty, stands opposed to it. This conflict, however, should be understood in terms of not only wealth and poverty but also and more significantly the forms of subjectivity produced. Private property creates subjectivities that are at once individual (in their competition with one another) and unified as a class to preserve their property (against the poor) … The poverty of the multitude, then, seen from this perspective, does not refer to its misery of deprivation or even its lack, but instead manes a production of social subjectivity that results in a radically plural and open body politic, opposed to both the individualism and the exclusive, unified social body of property. The poor, in other words, refer not to those who have nothing but to the wide multiplicity of all those who are inserted in the mechanisms of social production regardless of social order or property”.[2]

 

So far, so good.

 

1.2. “Law Structures our Lives”.

 

Often, Law appears in CT as the “bad guy”. That is the case in Negri and Hardt’s book. Of course, the emancipatory forces, their principle of activity, and the various emancipatory projects in which this principle is enacted are already here, in our world as it is, but their historical manifestation is at first hidden under the “bad” forms imposed by the dominant system. The unity of Humanity is hidden by class distinctions, Socialization is hidden by Private Property, Cooperation at work is hidden by institutionalized competition and employer’s power. The alternatives are already here, but they are veiled: “With the blinders of today’s dominant ideologies, however, it is difficult to see the common, even though it is all around us[3]. And to be more precise, they are veiled by legal forms. Law comes at first in the story as one of the core “blinders”. For example, the legal public/private divide (“The standard view, however, assumes that the only alternative to the private is the public, that is, what is managed and regulated by states and other governmental authorities, as if the common were irrelevant or extinct,” [4]. Law is not only the bad guy in the sense that it is the structure and the sword arm of capitalist domination, it is also a blinder.

 

The striking element in these arguments is that the role of the Law is absolutely central in the everyday ruining of our lives. Law is not only a kind of “general form” which would shape big institutions and social relations at large, its bad effects are to be felt in every aspect of our lives, including the most intimate, including the shaping of our bodies. Private property regimes are not only protecting the owners, they are producing “the human as commodity,” p. 22. And not only in general and in the abstract, but in a deepen, diffused and generalized way.

 

If the bad effects of the Law can be felt everywhere in the world, it must be because the legal institutions are structuring the whole of social relations and human activities. The republic of property cannot just be a set of legal rules and principles which is enforced from time to time, it is a system which determines all aspects of our existences, not only formally, but straight to the bones. This means that the legal system is not only a kind of general framework made of formal rules and principles, shaping the domination and oppression of capital in “relative indifference to social contents” (p. 22), it is also the very cause for all the bad effects this system has on our lives and bodies. For Negri and Hardt, Marx’s critique failed to “grasp the entire set of effects that property, operating through law, determines over human life,[5]. That is why “many twentieth-century Marxist authors extend the critique of private property beyond the legal context to account for the diverse material dynamics that constitute oppression and exploitation in capitalist society,” [6].

 

This last quote is introducing a tension, which to me seems very common in CT. On the one hand, the fact that CT is not only interested in analyzing the system of legal forms organizing capital domination in a relative indifference to social contents is seen as a progress, an enrichment of the theory, which is now in a position of analyzing the concrete effects of oppression and domination on our bodies. On the other hand, it seems that this progress can only be made by taking the analysis “beyond the legal context”, that is not only out of the sphere of legal relations, but out of the sphere of relations ruled by the Law, to “account for the diverse material dynamics that constitution oppression and exploitation in capitalist society[7]. That is exactly what Foucault did in Surveiller et punir, with the concept of “discipline” understood as a kind of “counter-Law[8]. The sphere of disciplinary regimes and later of bio-power and bio-politics is a sphere relatively distinct from the sphere of relations which are produced and ruled by the Law. But if the need to be more concrete in the analysis of oppression and domination means to go “beyond the legal context”, how come the “legal context” is still able to structure our lives and to be the cause of the ruining of our everyday life under capitalist domination? How is it possible to affirm, in the same time that the structure of capitalist domination is legal (the republic of property as private property regimes protected by the rule of law), that capitalist domination is producing our bodies and subjectivities, and that the analysis of the production of our bodies requires to look “beyond the legal context”. Is there anything “beyond the legal context”? How is it even possible to conceptualize a “beyond the legal context” when this context is also the base, the structure, and the cause of every effect of capitalist oppression and domination, and if, in the same time, there is no outside?

 

At this point, it might be interesting to distinguish the legal frame — that is the legal structures understood (by Marx) as “abstract representations of social reality, relatively indifferent to social contents,” [9] and the “legal context” which is the way legal institutions are defining the concrete conditions of everyday life — for example the way “capitalist property defines the concrete conditions of the exploitation of labor,” p. 22. Négri and Hardt think that in order to “grasp the entire set of effects that property, operating through law, determines over human life” it is necessary not only push the analysis beyond the legal frame, but more radically, beyond the legal context. Another strategy, for which I will plea in this paper would be to consider that the legal context is exactly the “entire set of effects that property determines over human life” and that, in order to grasp it, it is indeed necessary to push the analysis beyond the legal frame, to inquire not only about the formal legal forms, but about concrete legal practices — law in action. But it seems that Négri and Hardt do not make the distinction between abstract legal forms and concrete legal practices (to the point the French translation gives “cadre juridique[10] — literally “legal frame” — for “legal context”) so they feel the need not only to look beyond the legal frame, but more generally beyond the legal context, in the sphere of non-legal social relations, made of the “diverse material dynamics that constitute oppression and exploitation in capitalist society,” [11].

 

The justification of this move is the following: the anti-capitalist emancipatory forces are to be found, of course “within our world”, but they are not to be found “within the legal frame”, precisely because they are constituted by their exclusion from the republic of property: “property is the key that defines not only the republic, but also the people, both of which are posed as universal concepts but in reality exclude the multitude of the poor,” [12]. Creative and emancipatory lifeforms are indeed, according to them, emerging and expanding in this world, but outside the legal frame which excludes them. That is to say: there are inner limits to the hegemony of the republic of property, which are creating not only an outside, but a counter power, an inner enemy. And most important, this inner enemy is not structured by the Law. To the contrary, the multitudes are self-structured by their own material, creative lively forces, and these forces are not subjected (assujéties, in French) to the legal frame, because they are excluded from the “social body” which is constituted by it, although there are submitted (soumises, in French) to the power of the capital. Submitted to, but not constituted by. The force of the multitude is the other, the enemy and therefore the alternative to the sphere of biopower constituted by the legal frame. However, the productivity of the Law is not to be denied. Law actually does structure most of social relations and human activities in our world. But the productivity of the Law is only negative, the relations, activities and subjectivities which are produced by it are oppressed, dominated, alienated forms of life. Property produces subjectivities, which are wounded by individualism, competition and identity. The positive productivity of lifeforms — the force to produce the common —  is taking place outside of the power relations regulated by the Law, which is understood by Négri and Hardt as being not only outside the sphere structured by the legal system (the republic of property), but outside any legal context in general, far from the negative productivity of the Law — the common is a non-law sphere. And this is where alternatives to the system emerge and self-constitute.

 

Which is another way to say that the legal frame does not structure all our world, only the “bad” part of it, not the “good” forces.  That is to say: within our current world, there is a space for lifeforms which are not structured by the Law, a space for the Common understood as the principle of activity of the Multitudes, which are more generally escaping the legal context, and this Law/non-Law divide is structuring the core contradiction of our system (the political contradiction between capitalist domination and the creativity of the multitude). Put in other words: there is indeed an outside, which lies, paradoxically, within the system, as its other, or inner enemy. But then, how do we about understanding that the Law is structuring (in a bad way) every aspect of our lives when it rules, and that in the same time, it is totally foreign to the production of the good alternative forms of live?

 

The problem we are encountering here, is a very classical problem in CT. Let’s call it the “role of the Law problem”. The role of the Law problem can be expressed in the following way: on the one hand, systemic analysis of capitalism requires the (legal) structure of the system to be effective in every aspect of our lives and CT to analyze concrete micro-powers and disciplinary mechanisms as the necessary effects of the structural domination of capitalism. And the more radical the critique of capitalism is, the more the more totalizing its domination is, and the more necessary the effects of this domination are. That is to say, the more radical the critique is, the more it claims that Law is really everywhere. But if the alternatives are not to be found outside, there must be within the system. That is why the Law is not just a “bad guy”, but also a blinder. The legal system is the “bad form” which is hiding the emancipatory alternatives which are already there. Expressing these alternatives means taking the analysis “beyond the legal frame” and analyze these forms as live forms, not legal forms. And here is the problem: how comes those life forms are not also shaped by the legal structure? What is the meaning of the world “structure” if it is not structuring the society as a whole? And on the top of this, most of critical theories are claiming that “there is no outside”. But where shall be located an alternative which is to be found “beyond the structure of the system”?

 

There are many answers to this problem. The critical theorist can weaken the “no outside” claim and admit that there is actually an outside, at least in the sense of “within this world but beyond the legal frame” (the next step is generally a plea for a change of frame, e.g. a revolution). Or the critical theorist can engage in seeking alternatives within the legal context (the next step is generally more complicated).

 

The argument in favor of the first line generally goes like this: Law is shaping our lives cum grano salis but the ideology of the Law is veiling myriads of “non-law” relations of micro-power and disciplines. Thank God, there is much more in the real world than mere legal relations. The legal forms are shaping / hiding the real live forms, which are totally independent from any legal forms. The subjection of our bodies is taking place inside the system, which is structured by the legal frame. This subjection involves an ocean of disciplinary mechanisms and micro-powers which are not specifically legal. A classic example: the rule according to which girls were skirts and boys were trousers is not a legal rule. The legal system does structure the whole of social relations and human activities, but power mechanisms and disciplines are not all legal. Négri and Hardt are providing a nice version of this argument, where the non-Law sphere is produced by the exclusion of the multitudes from the system, where non-legal alternative live forms can emerge, deploy, self-constitute. But this move leads us from Charybdis to Scylla: if the legal system is the structure of capitalist domination, and if this domination is subjecting us in every aspect of our lives, it means that, a way or another, the legal system does also structure every non-legal power mechanisms, or that, in the whole of human relations, those who are told in the langue of the Law are conditioning and organizing those told in other languages (the language of fashion for the dress / trousers divide for example).

 

Another way to deal with this tension is to keep in mind that in our societies where Law prevails in general, the distinction between “Law” and “non-Law” is a legal one, in the sense that “non-Law” zones of power are zones in which the Law could prevails if the people with the capacity of doing it were deciding so, but they did not. A classic example: during the 19th C., the common sense among the jurists is that Home and family life is where the powers of the pater familias are exerted, the domain of private life, where Laws should not enter. A “non-Law” zone. A Century and many feminist struggles later, most of current legislations in liberal democracies do forbid (at least formally) marital rape, violence against women and children etc. The question to know if the Law has to say something about what is going on at Home is an entirely legal. In this perspective, what Foucault calls “disciplines” are not a dimension of power relations which is distinct and separate from the Law. At most, it is its extension. The factory regulations are the exercise of the legal powers of the employer, as a consequence of its property rights over the means of production. In France, the asylum regulations are the direct use of the hierarchical powers given to the director of the Asylum by the Ministry of Health. The way tables and chairs are disposed in the classroom is a result of the school’s director exercising its legal prerogatives in the organization of the school. In a sense, all this is Law. It is only by thinking that the “non-Law zones” are within, and produced by, the legal frame that it is possible to make sense in the same time that the legal system is structuring the entirety of our lives, and that all micro-powers and disciplines are not told in the langue of the Law. According to this line, Law is not only structuring our lives, Law is everywhere, and, indeed, there is no outside.

 

This line of reasoning requires one more theoretical effort, in order to understand how to make sense of the functioning of the myriads of micro-powers and disciplines in their relation with the structure, that is in bridging them with the legal frame which is conditioning and organizing the whole of human relation under capitalist domination.

 

Of course, the critique has to go “beyond the legal frame” as CT should not only keep analyzing the frame itself, but also its concrete consequences in our lives and bodies. But critique does not go “beyond the legal context” just by inquiring micro-powers and disciplinary mechanisms, because those mechanisms are actually the legal context itself, as they are structured by the legal frame, even if the field is not directly regulated by legal rules. The conclusion is indeed that “Law is everywhere”, not in the sense that everything is directly regulated by legal rules and principles, therefore not thanks to the generalization of a merely juridical conception of social relations and human existences, but in the sense that the Law does structure our societies as a whole, including the non-legal relations of power that it induces or allows to prosper. The moto “there is no outside” has a stronger meaning than just “capitalism has expanded worldwide” or even than “there is no transcendent principle or external force to wait for”. There is no outside means that if the legal frame is the structure of capitalism, alternatives to capitalism have to be found within, not beyond, the legal context.

 

This leaves us with two options: The first one is depressing, the second is demanding. If “there is no outside” and if Law structures our lives to the point that “Law is everywhere”, even in the non-Law zones, the emancipatory forces and principles are either just fantasies (the depressing option) or there are to be found within the Law context (the demanding option). According to most of its commentators, Foucault famously chose the depressing option, reducing the possibilities of action against the system to resistance from within. Négri and Hardt are not ready to “just” resist (although they love resistance too). They want to ground the concrete and theoretical possibility of the destruction / overcoming of the system — a revolution understood as a complete shift from this system to a better one. They want to act and think beyond capitalist and state domination and all its bad consequences on our lives. But if they are serious about the immanence of their project, they have to go for the demanding option: act and think beyond the system, but from within. And here, “from within” does not means only: from within our current world, but from within our current world as it is structured by the current frame, that it from within the current legal context. Before digging in this direction, I will first propose a (vague) phenomenology of critical attitudes toward the Law. 

 

  1. A (VAGUE) PHENOMENOLOGY OF CRITICAL ATTITUDES TOWARD THE LAW

 

For the sake of shortening this version of the paper, I skip this development. My point here is to show that for a certain trend in Critical Theory, which I call anti-juridism, the systemic critique of the Law (how legal regimes understood as a system is ruining our everyday life) shall be radicalized. the Law as such can only be the instrument of such systematic dominations. If our societies are institutionalized and constituted by Law, if they are working thru Law in the sense that the Law is the main language of its structuring power relations, it is because those power relations are violent relations of domination. Only violent relations of domination need the help of the Law to be sustained. The fact a society works thru Law is the symptom of its ill conception and ill constitution. In our societies, the whole of social relations and human activities are ill conceived and ill constituted because the Law is conveying an alienated conception of humanity and societies. Law is indeed totally embedded into an individualistic conception of human relations seen as ownership, a cynical and negative conception of the political in which any collective activity translates into relations of domination and power. The critique is not anymore here the critique of Law as an instrument, nor the critique of Law as an ideology (the blinder), it is the critique of the “legalistic vision of the world” which is going with every government thru Law. This consists in thinking the world, humanity and society by looking “beyond” (or “below”) not only the “legal context, but the “legalistic vision of the world”.  The idea here is that the Law is conveying a social ontology which is formalizing, naturalizing, essentializing the relations of domination institutionalized by it. Therefore, CT has to emancipate its own imaginary from this vision to conceive what the society could be “beyond” or “below” the legal context and the negative anthropology conveyed by legal thought in general. In this perspective, CT has to produce alternative conceptions of political activity, social ontologies purged from any theoretical and practical trace of juridism, in order to allow ourselves to conceive another world, another humanity. In this too Tony Négri is a master [13].

 

In order to conceive forms of humanity, social relations and political activity which could work without Law, which would not need the Law to be constituted and institutionalized, one needs to start from principles which are positive enough to not need the Law as a corrective. Creativity, cooperation, friendship or love are really good candidates. The critique can then deploy outside the Law, in the non-Law zones and deal with TAZ and souci de soi. Negri and Hardt’s “The common” is such a principle, as an alternative to the republic of property. The Common as a political principle is deploying indeed an anthropology (of the multitudes) and an ontology (of creativity) which are difficult to express in the language of the Law, which was made to express relations of domination, competition and identity. To use Spinoza’s words (that is, in total fidelity to Négri), Law is the language of potestas (power as domination), but not the language of potentia (power as empowerment/capability). Jacques Rancière is also expressing this idea very clearly: everything which is not the deployment of democratic power is on the side of police and the Law, as such and as a whole, is on the side of police [14]. This is critique outside and against the Law and legal thinking.

 

What I will try to do in the second part of this paper is to think about the possibility of a critical strategy which would be radical not only in theory but also in practice, and for doing this I will seek the “remedy in the evil” (le remède dans le mal, in French), as Rousseau would put it, that is not “outside and against” but within the Law, sometimes against and sometimes not. Before going further, I would wish to say again that I have all respects for critical theories that are motivated by the desire to “get rid” of the legalistic vision of the world which is, indeed, colonizing our imaginaries. Thinking “beyond” and “below” is a wonderful and noble ambition which has produced amazing emancipatory effects, because, indeed, the Law, legal regimes, legal categories and modes of reasoning are playing a structural role in the establishment of a negative and sad conception of the world and the human being. I am therefore not against anti-juridism by principle, and actually I am not against it at all. But I also think that sometimes it might be possible and interesting and even preferable to adopt a strategy of the kind “remedy in the evil” because that strategy is also producing interesting effects of truth, contributes greatly to the broadening of our political imaginary, gives guidelines for original emancipatory projects, and moreover makes the alternatives more concrete and therefore more practicable.

 

To put it another way, if the critical enterprise is a search for “getting out” (as Foucault reading Kant would put it) from the stage of minority, and if we translate this in the will to get out from relations of alienation, dispossession and domination, this will can take many forms: the destruction or the overcoming of the dominant system, but also crossings, subversions and reversions of it. Or, that the strategies of radicalization of critique is not only to produce alternative anthropologies and social ontologies. Or, that it is interesting to try to deploy those anthropologies and ontologies in our world, as it is, which means wondering how this could happen in a world which works thru Law. If this strategy is not a dead end, it might be interesting to not only reject the baby-Law with the bath-waters of the legalistic vision of the world, but to learn how to browse it, how to recover it, how to return it, how to reverse it how to avoid it (and of course, also, sometimes how to overthrow or destroy it too).  But in any case, in order to be able to do all these things, one must learn the Law, become familiar with it, intimate to it enough so its internal critique can be made.

 

I am here connecting with my first argument: the task is to conceive strategies of critique which would be in the same time radical and concrete. The radicalization of critique thru rigorous anti-juridism is a theoretical radicalization which may lead, sometimes, to the weakening of critique in practice. My idea is that, in order get both the radicalization and the concreteness, the critical theory should not only be an external critique of the Law and legal thinking but should at least be articulated to an internal critique of it, a critique of the law and legal thinking that would be able to reveal the potential positive productivity of the law, so the radical alternatives (some of them drawn from the outside) could be located in the only place they should be located in order to be concrete and practical : within the context produced by the system.

 

To develop this idea more in detail, I will start by a set of short genealogical remarks about the epistemic dispositive (dispositif épistémique, in foucaldian French) in which the critique of law is situated today, which I will call, after Kant of course, Conflict of the Faculties. I think this detour is important because the understanding of the frame in which this discussion is taking place is important to the discussion itself. It will also allow me to put in historical perspective this idea of articulating external and internal critique of the Law.

 

  1. THE EPISTEMIC DISPOSITIVE OF THE CRITIQUE OF THE LAW: THE CONFLICT OF THE FACULTIES.

 

When a critical theorist is asked to talk about the Law, a very common reaction is first embarrassment. Law is very technical, difficult, obscure, boring. Or, to be more precise, the “Law of the Jurists” — Law as it is practiced (and theorized ad hoc by Law professors, sometimes under of name of legal dogmatic or doctrine) is very technical, complicated, boring etc. Talking about it without proper knowledge is risky. Critical theorist who are giving it a try are doing it with many precautions, and often ask for advice and review from specialists. But critical theorists love to talk about the Law, and they actually do talk about the Law all the time. Critique of the Law is indeed a central piece in CT. There is no paradox here: what they are talking about when they talk about Law is not the “Law of the Jurists”. It is the “Law of the philosophers” which appears to be a quiet different thing.

 

3.1. Law of the Jurists / Law of the Philosophers

 

If one asks where this distinction comes from, the answers lies for sure at the very origins of modern critical theory, e.g. as usual, Kant, Bentham and some others. For those great founders of modern critique, what the Jurists are calling “Law” is the “authorized Law”, that is the enforceable Law by authority of the powers who are competent to decide what is the enforceable Law. Namely, the Prince. And by legal thought or legal science, they mean the various trends and lineages which are composing the tradition of commentary of the Corpus Iuris Civilis (including its British branch, which included, of course, Blackstone’s work). Their very first critical gesture is to not be satisfied with this definition, and to raise, against the pretention of the jurists to monopolize the practice and the theory of the Law, another signification of the word Law which would be something like “Law according to reason”, whatever this “reason” might be (the ordinary candidates are transcendental, speculative, discursive and instrumental reason). Bentham is opposing the Law according to the science of utility to the fallacies of the jurists. Kant thinks that describing existing Law and applying is in no connection with deducing from transcendental reason the principle of every possible rational legislation. Etc.  As a result, in front of the existing Laws and their comments by the jurists, those critical theorists can raise a representation of “what Law should be”, if it was faithful to its own ideals of rationality, so that it can be a practical and theoretical model for evaluating the legitimacy of existing Laws, and providing a model for their practical transformation. In one word: The Law of the philosophers is a model to criticize the Law of the Jurists. Kant, as often, is performing this move with the maximum of sincerity. Of course, inventing the “Law of the philosophers” and raising it in front of the “Law of the jurists” is a blow to the face of the latter, because it is depriving them of an important competence they have always owned, which it to provide guidelines and orientations for the evolution or the transformation of the Laws. According to this critical view, the philosophers are now the ones in charge of expressing what Law should be (if not in detail at least at the level of the core principles of the system). This move is introducing and unavoidable conflict among the faculties of Law and Philosophy, about who shall be competent for talking about the what Law should be. For these critical thinkers, the competence of the jurists has to shrink up to the mere description and operations of enforcement of the existing Laws, while knowing the principles guiding its evolution is the task of the critical philosophers.

The introduction of this conflict is precisely the critique.  Legal practice lies on the authority of the Prince. Legal science lies on the authority of Authoritative Texts (the Corpus iuris and its main commentators). But critical knowledge of the Law cannot lie on any other authority than the authority of the free use of reason itself. Critique is the refusal to submit to authorities and the attempt to think by one-self. Sapere aude! And because, for Kant, this conflict takes the institutional form of a competition between the faculty of Law and the faculty of Philosophy, he calls it the Conflict of the faculties.

 

In the 18th C. “Philosophy” was a very broad word which was grasping various ways of theorizing, from academic philosophy to the birth of new “social sciences”, and the figure of the philosopher was associated, especially in France, with those people sitting in Cafés and Salons, who’s books were censored the day they were printed, and who were always at risk of spending few weeks in prison, sometimes in good company. There were also called “publicists”, because they were writing not only for specialists, but for the public opinion. Therefore, the Law / Philosophy conflict shall not to be understood with today’s disciplinary lenses. Philosophy is here a generic term for a variety of critical approaches, from transcendental to the most empirical ones. Today too, CT is at the crossroad of philosophy, political economy, sociology, political sciences and many other disciplines. But CT is still inscribed in the conflict of the faculties, as it claims to be competent for criticizing the Law from the perspective of an “external knowledge”, a knowledge coming from the outside of Law and legal thinking to contest its pretentions to monopolize the understanding and the evaluation of the Law. Indeed, the “Law of the philosophers” does not care much with the description of the existing enforceable Laws, nor with their concrete application, but do care very much about the principles and concepts they aim to realize. Which also means that for the philosophers, the “Law of the Jurists” is just to realize the principles and concepts which are embedded in the legal system. If the good Laws are the Laws which are realizing good principles, the knowledge of these good principles which are to be realized by the Law is indeed a strategic knowledge that cannot be left to the jurists. The task of the critical theorist is to criticize the bad principles and to establish the good ones.

 

Once those good principles are known, some critical theorists think that they are so good they do not even need to be translated in new good enforceable Laws. Other critical theorists think that those principles shall translate in new good enforceable Laws, but they often think that this their translation and the application of the new Law to real cases can be left to the Jurists — l’intendance suivra. What follows is a genealogy of the epistemic dispositive in which this setting is made possible, in telegraphic style.

 

3.2. The Project of the Late Enlightenment for the Law

 

At the end of the 18th C. something like a “radicalization of the Enlightenment” is happening. I am using the term “radical Enlightenment” with all due respect to the great work of Jonathan Israël but in a very different sense,[15] as I do not equate it with the becoming of Spinozism in the 18th C. but more generally with the emergence of “political autonomy” (to use Castoriadis wording [16]) as the best solution to the pending problem of authority. Indeed, what is legitimate authority and who shall exercise it (or, in a more Foucaldian fashion, what is government and who shall govern) might be the very pending problem of the 17th and 18th C.

 

My hypothesis is that, after 1750, many projects are built around the idea that the only good answer to this problem is that authority is only legitimate if it is recognized to, and exercise by, those who are subjected to it. It seems to me that this idea plays a more and more central role in the work of many authors who, on every other aspect of their thought, are extremely different one with other, which gives them a kind of common family resemblance (air de famille, in French). I could name here Rousseau of course, but also Kant, Fichte, Bentham, Beccaria, Genovesi, Filangieri, some of the Federalists, some of the Scots, Sieyès, Condorcet, Saint Simon, and I am for sure forgetting many others. I have the intuition that this common air de famille comes from the fact that these authors are performing in their work (in very, very diverse and contradictory ways) four theoretical moves (or four theoretical gestures), which are going from the most abstract to the more concrete, and which are aimed to establish the possibility of “political autonomy”, as a good answer to the question of authority. I will illustrate each of this moves by taking my examples in the work of Kant, to echo Négri and Hardt’s legitimate admiration for him.

 

3.2.1. First Move. Autonomy of Thought.

 

Philosophy understood broadly and equated with critical theory (e.g. this new knowledge which sometimes appears under the name of “social science” or “new social science” or “social physiology” or “science of utility” or “political economy” etc.) in a knowledge which is establishing its sovereignty as being free from any authority other than the free exercise of reason, that is of every already institutionalized knowledge, particularly the old faculties of Medicine, Law and Theology. This free knowledge is architectonic in the sense that it has universal competence over practices and other knowledges (Kant would say that both pure and practical reason are the object of transcendental deduction). For Kant indeed, reason is sovereign, only the free use of reason can trace the boundaries and set up the rules of the good way to use it (its rational use). That’s the principle of autonomy in the thinking — “Sapere aude!”. In the Kant version, philosophy is transcendental philosophy and transcendental philosophy has to set the grounds, conditions, principles and limits of all human knowledges and all human practices, as long as they pretend to be rational.

 

3.2.2. Second Move. Autonomy in the Production of Knowledges of Government.

 

The first move is clearly happening in theory. But it has very concrete practical consequences. Among the various human knowledges which are falling under the sovereignty of philosophy is the knowledge of practical reason, and more specifically the knowledge of the legislation. According to those philosophers (or critical theorists), once the first move is made, the understanding of the Legislation and the determination of the just Laws is a task that philosophers should take in charge, not Jurists. And for doing this, they invent a new “knowledge of government”. This new knowledge of government is sometimes called Science of the Legislation (the title of a very boring book written by Filangieri [17]) and takes the form of the presentation and justification of a codified rational legislation (Bentham wrote dozens of those Codes, but so did Condorcet, and Fichte, and Rousseau, and Filangieri of course). For Kant, the point is not to write down a rational legislation in detail, but to expose the system of principles under which any rational legislation should be written (which remains the same from my current perspective). So, its Critique of Practical Reason leads to the Metaphysics of Morals, which first part is a Doctrine of Rights where the a priori conditions of possibility of any rational legislation are exposed. This Doctrine of Rights is exposing the system of private Law and the system of public Law, national and international (including the Laws of hospitality). The system of private Law is itself divided in property – obligations and paternal rights, with another, fancy denomination, which raises the temptation to read the whole piece as a weird commentary of the Corpus Iuris. A whole legal system.

 

If the critical philosopher does correctly its job, he is left with a “general theory of knowledge” and with a “new knowledge of government”, the second one being about teaching humans what to do in case they wish to live under good Laws. This is a very practical project, but so far it has only been exposed in theory. In the meanwhile, in real life, the concretely enforceable Laws are still the bad ones, that is the ones which are flowing from the authority of the Princes and were deduced from the authority of Authoritative Texts and Commentators, not from the autonomous use of reason. So, at this stage, the critical philosopher has to explain what to do in practice in order to realize the good legislation he just exposed in its new Treaties.

 

3.2.3. Third Move. Autonomy of the Constituent Power.

 

The first condition to realize the just legislation as taught by the new knowledge of government, is to find a political force, a subject of History, a Prince Enlighted enough to realize what the Science of Legislation dictate (or advise). This is not an easy task, many philosophers made the trip to Petrograd to visit Catherine the Second, but were not always successful. One thing is sure, the principle of political autonomy which is shaping the whole project require the constituent power to be the political community itself, and this power to be the exclusive source of any legitimate existing Law. This does not necessary mean that the Prince has to be democratic (God Forbid!), but at least that his powers are borrowed from the community and that he is acting in its name. For Kant, the only legitimate sovereign is “the People”. The legislation is the expression of its General Will. This does not mean that every member of the community has to be an active citizen (God Forbid!), but that those who are subjected to the legislation are, at least formally, its authors. Another manifestation of the same idea is that “We, the People” is the author of the Constitution. One thing is sure: once well constituted, the political community as a constituent power takes the form of a Legal System in which the sovereign Laws are expressing the will of the community. For Kant, who follows Rousseau on this, it has to take the form of a system of general and impersonal Laws, made by a legislative body. For Bentham, the form of the sovereign norms expressing the sovereignty of the community is legislative too.

 

This setting brings a major difficulty: everybody knows that nothing is less rational than a political force which express itself through a collective will. The constituent power and its activities are on the side of flux, contradictions, movements, mere opinions, passions, in one word: life (not as a preexisting natural order but as the sound and fury of vital energy, without form). So, how comes one can dream the expression of this collective will to take a rational form? The ordinary answer is precisely that the new “knowledge of government” invented by the philosophers is here to establish a dispositive of rationalization through which the lively irrational will of the constituent power will be encoded into a rational legislation (or a rational constitution, or any other rational form the fundamental Laws of the community might take). For Kant, this dispositive of rationalization is a dialectical progress of public reason, which requires the institution of the faculty of Philosophy and the guaranty of freedom of thought and expression, which aim to constitute a public space in which it is possible to make a free and public use of reason. The institution of critique as one of the key device for the emergence and institutionalization of an always better Enlighted public opinion, which can act as a direct or indirect political force to concretely transform the existing Laws in order the sovereign Enlighted will of public opinion would be little by little better expressed by those existing Laws. Is it enough to actually realize the just Laws dictated (or advised) by the new knowledge of government? Well, even Kant is incline to think that, sometimes, strong revolutionary moves which would result in the promulgation from scratch of brand new Laws might also help greatly, and discuss how “strong” those moves should be, and what would be the fair price to pay for those nice shortcuts.

 

But for sure, the encoding of the general will of the community into a rational system of Laws has to be made, its mode of production is philosophy understood as the free and public use of reason (or critique), its sword arm is public opinion, and its aim is to convince/dictate new Laws to the Princes. And if those Princes are reluctant, Revolutions might happen. The core of this dispositive is the continuous transformation of the informal will of the community into a formal system of general and impersonal legal principles — a system of Laws. Sometimes this formal system is a Constitution, sometimes a codified legislation (a common idea is France is that for centuries, the Napoleonic Code was the “civil constitution” of France) and sometimes the form of a doctrinal / scientific reconstruction of Judge made Law. I do not have the time to go into the details here, let’s just say that modern positivism can take many different forms. The key element is that in order to realize in practice what philosophy dictates (or advise) in theory, the critical thinker needs the general will of the community to be incarnated into the establishment of a rational system of Laws. That’s necessary to the realization of the principle of political autonomy, but not yet enough. Once the rational system of Laws is established, e.g. promulgated as enforceable Law, one still has to make sure that this system will be concretely applied in real life. That’s the fourth move.

 

3.2.4. Fourth Move. Heteronomy of the Functioning of the Law.

 

Philosophers are very often (with good reasons) distrustful of Jurists, because they suspect them (with good reasons) to say that they are applying the rules they find in the texts, but to actually apply the rules they make themselves. In the 18th C. the problem is acute. French politics are revolving around the role of the “parliaments”. May be, the harsher critique of the arbitrariness of the jurists is to be found in England (Bentham). Truth is, what would be the point of establishing a whole system of rational Laws expressing the general will of the people if the agents in charge of applying it are not submit their own will to the one encoded in the system, but instead realize their own arbitrary, subjective will? Encoding the general will into a system of Laws can only change our lives in the real world if this general will is preserved and properly decoded through the process of applying the Laws to concrete cases. So, in order to get this result, the agents of the Law (administrators, judges etc.) shall be politically neutralized. Their activities shall be totally heteronomous, as the will they apply to concrete cases has, by any mean, to be the will of the sovereign political community. If, at the top, the source of any legitimate Law has to be entirely political, the functioning of the Law has to be entirely depoliticized. Identifying the political /legal divide with the source / application divide is the core of the modern legal system. (The same reasoning can apply even if the political substance at the top is not understood as a will, but as a spirit, a consciousness, a force, or whatever).

 

Depoliticizing the functioning of the Law is not an easy task. Kant, for example, has many ideas on how to manage this. Judges and administrators shall be public servants harshly submitted to the hierarchical power of the executive. Another very common idea in the 18th C. is to have Courts of Appeal to review the decision of first instance judges, and Supreme Courts to review the decisions of Courts of Appeal (a very efficient tool, as every Judge who wants to make a carrier will do its best efforts to please the upper level). Sieyès thinks that a special body of advisers of the State (Conseil d’Etat) with the competence of surveilling the whole process would efficiently realize the task. Bentham thinks the decisions of the agents should be harshly scrutinized by a “Tribunal of Public Opinion”. Etc.

 

Institutional disciplines, checks and balances mechanisms, hierarchical submission to executive powers are for sure great neutralizing devices, but it cannot be enough, as the conflict is between the sovereign will and the own will of the agents (individual will, as subjectivity and arbitrariness, but also collective will as ideological bias and professional corporative interests). This conflict is happening in the heads and hearts of the agents, the control cannot just be external, it has to get as far as the way those agents think and argue. Kant is not very well aware of the problem, he thinks that external control and professional loyalty is sufficient to get obedience from them. He also thinks that applying the system of Laws to concrete cases is a job which do not require very creative skills, but the dexterity of a competent manual worker. Indeed, for him the job is merely mechanical: to apply the Laws, one just has to take the legal rule applicable to the case, as the major of the syllogism, the minor being the necessity to apply it, and to draw the necessary consequences in the conclusion, which is the decision. This vision of the functioning of the Law has been called Mechanical Jurisprudence [18]. But this is very often much more complicated. The agent has to decide which rule is applicable to the case, but sometimes many rules are applicable in the same time. Sometimes also, the applicable rule is not clear, or no rule can be find in the system for the given case (lacunae).

 

3.2.5. Toward a Status Quo (circa 1830)

 

Very soon, say by the beginning of the 19th. C, many authors, mainly Jurists (Portalis, Savigny etc.), will underline the need to get a more sophisticated neutralizing device, to complement the institutional “submission to power” side of the dispositive, by constraining the way the agents think, their modes of reasoning and arguing. And very soon, these authors will realize this requires a new knowledge of government, which would provide the rules and protocols of rigorous legal reasoning, so each decision of the agents could be seen as the necessary mental result of the application of the system to the given case. The rational exposition of those rules and protocols is often known under the name of “legal methodology”. Savigny may be the writer of the first canon of this new knowledge [19]. It contains all the beauties of syllogistic deduction, analogy, reasoning by precedent, by consequences etc. The result of the building of this new intellectual discipline is what one could call legal technique, understood as the setting of formal operations which are made to guarantee that the decision of the agents will be, for each case, strictly determinate, so the outcome can only be the unique good answer (one of the meaning of the expression “legal positivism” is the belief that there always is a unique good answer). Today, the science of law still (sometimes) pretends to build a system of Laws (legal dogmatics), but most of the literature has become “merely” technical. On this new technical knowledge, legal science has won a quasi-monopoly. (Only quasi, because from time to time, other disciplines are making incursions in this very closed field, like for example, economic analysis of the law, which has a lot to say about this technical element). What appears here, is that the fourth move produces another dispositive of rationalization of the Law, by transforming legal practice into a neutral, depoliticized technique.

 

We now have a picture of the whole structure of modern Law, as conceived by the project of the Enlightenment. At the end of the 18th C., a certain type of answer to the question of how to be governed and by whom (the question) is becoming common. This type of answer is ground in a vision of what Law is and should be. It is a project, the project of the radical Enlightenment for the Law, a project of achieving political autonomy through Law, but at the price of a general reconceptualization of the Law, its system and functioning, the various dispositive of rationalization of its different constitutive elements, the way it articulates to politics. In other words, a project of modernization of the Law through its critique. This project is proposing a certain vision of the Law, which structure worth to be described.

 

3.3. The Twofold Structure of Modern Law

 

The structure of the Modern Law, as understood by many theorists of the end of the 18th C. is twofold: at the first level, a dispositive of rationalization articulates Law and Politics by giving a legal form to the originary political community. At the second level a second dispositive of rationalization is aimed to make sure this legal form will realize itself in real life [20].

 

The first level articulates the existence and activities of the originary political subjectivity (the community is a subjectivity) understood as a constituent power to the production of a coherent and complete system of general and impersonal legal principles (the Laws). This existence and activities are very often understood as a general political will, but in some versions, it can be forces, relations of forces, a spirit, a consciousness or whatever. Of course, this is not at all remaining the same, those different versions often lead to very different practical results. Nor it is the same at all to understand the articulation of the political community with its legal form in terms of representation, or expression, or fitting, or any other type of articulation. And may be, the key opposition here is between conceptions which are assuming the originary reality of the political subjectivity as a constituent power and the theories which are assuming that this subjectivity is just an outcome of its institutionalization (Hobbes being the King of the latter). Political philosophy is all about these debates. But for my argument in this paper, the point is not so much to scrutinize into the “nature of the political” rather than the ways it “translates” into a legal system, thanks to the invention of a “new knowledge of government” which generic term is Philosophy. What does matter here is the concrete consequences of these debates in the shaping of what Law should be. Sometimes, different conceptions of the “nature of the political” does actually change the way to conceive the legal system, but sometimes not (compare for example Kant and Savigny: radically different conceptions of the political element, very similar conceptions of the legal system, at least at the level of private law).

 

The question of translating the nature of the political into a legal system raises a question of competence: who is the proper translator? What kind of knowledge is competent for this task? Who shall be at the structural position of Counselor of the Prince (may that Prince be an Enlightened King or Public Opinion)? The competition among the many pretenders inaugurates the Conflict of the Faculties. Traditionally, the job was given to the good old Scientia Iuris, that is to the legists (challenged by theologians, from time to time). Critique is introducing a “new kid in town”, —philosophy (broadly understood) — and its sword arm, the knowledge of what Laws should be, sometimes named Science of legislation.

 

Very soon, this new knowledge will turn the critique against itself, and deploy into many new contradictory versions. Transcendental philosophy will develop into speculative philosophy, historical materialism etc. Some versions are more empirical (Bentham), they will develop into political economy, social physiology, sociology and here again etc. In fact, neither the good old Scientia iuris not the now proliferating new kids will won, each of them will continuously provide different conceptions of what Law is, what it should be and how the question shall be asked. The modern dispositive of knowledges about the Law is structurally fragmented, therefore agonistic. The stakes here are to determine which knowledge will best contribute to the production, maintenance and transformation of the “system of legal principles”. Today, it might be the case that mainstream economics took the lead.

 

This first level of the structure is not self-sufficient, as the goal of the whole enterprise is not just to express the principle of what a rational law should be, but to actually change the world by applying them. The exposition and promulgation of the legal system has to be complemented by the conception, implementation and development of an apparatus in charge of its application in real life, in order to guarantee that the applicable law will be, in each concrete case, strictly determinate by the legal system itself. This apparatus is the second level of the structure.

 

At this second level, the question is to guarantee the proper decoding of the political element which has been encoded in the system of Laws at the first level. To get this outcome, the agents of the apparatus have to be politically neutralized, which requires another dispositive of rationalization, the invention of another kind of knowledge of government, which aims to produce the rules and protocols of legal practice as a technique. The difference with level one is that at level two, competition is much less spectacular, may be because critical theorists are less interested in criticizing the technicalities of the Law: there new knowledge of government is only dealing with the general and impersonal principles of Laws, at level one. Indeed, in general, Enlighted philosophers do agree that the mere description and application of the Law remains to the competence of the Jurists. As a result, a modernized and rationalized version of legal science has gain the quasi-monopoly of production of this knowledge. (Quasi only, because a very notable exception is Bentham’s “science of utility”, which is not only a “legislative knowledge” but also a critique of internal modes of reasoning and arguing in Law. This may explain why, today, law and economics, once oriented to case law in the second part of the 20th C., is the only of “new kids in town” to have seriously challenged legal doctrine for this task).

 

So, a twofold structure, with two different dispositive of rationalization, one producing, maintaining and developing the “legal form” of the political subjectivity, the other producing, maintaining and developing the apparatus of its concrete realization. The first level is where Law and Politics are articulated (the substance is political / the form is legal), the second level is where Law and Politics are opposed (legal practice as a depoliticized technique).

 

This was a bit long (although so “telegraphic”), but I think that it shed light to the signification of the distinction between “Law of jurists” and “Law of philosophers”, to which I can now go back. The critique of Law is today often a critique of the political principles which are embedded in the system of general and impersonal legal principles as an “abstract representations of social reality, relatively indifferent to social contents,” in Négri and Hardt words [21], that is to say the legal structure of the dominant political regime. This critique is aimed to change those principles and to replace them with better ones. For example, according to Négri and Hardt, although the system claims to be the legal form of freedom and democracy, property is its core active principle and this should be changed. The critique is addressed to the Prince, very often the democratic Prince (generally public opinion, but sometimes also the popolo in armi, the working class or the multitudes). The key element here is that the critique is, in general, not dealing with the technicalities of the Law, as if changing the first level of the structure was enough to change the whole, as if what was happening at the second level of the structure was not important or strategic enough to deserve to be criticize. In this, current critical theory is reproducing one of the core idea of the “project of the Enlightenment for the Law” which is to believe that, if the legal system is well conceived at level one, l’intendance suivra. But stewardship will only follow if the apparatus in charge of the realization of the Law is really neutralized, or, in the anti-juridism version of CT, if the realization of the good political principles will not actually need to be realized through Law (that is, of course, Négri and Hardt’s position). Even a socialist theorist like Pashukanis, engaged in the building of an alternative “socialist Law” did not get much into the technical element of the Law. Relying on the neutrality of the apparatus is obviously overwhelmingly confident in the success of the modernizing project for the Law, thinking Law will not be needed after the legal system is replaced raises other problems that we will discuss in the fifth section.

 

The contemporary critique of the Law is very often following the fault lines of the “project of the Enlightenment for the Law”, that is as an external critique of the Law. External here is to be understood in at least two senses: the critique is external because the critical knowledges which are producing it are coming from the “outside” of the legal tradition. Lorenz von Stein was rightfully describing these “outside knowledges” as “oppositional knowledges”, [22] because they are contesting the competence of the good old scientia iuris is discussing the legitimacy of the existing laws and exposing what the legal system should be. The critique is also external in the sense that it deals with the political substance, which is introduced from the outside in the legal system and not at all with the internal operations of the Law, which is generally understood as mere technicalities. In fact, current critical theories are very often theories about the first level of the structure, where the legal and the political are explicitly articulated, and not at all about the second level, which political significance has been supposedly neutralized. The critique of the Law is generally a critique of the “Law of the philosophers” and not a critique of the “Law of the jurists”.

 

My argument here is that this “oversight” is a serious problem which might be harmful to the whole project, for at least two reasons. First, because it is really being overwhelmingly confident in the stewardship to think that it is enough to rewrite the constitution of the civil code in order to actually change the world (most of the left parties in France are still strongly believing in this). Fact is, legal technique might have never been able to neutralize the apparatus. But if the apparatus is not neutral, something might be missing in the critical enterprise. Second, because the articulation of the internal and external critique seems to me key for a proper understanding of the whole structure and its becoming in the last two Centuries. But not criticizing the second level of the structure, CT cannot get a proper understanding of the entirety of the system which is structuring our current world. Not to mention that this articulation is also a very promising avenue for emancipatory projects and the building of nice, concrete political alternatives.

 

To sum up this argument: the project of the radicalized Enlightenment for the Law is not only ambivalent because it connects and sometimes confuses the emancipatory promotion of political autonomy with a fetishized conception of the powers of Reason (a critique one can find in Négri and Hardt’s book, with which I fully agree), it is also incomplete, because its critique is only a critique of the legal principles and not a critique of the legal technicalities (in the history of critical theory, the critique of technique in general will become important only for the Frankfort’s school, and then with Foucault, but will not deal much with legal technique — except for their less radical hairs, which is a pity). And what’s really wrong with being incomplete in these matters is that somewhere between the 18th C. and now, the transformation of the way of functioning of the apparatus, at the second level of the structure, deeply transformed what is going on at the first level. To the point that it might be that the legal structure of the dominant political regime cannot anymore be grasped as the “Law of the philosophers”. I would like now to dig a bit in this direction, by trying to describe the fate of the project of the Enlightenment for the Law, with a peculiar emphasis on property as a way to discuss Négri and Hardt’ point of view.

 

  1. THE FATE OF THE PROJECT OF THE ENLIGHTENMENT FOR THE LAW — THE CASE OF PROPERTY.

 

For the sake of brevity, I do only sum up here the longer version.

 

The category of property, its role in the system of private law and in the constitutional order have been going through too many transformations to continue to claim, without strong arguments, that it is still the same legal system which is grounding the core relations of forces structuring our world as it is. This is a very interesting question that one cannot answer by looking only at one part of the structure, the way external critique of the “Law of philosophers” does. In order to understand the becoming of the whole structure of modern law, one has to look also at the internal transformations of legal practices (even if, from outside, it looks like an ocean of pretty repellant technicalities). As I already mentioned, the aim of this paper is not to discuss how far the structure of modern law have been transformed. This is a too broad question to be answered in this context. But for sure it is not possible to inquire into it without retracing, even too quickly, the story of the internal critique of the Law. 

 

  1. TRANSFORMATIONS OF THE MODERN STRUCTURE OF THE LAW THROUGH ITS INTERNAL CRITIQUE

 

Négri and Hardt’s theory is a very classical external critique of the Law, in the two senses of the expression: it is a critique of the Law made from an epistemic “outside” — namely political philosophy — and which object is a system of legal rules, understood as the legal form given to a set of political principles which are external to these forms. In a very classic way (cf. n°2), the critique aims to “unveil” the hidden forces at the origin of the legal order (the revolutions where “bourgeois revolutions”), so the legal order is not what it appears to be (not a constitutional order, but private property regimes). The material constitutions founded by bourgeois revolutions are structured by property rights, and the inevitable result of this foundation is the constitution of plutocratic regimes and capitalist domination, not the democratic liberal regimes they claim to be through their formal constitution. The key element here is that the real legal structure (private property regimes) of the real origin (the material constitution as domination of capital) of the only formal legal system is the necessary cause of the bad consequences (oppression and domination).

Very clearly, this critique is only focusing on the first level of the structure of modern Law: the articulation of the real constituent power (the bourgeois class) with the legal system (public law as ideology, private property as the real legal base of the material constitution). No need to study the second level, that of legal practice, to get this result.

 

Moreover, Négri and Hardt are on the line of a radically anti-juristic version of critical theory. In this line, no need to study this second level to raise alternatives either, because the alternative is all about changing the constituent power (the multitudes instead of the bourgeoisie) and its core political principle (the common instead of private ownership). Once this shift is made, there is actually no need for a new better legal system, because the multitudes are self-constituted and not constituted thru Law. Law cannot constitute the multitudes because it cannot be distinguished from the legalistic vision of the world, which is conveying an individualist conception of singular subjectivities and a reified and totalizing conception of the common. Law is the language of potestas (power as domination) not potentia (power as empowerment / capability).

 

This is loyally reproducing the conception that the Enlightened founders of modern law had of its structure. Of course, for Négri and Hardt, the real constituent power is not the “general will of the people” as it is for Kant or Bentham. It is actually not a will, but a relation of force, the domination of the bourgeois class. But as far as its articulation to the legal system is concerned, the scheme is the same: a political something (here a political relation of force) is constituted and impose its hegemony through the establishment of a coherent system of legal principles (here: property law regimes, not public Law) which is strictly applied in every aspect of the everyday life (the production of human live, the subjection of our bodies). The role of the apparatus in charge of the application is just neutral in the sense that the outcome of the application flows down from the top (here: from the real, hidden top — private property regimes, not constitutional orders). The exclusive source of law is a political element (class domination), this political element is translated into a set of legal forms and principles, which are constituting this political element (move three). The outcome of the prevalence of this legal system is the realization of the political principle in real life, establishing the reign of private property on every aspect of our lives, the legal system is “just applied” (move four). If you do not like the political element embedded in the legal system, you just have to find a better one (the common), and substitute it to the former — this is what we call ordinary call a Revolution. In this perspective, there is no political interest whatsoever in the application process of the legal system, nor in the functioning of the apparatus in charge of it. At the level of legal practice, there are just technical rules, procedures and protocols, and technical decisions made by agents which are politically neutralized. (Of course, I imagine that, for Négri and Hardt, the agents are not “neutral” because applying bad Laws is a highly political activity, but they are “neutral” in the sense that they doing their best to faithfully apply these Laws, because it’s their job and it’s the Law. That’s what I mean here). But in fact, many politically interesting things did happen in the last two Centuries, at the second level of the structure of modern law, within the technical element, where the apparatus is in charge of “applying the system”.

 

5.1. (Almost) Two Centuries of Internal Critique

 

What does not appear in Négri and Hardt’s analysis is the story of the emergence and deployment of an internal critique of property, which has developed into an internal critique of the Law in general. (in that regard, this confirms at least the epistemic centrality of the debate over property in legal thought toward 19th and the early 20th C.). The effects of this critique have been to transform deeply not only the way we think about the Law, but also how we practice it. Let me go back to this.

 

As we saw, in the mind of the founders, especially Kant, the process of application of the legal system is just mechanical. The agents in charge of it are something like workers which are decoding the Law inscribed in the texts they apply. The idea here is pretty simple: for each case, there is a relevant “jural relation” (say for example that A is giving B a sum of money in deposit for renting a car, the jural relations here are “deposit” and “rent”). Every “jural relation” is governed by an “institutions of Law” (here “property” and “contract”). To every institution of Law corresponds a unique “rational concept” (say for example “property is a real right” and “contract is an exchange of free wills”). The inner determinations of the rational concept are a series of “attributes” (here: property is perpetual, absolute, exclusive, subjective etc., contractual obligations require an object, an agreement and a price; they are extinguished by payment of the price etc.). The role of the agent in charge of solving the case is to identify the jural relations at stake, to relate it to the rational concept of the institution of Law, and from that concept to deduce the applicable rule to the case (here: because property is perpetual, the deposit shall go back to its owner once the rental of the car has been paid). This is pretty mechanical, indeed. This conception will lately be called “Jurisprudence of Concepts”, because the final outcome is presented as a necessary effect of the deduction from the inner determinations of the concept ruling the relevant institution of Law which regulates the given jural relation.

 

Nevertheless, pretty soon (see. 3. 2. 5.), it appeared that the agents in charge of applying the Law where not only “workers” but were in a position to exercise a much broader and creative power of interpretation. It also appeared that it was not sufficient to transform them into civil servants in order to neutralize them politically, as the constraint of hierarchical power was only external and the question at stake was the internal submission of their own will (or any other substance) to the will encoded in the texts they were supposedly applying. The external constraint had to be supplemented with an internal one, which would guarantee that their modes of reasoning and arguing are “just legal”, e.g. politically neutral. For this, a dispositive of rationalization of the way they reason and argue was also needed. This dispositive of rationalization as often been named “legal methodology” and blossomed everywhere, especially in Germany, which was the epicenter of legal science in the 19th Century. As we already saw, Savigny refuses to consider the jurists as mere mechanical “workers”, allows them a certain freedom of interpretation, and produces a whole system of methods and protocols in order to frame and contain this freedom, so their decision could still be considered as the application of the legal system. This is still “Jurisprudence of Concepts” but in a much more sophisticated version than the mere “Mechanical Jurisprudence” favored by Kant. And today, this is still, very often, the underlying dominant conception of “how Law works” which is informing CT: concepts applied through neutral, technical operations. Internal critique started as the critique of this view. The second Jhering may be seen as one of its great pioneer. The revelation happened when dealing with a property case. Jhering realized that from the concept of absolute property, he was able to deduce, with the same perfect logical rigor, two different rules, one in favor of each party. His explanation for this puzzle was that external elements could always mediate between the inner determinations of the concept and the final outcome of the decision in a given case. Moreover, he realized that it was actually impossible to systematize these external elements, because they were too much related to the concrete context of each case. From there, he concluded that it was impossible to conceive the Law as the process of “application” of a system of concepts. For example, if Paul built his house with stones taken from John’s garden, Jurisprudence of Concepts says that you should deduce from the absoluteness of property the restitutio in integrum of the stones to John, therefore the destruction of Paul’s house. But actually, the interest of society sometimes commands to not destroy the house, even built on illegal grounds, and to compensate instead. Everything is in the “sometimes”. It depends on the cost of the destruction. Was the house that a big house? Or just a garden shed? The way the “interest of society” plays is contingent to the context of the case. Jhering’s concludes that the Law is not about “realizing concepts” but about balancing the legitimate interests at stakes, that is. securing a (precarious) equilibrium between the forces in presence. Nietzsche will love it.

 

A few decades later, again about property, French jurists of the Belle Epoque, who were devoted lectors of Jhering, will realize that when the agents of the Law are deciding a case by using the formal legal system (the Code) as the major of their syllogism, they are unable to take in account the new interests produced by the evolutions of the society. For example, the emergence of the collective interest of a working class, as a consequence of the growth of industrial capitalism. They will harshly criticize the “abuse of deductions” in Law. The conclusion of these attacks on formal jurisprudence is the saving of the syllogism as such, but the claim that the major should be “social laws” and not the code. This trend will initiate a long tradition of critique of legal formalism (cf. 4.2.). Léon Duguit will go as far as claiming that property is not a subjective right, but the recognition, by society (not State) that each of its members as some prerogatives on certain things, distributed according to the “Law of Solidarity” which rules the whole of social relations. All this will deeply transform legal technical thinking. It will introduce teleological reasoning and proportionated balance of interests as ordinary ways to reason and argue in Law, broadening greatly the repertoire arguments the practitioners could use when they do Law. It will therefore transform not only the way we understand Law, but the way we make it. Of course, very soon, other jurists will claim that Jhering’s conception of the “interest of society” or Duguit’s conception of the “Law of solidarity” are equally dogmatic as formal Law is, because the society does not have one unique interest, nor is governed by one unique “Social Law” — be it solidarity or whatever else. They will affirm that the determination of the interest of society is the object of harsh political conflicts and that societies are made of too many conflicting functions to remain a functionalist. Remember the violent attacks of the US legal realists on sociological jurisprudence. Remember also the later violent attacks against the US legal realists, and against those who made these attacks. First, critique. Then critique of the critique. And critique of the critique critique. Etc. Exactly like in political philosophy, the internal critique also devours its own children. In the fury of the 80’s, with French Theory books on their knees, many legal theorists came to the conclusion that the job of the agents of the Law was to balance, with a good deal of arbitrariness and uncertainty, among a whole range of “conflicting considerations”, including of course legal rules and principles, but also theories, values, interests, constraints of good administration, political and ideological ideas, esthetic and existential concerns, stakes related to various policies, and of course ideals of good professional behavior, bref, a whole word. And this word had no ground to pretend being inherently more rational or better determinate that any other world. To borrow from Duncan Kennedy, this looks like an historical process of disenchantment of the legal inner, formal rationality[23].

 

Those internal critiques had, of course, to face backlashes, generally taking the form and style of a project of “reconstruction” of the inner rationality of the Law. The fight is ongoing. But at every step, various aspects of the various critiques were internalized not only by the theorists, but also by the practitioners, who changed the way they reason and argue when they make Law. The European critical schools and movements (Critique du droit in France, Critica del Diritto in Italy, Scandinavian realism, the Brit Crits etc.), Critical Legal Studies, Critical Race Theory, Feminist and Queer Jurisprudence in the US, have played a very important role in this work of deconstruction. To the point that it is really difficult to continue doing as if legal practice was just about realizing the system of legal forms (institutions of law) embedding principles and concepts and even more difficult to conceive the functioning of the Law could be reduce to a setting of formal, technical protocols and rules, used by politically neutralized agents. (A symptom of this difficulty is that today, the monopoly of legal doctrine on the knowledge of legal practice has been successfully challenged by the economic analysis of the Law, and some other “outside knowledges” — but not much philosophy).

 

What is the outcome of two centuries of furious internal critique of the Law? Of course, legal theorists do not agree one with the other when it comes to provide a conception of the Law or a description of how it really works. Some (quite numerous actually) are still believing in the “project of the Enlightenment for the Law”. They still imagine the Law, and their own practice, as a modernizing project where the whole point is to made, maintain and develop a system of general principles and rules which would be coherent enough and determinate enough to be “applied” by a neutral apparatus. The price they pay is to be in denial of the objections made by the whole tradition of internal critique. Those jurists are still modern. (Bruno Latour has wondered if we have ever been modern. My answer would be that the few who succeeded best were jurists). Those jurists are “positivists” in a very precise sense: they believe that for most of the cases, it is possible to deduce the “good answer” from the application of the system.

 

Other jurists took some lessons from the long story of internal critique. They realized that Law may not be that coherent, that determinate, nor that technical actually. That political and ideological stakes are everywhere in the Law, at all levels, but also subjective inclinations, indeterminacies, arbitrariness, fantasies, and even poetry. Some of them tried nevertheless to rescue the idea that each case as a “good answer”. But all this mess is comforting the idea that Law is much more pervasive, malleable and open to various and contradictory enterprises than what it looks like when seen as a neutral apparatus realizing a coherent legal system through deduction. To the point, Law could also be open to transformative and emancipatory projects, even revolutionary ones.

 

What I want to emphasize here is that, paradoxically, critical theorists very often share with modernists (conservative or progressive) jurists very similar classical, modern views about the Law. They are very often devoted believers in the “Jurisprudence of concepts”, especially when they think that the Law is about realizing some political concept of principle. This is really paradoxical, because (in general) those critical thinkers do understand themselves as post-modern thinkers. But with very modern ideas about the Law. To put this differently: Law (theories and practices) has not been saved from the twilight of modernity. The structure of modern Law imagined by the “project of the Enlightenment for the Law” which was enacted by the Great Bourgeois Revolutions has indeed collapsed. The project itself might, at least to a certain extent, have succeeded, but has been the victim of its success. The core elements of its structure have been radically transformed. Which raise the following question: what does Law looks like after these transformations? The question is open and the answers many. One thing is sure: one cannot do as if nothing happened.

 

One consequence of this is the following: the various dispositive of rationalization at work in the structure of modern Law has been radically transformed and these transformations can only be conceived by inventing new knowledges or at least new theoretical protocols of understanding the Law. The division of labor between philosophy (as a generic term of the “new knowledges of government”) as the knowledge translating political principles into legal forms and legal science as the knowledge of legal technique is obsolete (and was anyway never able to give a proper account of the whole structure of the Law). The external critique can only be incomplete if not carefully articulated to an internal one, because the latter is deeply weakening the causal link between bad origins of the legal system and bad consequences of its application, by presenting the whole legal machinery as much more pervasive, malleable and open than that. It is not because you introduce a given political principle at the top that you will get the result you are expecting at the bottom. This does not mean that sometimes bad origins do not have really bad consequences, but this means at least that one should look at it carefully.

 

And I would like here to take the opportunity of praising the work of my commentator, Etienne Balibar, because he is one of the few critical theorists who is actually not only taking law and legal thought seriously, but spends a lot of time and efforts to dig into it (see his work on Kelsen for example). My conclusion on this is a wish for better articulations of the internal and external critique in CT. The rise of a new knowledge made of their encounters, articulations, juxtapositions of their respective divergent squint. Philosophy, alone, and even hors les murs, cannot do that.

 

5.2. The Law after Modernity.

 

But let’s go back to the Law after its deep transformation through internal critique (among many others factors of transformation). A suitable way to represent what it looks like is to borrow from semiotics, and more precisely its post-structuralist fashion, as popularized by Critical Legal Studies and their aftermath [24]. Law is not accurately described as the operation of realizing a system of concepts or principles introduced from an external political element (although systems, external concepts or principles, and the “application job” can very well be find “within” the Law). Let’s even forget the pretention to provide a definition of what Law is, and propose instead, just a suitable representation of how it works.  Let’s then start by noting that it rather looks like a practice, and more specifically a discursive one. This discursive practice is of a certain type, and its specificity lies on the fact speech acts are enunciated within a certain langue, vested with various specific levels of authority when they are enunciated in peculiar situations (like Courts, Bars, Universities) and generally spoken specialists (professional jurists). Seen that way, Law is not a system of legal forms, but rather something like an ocean of paroles enunciated in a specific langue. Following this line, one can say that, like in every language, the two iron laws governing the production of legal discourses are: everything can be said in the langue, nothing can be said out of it. In this perspective, the Law can loosely be seen as a self-referenced system, cognitively open, able to learn and evolve, and able produce the knowledge of its own evolution (autopoiesis). But the analogy with natural languages stopes here. Law is not a natural language “à la Saussure”, it rather looks like a “technical language” or a “secondary language”, something like poetry according to Jakobson [25], or something “à la Barthes” describing fashion as a semiotic system [26]. It is a “code within a code”. The result is that even if you are not Derridian, you have to acknowledge that the structure is much less static and rigid (in the sense of “paroles do not transform the langue”) than the Saussurian conception of the structure of natural languages. The structure plays. A very common metaphor illustrates this: contrary to what many legal theorists think, Law is not at all like chess, because unlike chess, the players are able, under certain circumstances, to change the rules while playing. Law is more a play, than a game.

 

Many consequences are flowing from this. First, if Law is a something which looks like a certain type of discourse spoken in a given langue in which an infinity of paroles can be spoken, one must admit that the langue of the Law can express sanctions and interdictions of course, but also powers, faculties, freedoms, immunities etc. The same legal language is punishing and allowing, enclosing and liberating, embowering and disempowering, allocating and depriving prerogatives, wealth, and reputation and does all this in the same time.

 

A legal theorist of the early 20th C., Westley Newcomb Hohfeld, produced a concise but powerful little grammar of this language, which can be beautifully summarize in a single diagram [27]. He identified the types of legal prerogatives distributed by the Law and established their relations of opposition and correlation. The list is the following: rights, privileges, non-rights, powers, liabilities, immunities, incapacities. This list can be discussed, another one can be proposed, but the key is that Law does much more than just forbid and sanction. The view according to which Law is mainly an ideology (a blinder) and an apparatus of repression (violence) is by far too narrow to grasp all this.

 

Second, using that little grammar, US legal realists made the distinction between rules which are directly applicable to a given situation and what they called background rules, which are playing an important role in structuring the situation but remain “invisible” when looking closely at the case. When workers are negotiating a raise, the applicable rules are often to be found in the collective agreement which regulates the workplace. But the question if the employer can easily offshore the factory, or not, will play a crucial role on the negotiation, even if this question relates to another legal regime. Moreover, the most important background rules are generally not the ones which are forbidding and sanctioning, but rather the ones which are allowing and authorizing. And those ones are very often “invisible” because they are implicit. Very often, the absence of a legal regime forbidding to do something is a legal regime allowing to do this thing (cf. the example about paternal power and private life). What is structuring the given situation is the whole of the legal system, not just the directly applicable regime. And the legal system is all the rules distributing legal prerogatives to the actors, even implicitly. That’s why it is often very hard to know and predict what the distributive effects of the background rules will be. Not only the whole system is too complex, not only the given concrete situations are implying to many elements of it, but also the margin of decision of the actors is often too important for even dreaming of a strict “determination” (that is why so often, when judges or legislators are creating new rules, they are so unable to predict what will be the concrete result of their work).

 

Third, the distinction between directly applicable rules and background rules also has a consequence on the way to conceive an alternative to the given situation. To empower the workers in the negotiation, it might be useful to forbid offshoring. When a given legal regime is crystallizing a certain relation of forces, possible alternatives to this crystallized relation of force are often provided by the changing of the background rules.

 

Fourth, what is true about the rules is also true about all the arguments available to the reasoning and arguing of the agents when they take decisions. As we saw, decisions are made by using rules and principles, but also a whole range of heterogeneous “conflicting considerations” like values, interests, policies, standards of good administration and so on. What is structuring the situation is not only a system of formal rules and legal institutions, but the legal system understood as the whole repertoire of arguments to take the decision, that is the langue of the Law.

Fifth, in natural languages, if I can say that the weather is beautiful, I can also say that the weather is not beautiful, as long as the grammar of the language contains the possibility of negating. It is suitable to describe the functioning of the legal language, by considering that its basic element is constituted of “argument bites” understood as the couple made of an argument and its counter-argument, so that every argument has a counter-argument. In that view, the langue of the law is made of a series of arguments and counter arguments. If it is possible to argue that property is absolute, it can also be argued that property is not absolute. If it is possible to argue that there is no liability without fault, it can also be argued that there is liability even without fault. That is why everything (and its opposite) can be said in the langue of the Law. Or to put it differently, the langue of the law is conditioning how to say things, not what is said. That is why, in a given situation, the legal system, understood as the repertoire of actually available arguments does often not determinate the solution of the case, but is only conditioning the possible contradictory ways of reasoning and arguing in order to rich a decision. If one can say that Law is structuring human activities and social relations, this is not because given legal forms are “subsuming” these activities and relations but because the repertoire of available arguments in a given situation is orienting the strategy of the actors who interacts “in the shadow of the Law”. Law is indeed everywhere and indeed structures everything, but in the sense of conditioning and orient, not is the sense of being the necessary cause of every decision. That is the Foucault’s lesson on the micro-politics of power relations, once understood that micro-politics of power relations and disciplinary regimes are nothing else than Law in action (which is the only way to understand how Law can produce human life and shape our bodies) [28].

 

There are many other consequences.

 

The conclusion of this is that Law cannot just be understood as a “blinder” and a “bad guy”, nor legal practices being its blind spot. It has to be at least also its playground, or its battle field, the locus where possible alternatives to domination and exploitation can be spoken. And from the point of view of the “role of the Law in CT”, it changes everything.

 

  1. AN EXAMPLE: THE INVENTION OF THE COPYLEFT.

 

I would like to take an example to illustrate the previous developments. I like very much this example, because it seems to me that it says a lot, both about the great malleability of legal technique and the possibility of building serious political alternatives from within the legal system. For further developments, see my article on this [29].

 

These last decades, we saw the massive extension of the field of application of Intellectual Property, either copyrights, patents, or trademarks, resulting in the private appropriation of a great deal of intellectual productions which were so far not, and the submission of these production processes to the logic of closure, control and capital accumulation. One of the key moments of this sad story is the fate of the internet. The story of the flourishing of informational capitalism and the subjection of the incredible potentialities created by the internet to the power of few big firms. One of the key feature which turned the story into a sad one, is the extension of the copyright regime to software. When those big firms were just start ups on the way to establishing their hegemony, some communities of computer programmers felt the raison d’être of their job was at risk, as they understood programming as free and collective enterprise, based on the sharing of each one’s work animated by the spirit of hacking. They felt they had to resist and invent something to protect themselves. Robert Stallman is may be the most famous of them. And the lawyers with whom he was associated might have been really good ones, as they invented the free software or copyleft, which then diffused under different labels (open source, creative commons etc.) and then expanded from software to the sphere of art creation and scientific research.

 

The idea is simple: according to copyright Law, every author of an original software owns it. Of course, programming being about improving each other’s work, originality and authorship might not be the appropriate concepts, but that’s what happened. So, by the Law, each “author” of a new programme (e.g. a modification of existing programs which is significant enough to count as an original creation) enjoys a copyright on this program, he/she owns it.

 

The copyleft starts the same way. People often think that the copyleft is the contrary of the copyright, actually this is not the case. Technically, the copyleft is just a good old copyright. And by the Law, the owner of a software is entitled to choose what to do with it. Among many possibilities, he can license it, which means that he can impose every third party to agree to a unilateral contract in order to access and use the software. That’s what almost all owners of copyright on software do. And here comes the shift: this license is called free when it respects four liberties: to run, to use, to study and to modify the software. Every person clicking on “I agree” will be free to access the software, to use it (including commercial uses, the license is free like free speech, not like free beer), to get knowledge of the code and to transform it freely, which means that she will be free to create a derivative software. But the license also forbids to license this new derivative software under a non-free license. Now, here is what is happening next: the author of the derivative software (and the derivative of the derivative and so on) will own it, on the ground of the good old copyright to which every author is entitled on her creations. She will then have the right to do whatever she wishes with it, except to not allow third parties to run, use, study and modify it. The only prohibition being to not license it under a free license, the mechanism creates an infinite chain of new derivative free software. The “four freedoms and one prohibition” setting is establishing a free community of programmers where every work is accessible to others, and also a strong protection of this community against possible dispossession, by “excluding the exclusion”. The result is the creation of proliferating communities of programmers collaborating to the creation of common goods, offering a very concrete alternative to the commodification of software, the marketization of internet and the biopolitical nightmare that goes with it. This concrete alternative is keeping alive the idea of an economy of information and creation that would be free from capital accumulation and control. All this, on the ground of a very basic property right (I let aside the question to know if the copyright is a property right) articulated to one of the most controversial kind of contract, the license as a pre-formulated contract, in which one party can unilaterally impose its will on the other without any room for negotiation. But the alliance of these two “bad legal forms”, the exclusive right and the authoritarian contract is giving birth to an amazing machinery producing inclusive relations of cooperation. To get this result, it took the engagement of activists who were politically realist enough to resist the idea that it will be enough for protection their community to spontaneously abandon their right on their works (those creations would have been immediately appropriated by the big firms), and who were intellectually free enough from the dominant legal ideology to resist the idea that property has to be necessarily exclusive.  In other terms, those activists were great legal hackers, they manage to create an inclusive property from the association of an exclusive copyright and a unilateral contract. And they were good jurist enough to make it work concretely, with great success. By doing this, they invented, in theory and in practice an alternative to capitalist market hegemony from within the system of private appropriation of intellectual works — the copyright regime. This concrete alternative is not beyond or outside the current legal system, it is a subversion, or a reversal, operated from within, of its most ordinary and alienating uses. Of course, this alternative is also full of limits, contradictions, ambivalences and problems, but well, let’s not hide our pleasure: it is a concrete alternative, in a world of domination and exploitation with no outside.

 

I love this example, because it illustrates how greatly malleable legal technicalities are and because it shows how alternatives can be built from within. Here are two other reasons.

 

The first reason is that it shows that the productivity of the Law is not only negative. Contrary to what is suggested by Négri and Hardt, the Law is not only the language of power as potestas (power as domination), it can also express and guarantee power as potentia (power as empowerment/capability). (If those free communities of programmers are not on the side of potentia rather than potestas, the common rather than capitalist domination, I just don’t get the meaning of these divides). That is to say: legal regimes can also constitute and protect the free creativity of communities of productive bodies. Private property does not only produce subjectivities that are at once individual and unified [30] it also produces (much less often, I admit) creative singular subjectivities collaborating within non-unified open communities (which are also filled with contradictions, ambivalences and problems of course, as they are just human communities). Of course, and by no mean, I am resisting the idea that Law can be the language of the most abject subjection, arbitrary power, absurd violence. (In this regard, Toni Négri knows more than I do, and my present comments of his work are made with all due respects).

 

The second reason is that a legal form (call it institution of Law) does not have an intrinsic political signification. Copyright as a property right on intellectual works does not always mean commodification, marketization and plutocratic hegemony (of course, it very often means that). A private property right can be used to exclude and dispossess for the profit of oligarchic powers, but it can also protect creative and collaborative communities of workers. Pre-formulated contract can be the proper tool for imposing consumers to renounce any power of contesting the condition of the sale, it can also grant the openness and inclusivity of a process of production. Law is everywhere, on the “bad” side, but also on the “good” side.

 

One objection to these considerations could be that in legal practice, it might very well be possible that any alternative can always be spoken (everything can be spoken in a given langue), but in real life, those alternatives are so rarely spoken that their existence is just abstract. The concrete life of the Law is a life submitted to the hegemony of certain conceptions of the Law, which happened to be those favoring capital domination. It may be true that everything can be said in the langue of the Law, but this truth is merely theoretical, as in real life, not only everything is not said in the langue of the Law, but certain forces, interests, and values will actually never be expressed. An interesting example of this is crossing my mind. This summer, Etienne Balibar wrote an interesting article in Le Monde [31], to plea for the recognition of a right to hospitality opposable to the States, when migrants are risking their lives but not only (they too often do). In the discussion which followed the publication of the article, it appeared that such rights were already enshrined in enforceable texts, but have been almost forgotten in practice. Not only the linguistic resource, but also the textual reference is just there, ready for use, but none of the agents of the Law are actually using them. According to this objection, my argument about “whatever can be said in the langue of the Law” is just abstract.

 

This objection is strong: not every possible argument available in the langue is really spoken, because what can and cannot be spoken in the langue of the law depends of what’s in the mind of the jurists who speak it, it depends on the legal consciousness of the time and place [32]. And it seems that recognizing to the migrants a right to hospitality opposable to the States is not very central in the consciousness of today’s French judges. In fact, they have in mind the bestowing of a right to ask for asylum, which is to be balanced with the right of the State to refuse it, the burden of the proof being on the shoulders of the asylum seeker. This means that certain rules, certain considerations, modes of reasoning and arguing are more often used than others. (And of course, even if they were not, they would for sure be balanced with other, contradictory considerations, so the outcome would be grey, not white. But the outcome would be grey, not black).

Those dominant usages of the resources of the legal langue are of course associated with ideological inclinations and professional routine of the jurists, and more generally with the political relation of force in the society in which they live. One takes few risks to say that, in France, generally speaking, migration Laws are favoring the States against the migrants, labor Laws are favoring the employers against the employees etc. The Jurists are often biased, indeed. They are very often inclined to oligarchical tendencies — the inclination to concentrate the power in the hands of few experts who are, indeed, quick to constitute themselves into a Juristocracy. Our actual tendency to fetishize Supreme Courts contributes grandly to this inclination. But this does not mean that a whole peculiar legal regime and moreover the whole legal system has a fixed and intrinsic political significance. Contradictory other usages, ideologically inclined in different directions, could very well be promoted, within the same legal regime, or within the whole legal system. If those alternative usages do not happen, it is just that there are not enough jurists to invent and promote them, not enough activists to push in this direction, from inside and outside the legal system. This is a question of money of course (the rulers pay generally much better than the resistants) but it is bottom line a matter of political and ideological relation of force within the world of the Law, that is within the whole of our societies.

 

To conclude this: Law is a playground, or a battlefield, where the main players are often inclined to promote their own interests and their own ideology, not only but also because this ground, or field, is too often forgotten by critical theorists and radical activists. If Law is a battlefield, one of the key battles is to work on the legal consciousness of the jurists, what it is and what it should be in our societies, how these experts should be educated, and how broad their legal imaginary should be, how broad the repertoire of really available arguments should be. Which also raises of course, the question of who those jurists are, how they should be selected etc.? When the legal imaginary of a given society is broad enough to allow the conception and institution of alternatives, those alternatives do materialize concretely. When it is not, those alternatives might exist in theory, but they are just abstract, unrealistic propositions. I do strongly believe that abstract ideas and unrealistic propositions are absolutely necessary to the building of alternatives. They have immense virtues, by the effects of truth (effets de vérité, in French) they produce, but they are not concrete alternatives, available in practice, to be realized here and now.

 

  1. FINAL REMARKS.

 

I think that I can now close the loop of my overall argument. If there is truly no outside, not only in the sense that salvation does not come from outside, but also in the sense that the alternatives to domination and exploitation are to be found within the current dominant legal system. And if it is true that “Law is structuring our lives” to the point that “Law is everywhere”, because the “material constitution” of our societies are structured by legal systems, in the sense that those systems are conditioning, not causing most of human activities and social relation, then concrete political alternatives are, in this world, the one that can be spoken in the language of the law.  Those alternatives are becoming concrete ones when they really can be spoken in the language of the law, when they are strong enough to be present in the legal consciousness of our time.

 

I can now go back to the distinction between the “Law of the philosophers” and “Law of the Jurists”. The “Law of the philosophers” is conceptualizing the Law as the legal form of a political substance. In general, for CT, the effects of the enforcement of the Law are unjust because the political substance which is formalized by the dominant legal system is bad. The critical agenda is then to invent new concepts and principles, and either to try to find them an adequate legal form, or to deny even the need to find such a legal form, because those principles are to be found “beyond the legal context”. The problem with this strategy is that the “Law of the philosophers” is a modern fantasy. In the real life, no legal regime or legal institution is coherent enough to be the sole and unique form of a sole and unique concept or principle. No legal technique has a unique political significance. It is therefore very abstract to say that “private property regimes constitute the domination of capital on men and things”. Of course, it is true to a large extend. But private property regimes can also constitute proliferating communities of creative workers who wish to collaborate freely. Private property is establishing the reign of exclusion over inclusion, competition over cooperation, power of those who have over those who have not, but could very well be used the other way around, to include as well as to exclude, to cooperate as well as compete, and to distribute wealth in an egalitarian way, rather than protecting inequalities. A regime of property rights is a machinery to distribute legal prerogatives in any possible way, a machinery to draw the frontier between what is “proper” and what is “common”, which means that it constitutes and guarantee both the “proper” and the “common” in the same time. To put it another way, the proper and the common are the two faces of the same coin. Where something is “proper” there is also “common” and vice versa, the two concepts are mutually constitutive. So, if in our world, exclusivity and competition are dominant, this is not just because of the “reign of private property”, this is because of the reign of certain dominant usages and conceptions of what private property is.  I am not saying that there are no legal regimes or legal institutions that should just be abolished. It seems to me more emancipatory to just abolish slavery, apartheid, or death penalty rather than trying to subvert it from within, but it is much harder to be free from the need to draw distinctions between the proper and the common, or the need to settle agreements with others, than of the need to classify human being under absurd categories, or to kill them out of revenge.

 

I think (but I am not sure) that I rejoin here, on the legal side, a position that had been well expressed by Etienne Balibar on the anthropological side [33]. Possessive individualism might be the dominant form of subjectivity in our modern times, this form cannot be separated from its reversals (Rousseau’s separation of usages and ownership, Marx’s trans-individual appropriation, Socialization of property, Derrida’s ex-appropriation etc.). All these figures of the reversal of possessive individualism from within the anthropology of our modern times are drawing alternative subjectivities, which are more creative, more emancipatory, more fun than the dominant ones. And these figures are actually the only thinkable schemes we can promote when we are trying to free ourselves from the “self-ownership” model of constitution of the subject. On the anthropological side too, there is no outside (which does not mean, of course, that we should not allow ourselves to fantasize what this outside might be).

 

The conclusion of this is that the proper and the common can only be thought together. Which means that the liberal dream of a sphere with no common (the sphere of the proper granted by private property) and the communist dream of a common with no distinction of any singular subjectivity are just fantasies (even fantasies can prove to be powerful). Which also means that no political theory can escape the question of the drawing of the frontier, or how to distribute the proper and the common and how to conceive and operate the modalities of their articulation. That is exactly what property regimes do. One can wish to change the name of the machinery, but a machinery is needed, both (and inseparably) on the legal and on the anthropological side. Alternatives to capitalism are not to be found “beyond” property and are not to be expressed in “other” regimes of property, it’s just the same property, conceived and used differently.

 

Négri and Hardt are not saying anything else, on the anthropological side, when they define the multitudes as the non-totalizing cooperation among singular subjectivities. Their common is full of “proper”, and that’s really good news. But Négri and Hardt are opposing the positive productivity of the common to the negative productivity of the proper (and its dominant legal form, private property rights). If the words have a meaning, and if the multitudes are made of singular subjectivities, they do need to distinguish the proper and the common in the collaborative process of production, and to decide the modalities of their articulation and distribution, which requires some machinery, that is some principles, rules, values and other various conflicting considerations to be balanced in concrete situations. Whatever they want to name it, and whatever it is, they concretely need a theory of property. And because they agree that there is no outside, there is a good chance that the material of this theory is to be found in the tradition of internal critique of the dominant conceptions and usages of modern property within our tradition of law and legal thought, because that is also where subversive, emancipatory conceptions of property are to be found.

 

But Négri and Hardt do not think they need a theory of property, they thing that legal systems are just “formal” and the real alternatives are to be found “beyond the legal context”, in the sphere of “real practices”, mainly social movements. I love social movements (really). But I also see that this line of argument is just loyally following the fault lines of the conflict of the faculties. I see here the ordinary blind spot of critical theory, where legal practice is not seen as “real”. What is real for Négri and Hardt is made of social relations of production, disciplinary regimes and resistances to them. But processes of production are structured by Law and disciplinary regimes, which are surely not a “counter-law”, but rather “Law in action”. This blindness is a bit sad, because it is only in getting interested (in a critical way) to the “Law of the Jurists” that one can analyze the structure of the material constitution of our societies, but also explore possible alternative constitutions. The “Law of the jurists” is the Law as it is, actually deployed in real life, it is the Law which is structuring the material constitution of our world. It seems to me (but that may be too much saying) that for Négri and Hardt, the “material constitution” works a bit like the “unconscious” in Freud’s theory. This is the hidden other scene (autre scène, in French) which determinate a good deal what is happening on this one. Following this analogy, the “Law of the Jurists” could be something like the “repressed” of the Law of the philosophers, that is of the dominant critical consciousness, as it is deployed in CT. It then might not be good thing to stay in denial, and moreover to associate this denial with the radicalization of these theories.

 

Now I can really close the loop of my argument: the critique of the Law is only complete when every aspect of the becoming of the structure of modern law during the last two Centuries is taken in account, which include the internal critique of the Law of the jurists. The level of radicality of a critical theory is not measured by the intensity of its anti-juridism, nor by the degree of emancipation of its enunciation from the legal langue. Of course, a theory is only critical when it emancipate itself from the legal ideologies (including the “legalistic vision of the world”, and the various conservative, naïve, or ad hoc theories about the functioning of the Law) but it seems to me the level of radicality of a critical theory depends on how deep the suggested ruptures with the current dominant system and its hegemonic modes of legitimization are. It also depends of its capacity to enlarge our political imaginary and to provide us with possible alternatives. Of course, among the ideas, principles, projects and propositions that a CT is generally conveying, some are more abstract than others. Those who cannot be spoken in the langue of the law, that are cultivating the indifference to an eventual translation in this langue are more inclined to remain abstract. That does not mean they are not interesting, or not politically productive. Some abstract theories, unrealistic propositions and utopian visions can be tremendously politically productive, of course. This only means that they are lacking something to be concrete, that the alternatives they are drawing are not practicable here and now in our current word, which works thru Law. To the contrary, critical theories that are spoken in the langue of the law, or at least that could translate a way or another in this langue, are providing resources for the enlargement of the available repertoire of arguments in legal practice. Even if they are not really available, because they are too marginal in the legal consciousness of the times, they can be not only radical, but also concrete, as they are suited to become, possibly, real alternatives.

 

The wish, or the project, I make here would be to reconcile political radicality with concrete practice, by getting politically radical critical theories to better speak the language of the law, or, to put it another way, to better articulate internal and external critique of the Law. This project is bumping into the wall of the conflict of the faculties, the modern institution of the division of labor between critique of the principled legal forms and critique of legal technique. This conflict is hard to overcome (not a reason for not trying).

I would also like to underline that, of course, Law is not the only language available for structuring human activities and social relations. Many of those as totally foreign to it. I doubt for example that a theory of love — a very central concept in Négri and Hardt’s work — which would be only legal would be entirely satisfactory. My argument is not a plea for a restitutio in integrum of classical juridism (God forbid !) and I hope that I could make this point clear in this paper. Juridism is the pretention of the Scientia iuris to provide the knowledge of legal principles and legal technique, this pretention is an attempt to go below the modern invention of critique. But that said, truth is that Law is one of the main languages in which relations of potestas (power as domination) and potentia (power as empowerment/capability) are spoken in our current world. Because Law generally prevails, it has teeth [34]. It structures most of human activities and social relations. Deciding not to care, in the name of radicality, seeking for alternatives “beyond the legal context”, renouncing the ambition to critically understand and speak this language, based on the assumption that Law is a blinder, is precisely the blinder. It is a way to miss concrete alternatives by not looking where they can also be found, a way to miss a whole part of the real world as it is. Of course, Law is never neutral. In its ordinary usages, it is very often the language of power as domination, and even when it is not, it functions with a structural oligarchic bias. But duly criticized from within, it becomes enough open, malleable and pervasive to offer ways of resisting, alternatives, protections for potentia (power as empowerment/capability). I can find no reason why the most radical critique shall shift away from this resource. Especially if this critique claims to be immanent. Especially if it claims to be post-modern. To the contrary, I see every reason to inquire into the ways to deploy its most subversive effects. Hâtons-nous de rendre la critique (interne) du droit populaire.

Notes

[1] Commonwealth, p. 1.

[2] Commonwealth, p. 39-40.

[3] Commonwealth, preface, p. VIII.

[4] Commonwealth, preface, p. VIII.

[5] Commonwealth, p. 23.

[6] Commonwealth, p. 23.

[7] Commonwealth, p. 23.

[8] Michel Foucault, Discipline and Punish: The Birth of the Prison, New York, Vintage books, 1995, pp. 222-223.

[9] Commonwealth, p. 22.

[10] French translation of Commonwealth, Paris, Stock, 2012, page 51.

[11] Commonwealth, p. 23.

[12] Commonwealth, p. 51.

[13] See Antonio Négri, L’anomalie sauvage, Paris, PUF, 1982.

[14] Jacques Rancière, Haine de la démocratie, Paris, La Fabrique, 2005.

[15] See Jonathan I. Israël, radical Enlightenment, Philosophy and the Making of Modernity 1650-1750, Oxford, Oxford University Press, 2001.

[16] Cornelius Castoriadis, “Pouvoir, politique, autonomie ”, Le monde morcelé, les carrefours du labyrinthe III, Paris, Seuil, 1990, pp. 137-170.

[17] Gaetano Filangieri, La scienza della legislazione, Grimaldi & C. Napoli, 2003 (1780-1788)

[18] Roscoe Pound, “Mechanical Jurisprudence”, 1908 Columbia Law Review vol. 8 605-623.

[19] Friedrich Carl von Savigny, System of the Modern Roman Law, translated by W. Holloway, London, Hyperion Press, 1913 (1840-1849), Volume 1, Book 1, chapter 4 “Interpretation of Written Laws”, pp. 166-194.

[20] It seems the structure of medieval Law was twofold too. See, Pierre Legendre, « Le droit romain, modèle et langage. De la signification de l’Utrunque Ius », Études d’histoire du droit canonique dédiées à Gabriel Le Bras, tome 2, Paris, Sirey, 1965, p. 913-930.

[21] Commonwealth, p. 22.

[22] Lorenz Von Stein XX

[23] Duncan Kennedy “The Disenchantment of Logically Formal Legal Rationality, or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought” 2004 Hastings Law Journal vol. 4 1031-1076.

[24] Duncan Kennedy “A Semiotics of legal arguments”, in Legal reasoning: collected essays, Aurora, Colorado, The Davies Group, 2008, pp. 87-152.

[25] Romann Jakobson: « No doubt, for any speech community, for any speaker, there exists a unity of language, but this over-all code represents a system of interconnected subcodes: every language encompasses several concurrent patterns, each characterized by different functions », Closing remarks: Linguistics and poetics, in T. A. Seabok (dir.), Style in Language, Literary Licensing, 2012, p. 350-377. Citation, p. 352.

[26] Roland Barthes, Système de la mode, Paris, Seuil, 1967.

[27] Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, Dartmouth Publishing Co, 2001 (1917).

[28] See Duncan Kennedy, “The Stakes of Law, or Hale and Foucault!” 1991 Legal Studies Forum, Vol. XV/4 327-368.

[29] Mikhail Xifaras, “Le copyleft et la théorie de la propriété”, Printemps 2010 Multitudes vol. 41, 50 – 64. English translation available at: https://www.eurozine.com/copyleft-and-the-theory-of-property/

[30] Commonwealth, p. 39.

[31] Etienne Balibar, « Pour un droit international de l’hospitalité » Le Monde, 16 août 2018. Available at: https://www.lemonde.fr/idees/article/2018/08/16/etienne-balibar-pour-un-droit-international-de-l-hospitalite_5342881_3232.html

[32] I borrow the concept of legal consciousness from Duncan Kennedy, The rise and fall of classical legal thought, Beard Books, 2006.

[33] Etienne Balibar “Possessive Individualism Reversed: From Locke to Derrida” 2002 Constellations vol. 9/3 299- 317. See also “The Expropriators are expropriated” Paper presented at the International Conference: Marx’s Capital after 150 years: Critique and Alternative to Capitalism, May 24-26, 2017, York University, Toronto, ON Canada.

[34]The “legal” has to do with ways and standards which will prevail in the pinch of challenge, with rights and the acquisition of rights which have teeth, with liberties and powers whose exercise can be made to stand up under attack” Karl N. Llewellyn, “The normative, the legal and the Law-jobs1940 Yale Law Journal vol. 49 1355-1400. Citation p. 1364.

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