This action might not be possible to undo. Are you sure you want to continue?
O N T O L O G I E S O F L AW
ow should we understand the role of laws—of ordering, causality, positive law—within our modes of thought? As a starting point, we might consider Marcel Granet’s formulation—one calculated to floor a Western jurist—in summing up all he had encompassed in his classic work on China: ‘Bearing in mind’, Granet wrote, ‘that the Chinese never voluntarily submit to any constraint, not even a doctrinal one, I shall restrict myself to the observation: “Neither God Nor Law”.’1 This attempt to ‘situate the most immense and most durable civilization ever known’ may help us to position Western thought as well. Granet was, of course, not implying that China lacked any notion of law: the Middle Kingdom had both administrative and penal codes.2 But it never developed the broader idea of civil law, on which the West’s concept of ‘civilization’ is founded. In the Confucian tradition, a ‘civilized’ man has no need of law: he has already internalized the whole art of social etiquette. Law—in its most rustic and brutal form: the penal code—would do well enough for those barbarians incapable of attaining such sophistication.3 There was a school of thought, flourishing towards the end of the era of Warring States, that attacked the hypocrisy of this ‘government by men’—i.e., by mandarins—in the name of a ‘government by law’. But when they came to power at the beginning of the First Empire these Legalists, making do with what they had, merely set about extending the vicious penal code across all aspects of social life. Confucians were brutally repressed and, in 213 BC, their books were burnt.4 The Legalists’ victory was short-lived; their theories were abandoned with the overthrow of the Qin dynasty in 206 BC and thereafter they were remembered only for their cruelty and excess.
new left review 13
jan feb 2002
3 See J. the notion that the human body is the site par excellence on which the law should be inscribed was one of the breaking points between the Jewish and Christian traditions. Paris 1988. pp. Revue internationale de droit comparatif. see T. ‘L’esprit du loi chinois’. 9. 4 Léon Vandermeersch. or the colour of his skin. According to one of the school’s classics. Paris 1975. p. Kafka’s texts are in the image of the same law—lending themselves to an endless labour of interpretation. 1. Archives de philosophie du droit. 200. 2 1 108 nlr 13 . Les enfants du Texte. See E. could be a form of revelation. La formation du légisme. 15ff. How are we to explain this fundamental difference between Eastern and Western thought? André Haudricourt—ethnologist. vol.The Legalists were said to have engraved their law on the iron cauldrons in which transgressors were boiled alive—thus giving it maximum publicity. for a terminological analysis.6 Thirdly. is there any concept of the law as guarantee of the rights of the individual. Balsz. Paris 1971. or to execution of Gilles de Rais. Kafka’s In The Penal Colony portrays precisely the opposite principle: the machine inscribes the occult text into the flesh of the condemned man who. the Shangjunshu: ‘The people are easy to govern. the Western mind has always been fascinated by the thought that to incarnate the law literally. The law can provide for this and will function well as long as it is clear and easy to understand’. Paris 1980. Paris 1992. 92. 5 Cited in Vandermeersch. Surveiller et punir. for they are stupid. as do Kafka’s condemned. 7 Michel Foucault. 220 and 243. see Xiaoping Li. 25. p. the idea that the law is an enigma is typically Western. for a more naunced view. also Pierre Legendre. botanist. 1997. 6 See the debate in Acts 15:1–34 and Romans 2:25. Paris 1936. by this means alone. Le droit chinois. in explaining his behaviour and La pensée chinoise (1934). not even among the Legalists. in Gilles de Rais. Paris 1965. technologist and Orientalist—has argued that ‘the relationships between man and nature are infinitely more important than the shape of his skull. it would never have occurred to the Legalists. in the ecstasy of his final breath. ‘Le concept de « loi » en Chine’. 1987. p. La bureaucratie céleste. conception et évolution. Three comments are in order here. and rendering its content and sanctions immediately intelligible to all. Paris 1968. on the question of circumcision. understands what secret interdiction he has transgressed. pp. Tsien. 2nd ed.7 At no point in the history of Chinese thought. 237. p.5 Secondly. p. 475–6. Paris 1965. Escarra. La formation du légisme. and the pages Georges Bataille devoted to Chinese torture in Les larmes d’Éros. Firstly.
culture des plantes et traitement d’autrui’. 9 Nichomachean Ethics. sometimes even a negative process. science humaine. and anyone 8 André Haudricourt. Paris 1987. p. 282–5 and ‘Domestication des animaux. humidity. the thinking behind EU agricultural directives. In the West. dogs and ropes. which relies on sticks. 2. L’Homme. p. and the dominance of the pastoral in Western religious and political discourse is widely recognized: the shepherd. an imperative. A social formation may combine these two. Power manifests itself in the form of an order. Plant cultivation is an indirect. depended for their survival on rice or yams. The gardener does not make seeds sprout by tugging at them but by giving them the best possible conditions for growth: light. 40–50. In the pastoral societies of the Mediterranean it was the domestication of animals that predominated—Yahweh preferred the aroma of Abel’s grill to Cain’s vegetarian offerings (Genesis 4:3). it involves working with nature rather than restraining it. ‘There is no friendship or justice possible between ox and man. the Lamb. La technologie. any more than between slave and master’. the role of political power is to guarantee the harmony necessary for all to develop their own potential. the concept of taming nature is evident in attitudes towards plants—witness the formal French garden. the crosier. Restraint. soil quality.9 Power and order As Aristotle’s dictum suggests. Paris 1962.8 Whereas for Aristotle. In each culture. by contrast. or worse. In the Confucian tradition. supiot: Laws 109 . the idea of being in harmony with nature informs the relationship between man and beast: ‘The ox has the same breath and blood as man. leaders and commanders are venerated. similarly. In China.the social history he transmits’. on the other hand. Asian societies. the sceptre. freedom from weeds and so on. is an essential element of animal husbandry. pens. VIII. Haudricourt proposed a symbolic representation of these relationships: the models of gardener and shepherd. represented in Genesis by Cain and Abel. the dominant mode exerts its influence over the regressive one. and its feelings must be taken into account’. the faithful flock. but it will be defined by whichever model is dominant in its relation to nature. the relationship between man and nature in any given social formation reflects that between rulers and ruled. It took sailors and fishermen to conceive government in terms of a hand on a tiller.
6. on the contrary. inasmuch as it governs all people on Earth’. we can trace the problem in their relationship back to its origins: religion. Montesquieu gives the most famous definition: ‘Laws. natural or celestial—has naturally referred back to that of law—human. especially biological ones: using law. p. we see law as something common both to legislation and to science.11 This conception of law is profoundly characteristic of Western thought. vol. all forms of being [divine. Paris 1951. If.’10 One can understand from this how ‘government by law’ prospered in the West. Rationality here is the universal governing principle. usually discussed today in terms of the legal. XIII. in this sense. scientific or divine. Thus Montesquieu’s conclusion: ‘The law in general is human reason. in the widest possible sense. as a possible remedy for the malaise of a science without a conscience. He who is not right commands without being followed.possessed of such virtue deserves to wield it: ‘He who is right is followed without giving a command. The good shepherd. This is quite different from the standard approach to the relationship between ‘science’ and ‘law’. In Christian Europe the concept of order—social. in the sense of legislation. II. the natural world and man. while Asia preferred ‘government by men’. are the necessary relations derived from the fundamental nature of all things. encompassing heaven. De l’esprit des lois. Lawyers have had no monopoly on the subject. 232. 110 nlr 13 . The idea of applying the law does not make much sense in a garden. Divine tables The relationship between science and law was posed in comparable terms by Joseph Needham when he asked why the Chinese—whose knowledge and skills far surpassed those of Europeans in every respect until the sixteenth century—nevertheless ‘missed the turning’ for modern 10 11 Analects. moral or ethical limits that might restrict the exploitation of scientific discoveries.’ All three types of law share the idea of causality—of ‘necessary relations’. human and natural] have their own laws. on the other hand. Its ramifications go far beyond the legal domain—itself now placed within the much wider setting of a universal causality that encompasses divine and scientific laws. is one who makes the sheep abide by his will.
science. rather than punishing such an infraction of genetic law. It was the hypothesis that there existed. . ‘God gave his orders to the sea. had placed this intelligibility in nature . 12 Joseph Needham. it is not specific to the human race’. Even the Chinese translation of ‘law of nature’. In order to believe in the rational intelligibility of nature. positivist law contributed to the development of natural science by way of its precise formulation. The chief explanation Needham offered was that European science was based on a conception of law wholly absent from Chinese thought. In mediaeval Europe. also articulated in human laws. whence the modern concept of natural law is derived. that is portrayed in the eighteenth-century BC Hammurabi Code. supiot: Laws 111 . Roman jurisconsuls tried to establish a common legal denominator for the practices of all known peoples in the jus gentium. ‘Human Law and the Laws of Nature’. the laws of nature formed part of a divine legislation that all must obey. God stopped speaking Latin and spoke in numbers. 12. that the waters should not exceed his commands’. Needham reports that as late as 1474 a rooster was condemned to be burnt alive in Basel for the ‘abominable and unnatural’ act of laying an egg. Under Stoic influence. We do not find this in Chinese thought. whose ordinance unfurled wherever material objects existed. in Descartes’s phrase. the Ancient Babylonians—who envisioned the Sun God Marduk as lawgiver to the stars—are the earliest source for the idea of the divine ordinance of laws of nature. The breakthrough in modern science came when scholars stopped setting themselves up as guardians of divine laws and turned to deciphering them instead. and because it implied that the Earth-bound legislator had his counterpart in the heavens. ‘laws that God has established in Nature’ that. writes Needham. Journal of the History of Ideas. 3 (1951).12 Within the Western tradition. the jus naturale came to encompass both man and nature—in the words of Ulpian: ‘Natural law is that which all animals learn from nature. the European mind had to presuppose (or found it very convenient to presuppose) the existence of a Supreme Being who. The image recurs in Hebrew writings. in effect. vol. would endeavour to understand it. Today the bird would no doubt end up in the hands of a biologist who. too. rational itself. ‘In Europe’. made it possible to discover these laws and then to express them mathematically—at which point. Thus. the importance of the divine legislator in Judaism—and therefore in Christian thought—is well known. no. .
It was in the twelfth century. Cambridge. scientific ideas of natural law flourished at the height of absolutism in the work Spinoza. Law and Revolution: The Formation of the Western Legal Tradition. means ‘spontaneous law’. and affirmed the powers of reason against those of tradition. through their inscription in a systematic body of texts. for which algebra would provide the most sophisticated terms. to Gratian and to the legalists of the Bologna school. The religious antecedents common to both human and scientific laws are even clearer when viewed in historical rather than epistemological terms. Boyle and Newton. May 1942. 14 See Ernst Kantorowicz. too.14 It is thanks to this ‘revolution of interpretation’. and Grotius’s ‘impious hypothesis’ of a jurist See Needham. It was not until the French Revolution and the dawn of the nineteenth century. p. he refers to the work of E. pp. The King’s Two Bodies: a Study in Medieval Political Theory. in Pierre Legendre’s phrase. which both separated religious and secular powers and established the Church as model of the centralized state. in the Gregorian Revolution of the eleventh and twelfth centuries. that laws were bound to the principle of rationality. Princeton 1957. that science and the state fully emancipated themselves from religion. and Harold Berman. that Abelard formulated the distinction between natural and miraculous causes. The concept of natural laws took on a scientific value only with the emerging distinction—and articulation—between Church and State. 13 112 nlr 13 . between spiritual and temporal power. Paris 1964.13 But the origins of monarchist-state theory lie earlier. 238–9 and 222–3. singular causes. Zilsel. Philosophical Review. MA 1983. Pierre Legendre. and Les enfants du Texte. however. ‘Human Law’. La pénétration du droit romain dans le droit canonique classique. and which all but leads to a contradiction in terms. notably ‘The Genesis of the Concept of Physical Law’. and turned towards the investigation of formal correspondences. Needham locates the point of rupture at the moment when centralized royal authority triumphed over feudalism: Descartes wrote just forty years after Bodin developed his theory of sovereignty. a wording which rigorously adheres to the old Taoist denial of a personal God.zi-ran fa. 85. Western thought began to tear itself away from the practice of seeking concrete.
whether the mayhem is not returning today. Die Perspektive als symbolische Form. as Berman puts it. since this was precisely what it was meant to transcend. We might ask. human and natural planes all confounded under one law. therefore. no further need to refer to the divine legislator in ‘raising the veil’ of our ignorance. Paris 1988. II It had taken seven centuries to dissipate the confusion caused by having religious. the constitution of distance and objectivity. accidental factor into a world that was otherwise extra-subjective or supra-subjective’. 21. supiot: Laws 113 . so masterfully analysed by Panofsky: One can justly conceive the history of perspective as the triumph of the sense of the real. Le désir politique de Dieu. One way of understanding this ambivalence is through the history of art. like the Renaissance statues. Herein lies the ambivalence of their discovery. Within the laws of perspective. p. we have first to grasp the ambivalent nature of this laicization—the ‘disembeddedness’.15 In the realm of science the leap was made by Laplace. Leipzig 1927. There was. however. in new forms. but equally. as a systematization and stabilization of the outside world. of laws that. of classical Greece and mediaeval Europe objected to the use of perspective on the grounds that it ‘seemed to introduce an individual. have torn themselves from cathedrals to populate public squares and gardens. running parallel to those of law and science—although the mathematization of pictorial space through the discovery of the laws of perspective preceded Kepler’s laws. scientific discovery could now replace revelation. however. the image is rigorously reordered around the perception of an individual subject. To understand the contemporary situation. the image of heaven could scarcely be subordinated to an individual viewpoint. and for science and state to assert their modern meanings. who declared that he could explain the universe without recourse to the idea of God.16 15 16 See Pierre Legendre. Erwin Panofsky. This was particularly true for religious art. as the triumph of that lust for power that denies all distance. The ancient civilizations of the East. but also as an expansion of the ego’s sphere.without God became flesh.
Uncertainty principles Throughout the twentieth century. to the rule of reason. drawing on the methods of mathematics and physics. expand ‘the ego’s sphere’. man can aspire to take the place of God: determing the social order. it lies in the mind of man. or still propping each other up. when the project of a law founded on human nature. models. but they have lost their former solidity. too. excluding the possibility of miracles or divine intervention. the constituted state and the law are still standing. Freud’s discovery of the unconscious was the recognition that there was an obscure region within man that defies logical determination. The painter’s perspective corresponds to the Cartesian cogito. For the centre—the head—of this body of logic is reason. giving way to the other notions—paradigms. In the nineteenth century. the idea that there are such definitive laws—in the sense of Newton’s. including even the constituted state from which it springs. Nowadays. As if fallen prey to a new forms of feudalism. structures. With Heisenberg’s uncertainty principle. ideal types. In the abstract. effect a ‘systematization and stabilization of the outside world’. natural scientists still met at international congresses to establish what the law was on controversial points. human law is equally applicable to all. or between men and nature.Panofsky’s comments on the laws of perspective are equally applicable to the invention of human and scientific laws. even if it operates as a language. or to the legislator’s will in theories of the state. markets. They. or submitting nature to his rule. Mastering these laws through his reason. The two ambitions have been intimately linked since the Enlightenment. Scientific law subjects our relation to the world to rational principles. fields. Both sets of laws are reinforced by being seen as elements of a larger body of logic. in a sense. subordinating relations between men. was first propounded. freed from metaphysics. the law has become progressively more inaccessible to human reason in the very realm of its secular triumphs. linking them together. conventions—that become its avatars. physicists have admitted that the infinitely small is inaccessible to law: it cannot be accurately observed or measured. In the political sphere. in scientific theory. ultimately. But here they also. In the human sciences. the state seems to have given 114 nlr 13 . say—is held only for very limited sets of circumstances. systems. We will need to follow their trajectories futher if we are to situate the place of law in contemporary thought.
law was infinitely more powerful than man. while counting the fleas jumping from the gatekeeper’s beard. as in Kafka’s parable. and nostalgia for a bygone time when thought could rest within the law of God. Enlightenment thinkers had replaced the trinity of laws with a duality. to replace the government of men by the administration of things. Comte and Marx dreamed of humanity’s liberation when. natural and human law. the law could liberate that ‘lust for power that denies all distance’. as for Luther. And even if he got through that gate and deciphered that law. La théorie générale du droit et le marxisme (1924). p.18 Such certainty that a scientific. 279. eds. Paris 1997 . Paris 1970. having overthrown divinity. the latter’s methods were therefore transferred to the domain of man. 18 See Wolfgang Lepenies. the nascent social sciences attempted to establish the unity of scientific laws. E. Pasukanis. man could not but try to fill it—to grasp control of the foundational discourse of all law. this sense of reason’s powerlessness to grasp the world’s complexity. and thereby render redundant both theology—whose position they would usurp in the universities—and law. The role of divine legislator had fallen vacant. he would find a thousand more behind it. each one a thousand times more difficult to get beyond. ‘La loi dévorée par la convention’. Now. and Remarques sur la reféodalisation de la France. Munich 1985. droit imposé?. Soziologie zwischen Literatur und Wissenschaft. 17 See Legendre. Van de Kerchove. or simply retreats in the face of markets and conventions. 19 See. Les enfants du Texte. p. united under the aegis of reason. 631. To reduce this duality further. Auguste Comte hoped it would then be possible. at the dawn of the modern age. technical norm was destined to wholly supplant human law is also found in Marxist legal criticism. a man could spend his life waiting for the gates of the law to open. also Ph. it would find in the laws of science the means of emancipation from the power of states. Brussels 1996. Dürer’s Melancolia I expressed.17 For Saint Paul. notably.-B. Ost and M. Gérard. Die drei Kulturen.19 Confronted with the injustices of their time. Cut off from its religious antecedents. in the words of his mentor SaintSimon. however.up on the attempt to apply general and enduring laws to a world whose complexity eludes its grasp: the law restricts itself to a limited validity. F. in Droit négocié. But such a discourse needed a legitimacy comparable to that of the natural sciences. supiot: Laws 115 . Saint-Simon.
The totalitarian systems that marked the twentieth century enable us to see precisely where this project for the scientific regulation of society crosses over into delirium. particles in a magnetic field.in its strictly juridical sense. however manifold. On a purely scientific basis this project was doomed to failure. The elimination of the subject of law in the name of science is the delirious ground on which totalitarian thought is anchored. It was in this sense that. like the law of the French Republic. 116 nlr 13 . on the other hand. the Spanish theologian Suarez wrote that one could only speak of law by metaphors ‘regarding things which reason fails’. As the social sciences slowly accumulated an unprecedented stock of knowledge. 221. On the other hand. p. ‘things which reason fails’. the sheer complexity of what they discovered demonstrated the vanity of promulgating cast-iron laws—of history. 1612. Which is to say. but as objects. endowed with reason. ‘Human Law’. they explain him by relating what he is and what he does to objective determinants that are clearly beyond his responsibility. only the linkages of cause and effect. there is more than a little in common between those who see themselves as instruments of a divine law and those who see themselves as instruments of history—survival of the most progressive class—or of nature—survival of the fittest. view man as object. it grants his identity in the same instance that it postulates his responsibility and his freedom—even the freedom to break the law and therefore incur its sanctions. as it offered the lust for power literally unlimited horizons. economics. Biblical law. animals on a stock-farm. It was not in their resemblance to religion. The laws of science. though granted. since to commit one’s thought to the search for laws requires an awareness of the limits of one’s understanding. this project enjoyed extraordinary political and ideological success. Numerical comparisons of those massacred in their name reveals little. always addresses man as subject. the difference lies elsewhere. cited by Needham. Hannah 20 Tractatus de legibus. it opened the door to madness. Reason’s failures Scientific laws know neither innocence nor guilt. society— that would determine the outcome of human destiny. as early as the sixteenth century.20 To aim at founding the laws of society on science assumes that one no longer envisages men as subjects.
but form’. 185. pp. ‘does not represent substance. which sees itself as the instrument of a higher law. 76 and 258. wrote Hitler in Mein Kampf. that of preserving our race’. class domination by the ‘engine of history’—thus implies the liquidation of the anthropological function of positivist law. such laws have the role of marking out boundaries and forming the means of communication between men. The murderers themselves. and to discount any sentiment of responsibility or guilt. all distance between the two denied. The stability of laws is an answer to this perpetual 21 22 Le système totalitaire. Each new birth is a new start in the world. not just of their property. but of their professional status.21 Negation of the legal guarantee of individual rights is therefore the hallmark of the totalitarian regime. Both doctrines also rid positivist law of its substance. as the community is always threatened by the new arrivals born into it. the Hitler Youth manual stated.Arendt expressed it better: ‘the first essential step on the road to total domination is to kill the legal character in man’. virtually a whole new world that has been born. but in stripping them of the different ‘layers’ that made them subjects of law: depriving them not just of their jobs. ‘We shape the life of our people and our legislation in accordance with the verdict of genetics’. leaving only the name. scientific and superhuman. See Arendt. Paris 1972. an ostensible government obscuring the true location of power. not just of their homeland. They were to consider themselves as cogs in a wheel moved by superior forces. and that ‘The State is merely a means to an end. Le système totalitaire. but of their nationality. women and children. The political application of these supposedly scientific laws—the ‘biological’ survival of the fittest race. that renders the state and positivist law redundant. by turning them into numbers—destroying their human status before taking their lives. Hitler himself repeated many times: ‘It is not the State who commands us.22 The distinctive trait of the Nazis’ extermination policies did not lie in taking the lives of millions of innocent men. p. but we the State’. supiot: Laws 117 . depriving them finally of their name. Both Communism and Nazism conceived of the state as a puppet at the service of the Party. too. ‘The state’. but of their right to ownership. According to Arendt. did not simply act in the name of racial law—they were that law incarnate.
not on rules but on rites. As for divine law. 211. at first glance. when the ‘revolution of interpretation’ moved from a conception of law as a principle of causality to the inscription of laws into a systematic body of texts. it is the contract whose stock is rising on the legal Bourse. In the natural sciences. Jurists speak of the inflation of laws. which absorbs all new beginnings and profits from them. The social sciences seem to have abandoned the attempt to reduce the order of things to fundamental laws. p. they guarantee the pre-existence of a common world. Not that Western legal constructions are the sole means of managing this: there have been many others. guarantees its freedom of movement. The barriers of positivist law are to man’s political existence what memory is to his past. linking cause and effect. even among jurists. was already in decline in the twelfth century. 118 nlr 13 . based not on laws but on relations. Le système totalitaire. a movement that will carry on as long as men and women are born and die. the possibility that something totally new and unforeseen may occur. The law surrounds each new life with barriers and. what haunts our nightmares is the fear of a technology or biology beyond all human control. their volatility. the separation of Church and State has nevertheless limited their effect. The idea of corpus juris had been absent from Justinian compilations. notably the Chinese tradition.23 Arendt’s call to establish a ‘new understanding of man’ following the totalitarian experience has been largely unanswered. it was first 23 Arendt. while killings and massacres in the name of various Gods go on in front of our very eyes. Yet the necessity of guaranteeing each new generation a ‘given’—a ‘common world’. their inability to retain a hold on an overly complex world. the most salient feature. that transcends the lifespan of one generation—remains a uniquely human need. at the same time.movement which affects all human affairs. III What role does the idea of law play in our modes of thought today? Its steady decline seems. the reality of a certain continuity which transcends the lifespan of one generation. The definition of law as a linear sequence. the anthropological function of positivist laws is still denied.
the same laws of implication underlie all languages. Genette. Godelier.introduced in mediæval times. p. Paris 1974. Paris. determining men’s behaviour without their 24 25 Gombrowicz. as well as some Goldmann. as their ostensible multiplicity is largely illusory . Poulet. must be to derive from the most diverse forms of social life ‘systems of behaviour that are each a projection onto conscious. and those of thought’. a single law no longer sufficed. 228. Marx.25 For Lévi-Strauss. Maurron and Barrera. Starobinski. it must therefore be possible to devise a theory of how they relate. Barthes. Bourbaki. supiot: Laws 119 . . even if I’m not sure which date exactly . universal laws which govern the mind’s unconscious activity’. It is this concept of a system. Althusser. Cited in Claude Lévi-Strauss. . Lacan. it only had sense and value when related to a larger framework. p. a bit of Greimas. at the dawn of modern times. in Lévi-Strauss’s phrase. Jakobson. Ehrmann. Foucault. and new versions proliferate at bewildering speed. Bourdieu. Thenceforth. too. of a logical matrix of laws. I will therefore limit myself to considering just two paradigms for such systems of rules: language and the market. Dombrowski. but immediately go on to say they are relative to each other. Bopp. Saint-Hilaire. so now the search for an ‘order of orders’. I’m up to date. According to Jakobson’s general theory of linguistics. Schucking. Yet there is more disagreement than ever on how to define this system. that continues to exercise a hold on Western thought. itself adapted from physics. ‘But of course I’m informed!’ cried Witold Gombrowicz in his auto-interview ‘I was a Structuralist before everyone else’: Believe me. . socialized thought. the strength of the linguistic model was to bring to light such syntactic and morphological laws. 100.24 Too many indeed. We admit that laws are relative. from both a static and dynamic point of view’. there are just too many of them. no date. has superseded the search for laws. I’ve read here. the search for laws replaced the search for causes. Anthropologie structurale. The force of structural analysis rests ultimately upon the ‘presumed identity both of laws of the world. Barbut. Lévi-Strauss. Macherey. What interests the anthropologist here is unconscious laws. ‘the increasing number of laws we discover highlights the problem of the universal rules that provide the phonological basis of the world’s languages. emphasis added. As. . there. The task of anthropology.
28 The analogy between the exchange of words and the exchange of goods is already present in Adam Smith. 353. One could even add that the rules of kinship and marriage constitute a fourth form. Turgot or Condillac: Histoire intellectuelle de l’économique politique. Anthropologie structurale. Paris 1992. has already been subsumed by another paradigm. 27 26 120 nlr 13 . which is itself founded on the idea of a system of rules. . Jean-Claude Perrot underscores the longstanding nature of the connection between language and money in the work of thinkers such as Locke. however. the exchange of goods and services.27 The ‘exchange of goods and services’. p. political economy was defined by its object: the production and exchange of material goods. however. Becker sees heuristic qualities in economic analysis at least equivalent to those Lévi-Strauss. . ‘In every society’. who argued that economic analysis is based on three axioms from which numerous theorems of human behaviour can be derived: maximizing behaviour. which might legitimately be applied to all aspects of human life. by penetrating the ‘conscious models’ that mask society’s fundamental structure from the collective consciousness. 107 and 334–5. Hume.26 Lévi-Strauss envisaged the extension of the paradigm to encompass economics and even genetics. ‘driven by an invisble hand’. p. pp. threatening to eclipse that of structuralism. Anthropologie structurale.28 Until recently. that of genes between phenotypes. he wrote. like language. The laws of the market operate beyond men’s consciousness and independently of the rationality or otherwise of their behaviour. emphasis added. This proposition has been rigorously defended by Gary Becker. The goal is ‘to construct a social model whose systematic nature has hitherto been unperceived in that society’.knowledge. also presents itself as a system of unconscious rules which spontaneously govern human relations. 333. Culture does not simply consist of immediately recognizable forms of communication such as language. communication occurs on at least three levels: the exchange of women between men. 74. emphasis in original. 71. A decisive step was taken when economists advanced the notion that their science was defined not so much by its object as by its analytical method. but also—perhaps more importantly—it consists of rules applicable to all ‘communication games’. The market. and the relaying of messages . market equilibrium and stable preferences. Note the reference to game theory. whether played out on the plane of nature or of culture.
188. p. ‘It is one and the same thing’. and La distinction. 82 and 90. relating to one’s times. Bourdieu applies concepts derived from economic analysis on a much wider scale: ‘a general science of economic practices . and so forth dominate his work. prices.29 Like Becker. Questions de sociologie. is not artificially restricted simply to those practices socially recognized as economic’. Paris 1982. Bourdieu defends himself from the charge of economism by claiming that the only thing he shares with orthodox economics is ‘a certain number of words’ (Réponses. Paris 1979. Critique sociale du jugement. emphasis in original. philosophy and religion all have constant functional laws (which is what makes the project of a general theory a reasonable one). pp. cultural and social. and particularly over the rate of exchange between them’. Here too. But here one could refer him to his own critique of the philosophical use of language as ‘a sum of partially intersecting idiolects which can only be properly used by interlocutors capable of referring each word to the system in which it obtains the meaning they intend it to have’: Ce que parler veut dire. 73–4. Metaphors of capital. As for the power of the State. bringing up children. ‘There are general laws of fields: fields as varied as politics. individuals deploy three types of capital: economic. p. The market paradigm has been applied across ever wider spheres— Richard Posner’s Economic Analysis of Law is a case in point—not least by those who seek to expose the inequalities of its relations. it is ‘a type of meta-capital capable of exerting power over the others.’30 Both linguistic structure and the market offer models of rules-systems that (a) do not have to be recognized in order to be effective. supiot: Laws 121 .attributed to structure in sociology. he has written. ‘to determine what constitutes a field and its limits. Réponses. sex. drawn from physics—in which individuals can be regarded as ‘particles’ subject to the magnetic forces of attraction and repulsion—essentially derives his categories of thought from economics. . In these markets or fields. law. p. 113. Such is the case with Pierre Bourdieu. and to determine what form of capital operates there. 94). 30 Bourdieu. and under what constraints’. (b) are 29 Pierre Bourdieu. Paris 1992. extending this method to social relations as a whole should make it possible to reveal the unconscious determinants of human behaviour. p. who. . although he has made much use of the concept of ‘fields’. marriage. Paris 1980. interest. Everything can be seen through the filter of the market: politics. 93.
32 Pierre Bourdieu. the economist will analyse them as administrative instruments. appear as hybrids of market and structure. Altruism towards one’s peers is a condition for survival among many species. such as that of the network. masking society’s deeper structure.capable of self-regulation. Egoism and Genetic Fitness: Economics and Sociobiology’ in his Economic Approach to Human Behaviour. the sociologist of fields will see them as instruments of symbolic domination. are currently developing an evolutionary anthropology which would See. and has therefore been genetically selected. (c) leave space for human initiative. The Rise of the Networked Society. be it Plato’s Cratyle or Adam Smith’s invisible hand. Not only does one lose the notion of the legal subject—reduced to a particle. they appear to have been swallowed up inside each rules-system. when one thus dissolves positivist law into a science that is to reveal the true laws of humanity. Éléments pour une sociologie du champ juridique’. Oxford 1996. 5.32 Difficulties emerge.33 Becker. then. and what is true for animals must be true for man. 31 122 nlr 13 . whilst keeping their distance from sociobiology. 64. too. Numerous categories of thought currently emerging out of the social sciences. Manuel Castells. is to be found in genetic law. Put another way. whilst (d) submitting humans to the implacable decrees of a hidden legislator. he claims. Actes de la Recherche en sciences sociales. Certain biologists. On what. we now arrive at a social science without conscience. ends by looking to genetics to discover the essential laws of human behaviour. Chicago 1976. to be analysed according to the logic of the legal field. 33 See the chapter entitled ‘Altruism. who describes himself as performing his investigations ‘relentlessly and unflinchingly’.31 Darwin’s subjects What of positivist laws themselves? Within the social sciences. The answer. The structural anthropologist considers them a screen onto which beliefs are projected. does not attempt to minimize the difficulty of this question. 1986. p. are the ideas of justice and solidarity to be based if not on law? Becker. however. economic or linguistic—but the concept of justice—to which men’s (false) consciousness ordinarily refers all laws—is also dissolved. in particular. Many others are currently negotiating this slippery slope. whose effectiveness depends on their compatibility with the laws of the market. like LéviStrauss. ‘La force du droit.
Souffrance en France. It seems important to reassert. One cannot help but draw a parallel with the evolution of contemporary physics. London 1997. which has also renounced the notion of caging reality within the For Richard Dawkins. simply a system of texts—but one that lays down the law for member states and has now produced its own currency. eds. The Origin of Virtue: Human Instincts and the Evolution of Cooperation. Leda Cosmides. La banalisation de l’injustice sociale. Paris 1996. in this context. See also Matt Ridley. The state is receding as central organ for juridical responsibility. the anthropological functions of positivist law—that is. and of new articulations of laws and codes. p. the European Union? Under what category are we to classify those non-laws—Commission directives and rulings? In law.35 But this indignation can neither guide nor be guided by intellectual labour if one totally abandons the notion of positivist law. The Adapted Mind: Evolutionary Psychology and the Generation of Culture. could permit one to elucidate the relationship of the two today. Oxford 1992. 7. there are neither laws nor state. Paris 1998. Of course we should share the indignation of Bourdieu or Viviane Forrester at the manner in which whole swathes of humanity are currently precipitated into the social abyss in the name of the market. Dejours. Oxford 1976. 34 supiot: Laws 123 .34 Concurrently. Jerome Barkow.connect adaptive strategies to universal genetic ‘givens’. L’horreur économique. The idea of law endures within this form—national laws inserted into an overarching EU rules-system that is now their law—but which still leaves room for diverse national and local realities. One final consideration on the dual trajectories of scientific and positivist law: the idea of scientific law reasserted itself at the same time as the nation-state. What concept can one use to describe that unidentified legal entity. A careful study of the way in which that institution’s pillars are now cracking. to recognize the role it plays in constructing collective and individual identities and in providing each new life with a humanly created social ‘given’. see C. 35 Viviane Forrester. EU regulation would provide an ideal specimen: here. ‘we are survival machines—robots blindly programmed to preserve the egoist molecules known as genes’: The Selfish Gene. at first glance. the EU is neither a state nor an empire. just as their value becomes more relative and local. John Tooby. a progressive ‘Darwinian Left’ is emerging which would adapt the idea of social justice to genetic determinants. on the striking parallels between the economic vulgate and totalitarian discourse. but laws themselves are surviving this retreat.
1. 124 nlr 13 . wealth. be they labourers. to the quality of the terrain. 238. mores and manners.text of laws. with their origin. p. with the intentions of the legislator. It also confirms the heuristic value of Montesquieu’s theory of the relativity of positivist laws: They must relate to their location’s physicality. its size. It is in the light of all these aspects that they must be considered.36 36 Montesquieu. its situation. L’Esprit des lois. to the religion of the inhabitants. with the order on which they are established. to a freezing. number. they have their relations between themselves. they must relate to the degree of liberty the constitution can allow. their inclinations. Finally. burning or temperate climate. emphasis in original. hunters or shepherds. trade. to its people’s way of life.
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue reading from where you left off, or restart the preview.