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Relationship as a ground for law: talking with Simondon and Foucault

Xavier Aurey Paper to the Melbourne Doctoral Forum on Legal Theory, University of Melbourne, December 2012 I would like to start this paper with an example that will allow me to set the scene. In 1997, several papers in the New England Journal of Medicine denounced some AIDS clinical trials in Africa1. These experiments were designed to test a new form of treatment to prevent transmission of the virus between a pregnant mother and her unborn child. There were made on people living in a difficult socio-economic environment, with low literacy rates. What was reproached by the authors of the papers was a kind of medical neocolonialism in the way that the local populations were used for the health needs of Western countries. In 2000, Daniel Rothman qualified those clinical trials as the shame of medical research.2 The reality of the peoples free and informed consent and the use of placebo were on focus in those cases. Generally, it was said that those research led to an exploitation of these people and were contrary to any recognition of their status as human beings. This example of the biomedical scene is topical as a paradigm of new forms of relationships within post-modern societies. Issues that arise in this area are not as tied to the existence of relations of domination (States-individuals or individuals-individuals), than to the new power relations that emerge, centered on the human body. And the theoretical construction of the State as a protection against the relationships of domination faces difficulties to be efficient when power relations take the body as an object. For most of the social contract theorists, domination characterizes the relationship between individuals in the state of nature. According to Locke, naturally equal, free and owners of their work3, men have built societies to avoid war between each of them4. They thus have founded societies to avoid this situation where everyone is potentially the slave of a stronger master 5, and where no authority can be called to restrain any violence that may happen betwixt t he subjects themselves, one amongst another.6 In the state of society, everyone gave his natural right to punish to the group that then acquires the right of sovereignty7. Natural liberty of the individual
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Cf. Marcia Angell, The Ethics of Clinical Research in the Third World , NEJM, 337 (12), 1997, p. 847-849 Daniel Rothman, The Shame of Medical Research , The New York Review of Book, 30 November 2000, p. 60-64. 3 John Locke, The Second Treatise of Government, 1689, chap. II, 4. 4 John Locke, The Second Treatise of Government, 1689, chap. III, 21. 5 John Locke, The Second Treatise of Government, 1689, chap. III, 17. 6 John Locke, The Second Treatise of Government, 1689, chap. VII, 93. 7 John Locke, The Second Treatise of Government, 1689, chap. III, 17.

is thus normally protected against domination by the political power which is legitimized by such a role8. Michel Foucault calls this approach the revolutionary way9 (within the meaning of American and French revolutions). According to him, it consists to start from human rights to reach the boundaries of governmentality, through the establishment of the sovereign.10 Rights are generally recalled in a document that limit the action of the State, whether, for example, the Declaration of the Rights of Man and of the Citizen of 1789 in France, or the first ten amendments to the 1787 Constitution of the United States (unlike Australia which does not have such a list). But where the written or customary Constitution actually frames the use of violence by the Common Law States by virtue of the Rule of Law, in young European democracies the situation is quite different. Until the middle of the 20th century, the absolute sovereignty of the Law often confines to arbitrariness. As a representative of the sovereign, the lawmaker cannot be limited in the exercise of sovereignty. Declarations of rights are thus a weak guide to avoid relations of domination. In response, the doctrine of the Rechtsstaat that develops in the late nineteenth century in Germany, then in France, aims to put individuals-State relationship down in the Law, to take them out of the sole relation of domination. In order to enable the law to regulate any relationship, it has to become an autonomous and logically and rationally based system. Any relational entity (the individual, the State, the company...) is thus legally established and any relationship refers to the legal logic. These entities become person before the law (natural or legal), this artifact indicating the situation of the imputation of rights and duties. It is thus necessary to understand the legal personality as the formalization of any subject in the legal system, his legal double. This concept is used as the border between law and arbitrary power, to protect people against the abuse of sovereignty11. But on the opposite, such an inscription of the individual in the legal system tends to notionally transform anyone in an archetypal kind of human being; someone freed from any arbitrary constraint because of his legal status, a status as a human rights being. Equality then becomes the equal disposal of rights, and freedom evolves from the absence of domination to the absence of arbitrary interference in the exercise of these

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John Locke, The Second Treatise of Government, 1689, chap. I, 3. Cf. Michel Foucault, Leon du 17 janvier 1979 , Naissance de la biopolitique. Cours au Collge de France. 1978-1979, Gallimard/Seuil, 2004 10 Michel Foucault, Leon du 17 janvier 1979 , Naissance de la biopolitique. Cours au Collge de France. 1978-1979, Gallimard/Seuil, 2004, p.41. 11 Michel Foucault, Leon du 10 janvier 1979 , Naissance de la biopolitique. Cours au Collge de France. 1978-1979, Gallimard/Seuil, 2004, p.15.

rights12. In my relationship with others, the first and foremost expression of my freedom is then my consent. It would be the expression of my individuality and would permit to finger this natural liberty that the state is supposed to guarantee. In 1948, this question became an international one by the writing of the Article 6 of the Universal Declaration of Human Rights which indicates that Everyone has the right to recognition everywhere as a person before the law. In 1966, article 16 of the International Covenant for Civil and Political Rights took up this affirmation, and its article 4 made it a non-derogable right, thereby validating its fundamental character. According to Ren Cassin, one of the drafters of this Declaration, the protection of individuals against the domination goes through the recognition of their legal personality as the outright refusal of the legal personality [...] consists of telling the individual: You are nothing13 (Cassin also referring to slavery). But poverty or vulnerability (Foucault would add madness) are all just concepts developed around the idea that the equal freedom cannot be reduced to an encounter of legally regulated individual wills. By using these concepts, lawyers, legislators, judges attempt to recontextualize the individual: in his environment (poverty) or condition (vulnerability). The movement of economic and social rights (having now exceeded the simplistic opposition between liberalism and communism) must also be understood in such a sense. However, when Foucault wondered the reality of power, he didnt search it in the subject as an entity, or in an abstract concept of power, but he tried to specifically analyze the relationship as a source of subjection 14. So why not think these concepts of poverty and vulnerability in a similar vein? Perhaps, this is not the individual who is poor or vulnerable, than the relational space that is a source of poverty or vulnerability. This approach is particularly interesting because it would permit to avoid a definition of the individual, made by experts and based on a predetermined statistical grid (what Foucault called biopower). Let us come back on our starting example to highlight this change of approach. We will focus for example on the idea of the possibility of a free and informed consent in clinical trials on AIDS. Thus, the first question is not whether to know if each criterion of the ideal expression of a free and informed consent has been completed or not, with regard to the possible vulnerability of each person. A better question is to understand how the experiments relational framework
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As highlighted by Philip Petit, Freedom as Antipower , Ethics, 106-3, 1996, pp.576-604. Commission des droits de lhomme, Comit de rdaction, Deuxime session, Compte-rendu analytique de la trente-septime sance, tenue Lake Success, New York, le mardi 18 mai 1948 , U.N. Doc. E/CN.4/AC.l/SR.37, 26 Mai 1948, p. 7. 14 Michel Foucault, Cours du 14 janvier 1976 , Il faut dfendre la socit. Cours au Collge de France. 1976 , Gallimard, Seuil, 1997, p. 27.

allowed or not to give a meaning to such a rule of consent. Therefore, our analysis of rights and freedoms should focus not on an ideal type of human rights being, with rights as a property, but on an approach of rights and liberties as relationship. We thus have to question an adequate legal conceptualization of the relational space and to understand its impact on the meaning of rights. The philosophy of Gilbert Simondon can give us the intellectual tools to think such a question. As a French philosopher who died in 1989, he is best known, in a rather closed circle, as a thinker of the technique. But his work can also allow us to think differently the legal relationship. As Pierre Bourdieu and postmodern authors, Simondon calls into question the traditional oppositions that structure the social sciences such as those of freedom / determinism, nature / culture, or constructivism / structuralism. On this last question, Bourdieu sees processes of individuation and of social construction as a round trip between the individual and the collective. He thus speaks about a structuralist constructivism15 designed around a double movement of internalizing the outside and externalizing the inside, where the individual involved in the construction of the social, which in turn contributes to that of the individual, and so on. But for Simondon, individuals and the social community cannot be understood as separate entities previously established to the relationship. According to him, there is only a simultaneous co-construction of an individual-collective set through a relationship he called transductive, that is to say, a relationship that constitutes in itself its elements, and where a term such as good cannot exist without the other term, bad for example.16 For Simondon, there are never real individuals (indivisible), but only processes of individuation, that is to say, relational processes where human beings and the social are building each other in a reciprocal and simultaneous manner. We can establish a parallel between this vision and the one of Foucault for whom there is no real state or subject, but only processes of nationalization17 (I would prefer a word like statization) and subjection18 (Simondon would have said a process of statization-subjection). Consider a simple example to illustrate this notion of transductive relation, that of a coin. A coin is a transductive relationship in the sense that the existence of coin arises from the relationship between its two sides. Without one of its faces, the coin is actually not a real one; but in parallel, each side finds its meaning in this relation called coin, being otherwise an engraving on metal. Its thus the relationship that gives a specific meaning to the information brought by each side. And
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Pierre Bourdieu, Choses dites, Editions de Minuit, 1987, p. 147 Bernard Stiegler, Prface Gilbert Simondon, Lindividuation psychique et collective, Aubier, 2007 (1989), p. III. 17 Gilles Deleuze, Foucault, Les Editions de Minuit, 2004 (1986), pp.82-83. 18 Michel Foucault, Cours du 21 janvier 1976 , Il faut dfendre la socit. Cours au Collge de France. 1976 , Gallimard, Seuil, 1997, pp.37-55.

as a relationship, this coin is the result of a process of singular and collective individuation. The tails face gives it a special meaning (the amount), while the heads face inscribes it as a part of a more general monetary system (the Australian system for example). Any relation to this piece should reflect these two elements (I cannot pretend that a 20 cents coin is a Dollar or use this coin of 20 cents in France to buy an item). Proponents of an economic vision of the world will be happy to learn that the rights and liberties are like this 20 cents coin (or a coin of one dollar, let's be generous). Rights and liberties are transductive relations, that is to say a meaning of a legal statement (formal) in relation to a normative collective. This notion of normative collective is different from those of legal system or state. It should be seen as the system of power relations that structure the individuals field of possible. Any theoretical analysis of a right is to find a meaning to a legal statement in relation to a specific collective normative, whether purely abstract (state), or related to the concrete experience of the author of the analysis. Actually, it does not reflect the reality of legal relations. A realistic analysis of the legal relationship raises the question of the reality of power relations into play. A closed system of power relations, that is to say over which the individual has little influence (Simondon would have said that the individual is in a stable equilibrium with this system without any real individuation possible), such a system is a non-legal normative collective. The State or the legal system is thus not a strong element to structure the relational space. Unless you specifically inform the collective concerned, to open it to a relationship with the legal system, any normative statement does not find any real meaning for an individual of the collective. Without this possible meaning, there cant be any legal relationship, but a simple power relationship. Protection or non-protection of individuals against the domination thus results from the other norms in force in the collective (moral, religious or factual norms...). Let us return to our example pharmaceutical experiments. Is there a relational framework that would give a meaning to the rule of free and informed consent for the subjects? The subjects of the experiments were pregnant women infected with HIV. They lived in difficult socio-economic conditions, without access to general care. In this case, without going into detail, they were in a relational space where the State, and therefore the legal system, was not a source of protection. Their structuring collective was rather closed and non-legal. Thus, any international or national legal norm could not find a meaning for the subjects of this experiment. In the right to free and informed consent as transductive relationship, it lacked a normative collective able to give a meaning to the legal statement. Actually, the statement did not have any genuine normative scope.

If we look at this example as a whole, we see that a realistic theory of legal relations involves thinking Rights and Freedoms as a relationship and a systemic approach of normative spaces. However, its validity and possible scope deserve further developments that I hope some will want to take. Finally, I would like to conclude this paper with a sentence that was actually a starting point for these reflections. This quote is from Norbert Rouland, Professor of Law at Marseilles, who told us we cannot define the Law, but only think it. 19

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Norbert Rouland, Penser le droit , Droits, n10, 1989, p.77.