HOMO JURIDICUS On the Anthropological Function of the Law ALAIN SUPIOT Translated by Saskia BrownTian wn eis sr sous Mat ns dh This kon pti by Yeo 2007 ‘Ss Spe 207 Tamla SBD a a is rt tro © a a cme “The mor he ofthe ator and eto hve cn acd Us 6 Mea Sane, Landon WHF EG (ss ID Vat Seay New Yo NY 08 as teh hy Calne Pion ‘cali ed fer i ok aie mth hay of Cong Coleg ubheatin Dat ealog eStart elle fom te bay 9 Cones Type Son by Hewes Tox UX Le Bergh te ound athe USA by Court Seon CONTENTS Prologue are One: Legal Dogon: Our Founding Beliefs 1 The Human Being as imago Dei ‘The Normative Institution of the Human Being ‘The Legal Foundations of the Person ‘The iil, Unique and ideal ‘The Subject, Sverige ad Subjected The Person, Spt and Incarnate ‘The Third Pany az Guarantor of Identity ‘Towards Toeal Emancipation: Humanity Decomposed 2 Law's Dominion dur ex, eo lew Variations on a Mode of Thought “The Human Mastery over Laws The Human Being Explained by Laws 3 The Binding Force of the Word: pacts sunt servando ‘The ‘Civiizing Mission’ of che Contact ‘The Origins of the Contact “The Sate st Guarantor of Agreements Feudal’ Revival inthe Conersetoal Bond ‘Part Two: Legal Technique the Resources of Interpretation 4 Mastsing Technology: che Tecique of Inverdiction Lav is Pat of Technological Progress rom th Institution tothe Network From Rules to Repadation Law Homanes Technology Ubigty aed ts Limite ‘Transparency and ts Limits Procreaton and the Reproductive Technologies m us a uy m1 12. i5 Calling Power 19 Reaso: from Government to Governance 146 he Decline of Soverigaey 190 “The Metamorphoses ofthe State 152 The Separation of Power from Aubority 156 The Dismanting of Leisnve Power 19 “The Enfcoffaent of Freedoms 17 ‘The Standardisation of Bebasiour 188 The Inramentaication of the Sources of the Law 180 6 Binding Humanity: on the Proper Use of Han Rights 185 ‘The Creed of Homan Rights 187 ‘The Thre Figures of Wesern Fundamentalism we ‘Meson 13 Paricaarton 3s Scientia 7 Opening the Doors of Inerpreation 23 Huma Rights: Husmarsty's Common Resource 204 ‘The Principle of Solidarity Revived a7 Towards New Modes of iterpreztion 22 Bibliography ar Index be PROLOGUE Cises, mort, wappunes pat, le glace et sous vos bat fap Prese-Yoes Narr? Humans are metaphysical animals. As biological beings, they Sspprchend the stor through their sense ongans Bi they inhabit ‘not only universe of things but also a universe of signs, extending beyond language and embracing anthing that gives material frm to an iden and so may evoke what ws physcally absent, The Universe of signs encompasses all cigs in which ‘meaning 3s invested, pariulaly manufactured objets, insofar as they embody the ides that presled over their production and hence may be disenguished ftom natuel things. Iisa aiverse that inclodes the ‘most commonplace objects, such as 2 hewn stone or 2 handkecch icf as well a the mow sacred, like the Mone Lisa or che Pantheon ‘This univene also encompasies distinctive signs (clothing codes, makeup, tattoos) and body rouines gestures tual, dance) that transform the body self nto a signe The hfe of the senses is inseparable, for humans, from the sease we confer on Le, for which we ate even ready to di, ving dest tls sense. ei vital foe us to assign meaning to ourselves and tothe worl, in ordze to avoid sinking into meaningessness, tha is inorder to become and Feimin rational beings very human being bora nto world fens, the sease ofa world already there, which gives meaning to his or ber existence. In order to Jai atces to this word every child must learn to speak au 50 subject him or herself to che leilatoe af language’ yas Plato 595, thskegishtor ‘sof allcheartsansamongmentherarest; iis becuse 1 [ade mol en ct ey the ce ent Yo hi Skin, ri ae NF Camis MA Havasshe has the appearance of our mucher's fae: our mother ong, which Sour ine wace of ene x alo the primary remsrce of the dogmatic belies necessary for the consition ofthe subject. IF Weare enjoy ‘inking and expresting curves Geely i langage, we me it Sukie to the limits that give words meaning: withoue ths radical eterno we would have no autonomy. Bat cven before the new ‘orn cid siives at an awarenes of his or her being through speech, the or she is named sated in a lineage: a place will have been stribured to him or her within the sceeson of generations. That before we ean dispose ofouteives (ely and say T, we are already 2 sujet of a bond ~u ject tone unde y wor wh ie tt to others The bonds of law aad the bunds of speech converte enabling evry newborn child to became a menber of humanity, it tother words, co have thei life endowed wich recognized meaning Wherever people ae cutoff from ther fellow creatures they are condemned to ioe, in che eymologial sense ofthe wera zon the Grek iis: ‘confine co ones), a are people who cannot envisage that universes other than their own exist and who are therefore incapable ofariving at consenatal epeesenaton of a world where ‘we would each havea place. The aspiration co justice ths, for beter tnd fr worse, fundamental anthropological fact and nota hangover from prescienfic modes of thought. People will kil and die for 2 ce they consider just (Predom, County, God, Honour, and x0 forth) ~ which spies tha we each bear within ws 2 om "Human beings are noe born rational, they become so by gaining seco 10 messing shared with ochers. Erery human socesyin ie fon ay undertakes the institution of reason. What we eal Srosety is a weave of speech binding people together (which by the sme token makaa an ‘animal society” Impeasble) “Law” and “contrac are eo sorts of legal ties by which we are bound and which bind people together under “nw” ave can cass texts and words imposed on us independently of our wily and under ‘con 5, Saran Clana comeend tothe Grok er ct esmuemom ch rion main} mb ye eed ‘tute an agin tare el tele aso e ga ed tay he wom ali Srey (cE Detosare ge del ange oe, Pest ber 99, Sok Maly, A Lenco Anan Lat yp, La Car, 1 {Suet Login Des nat comme ete cet de ropaoge trac’ those stemming fom an apreement freely entered nto with an fother. We are ech hound by oar civ satus a5 determine by lave before being hound by any commitment we may make. Moreover, not everthing we say i binding onus, or brings obligations inthe Teeral and etymaogicalsease ofthe ter (obligaye: tote to); foe ‘example, [ant in a0 way bound by what I am writing 2t this moment and I reserve the right to po back on what T say, oF ontradice mel, Within the words and texts that bind mc t0| ‘others, that create obligations we most identify those which come ‘rom me and those which come from others, since the le oaly have authority over me and logically came fist in my ie, even thngh [did mt promotnes them myc or gve say eset them, ‘Oue concepts of law and contact are therefore intimately related, Both stem from the belie in a divine Lesslatr who youches for the Pledges made by those who believe in Him, who are true to Him tnd therefore tte to theie word. That why auch notions do not tis inthe same abstract and general formin other civilizations for fsamiple in China and Japan. The idess of law and contract ‘common to the ciiations of che Book constitte only one way ‘of instituting justice among people, and bringing them under che fle of reason, Teds by transforming exch of us into a homo uvicus that in che West the iological and symbolic dimensions tat make up our being have been linked together The law connects our infinite mental universe with our Fite physical exsence and in so ding ful the anthropological fonction of mstcwing us as rational beings. To reece the biological or the symbolic dimension leads to the insanity of {ueatng humans a mere animals ora pure mind, subject bo iis that aze not elimposed. Pasal expressed this connection inits mot scince form: Man is nether angel nor beast Yee we find t hard to tras this imple idea because or categories of thought se che body ‘gaint the mind, "isterialism’ againe spinels The progres of Science and thology has moreover exacerbated ths divison. We fre convinced that aman beings maybe explained jst ike any other rataral object. The natural sciences ts agued, wil one day be able to reveal and proces all here i to know aboutus, 50 tha, hen all inysteries have been elucidate, we wl be abl ro escape all natural Eonsrains: we wil choose our sex, remain untouched by age temp over illness and ~ while we are at it~ over death ise To view the human being aspure objet ox pure mind are ewo sides of the same luna. ‘One ofchelesions that Hannah Arendedeaws from the experience of|toraiaianam is that The fist esetial sep on the road to total mination sok the juridical person To dens the antvopoloical uncon of the law in the name ofa supposed relam groundd ia [ology politics or economics s somthing that al ttltaean promt hve in cornaon, This fea seems ta have been forgotten by the urs: whoroday argue tha the legal person sa pure construct bexing ro relatonto the coneree human beng. And, ined, the legal person is je chat,» const, but in the symbolic universe that i curs everything isa construct Legal personality i certainly nota fact of ‘ture, bue rather a eran representation of che human being that Posts the unity of body and mind a the same time ast femulates a ‘prohibition: that the human bring shuld never be reduced onesie To either. Inthe wake of the horrors of Natisn, it war dezmed necessary 0 extend legal personality and che proiliion it contains ‘weery person wherever they might be eis ths prhibiion thats reall being challenged when people today eck to disqualify the subject ‘flaw and reat the buna being as + mere accounting uni ike eae, for and i amounts to the same ~ as a pure abstraction” "This rete approach tothe human being goes hand in hand with dhe development of aithmeucal calculation, oa which pial ‘sm and movern science were built. A good example ofthis devel ‘opments the way the legal principle of equality has bees mapped ‘onto arithmetical equality, so aso abolish al difference: fT sap <2= >, then a maybe ilferetly replaced by wherever ec ich that . If weapply cisco sexual equality, jemeans ‘that aman sa woman and ice rea. But equality between men ad women does sot mean that sen ave women, even if they cay ometimes dream of being 3, The principle of equality between the sexes is one of the most valuable and vulnerable achievements of| the West, but it is doomed in the long tem if itis conceived ‘mathematically, that iif the human being is treated as a purely fquctacive Uni, Thinking and living equality weithoet negating. “Usferences is precisely the cificle task chat modern societies con frone today. This is elevane noe only to relacons berween me and women but equally o rations bewen men or women of diferent atonal, customs, culeue, religion oF generation. Whar dita 5H Arca, The Origin of Totalitarioniem Lando, Ale Uo, 7, suises capitals is not the pursuit of material sches but the Subordination of the diversity of people and things to the cule of ‘guaniy. Ie is 2 rule thar engenders ludicrous interpretations of oualey when we are encouraged to bebeve ia abstract aumbees independently ofthe qualitative chaacer of what e are counting Clculating & ot thinking ad the arithmetical rationalization on Which capitalise is bul degenerates into madoess when st leads People to believe shat what cannot e alelated or tht very reson fas no significance, The sblty to caleulate 8 without doube an ‘senda atebute of reason,’ bt it snot reason in its eniey. The lesa formalization of sich an ability has le othe invention ofthe computer and che proces wheres the human mind projects ise ‘nto an object has, from the very fist earved fling, ben the agent of technological progress andl masery over the material worl. Buc the al of copstivi which currently eeplaces yesterday's Science of ‘Mind moves in the opposite direction it proects onco the human rind che model ofthe ealulting machine, hoping, with the help of = few sanotechologie, to end up mastering thoushe isl Like the prevalent economic ideology, i is based on the belief that rational beings are exclusively calculating beings sich tha their bchaviour fan, in tur, be alculted and programmed. But, in onder t0 Calculate, we must fist be able co forget the diversity of things snd. beings resning only their mont Basic charscerstes thee number. Whit enables us eo Forget this diversity ~ without which ‘here would be no ealcultion of interest noe senific alalation =e thar other fact of human reason, which covers everthing that ‘numerical abnraction leaves out. For even mathematics cannot do ‘without undemonstrable postulates, ts axiomatic basis. We cannot {id wpenteplars and clouds becntse we can only count deniiable bjt in which we pose some common trait and the categories of ‘thoughethrongh which we enti and clsiy natural objects arenot ‘hemelves mathematical which does not mean that they are not ‘ational. The labour of though sto give meaning to calculation by Systematically relating the quantities measured roa measure of sense “There inevitably remains «dogmatic ment in otc definition oF esis 1, Sel Got, The inf Quit ond he Sg of te Times tae Lod hese curt a we ene amon ble | smal dai! sah, ewe ar lyre of ieseme, insofar as our categories of thought are or agit of matures they are the means by which we seek eo understand i Sapere aude! “Have conrige to use your own reason!" Kans famous precept reminds us of the act of faith on which che Enlight cnmene rssh inthe human being a sationl being We believe in the Enlightenment if we belive thatthe human being is capable of thinking feely. Such an act of faith should not preven us fram ‘examining the conditions under which the haman being may Become 2 rational being, but i should prevent us assimilating the human being to an animal o a machine, or professing to explain him or hee sway thragh extemal determinants Whenever the decipline of he Ihaman scenes atteopes to imitate the merural since, reducing people co objects that can be programmed and explained away, it becomes a mere relic of Western doama, a poful reminder of the decomposition of scientific cought ast basis itself with eliminating the very questions it should be addressing. Besides the persistent efforts to force society inco the mould of mechanics or biology are loomed to failure because whereas biological norms may be di ‘covered by examining biological organisms this is nor the case wieh human societies. The founding porm, which secures ove place within 2 given society, cam only come free outside it For Goorges Can fuller, this feature extaine “one ofthe major probleme of huraan, fxistence and one ofthe fundamental problems that reason attempts to addres. Te implies thatthe meaning of fe cannot be found ‘within oar ongans bu only in relation toa pone of reference ing ‘Outside of uf we refuse to edt this, and identify resson with ‘Sentfie explanation, or lw with biological regulation, we wil give fee rein to madness and murder and if we remain bind co the rnecesity of inating reason, society will appear to simply a8 = mass of elementary particles diven by the calculation of saividval utes or by a ptystcorchemical makeup. Insucha framework every aman being stent be a elf aficent en, whereas in reality sot a single one of us can do witout the others. Without a common reference point guarantee & meaning anda plac foreach of us we become ciught ina cap of selfvefereatality, wih no choice other 10 Ka Beantrto Prag wt ang! (0783) aby ey hr ar Een Cae of rl eno Le pone ds ulation Sans Yorgi dan a stance sie ser 5 ember Ober 5, than solide or violence: That is how we arive atthe war ofall tgsnst ll, sofering what Vico called the svi malady of peoples in Secsy= I wince and eechnology, a8 well ache ser economy, are history the prodets of Western civilization and are stil closely linked to thts ecane ofthe beliefs on which this citations founded. Scenic and technologial progress stemmed from the belief tha che Earth was God's legacy to humankind, that Nature ‘was organited according to His unchanging laws and hat knowledge ‘ofthese laws would give humane mastery ver Narute, The materia prowess of the West, andthe consolidation of ts emit this ones ‘ch to Chencianity.” We tend to think that allthis belongs tothe pst and the Wentern societies ave freed themsclves from religion. The ‘disenchantment ofthe work? an the desertion of eligion’ have beconne commonplace in the sil sriences tothe extent chat many ‘Wenerners consider the continued attachment of ether people othe religiows foundations oftheir societies sb an achae tr destined to Aisappeas. Bue we should not forget thatthe meaning ofthe word ‘religion’ has changed ino its opposite with the secularization of society. There i eigion and Religion. Wheres previously Religion onsiuted the dogmatic foundation of soe}, nowadays i 18 4 ‘question of individual freedom; a public afar is became a private tne, which is why discussing zelision coda i unfailingly a source of misunderstanding. In medieval Europe, Religion was not a peiate matter and so had no existence in the sense che word has rsa." At the tne, Religion determined the legal status of both the Pine and Ini subjects. Even commercial law, the ex mercazora which evel ‘oped daring that pein, was the work of ood Christians nied in| commoa fat ad the rust account’, which was later to became 4 powerful instrument of capitalism, was invented to serve the needs of 174 ale by De ash Peo the New See Concern he tie Natio pbk 38h BR ‘chee thot pl ttre rom eval Cin This enperi oct ‘iy ag dig hy ae ht te shen rc Hs hl pon pl ae 10 Sef cma, La ryan Moye Ae’ Raion rae 15,1985 snp ime Ur Crs, eerie, temp, Ea dpaFranciscan monks who di not want 10 own the goods chey had received by donation. The ides of a undying eae derives from that Of the mijstc body, in the theory of the king's two bodies “Medeenty brought sb the secslriation ofthese notions inthe ‘Wess, with the Sate xcoming the ulimate guardian of he deni of persons andthe guarantor of the peiged word. Buta distinction has remained between what one cola Broadly cll the ral of faith and the rein of ealeulaion, The real of faith isthe real of the qualiacive and che undemonsteable cis basically the sphere of lw and of public debe, The realm of calculation, ofthe uanskatve i the sphere ofthe contract and negation, "The fect that Christianity no longer has any constitutional position in cerain Wentern counties im no wny inplies thatthe aur are noe founded on dogma. States, 20 less han people continue to be sustained by undemonserable certainties, bis that are not the rel of free choice becuse they are pare and parcel of| fne's dati. Ask an Enlshman fhe believes in the Qc’ (head fof state and of the Anglican Church: ‘God save the Queen?) or a Frenchman if he beheve in the Republic (indivisible, secular, democratic and social’, and it wll sound today 2 absurd as asking the auestion ‘Do you believe in the Pope?” would have in mesievs Europe, OF courte the late credo of Wesern man is that he 0 longer believes in anything, s position that is particulary wide spread in former Catholic eninties where the separation bereeen State and Church is greatest But even chose who today Lael ‘thematlves as unbelievers wll realy adit co bebeving in the ‘alte ofthe dollars in shee wallets, although thoe are nothing but Sceaps of paper cis te that they Bear the words" God we crust tnd tht the President ofthe United Seats who is sworn in onthe Bible, misies no opportunity to remind as of the special bond between is councry and God” 2 bond echoed in the moteo ‘God bess Ammer. But we place our confidence equally in the yen or copa ln 8S a) Palen oa Pa SHLD pp. rit Kenmore Kn Tf» Sym Mesto Pate etc C4 magn Caden ane 02, Pree sb Scared he {Goin the Pepe of lnc oc te ih Asa mero fo | ‘Slut effaced ou gif God ne prc ct Dette of ncpentec Une Pres national, 38 une 3, a USA Today, 2 oe 3 the eur, even though we have taken pins to eradicate any religous Feference fom then "Tzationa? beliefs instituted and guaranceed by the law ean thus be foun atthe very eset ofthe thm] rationality which the kallmark of our times. Even the economy, insofar ov it inveves exchanges above all concerned with credit eeymologicallycredere “wo believes and, in ts free trade form, is based enue on legal ‘eign sachs legal personality or the eircom of debe clin, that 1s the cicultion of beefs These dogmatic foundations of the racket” eeurface whenever the confidence of economic opereors begin to waver. One has only to cast daute upon the veracity of = ‘compuny’s asounes ~ chose mysterious ions ceed by asounting zs forthe good old techniques of the oath and severe punishment ‘of pevury, which Arvrican law is extending tothe whole worl, to ‘come galloping back, in ager to eestove confidence inthe authenticity Of these revered figures.” When alli aad and done no State, not tren those that declare ehemscvesctally seul, can do without 2 certain number of founling beliefs which cannoe he empiically ‘emonsteated and yet which determine is nature and actions. Jot asthe abilty 1 communicate, and freedom of spech, would be Impossible without the dagmatic rules of language, 0 people cannot lie freely and pnceably without the dogmatic ature of the lv. “The Wess project of dominating the et ofthe worlds based an its conviction that it posseses the tuth and is superior to all other sccseis. This conviction hes remained intact throughout the differ fot forms ie has taken Aitoraly. Ie was fise conveyed by the dogmas of Christian Rome, in which the iden of the West ignated, Sn opposition coche Christianity ofthe Eastern empie twas in che zame of these dogmas thatthe non-Christian world was frst con