alain supiot

O N T O L O G I E S O F L AW

ow should we understand the role of lawsof ordering, causality, positive lawwithin our modes of thought? As a starting point, we might consider Marcel Granets formulationone calculated to floor a Western juristin summing up all he had encompassed in his classic work on China: Bearing in mind, Granet wrote, that the Chinese never 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 Wests 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. Lawin its most rustic and brutal form: the penal codewould 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 meni.e., by mandarinsin 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.

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The Legalists were said to have engraved their law on the iron cauldrons in which transgressors were boiled alivethus giving it maximum publicity, and rendering its content and sanctions immediately intelligible to all. Kafkas In The Penal Colony portrays precisely the opposite principle: the machine inscribes the occult text into the flesh of the condemned man who, by this means alone, in the ecstasy of his final breath, understands what secret interdiction he has transgressed. Kafkas texts are in the image of the same lawlending themselves to an endless labour of interpretation. Three comments are in order here. Firstly, the idea that the law is an enigma is typically Western; it would never have occurred to the Legalists. According to one of the schools classics, the Shangjunshu: The people are easy to govern, for they are stupid. The law can provide for this and will function well as long as it is clear and easy to understand.5 Secondly, 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, on the question of circumcision.6 Thirdly, the Western mind has always been fascinated by the thought that to incarnate the law literally, as do Kafkas condemned, could be a form of revelation.7 At no point in the history of Chinese thought, not even among the Legalists, is there any concept of the law as guarantee of the rights of the individual. How are we to explain this fundamental difference between Eastern and Western thought? Andr Haudricourtethnologist, botanist, technologist and Orientalisthas argued that the relationships between man and nature are infinitely more important than the shape of his skull, or the colour of his skin, in explaining his behaviour and

La pense chinoise (1934), Paris 1988, pp. 4756. See E. Balsz, La bureaucratie cleste, Paris 1968, p. 15ff. 3 See J. Escarra, Le droit chinois, conception et volution, Paris 1936; for a more naunced view, see Xiaoping Li, Lesprit du loi chinois, Revue internationale de droit comparatif, 1, 1997; for a terminological analysis, see T. Tsien, Le concept de loi en Chine, Archives de philosophie du droit, vol. 25, Paris 1980. 4 Lon Vandermeersch, La formation du lgisme, Paris 1965, 2nd ed. 1987. 5 Cited in Vandermeersch, La formation du lgisme, p. 200. 6 See the debate in Acts 15:134 and Romans 2:25; also Pierre Legendre, Les enfants du Texte, Paris 1992, pp. 220 and 243. 7 Michel Foucault, Surveiller et punir, Paris 1975, p. 9, and the pages Georges Bataille devoted to Chinese torture in Les larmes dros, Paris 1971, p. 237, or to execution of Gilles de Rais, in Gilles de Rais, Paris 1965, p. 92.
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the social history he transmits. Haudricourt proposed a symbolic representation of these relationships: the models of gardener and shepherd, represented in Genesis by Cain and Abel. A social formation may combine these two; but it will be defined by whichever model is dominant in its relation to nature. In the pastoral societies of the Mediterranean it was the domestication of animals that predominatedYahweh preferred the aroma of Abels grill to Cains vegetarian offerings (Genesis 4:3). Asian societies, by contrast, depended for their survival on rice or yams. Plant cultivation is an indirect, sometimes even a negative process. The gardener does not make seeds sprout by tugging at them but by giving them the best possible conditions for growth: light, humidity, soil quality, freedom from weeds and so on; it involves working with nature rather than restraining it. Restraint, on the other hand, is an essential element of animal husbandry, which relies on sticks, pens, dogs and ropes. In each culture, the dominant mode exerts its influence over the regressive one. In the West, the concept of taming nature is evident in attitudes towards plantswitness the formal French garden; or worse, the thinking behind EU agricultural directives. In China, similarly, 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, and its feelings must be taken into account.8 Whereas for Aristotle, There is no friendship or justice possible between ox and man, any more than between slave and master.9

Power and order

As Aristotles dictum suggests, 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, and the dominance of the pastoral in Western religious and political discourse is widely recognized: the shepherd, the Lamb, the faithful flock, the crosier, the sceptre. Power manifests itself in the form of an order, an imperative; leaders and commanders are venerated. In the Confucian tradition, the role of political power is to guarantee the harmony necessary for all to develop their own potential, and anyone

8 Andr Haudricourt, La technologie, science humaine, Paris 1987, p. 2825 and Domestication des animaux, culture des plantes et traitement dautrui, LHomme, Paris 1962, p. 4050. 9 Nichomachean Ethics, VIII, 2.

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possessed of such virtue deserves to wield it: He who is right is followed without giving a command. He who is not right commands without being followed.10 One can understand from this how government by law prospered in the West, while Asia preferred government by men. The idea of applying the law does not make much sense in a garden. The good shepherd, on the other hand, is one who makes the sheep abide by his will. In Christian Europe the concept of ordersocial, natural or celestialhas naturally referred back to that of lawhuman, scientific or divine. Lawyers have had no monopoly on the subject. Montesquieu gives the most famous definition: Laws, in the widest possible sense, are the necessary relations derived from the fundamental nature of all things; in this sense, all forms of being [divine, human and natural] have their own laws. All three types of law share the idea of causalityof necessary relations. Rationality here is the universal governing principle, encompassing heaven, the natural world and man. Thus Montesquieus conclusion: The law in general is human reason, inasmuch as it governs all people on Earth.11 This conception of law is profoundly characteristic of Western thought. Its ramifications go far beyond the legal domainitself now placed within the much wider setting of a universal causality that encompasses divine and scientific laws. This is quite different from the standard approach to the relationship between science and law, usually discussed today in terms of the legal, moral or ethical limits that might restrict the exploitation of scientific discoveries, especially biological ones: using law, in the sense of legislation, as a possible remedy for the malaise of a science without a conscience. If, on the contrary, we see law as something common both to legislation and to science, we can trace the problem in their relationship back to its origins: religion.

Divine tables
The relationship between science and law was posed in comparable terms by Joseph Needham when he asked why the Chinesewhose knowledge and skills far surpassed those of Europeans in every respect until the sixteenth centurynevertheless missed the turning for modern
10 11

Analects, XIII, 6. De lesprit des lois, Paris 1951, vol. II, p. 232.

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science. The chief explanation Needham offered was that European science was based on a conception of law wholly absent from Chinese thought.12 Within the Western tradition, the Ancient Babylonianswho envisioned the Sun God Marduk as lawgiver to the starsare the earliest source for the idea of the divine ordinance of laws of nature, also articulated in human laws, that is portrayed in the eighteenth-century BC Hammurabi Code. The image recurs in Hebrew writings; the importance of the divine legislator in Judaismand therefore in Christian thoughtis well known. Thus, God gave his orders to the sea, that the waters should not exceed his commands. Roman jurisconsuls tried to establish a common legal denominator for the practices of all known peoples in the jus gentium, whence the modern concept of natural law is derived. Under Stoic influence, the jus naturale came to encompass both man and naturein the words of Ulpian: Natural law is that which all animals learn from nature; it is not specific to the human race. In mediaeval Europe, too, the laws of nature formed part of a divine legislation that all must obey. 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. Today the bird would no doubt end up in the hands of a biologist who, rather than punishing such an infraction of genetic law, would endeavour to understand it. The breakthrough in modern science came when scholars stopped setting themselves up as guardians of divine laws and turned to deciphering them instead. It was the hypothesis that there existed, in Descartess phrase, laws that God has established in Nature that, in effect, made it possible to discover these laws and then to express them mathematicallyat which point, God stopped speaking Latin and spoke in numbers. In Europe, writes Needham,
positivist law contributed to the development of natural science by way of its precise formulation, and because it implied that the Earth-bound legislator had his counterpart in the heavens, whose ordinance unfurled wherever material objects existed. In order to believe in the rational intelligibility of nature, the European mind had to presuppose (or found it very convenient to presuppose) the existence of a Supreme Being who, rational itself, had placed this intelligibility in nature . . . We do not find this in Chinese thought. Even the Chinese translation of law of nature,

12

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

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

The religious antecedents common to both human and scientific laws are even clearer when viewed in historical rather than epistemological terms. The concept of natural laws took on a scientific value only with the emerging distinctionand articulationbetween Church and State, between spiritual and temporal power. 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; scientific ideas of natural law flourished at the height of absolutism in the work Spinoza, Boyle and Newton.13 But the origins of monarchist-state theory lie earlier, in the Gregorian Revolution of the eleventh and twelfth centuries, which both separated religious and secular powers and established the Church as model of the centralized state.14 It is thanks to this revolution of interpretation, in Pierre Legendres phrase, to Gratian and to the legalists of the Bologna school, that laws were bound to the principle of rationality, through their inscription in a systematic body of texts. It was in the twelfth century, too, that Abelard formulated the distinction between natural and miraculous causes, and affirmed the powers of reason against those of tradition. Western thought began to tear itself away from the practice of seeking concrete, singular causes, and turned towards the investigation of formal correspondences; for which algebra would provide the most sophisticated terms. It was not until the French Revolution and the dawn of the nineteenth century, however, that science and the state fully emancipated themselves from religion, and Grotiuss impious hypothesis of a jurist
See Needham, Human Law, pp. 2389 and 2223; he refers to the work of E. Zilsel, notably The Genesis of the Concept of Physical Law, Philosophical Review, May 1942. 14 See Ernst Kantorowicz, The Kings Two Bodies: a Study in Medieval Political Theory, Princeton 1957; Pierre Legendre, La pntration du droit romain dans le droit canonique classique, Paris 1964, and Les enfants du Texte; and Harold Berman, Law and Revolution: The Formation of the Western Legal Tradition, Cambridge, MA 1983, p. 85.
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without God became flesh.15 In the realm of science the leap was made by Laplace, who declared that he could explain the universe without recourse to the idea of God. There was, therefore, no further need to refer to the divine legislator in raising the veil of our ignorance; scientific discovery could now replace revelation.

II
It had taken seven centuries to dissipate the confusion caused by having religious, human and natural planes all confounded under one law; and for science and state to assert their modern meanings. We might ask, however, whether the mayhem is not returning today, in new forms. To understand the contemporary situation, we have first to grasp the ambivalent nature of this laicizationthe disembeddedness, as Berman puts it, of laws that, like the Renaissance statues, have torn themselves from cathedrals to populate public squares and gardens. One way of understanding this ambivalence is through the history of art, running parallel to those of law and sciencealthough the mathematization of pictorial space through the discovery of the laws of perspective preceded Keplers laws. The ancient civilizations of the East, of classical Greece and mediaeval Europe objected to the use of perspective on the grounds that it seemed to introduce an individual, accidental factor into a world that was otherwise extra-subjective or supra-subjective. This was particularly true for religious art; the image of heaven could scarcely be subordinated to an individual viewpoint, since this was precisely what it was meant to transcend. Within the laws of perspective, however, the image is rigorously reordered around the perception of an individual subject. Herein lies the ambivalence of their discovery, so masterfully analysed by Panofsky:
One can justly conceive the history of perspective as the triumph of the sense of the real, the constitution of distance and objectivity; but equally, as the triumph of that lust for power that denies all distance; as a systematization and stabilization of the outside world, but also as an expansion of the egos sphere.16

15 16

See Pierre Legendre, Le dsir politique de Dieu, Paris 1988, p. 21. Erwin Panofsky, Die Perspektive als symbolische Form, Leipzig 1927.

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Panofskys comments on the laws of perspective are equally applicable to the invention of human and scientific laws, freed from metaphysics. They, too, effect a systematization and stabilization of the outside world, subordinating relations between men, or between men and nature, to the rule of reason. In the abstract, human law is equally applicable to all, including even the constituted state from which it springs. Scientific law subjects our relation to the world to rational principles, excluding the possibility of miracles or divine intervention. Both sets of laws are reinforced by being seen as elements of a larger body of logic, linking them together. But here they also, in a sense, expand the egos sphere. For the centrethe headof this body of logic is reason; ultimately, it lies in the mind of man. The painters perspective corresponds to the Cartesian cogito, in scientific theory, or to the legislators will in theories of the state. Mastering these laws through his reason, man can aspire to take the place of God: determing the social order, or submitting nature to his rule. The two ambitions have been intimately linked since the Enlightenment, when the project of a law founded on human nature, drawing on the methods of mathematics and physics, was first propounded. We will need to follow their trajectories futher if we are to situate the place of law in contemporary thought.

Uncertainty principles
Throughout the twentieth century, the law has become progressively more inaccessible to human reason in the very realm of its secular triumphs; giving way to the other notionsparadigms, models, ideal types, structures, markets, fields, systems, conventionsthat become its avatars. In the nineteenth century, natural scientists still met at international congresses to establish what the law was on controversial points. Nowadays, the idea that there are such definitive lawsin the sense of Newtons, sayis held only for very limited sets of circumstances. With Heisenbergs uncertainty principle, physicists have admitted that the infinitely small is inaccessible to law: it cannot be accurately observed or measured. In the human sciences, Freuds discovery of the unconscious was the recognition that there was an obscure region within man that defies logical determination, even if it operates as a language. In the political sphere, the constituted state and the law are still standing, or still propping each other up; but they have lost their former solidity. As if fallen prey to a new forms of feudalism, the state seems to have given 114 nlr 13

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, or simply retreats in the face of markets and conventions.17 For Saint Paul, as for Luther, law was infinitely more powerful than man. Drers Melancolia I expressed, at the dawn of the modern age, this sense of reasons powerlessness to grasp the worlds complexity, and nostalgia for a bygone time when thought could rest within the law of God. Now, as in Kafkas parable, a man could spend his life waiting for the gates of the law to open, while counting the fleas jumping from the gatekeepers beard. And even if he got through that gate and deciphered that law, he would find a thousand more behind it, each one a thousand times more difficult to get beyond. Cut off from its religious antecedents, however, the law could liberate that lust for power that denies all distance. The role of divine legislator had fallen vacant; man could not but try to fill itto grasp control of the foundational discourse of all law. But such a discourse needed a legitimacy comparable to that of the natural sciences; the latters methods were therefore transferred to the domain of man. Auguste Comte hoped it would then be possible, in the words of his mentor SaintSimon, to replace the government of men by the administration of things.18 Such certainty that a scientific, technical norm was destined to wholly supplant human law is also found in Marxist legal criticism.19 Confronted with the injustices of their time, Saint-Simon, Comte and Marx dreamed of humanitys liberation when, having overthrown divinity, it would find in the laws of science the means of emancipation from the power of states. Enlightenment thinkers had replaced the trinity of laws with a duality, natural and human law, united under the aegis of reason. To reduce this duality further, the nascent social sciences attempted to establish the unity of scientific laws, and thereby render redundant both theologywhose position they would usurp in the universitiesand law,
17

See Legendre, Les enfants du Texte, p. 279, and Remarques sur la refodalisation de la France, Paris 1997 ; also Ph. Grard, F. Ost and M. Van de Kerchove, eds, La loi dvore par la convention, in Droit ngoci, droit impos?, Brussels 1996, p. 631. 18 See Wolfgang Lepenies, Die drei Kulturen. Soziologie zwischen Literatur und Wissenschaft, Munich 1985. 19 See, notably, E.-B. Pasukanis, La thorie gnrale du droit et le marxisme (1924), Paris 1970.

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in its strictly juridical sense. On a purely scientific basis this project was doomed to failure, since to commit ones thought to the search for laws requires an awareness of the limits of ones understanding. As the social sciences slowly accumulated an unprecedented stock of knowledge, the sheer complexity of what they discovered demonstrated the vanity of promulgating cast-iron lawsof history, economics, society that would determine the outcome of human destiny. On the other hand, this project enjoyed extraordinary political and ideological success, as it offered the lust for power literally unlimited horizons. Which is to say, it opened the door to madness. 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. It was not in their resemblance to religion, however manifold; though granted, 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 historysurvival of the most progressive classor of naturesurvival of the fittest. Numerical comparisons of those massacred in their name reveals little; the difference lies elsewhere. Biblical law, like the law of the French Republic, always addresses man as subject; it grants his identity in the same instance that it postulates his responsibility and his freedomeven the freedom to break the law and therefore incur its sanctions. The laws of science, on the other hand, view man as object; they explain him by relating what he is and what he does to objective determinants that are clearly beyond his responsibility.

Reasons failures
Scientific laws know neither innocence nor guilt, only the linkages of cause and effect. It was in this sense that, as early as the sixteenth century, the Spanish theologian Suarez wrote that one could only speak of law by metaphors regarding things which reason fails.20 To aim at founding the laws of society on science assumes that one no longer envisages men as subjects, endowed with reason, but as objects, particles in a magnetic field, animals on a stock-farm, things which reason fails. The elimination of the subject of law in the name of science is the delirious ground on which totalitarian thought is anchored. Hannah
20

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

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Arendt expressed it better: the first essential step on the road to total domination is to kill the legal character in man.21 Negation of the legal guarantee of individual rights is therefore the hallmark of the totalitarian regime, which sees itself as the instrument of a higher law, scientific and superhuman, that renders the state and positivist law redundant. Both Communism and Nazism conceived of the state as a puppet at the service of the Party, an ostensible government obscuring the true location of power. The state, wrote Hitler in Mein Kampf, does not represent substance, but form. Both doctrines also rid positivist law of its substance, leaving only the name. We shape the life of our people and our legislation in accordance with the verdict of genetics, the Hitler Youth manual stated. Hitler himself repeated many times: It is not the State who commands us, but we the State, and that The State is merely a means to an end, that of preserving our race.22 The distinctive trait of the Nazis extermination policies did not lie in taking the lives of millions of innocent men, women and children, but in stripping them of the different layers that made them subjects of law: depriving them not just of their jobs, but of their professional status; not just of their property, but of their right to ownership; not just of their homeland, but of their nationality; depriving them finally of their name, by turning them into numbersdestroying their human status before taking their lives. The murderers themselves, too, did not simply act in the name of racial lawthey were that law incarnate, all distance between the two denied. They were to consider themselves as cogs in a wheel moved by superior forces, and to discount any sentiment of responsibility or guilt. The political application of these supposedly scientific lawsthe biological survival of the fittest race, class domination by the engine of historythus implies the liquidation of the anthropological function of positivist law. According to Arendt, such laws have the role of
marking out boundaries and forming the means of communication between men, as the community is always threatened by the new arrivals born into it. Each new birth is a new start in the world, virtually a whole new world that has been born. The stability of laws is an answer to this perpetual
21 22

Le systme totalitaire, Paris 1972, p. 185. See Arendt, Le systme totalitaire, pp. 76 and 258.

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movement which affects all human affairs, a movement that will carry on as long as men and women are born and die. The law surrounds each new life with barriers and, at the same time, guarantees its freedom of movement, the possibility that something totally new and unforeseen may occur. The barriers of positivist law are to mans political existence what memory is to his past; they guarantee the pre-existence of a common world, the reality of a certain continuity which transcends the lifespan of one generation, which absorbs all new beginnings and profits from them.23

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

III
What role does the idea of law play in our modes of thought today? Its steady decline seems, at first glance, the most salient feature. Jurists speak of the inflation of laws, their volatility, their inability to retain a hold on an overly complex world; it is the contract whose stock is rising on the legal Bourse. The social sciences seem to have abandoned the attempt to reduce the order of things to fundamental laws. In the natural sciences, what haunts our nightmares is the fear of a technology or biology beyond all human control. As for divine law, while killings and massacres in the name of various Gods go on in front of our very eyes, the separation of Church and State has nevertheless limited their effect. The definition of law as a linear sequence, linking cause and effect, was already in decline in the twelfth century, 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. The idea of corpus juris had been absent from Justinian compilations; it was first
23

Arendt, Le systme totalitaire, p. 211.

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introduced in medival times. Thenceforth, a single law no longer sufficed; it only had sense and value when related to a larger framework. It is this concept of a system, of a logical matrix of laws, that continues to exercise a hold on Western thought. We admit that laws are relative, but immediately go on to say they are relative to each other; it must therefore be possible to devise a theory of how they relate. As, at the dawn of modern times, the search for laws replaced the search for causes, so now the search for an order of orders, in Lvi-Strausss phrase, has superseded the search for laws. Yet there is more disagreement than ever on how to define this system, and new versions proliferate at bewildering speed. But of course Im informed! cried Witold Gombrowicz in his auto-interview I was a Structuralist before everyone else:
Believe me, Ive read here, there, a bit of Greimas, Bourdieu, Jakobson, Macherey, Ehrmann, Barbut, Althusser, Bopp, Lvi-Strauss, Saint-Hilaire, Foucault, Genette, Godelier, Bourbaki, Marx, Dombrowski, Schucking, Lacan, Poulet, as well as some Goldmann, Starobinski, Barthes, Maurron and Barrera. Im up to date, even if Im not sure which date exactly . . . there are just too many of them.24

Too many indeed. I will therefore limit myself to considering just two paradigms for such systems of rules: language and the market. According to Jakobsons general theory of linguistics, itself adapted from physics, the increasing number of laws we discover highlights the problem of the universal rules that provide the phonological basis of the worlds languages, as their ostensible multiplicity is largely illusory . . . the same laws of implication underlie all languages, from both a static and dynamic point of view.25 For Lvi-Strauss, the strength of the linguistic model was to bring to light such syntactic and morphological laws. The task of anthropology, too, must be to derive from the most diverse forms of social life systems of behaviour that are each a projection onto conscious, socialized thought; universal laws which govern the minds unconscious activity. The force of structural analysis rests ultimately upon the presumed identity both of laws of the world, and those of thought. What interests the anthropologist here is unconscious laws, determining mens behaviour without their
24 25

Gombrowicz, Paris, no date, p. 228. Cited in Claude Lvi-Strauss, Anthropologie structurale, Paris 1974, p. 100; emphasis added.

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knowledge. The goal is to construct a social model whose systematic nature has hitherto been unperceived in that society, by penetrating the conscious models that mask societys fundamental structure from the collective consciousness.26 Lvi-Strauss envisaged the extension of the paradigm to encompass economics and even genetics. In every society, he wrote,
communication occurs on at least three levels: the exchange of women between men, the exchange of goods and services, and the relaying of messages . . . One could even add that the rules of kinship and marriage constitute a fourth form, that of genes between phenotypes. Culture does not simply consist of immediately recognizable forms of communication such as language, but alsoperhaps more importantlyit consists of rules applicable to all communication games, whether played out on the plane of nature or of culture.27

The exchange of goods and services, however, has already been subsumed by another paradigm, threatening to eclipse that of structuralism. The market, like language, also presents itself as a system of unconscious rules which spontaneously govern human relations.28 Until recently, however, political economy was defined by its object: the production and exchange of material goods. 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, which might legitimately be applied to all aspects of human life. This proposition has been rigorously defended by Gary Becker, who argued that economic analysis is based on three axioms from which numerous theorems of human behaviour can be derived: maximizing behaviour, market equilibrium and stable preferences. The laws of the market operate beyond mens consciousness and independently of the rationality or otherwise of their behaviour, driven by an invisble hand. Becker sees heuristic qualities in economic analysis at least equivalent to those
Lvi-Strauss, Anthropologie structurale, pp. 71, 74, 107 and 3345; emphasis added. Anthropologie structurale, p. 353; emphasis in original. Note the reference to game theory, which is itself founded on the idea of a system of rules. 28 The analogy between the exchange of words and the exchange of goods is already present in Adam Smith. Jean-Claude Perrot underscores the longstanding nature of the connection between language and money in the work of thinkers such as Locke, Hume, Turgot or Condillac: Histoire intellectuelle de lconomique politique, Paris 1992, p. 333.
27 26

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attributed to structure in sociology. Everything can be seen through the filter of the market: politics, law, marriage, sex, bringing up children, relating to ones times. The market paradigm has been applied across ever wider spheres Richard Posners Economic Analysis of Law is a case in pointnot least by those who seek to expose the inequalities of its relations. Such is the case with Pierre Bourdieu, who, although he has made much use of the concept of fields, drawn from physicsin which individuals can be regarded as particles subject to the magnetic forces of attraction and repulsionessentially derives his categories of thought from economics. Metaphors of capital, prices, interest, and so forth dominate his work. It is one and the same thing, he has written, to determine what constitutes a field and its limits, and to determine what form of capital operates there, and under what constraints. In these markets or fields, individuals deploy three types of capital: economic, cultural and social. As for the power of the State, it is a type of meta-capital capable of exerting power over the others, and particularly over the rate of exchange between them.29 Like Becker, Bourdieu applies concepts derived from economic analysis on a much wider scale: a general science of economic practices . . . is not artificially restricted simply to those practices socially recognized as economic. Here too, extending this method to social relations as a whole should make it possible to reveal the unconscious determinants of human behaviour. There are general laws of fields: fields as varied as politics, philosophy and religion all have constant functional laws (which is what makes the project of a general theory a reasonable one).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, (b) are
29

Pierre Bourdieu, Rponses, Paris 1992, pp. 734, 82 and 90; and La distinction. Critique sociale du jugement, Paris 1979, p. 93; emphasis in original. 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 (Rponses, p. 94). 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, Paris 1982, p. 188. 30 Bourdieu, Questions de sociologie, Paris 1980, p. 113.

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capable of self-regulation, (c) leave space for human initiative, whilst (d) submitting humans to the implacable decrees of a hidden legislator, be it Platos Cratyle or Adam Smiths invisible hand. Numerous categories of thought currently emerging out of the social sciences, such as that of the network, appear as hybrids of market and structure.31

Darwins subjects
What of positivist laws themselves? Within the social sciences, they appear to have been swallowed up inside each rules-system. The structural anthropologist considers them a screen onto which beliefs are projected, masking societys deeper structure; the economist will analyse them as administrative instruments, whose effectiveness depends on their compatibility with the laws of the market; the sociologist of fields will see them as instruments of symbolic domination, to be analysed according to the logic of the legal field.32 Difficulties emerge, however, when one thus dissolves positivist law into a science that is to reveal the true laws of humanity. Not only does one lose the notion of the legal subjectreduced to a particle, economic or linguisticbut the concept of justiceto which mens (false) consciousness ordinarily refers all lawsis also dissolved. Put another way, we now arrive at a social science without conscience. On what, then, are the ideas of justice and solidarity to be based if not on law? Becker, who describes himself as performing his investigations relentlessly and unflinchingly, does not attempt to minimize the difficulty of this question. The answer, he claims, is to be found in genetic law. Altruism towards ones peers is a condition for survival among many species, and has therefore been genetically selected; and what is true for animals must be true for man.33 Becker, too, like LviStrauss, ends by looking to genetics to discover the essential laws of human behaviour. Many others are currently negotiating this slippery slope. Certain biologists, whilst keeping their distance from sociobiology, are currently developing an evolutionary anthropology which would
See, in particular, Manuel Castells, The Rise of the Networked Society, Oxford 1996. 32 Pierre Bourdieu, La force du droit. lments pour une sociologie du champ juridique, Actes de la Recherche en sciences sociales, 64, 1986, p. 5. 33 See the chapter entitled Altruism, Egoism and Genetic Fitness: Economics and Sociobiology in his Economic Approach to Human Behaviour, Chicago 1976.
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connect adaptive strategies to universal genetic givens.34 Concurrently, a progressive Darwinian Left is emerging which would adapt the idea of social justice to genetic determinants. It seems important to reassert, in this context, the anthropological functions of positivist lawthat is, to recognize the role it plays in constructing collective and individual identities and in providing each new life with a humanly created social given. 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.35 But this indignation can neither guide nor be guided by intellectual labour if one totally abandons the notion of positivist law. 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. A careful study of the way in which that institutions pillars are now cracking, and of new articulations of laws and codes, could permit one to elucidate the relationship of the two today. EU regulation would provide an ideal specimen: here, at first glance, there are neither laws nor state. What concept can one use to describe that unidentified legal entity, the European Union? Under what category are we to classify those non-lawsCommission directives and rulings? In law, the EU is neither a state nor an empire, simply a system of textsbut one that lays down the law for member states and has now produced its own currency. The state is receding as central organ for juridical responsibility, but laws themselves are surviving this retreat, just as their value becomes more relative and local. The idea of law endures within this formnational laws inserted into an overarching EU rules-system that is now their lawbut which still leaves room for diverse national and local realities. One cannot help but draw a parallel with the evolution of contemporary physics, which has also renounced the notion of caging reality within the
For Richard Dawkins, we are survival machinesrobots blindly programmed to preserve the egoist molecules known as genes: The Selfish Gene, Oxford 1976, p. 7. See also Matt Ridley, The Origin of Virtue: Human Instincts and the Evolution of Cooperation, London 1997; Jerome Barkow, Leda Cosmides, John Tooby, eds, The Adapted Mind: Evolutionary Psychology and the Generation of Culture, Oxford 1992. 35 Viviane Forrester, Lhorreur conomique, Paris 1996; on the striking parallels between the economic vulgate and totalitarian discourse, see C. Dejours, Souffrance en France. La banalisation de linjustice sociale, Paris 1998.
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text of laws. It also confirms the heuristic value of Montesquieus theory of the relativity of positivist laws:
They must relate to their locations physicality, to a freezing, burning or temperate climate, to the quality of the terrain, its situation, its size; to its peoples way of life, be they labourers, hunters or shepherds; they must relate to the degree of liberty the constitution can allow; to the religion of the inhabitants, their inclinations, wealth, number, trade, mores and manners. Finally, they have their relations between themselves, with their origin, with the intentions of the legislator, with the order on which they are established. It is in the light of all these aspects that they must be considered.36

36

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

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