Homo Juridicus

On the Anthropological Function of the Law

Alain Supiot, Saskia Brown

• Publisher: Verso
• Year: 2017
• Print ISBN:
  9781786630605
• eBook ISBN:
  9781786630612
• Topic: Social Sciences
• Subtopic: Human Rights
• Index: Social Sciences

In this groundbreaking work, French legal scholar Alain Supiot examines the relationship of society to legal discourse. He argues that the law is how justice is implemented in secular society, but it is not simply a technique to be manipulated at will: it is also an expression of the core beliefs of the West. We must recognize its universalizing, dogmatic nature and become receptive to other interpretations from non-Western cultures to help us avoid the clash of civilizations. In Homo Juridicus, Supiot deconstructs the illusion of a world that has become 'flat' and undifferentiated, regulated only by supposed 'laws' of science and the economy, and peopled by contract-makers driven by only the calculation of their individual interests.

Part One

LEGAL DOGMA:
OUR FOUNDING BELIEFS

1

THE HUMAN BEING AS IMAGO DEI

It is precisely the characteristic feature of the awakening human spirit that a phenomenon has meaning for it.

Wittgenstein¹

Let us learn our limits then: we are something, but we are not everything. Such existence as we have hides from us the knowledge of first principles, which arise out of nothing; and the littleness of our being conceals the infinite from our sight.

Pascal²

The oldest written narrative to come down to us is the epic of Gilgamesh.³ It recounts the wanderings of a young king, half man, half god, who, after losing his companion and double, Endiku,⁴ scours the universe seeking a reply to the question: ‘Why is there death? How can we avoid death?’ This question, which is as old as humanity itself, still torments us today. If research projects in genetics and biotechnology attract so much funding and stir such passions, it is because they hold out the promise of answering it one day. What age-old dreams biology is currently vested with: the dream of discovering the hidden building blocks of the human being, of having perfect children, of knowing and mastering the ultimate causes of illness and old age or of living on through a replica of oneself! Science and technology today elicit the same mixture of hope and fear as did the building of cathedrals a few centuries ago. Every large town wants its science park or cyclotron, and opens its purse liberally to attract scientific infrastructures to its area. While we may not be convinced that synchrotrons or biotechnology centres will leave behind them for future generations wonders comparable to Gothic art, we cannot really be surprised that now, as in the past, vast sums are lavished on revealing the mysteries of the universe. But whereas, for a religion, transcending the human condition is reserved for another world, science and technology let us glimpse this possibility in the here and now. Today, as in all other epochs, human beings do not escape their secret desire for immortality, but the singular character of this desire in the West, where the human being is conceived in the image of God, is revealed in a combined fear of and faith in scientific progress. Since our identification with God has outlived the disappearance of its religious roots, we are tempted to throw off any and every limit; but this dream of limitlessness contains within it a destiny of decomposition, since in decay alone are the limits of the human being truly abolished.

The Normative Institution of the Human Being

Nothing is more difficult to grasp than what founds us. We all believe in the first article of the Universal Declaration of Human Rights, which states that human beings are born free and endowed with reason, and so we have difficulty admitting that reason and freedom are precarious constructions which have an institutional basis. The limits of the sovereignty of the human mind are only perceptible when we reflect on ourselves and on the fragility of our rational faculty. Even someone who is a convert to the reassuring certainties of cognitivism and who conceives his mind as a computer with a human face, capable of processing huge quantities of data, may well, if he reflects on what he really knows, respond in the terms of Saint Augustine:

This faculty of memory is a great one, O my God, exceedingly great, a vast, infinite recess. Who can plumb its depth? This is a faculty of my mind, belonging to my nature, yet I cannot myself comprehend all that I am. Is the mind, then, too narrow to grasp itself, forcing us to ask where that part of it is which it is incapable of grasping? Is it outside the mind, not inside? How can the mind not compass it? Enormous wonder wells up within me when I think of this, and I am dumbfounded.⁵

If each of us feels threatened with being dumbfounded, it is because each mind, like Saint Augustine’s, is too narrow to encompass itself and has to look beyond itself to find the grounds of its being. Like every living creature, the human being experiences the world firstly through the senses; but, unlike all others, the human being has access, through language, to a universe beyond the here and now of sensory experience. The finite nature of our organic, biological life is supplemented by mental representations, which know no limits. A child who appears to be making sandcastles is in fact building fortresses populated by creatures he has invented and over which he rules; he may be there on the beach but the story he is telling himself spirits him away to the distant times of knights, deep in a forest, or else to another planet in a spacecraft. Through the words he whispers to himself or exchanges with his playmates, he experiences an intoxicating freedom which no animal has ever known, as he invents other possible worlds where he can fly, have a double, become invisible, become an ogre or a giant … a world in which he confers sense on the objects he creates or the drawings he makes, and which has thus become the visible imprint of his mind.

Once we have entered this symbolic universe, only clinical death can remove us from it. We thus evolve in the physical universe of our biological being and its natural environment, and also in the symbolic universe of words and objects that the human mind has endowed with meaning. This piece of carved wood is certainly made of wood and as such belongs to the natural world around me, but it is also a stick, a technical object, and which has significance, as any potential opponent will be quick to notice.⁶ The word ‘No’ is indeed a physical object – it can be analysed phonetically or as ink on paper – but it is also a word that, unlike a cry, derives its sense from the place it occupies in the structured totality of signs that constitute the English language.⁷ Human beings attain a freedom that is truly vertiginous through the act of crafting objects and through the words that designate them. It is the freedom to reconstruct the world in their image, to wrest themselves from the weight of things by endowing them with meaning.

But one does not just wander into the universe of sense without knocking. If we are to take up a place within it, we must first abandon the wish to fashion the world in our image alone and learn to recognize the limits of our subjectivity. We are metaphysical animals, and always risk being carried away by the giddying powers of our imagination. In using our mental faculties we must therefore learn to discern what is imaginary and what is real in this world of symbols which both links us to and separates us from the physical world. Whoever is imprisoned within the confines of their own vision of the world, oblivious to the sense that others give it – and who is therefore incapable of communicating that vision – is literally self-estranged. We may enter the universe of sense only on renouncing the pretension to dictate the sense of the universe and on recognizing that this sense cannot be embraced by one person alone.

Modern science abandons this pretension to give meaning to the world more radically than any other discipline, since its goal is the world of the senses and not that of sense. A procedure is truly scientific when it no longer asks the question why? but the question how?: no finality is presupposed, and no ‘spirit’ is posited within the object of scientific investigation. The latter may be explained only by the interplay of the laws governing matter. This is the position of science even when it examines the ultimate origin of things. The hypothesis of the Big Bang aims to explain how, and not why, the universe came about, and hence it is fundamentally different from the narratives of origins that one finds in every religion and which give meaning to the human condition. But whenever a scientist claims to explain the meaning of human life in the name of science, he or she is in fact doing anything but following scientific procedure and is giving way to scientism. A truly scientific method aims to efface the subject in favour of the object and cannot therefore explain what founds the subject.⁸ It is obliged to postulate that people are capable of agreeing on a representation of the world that is compatible with the evidence of the senses. This capacity is human reason, which is not an effect of scientific procedure but its very condition.

Human reason is therefore always an accomplishment, the precarious establishment of shared meaning which we can all believe in because it accounts for our sensory experience. It is based on certainties that cannot be demonstrated, on dogmatic resources that bridge the world of sense and the world of the senses. These certainties may differ from one society to another or from one period to another but our need for them is unchanging.⁹ There is no objective sense to be discovered in the world of nature; sense is necessarily posited. In order to become rational subjects, human beings must first enter a symbolic universe which attributes sense to them and to the things that surround them. They are credited with a meaning to their lives before being indebted for the life they have received. Teaching a child to speak is the first way of honouring this debt, but learning a language involves accepting the rules that govern it, and it is on this condition alone that the child will later be able to give free expression to his or her thoughts and bring forth new ones. Saussure noted that:

When a philosopher or psychologist […] announces a new system, doing away with all previous notions, the thinker’s new ideas, however groundbreaking, can only be classified in the terms of the language in use. None may come to be classified under an existing word by chance […] Furthermore, there will always be a particular term which ALREADY corresponds better than others to the new distinctions.¹⁰

We are all subject to the heteronomy of language. It constitutes the condition of any discussion and thus cannot itself be debated. A world where each of us had to, or sought to, reinvent language would be a world of madmen; shared meaning implies calling a spade a spade without wondering why one says ‘spade’. Similarly, there is no reason why one should drive on the left rather than on the right but if we each had to make a decision about this at every moment, deaths on the road would rise to millions. Language, customs, religion, law and rites are all founding norms of human life. They ensure an existing order within which people can act, even if their actions call this order into question.

The institution of reason is what allows every human to reconcile the finitude of their physical existence with the infinity of their mental universe. In order to achieve this, we must learn to inscribe within the universe of sense the threefold limits placed on our biological existence: birth, sex and death. Accepting these limits is already the exercise of reason. When we give meaning to the fact of birth – our birth and that of our children – we have understood that we are inscribed within a chain of generations, that we live indebted for the life we have received,¹¹ and from this we can come to understand the idea of causality. When we assume our sexual identity, we understand that we embody only half of humanity and that we need the other half, and from this we come to understand the idea of differentiation, and learn to relate the part to the whole. When we learn to accept our death, we conceive that the world will outlive us, that our life is subject to a constraint on which we have no purchase, and thus we come to understand the idea of the norm.¹² In every society, the process of humanizing the anthropoids we are involves giving sense and form to these three limits, thus enabling us to become rational beings. That is the purpose of what can be called the religious sentiment, in its broadest sense, which is a distinctive feature of humanity, and which situates each person’s life within a framework which transcends them.¹³ The Western world today is no exception to this rule and its ‘disenchantment’ does not go so far as to reject funeral rites altogether and treat corpses as mere refuse.¹⁴ Or rather, when it treats them in this way – as the world of the Nazi concentration camps has shown us – it has sunk into scientistic madness, reducing man to the status of a thing. Collective irrationality and negation of the meaning of human existence are two sides of the same coin.

The fact of endowing sexual difference, birth and death with meaning does not imply that the human being is incapable of imagining a world where these limits could be dispensed with. For the Vedic gods, the notion of filiation goes in both directions, with fathers being sons of their sons or even their own sons.¹⁵ Angels, in the monotheistic religions, have no sexuality and know no death. The theme of the pregnant man is present in the Bible (the account of the birth of Eve from Adam’s rib¹⁶) and in Greek mythology (Dionysus, born of Jupiter’s thigh¹⁷), not to mention one of the many forgotten episodes in the recent history of biology, that of reproduction through parthenogenesis.¹⁸ If the idea of cloning human beings gives rise to such heated debate today, it is because it draws on this collective fantasy of a superhuman universe. Being able to produce replicas of ourselves holds out the promise of eliminating in one go all three of the limits placed on the human condition: it would free us from the succession of generations, from dependence on the opposite sex and from death, by enabling us to continue indefinitely. Dreams of duplication are nothing new. Stories of doubles abound, in all civilizations, mostly concerning twins and the particular dangers attached to them.¹⁹ The theme of the double has also inspired many works of fiction. What all these stories have in common is that they always end badly for the cloned character (for example in the films Confessions of a Rogue²⁰ or The King and the Mockingbird²¹) and also for the clone (for example, the clone of Professor Mortimer²²). Doubles always meet a sorry end because, while they are absolutely sense-less, they also trigger a fantasy that is so powerful that the tale can end only with the death of the original or the c...

Table of contents

• Cover Page
• Halftitle Page
• Title Page
• Copyright Page
• Contents
• Prologue
• Part One: Legal Dogma: Our Founding Beliefs
• Part Two: Legal Technique: the Resources of Interpretation
• Bibliography
• Notes
• Index