Law-and-the-Imaginary--Understanding-the-Role-of-Institutions-in-Human-Affairs.md

"I was stiff and cold, I was a bridge, I lay over a ravine. My toes on one side, my fingers clutching the other, I had clamped myself fast into the crumbling clay." Franz Kafka, "The Bridge", 1922 tr. Edwin and Willa Muir It's a remarkable short story by Franz Kafka called "The Bridge". A traveller approaches a bridge high up in the mountains. It's the bridge which tells the story. It says how at one end it is anchored firmly in the rock and its feet are anchored firmly at the other end, Under it, the void. Far below, one can hear a roaring river and rapids. And the bridge summons all the strength it has to bear the traveller as he crosses, but it cannot resist the temptation - because this is the first time someone has crossed - of turning round. And so the bridge drags the traveller down into the abyss. This image expresses particularly well the role and the place of institutions in human affairs. People are faced with this issue of the void of meaning. We all need to give our lives meaning, but none can be found scientifically. Institutions are there to provide us with shared meaning which everyone must accept, but which allows everyone to live, as far as possible, without violence. Chapter 1 - FROM GOVERNMENT TO GOVERNANCE Law and the Imaginary Law is something at once familiar and mysterious. Its importance is often underestimated, yet it plays, today, an absolutely pivotal role. What we are experiencing today is a major crisis of law. Now what does that mean? To understand the function of law, we must first understand the anthropology of this strange animal called the human being. Human beings, like all animals, inhabit the world through their immediate, biological experience, they exist in the here and now of their instinctual life. But through the power of speech, the greater use of their brain, and through the whole evolutionary process so well described by the anthropologist Leroi-Gourhan in his magnificent work, "Gesture and Speech", human beings at a certain point in their evolution become able to represent themselves and live in a universe which is not only the here and now of instinctual life: you are in a meeting, a room, but you can be elsewhere in thought, in the distant past or in different places. Every child makes the intoxicating discovery of this ability to invent a world which is not there but into which he can project himself. This is what is meant by the imaginary, the fact that we live both an instinctual life, and also a life of images. The human being is therefore faced with a difficulty unknown to animals, the difficulty of harmonising the two, so that our mental images remain connected to the realities of the world. For example, it is imaginary in this sense to say that all men and women are free and equal, it contradicts what we can observe, the factual truth. We see inequalities, and today they are enormous or the equality between men and women, which is declared in our laws, but does not truly exist in reality. Hence law is the site of a tension between a certain representation of the world, which must be realisable, and the actual facts on the ground. It straddles both realms, and resembles both art and science. In any given period, a single imaginary will subtend a particular civilisation. From the Industrial to the Cybernetic Imaginary The dominant imaginary at the beginning of the industrial era - the industrial era falls into several periods, it began in the 19th century, then the second industrial revolution, associated with the use of electricity, and lastly the First World War and between the two Wars, when Taylorism became the general method of organising work. During this period, the dominant imaginary was classical physics. The world was represented as a vast system of clockwork. God was the Great Clockmaker, the world was a play of forces, and everything was a question of energies, laws and forces, including the human being in the workplace, who was thought of in the same terms. Artists portray this, great figures like Fritz Lang with "Metropolis" or Charlie Chaplin with "Modern Times". They show the imaginary reduction of the human being to a mere cog, or a productive herd obeying orders mechanically. This representation of the world began to change during the Second World War and immediately afterwards, with the invention of the first 'intelligent machines', or computers. They are machines capable of reacting to the signals received from their external environment. So we have a machine capable of regulating itself: it is fitted with a programme so that it adjusts to variations in its environment. This is technically what is called 'regulation', a term drawn from the vocabulary of engineers. For example, a coal-fired boiler which adjusts its temperature according to the temperature of the air, or a boat on automatic pilot, where the boat will follow the direction set, without human intervention. This change also affected the way human work was conceived in the same period. The Taylorist vision was replaced by what Peter Drucker called management by objectives, that is, we should not prevent people thinking and have them obey like brainless slaves, rather, we should develop their mental powers so that they can be programmed to achieve the objectives of the organisation. Henceforth, this is how human beings should be made to work. And so that they can monitor their own activity, - Drucker advocates "self-monitoring" - the objectives which they fix must be quantified so that their performance can be measured. This notion, "performance", has swamped our vocabulary ever since. So there is the idea of objectives, actions, and feedback, so that one can adjust one's performance. This change also affects how one thinks about institutions today. They are likewise conceived in terms of objectives and programmes. What interested me was to show how the conception of governing individuals shifted from an idea of order and mechanical obedience to an idea dominated by a cybernetic imaginary. Cybernetics is these theories which said that one could consider all machines, humans and animals to be communication machines, and generalises the idea of the computer across the whole universe. This cybernetic imaginary produces a radical transformation in our ways of governing, and thinking about institutions. The Origins of our Institutional Crisis Today, one talks a lot about the economy, but the root of our crises is institutional. We are living through a far-reaching crisis of institutions. What is an "institution"? What is "instituting"? A primary school teacher - an "instituteur" in French - institutes children, that is, teaches them to act on their own, like an adult. It is different from a tutor, who just gives tuition. So instituting is learning to be free, through learning common rules. Clearly, in this sense, instituting children is not only a matter for schools, but also concerns other institutions, such as the family, the State, the nation, and the business world. These are all places involved in instituting the subject, that is, where subjects learn the frameworks within which they can exercise their freedom. Historically, in many societies, instituting was achieved through heteronomy, that is, when a person imposes a common orientation, and people simply obey. This is true of a monarchy, in a patriarchal family, and in an old-style Taylorist firm, where a heteronomous authoritiy fixes a course which must be respected by all. Democracy is an ideal in which this common meaning respected by all, is also developed by all. Everyone contributes to constructing the frameworks which will be valid for everyone. This is what is called the sovereignty of the law. But this supposes that everyone has the capacity to consider the common good and not only their private interests. Montesquieu said - but he was not the first -, when examining the different political systems that democracy presupposes the citizen's virtue, that is, the ability to set aside one's petty private interests in order to deliberate collectively on the common good. Today, the dogma of globalisation and ultra-liberalism is that all rules must be organised around private interests alone. What drives organisations is private interests alone, and if everyone calculates his or her private interests, adjusting to others through contracts, we could achieve a world where justice reigns. Then we could dispense with trying to define a public interest that is binding on everyone. This is what has caused our serious institutional crisis because no human community can cohere around juxtaposed private interests. Running Society on Automatic Pilot Changes in vocabulary are often revealing, and over the last 30 years the words used to qualify the rules which govern us have undergone important changes. We no longer talk of government, but of governance; no longer of rules, but of regulation; no longer of morals, but of ethics. What is at stake in this shift in vocabulary? When we talk of government, rules, and morals, we are talking about rules imposed from the outside. Governance, regulation and ethics, however, refer to rules observed spontaneously, as though people had internalised them. So this change in vocabulary tends to close the gap between the rule and the subject it applies to. Individuals should behave - hence the idea of behaviourism - human beings could be programmed, and by examining their behaviour and using the right methods one can control their behaviour - people have done research on this, things like neuroeconomics, where one imagines piloting people's behaviour just like one programmes a computer. So the imaginary here is the idea that subjects, once programmed, will adjust spontaneously to each other. People think that one can simply programme men and women, and run society on automatic pilot. Chapter 2 - THE DREAM OF HARMONY BY NUMBERS The Belief in a World Ruled by Numbers We can identify certain moments in the history of the West - but it would be useful to compare with China, where the relation to numbers was also very important - we can identify moments in this history when mathematical representations and figures were regarded as the ultimate key to social harmony. This was Pythagoras's dream. Pythagoras, the great mathematician, also inspired a slightly mystical group, which thought everything was ruled by numbers. We see signs in Ancient Greece of this desire for rule through calculation and geometry. One aspect of this belief was the discovery of links between geometrical proportions and musical harmony. Harmony is a question of making different sounds resonate together, it is the concord of what should be discordant. This idea of harmony was common to music, art, science, and law. Harmony was thus linked to these spheres of the imaginary. It is clear from this how mathematical representation, music and human institutions could all be thought of together. We should not forget that numbers, like letters, are symbols, but they have a different power because they are not polysemic like words. Every word can be interpreted, whereas in principle a number is a symbol which can be shared beyond languages. Today, when we go to other countries, even if we do not understand the language, we can read the numbers. It is a sort of universal language. The Invention of Bookkeeping Quantified representations of an ensemble that we can believe in appeared before official statistics, with the invention of bookkeeping techniques by Italian traders in the late Middle Ages. The first bookkeeping treatise we have is the work of a Franciscan monk, who is known for importing algebra into Europe. What is striking is that this appeared at about the same time as the invention of the modern painting in art. I decide that "what I want in this picture is the representation of an ensemble", and then "in this chart or quantified table" - with the invention of double-entry bookkeeping - "I want what is called in English law a 'fair view' of a firm's financial situation". A faithful image, a true likeness, which shows me the truth of what this image portrays. This technique was invented as a way of making merchants accountable. This has been admirably explained in a study by Samuel Jubé, who shows that initially bookkeeping was about responsibility. The idea was to account for oneself, to make visible one's financial situation for all the other merchants, so that the market could function correctly. In this respect, recent developments in accounting are a clear sign of today's disorders because bookkeeping, from the beginning, was obliged to respect the principle of prudence: you can enter a figure in the books, but you must be careful about the trust you place in this number. So if I buy something I enter it at its purchase value, and I subtract its depreciation, but I don't speculate on its market value until I have sold it. This rule, of prudence, was abandoned at the end of the 20th century and replaced by "fair value", that is, the immediate market value. This had catastrophic effects during the 2008 financial crisis. Now we see an inversion and an abandonment of the principle of prudence. The Allegory of Prudence In Nantes Cathedral, the tomb of Francis II of Brittany is surrounded by four statues, of the four cardinal virtues: fortitude, temperance, justice and prudence. Prudence is represented as a young woman holding an object in her left hand. I overheard some schoolchildren saying that it is an iPad, but the statue is from the Renaissance. In fact, it is a mirror. She is facing outwards, in one hand she has measuring instruments, and in the other, the mirror. On the back of the young girl's head is the face of an old man. What this iconography tells us is that Prudence must use measurement, calculation and quantification to plan an action, but she must also take the past, and experience, into account. So it is a complex message. If you keep only the measuring instruments, you are abandoning prudence. Today, bookkeeping has stopped being prudent. The Development of Statistics On this invention of statistics, this dynamic of quantification, we have the good fortune to have many excellent works by Lorraine Daston in the United States or the late Alain des Rosières in France, who wrote "The Politics of Big Numbers", in which he reexamines the history of the invention of statistics, with all the problems it posed initially. One of these, in which law is directly involved, was deciding whether to make the smallpox vaccine obligatory, although it was known that a certain number of the children vaccinated would die from the vaccination. The question was the justification of laws based on quantified social data. This only really developed in the 19th century, and the Social State was the direct product of this. People discovered in the 19th century that society could be regarded as an object placed in front of one - which was not the case previously, and the word "society" only gained its modern sense in this period - and as a quantifiable object. And people tried, through quantification, to explore the attributes and the laws of how society functions. And once these laws of society had been mastered through quantification, it would be possible to act on these laws. This was taken in two directions: physical causes were attributed to social phenomena, and social causes were attributed to physical disorders. The former gave rise to eugenics, and beyond that to racism and Nazism, saying that one should forbid ill people to reproduce, or those who where not successful socially. We should remember that in the Nordic countries, there was legislation of this sort right until 1965, with forced sterilisations. The most atrocious forms were the extermination of those considered unfit. All of this was based on the idea of a scientific and quantified representation of the world. People reasoned that if you behave badly - they did not say bad genes at the time, but the wrong race - the unhealthy elements must be eliminated so that humanity can progress. The other current was those who said, on the contrary, if there are ill people, alcoholics, it is because they are unemployed, or do not have good conditions, so one must act on the social causes to see an improvement in physical conditions. This was the origin of the Social State. So the Social State is itself a large-scale expression of this idea of using numbers to justify legislation. Chapter 3 - THE UNHOLY UNION OF CAPITALISM AND COMMUNISM The Soviet Heritage The unholy union of communism and capitalism was a theme which I treated briefly in a previous book, "The Spirit of Philadelphia". I wanted to come back to it because I think it is important for understanding what happened after the fall of the Berlin Wall, and ten years before that, with the reforms of Deng Xiaoping, which in my view are as important, and they are earlier and thus premonitory, as the fall of the Berlin Wall. Generally, these events are seen as the victory of capitalism over communism, but if we take a closer look, what happens is rather a phenomenon of hybridisation, which gives different results in different countries, but among which one can detect common features. To do so, we must return to the Soviet experience and Lenin, who actually had no particular economic doctrine - he was influenced by a German writer

• and who devised economic plans. Soviet planning was the idea of a centralised calculation of collective utility, which was carried out by the government of the Soviet Union, and this would make the country as a whole progress, and increase the common good. The key institution for this planning was the Gosplan (State Planning Committee). The Soviet Union developed a gigantic system of statistics, and on the basis of this data a draft quantified plan was dispatched starting from the centre and moving down to the periphery, through a myriad of intermediary institutions, then there were commentaries on these plans, feedack, and on the basis of these replies, the plan itself was drawn up, and this plan was sent out again in the form of legallybinding directives. This is where law came in, in the form of these directives, but they were simply the transposition of a set of calculations. So this was not governance, but government by numbers, since there was still the distinction between governing and governed, leaders - who were the avant-garde of the working class, who paraded for all to see on Red Square - and the mass of workers who had to achieve by carrying out these directives, the figures and goals. The goals were expressed in terms of control figures, which were a kind of macro figures. To give one example, the Shanghai Classification, which is behind almost all reforms in French universities, - making bigger and bigger units in order to move up in the Shanghai Classification
• is a direct derivative of Soviet planning and its large control figures. Seeing its influence today on the orientation of research should raise a few eyebrows. The Capitulation of European Justice In the case of the Court of Justice of the European Union, among others, we see the result of applying the idea of governance by numbers to the law, in the form of the "Law and Economics" theory. This doctrine was developed first at Chicago, in the wake of Milton Friedman and the Chicago School of Economics. A certain number of legal theorists, amongst them Richard Posner, argued that every rule can be the object of a calculation of utility. To know what the right rule is, we must make this type of calculation. This is how the case-law of the European Court of Justice works. So there is no intangible rule, everything must be weighed up, which is called the principle of proportionality. One of the most caricatural expressions of this method is found in the "Viking ruling", which labour lawyers know well because here the Court of Justice submitted the right to strike and the right of assembly to a calculation of their economic utility. The "Viking ruling" said that the principle of human dignity must be made compatible with the principles of free competition and free entreprise. Whereas in the thinking of the great renewal of dogma, at the end of the Second World War, and in its majors texts, the principle of dignity was intangible, as it is in the German Constitution where, as a result of constitutional reforms, it is forbidden to challenge it. So one can see that this machine of utility calculations forces everything into an economic calculation. This is a very good example of how the Court of Justice thinks. But one could also take the example of the Constitutional Council's case-law in France today. The European Community, when that was still its name, had agreed on common social rules, called Social Europe, which was one of the declared goals of the Community, and the only ones who did not want them were the British, but the entry of the former Communist countries into the EU completely destroyed the balance, particularly in the composition of the Court of Justice, because these countries inherited a Soviet-style attitude, in which law is there to serve the economy. So there was a conversion to neoliberalism which could be done very quickly because there was not much respect for the law. Tzvetan Todorov summarises this well: it was a system in which everything was negotiable, ideology was nothing but a fiction. So there was a general conversion to the most extreme forms of liberalism in these countries, and it is arguable that this is one of the reasons why the Court, which had been very prudent - since its legitimacy was very weak - became very hostile to common social rules if they laid the groundwork for systems of solidarity. This inversion can also be seen with China and Russia. For example in China, in the Constitution under Deng Xiaoping, it is stated that no one shall disturb the economic order of society. This applies perfectly to the case-law of the European Court of Justice which we just mentioned. You can have social legislation as long as it does not affect the economic priorities. So the economic order is in some sense constitutionalised. In the case of France, much could be said about how the upper civil service embraced the virtues of the market, despite their lack of experience in this area, and this produced a number of financial disasters which were paid for by the tax-payer. One could compare - but this is sociology rather than law - what happened there and what occurred in the Soviet Union, where the oligarchy transformed rapidly from managing huge public enterprises to managing huge amounts of private capital. Something comparable occurred in France, where the upper civil service previously served the State impartially, what Pierre Legendre, well before Pierre Bourdieu, called the "State nobility", but then this ethos of the "State nobility" was seduced by the market model, with bankable advantages, because when you move from the salary of a high civil servant to the salary of a privatised company, you obviously earn a lot more. So one can see in this development, in the way things work today in Bercy (France's Finance Ministry), in this permeability between the world of finance and the French upper civil service, something comparable to what occurred with the Soviet oligarchy. Chapter 4 - THE LIMITS OF GOVERNANCE BY NUMBERS Heteronomy as the Condition of Freedom What the long history of law and institutions has shown us is that one cannot have autonomy for each human being in the absence of a common, heteronomous framework. The most obvious example is the ability to express oneself. It is impossible to express ourselves freely - if only to make stirring calls to total revolution against the injustice of the world order - without first accepting the law of language, that is, without speaking a particular language. The language we learnt as a child was something heteronomous for us. Only if I accept this heteronomy of language do I become a subject able to express himself or herself freely. Without this heteronomy of language, I remain at the stage of gurglings which no one else can understand. And in that case, I cannot claim to act freely. The same is true for the organisation of society: a common law must exist, in order that each person may be empowered to act freely. If you destroy this common law, and the dominion of the law comes to an end, each person will appear to have autonomy but in reality each is abandoned to the whim of someone stronger, or will try to dominate someone weaker. What develops in this context is what I call ties of allegiance. Thus what looks like generalised autonomy in fact creates the conditions for a return of ties of allegiance as the contemporary form of the legal bond. The New Forms of Autonomy The notion of "subject", which is very complex, and untranslatable into many Oriental languages
• it is a big problem in Japanese, that the same word can refer both to a grammatical and to a psychological figure - etymologically, it is Subjectum, "thrown under". This idea is present when, to affirm myself as an individual subject, I must respect a heteronomous rule. To take a concrete example, the new technologies enable all people to express themselves using the social media, but this will only produce collective conformity, unless each person has acquired a certain culture with which they can act and think freely and independently of the others. So what remains of the subject in a cybernetic universe? Nothing but a point, which reacts to signals. You receive signals from your environment, and you must adjust to these signals to carry out your programme. The ultra-modern subject, in this light, looks sadly like an extinction of freedom. Your behaviour can be programmed because we know that you are going to behave in accordance with a calculation of your private interests. All is reduced to what I call contracting particles motivated by self-interested calculations of utility. This would be one possible figure of modernity. The Harm Caused by "New Public Management" The State, as the central figure of our political order, represents the heteronomous instance which takes responsibility for what is not calculable in human lives. For example, people's identity, since the State guarantees personal status, and the honouring of promises. These domains were entrusted to the State. And it is because there was this heteronomous, vertical dimension of the incalculable that another plane could develop, where individuals are free to act solely by calculation, the plane of the market and the contract. So you have, in a sense, the vertical plane of the law and the horizontal plane of the contract, but the two are inseparable. Represented like this, the State cannot be confused with an economic operator acting in the plane of the contract. It ensures that this plane of the market functions correctly. But if you treat the State as itself an economic operator, as New Public Management does - New Public Management says that you must apply to the State and to the domestic economy the same rules as those applied in a private business
• this is a way of abolishing the distinction between the two planes. Everything becomes flat. This vision of the world as perfectly flat was imagined by an English novelist, Edwin Abbott, in the late 19th century, who wrote a clever little tale called "Flat Land", where he imagines a world in which only two-dimensional beings exists. Such a world is unsustainable in the long run. This means that New Public Management, by undermining the heteronomy of the political order, will force private operators to take on what the State has abandoned, that is, the non-calculable. One of the expressions of this is corporate responsibility. In a political order which functions as I explained just now, where the law reigns and the State functions well, the State sees to longterm environmental protection, and businesses can concentrate solely on making profits. In this light, when Milton Friedman, one of the founders of the Chicago School, says that a company's only corporate responsibility is making money, I am not shocked by this, as long as the business pays its taxes and obeys all the social and environmental legislation. However, If the State is disempowered, then inevitably the corporate sector is considered to be responsible for the social and environmental issues it encounters. So there is a movement of privatisation of the public sphere, as well as a movement of "publicisation" of the private sphere. Suffering at Work Simone Weil's compelling descriptions of industrial labour show how mind-numbing this type of work was, because workers were forbidden to think, and were enslaved to a stultifying, mechanical repetition of tasks. This was clearly a form of alienation. With our new types of management, the issue is different. The aim is now to control people's mental functioning. Robert Castel was one of the first in France to identify this, he called it "therapy for the normal", the fact that psychological techniques are used to ensure that workers execute programmes well. This gave rise to new management techniques, some of which were qualitative, such as appraisal interviews, which have become a standard rite in all organisations, including the public sector. Appraisal interviews are those moments of feedback where together you measure the performance you have achieved, and then you readjust the objectives accordingly. But at the same time, one can say that the appraisal interview is a form of dispossession in the sense that it is like confession, where you confess what you did, the difficulties you encountered, and your successes, and you must therefore bare your heart to your manager. The difference is that in traditional confession you examine your conscience in order to regain self-possession, whereas here you have to bare all in order to reset objectives and be reprogrammed. And this can amount to a new form of dispossession even if it is not always that. It is always on a knife-edge, with these new management methods, which bring possibilities of emancipation but also risks of dehumanisation of work. The Denial of Reality Genuinely human work is work where the human mind, and the images it invents, can engage with the real. It is an experience in which workers both learn about themselves and show what they are capable of doing. This is genuninely human work, and in my lectures I tried to show that there are two forms of dehumanisation, not just one. There is the form which was incriminated at the end of the industrial era, when you reduce human work to the work of an animal or a machine. But there is another form, when you enclose the human being in a system of representation entirely divorced from any experience of reality. There are some pathological cases, like the Kerviel affair, where financial whizz-kids are so immersed in a quantified world of symbols that they lose all contact with reality, but they can cause real disasters which have a tremendous impact. This enclosure within systems of symbols divorced from reality - and we should recall the meaning of symbol here because normally the symbol is precisely what links a sign to a concrete and real object - and when the link is broken, people become enclosed within systems of representation devoid of meaning. In such cases, there are only too options: fraud, or depression, madness. In Kerviel's case there was a bit of both, and in a recent case, the Volkswagen affair, you clearly have engineers faced with two incompatible quantified commands: "it must not cost more than x" and "it must not pollute more than y", and their solution was to invent a computer programme which could cheat. They thus incurred risks for the company, the public, and the environment which were enormous. In other words, they entirely separated the map from the territory. Chapter 5 - THE DECLINE OF THE STATE The Public / Private Hierarchy Overturned To address the issue of the withering-away of the State, we should first recall that it was a theme introduced by the founding fathers of Marxism. Friedrich Engels prophesised that the State would disappear of its own accord, as soon as society conformed to the laws of scientific socialism. Hence the State was destined to disappear as soon as Communism got into its stride. It is striking to see that challenges to the role of the State, which started in the 19th century, because the State was considered to be a metaphysical entity which had no real function in a positivist vision of the world, those challenges have resurfaced today, due to the return, in a new guise, of liberalism. To understand this moment, we must also remember that Western democracies were able to win out over totalitarian regimes partly because of the invention of the Social State. In this light, the famous speech by Franklin Roosevelt, on "the four freedoms", is very striking. There is an island in New York which commemorates this speech, in which Roosevelt says that those who defend democracy cannot suffer from want. People who suffer from want are the breedingground of dictatorships. So you have to have enough to eat to know that you are fighting for something. So the State expanded, and it was acclaimed as a protector, and so, on the economic front, it was the Keynesians who developed that. The neoliberals - of which one of the most remarkable and talented, and the most interesting for jurists, because he trained in law, was Friedrich Hayek - their idea was precisely to abolish the preeminent place of the State and say that what should be at the top of any normative construction is three things: private property, contractual freedom and legal liability. These three had already been mentioned by David Hume, as the three fundamental laws which one can derive from observing nature. So the idea was that there was a spontaneous order, the order of the market, which is universally valid and is grounded universally on respect for the three fundamental laws. And the role of the State is to support and respect this universal order of the market. This is what I call the utopia of a total market, where there would be universal and almost timeless rules, and where States would deal with local problems only. Several legal innovations have reinforced this ideology. One of them was the creation of the World Trade Organisation in the 1990s which aimed precisely at subjecting all States to a certain number of rules, which are basically rules from private law. This overturns the public-private hierarchy, because in the previous order of the Social State, freedom of enterprise and of the markets was preserved, but under the supervision of the State, which was responsible for social cohesion and systems of solidarity. Today, the overturned hierarchy makes economic freedoms into the higher rule. Solidarities are admitted only as exceptions to that rule. They are only tolerated, more or less. The other figures which show this inversion are European institutions. They too are built on the almost constitutional assertion of economic freedoms, while States are in charge of local solidarities only, and then only through exemptions, and as long as economic freedoms, with their almost constitutional value, are not affected The Rana Plaza Disaster With globalisation, multinationals can escape particular national legislations and regard them from the perspective of forum shopping, setting up wherever the legislation is most advantageous to them. So they can largely elude the public authorities. But they find themselves in a kind of legal void, where they are accountable, but no judge is able to hear their case. I shall take a concrete example. Two or three years ago, a disaster occurred at Rana Plaza in Bangladesh - I went into greater depth in my lectures -, where a textile factory collapsed. It had not respected any security regulations, and 1,000 young women working there died crushed in that factory. They had asked not to go back inside because there were signs of danger, but they were forced to, with the threat that otherwise they would lose their jobs. It transpired that this company worked for many major Western brands, both European and American, and people immediately said: these companies must take responsibility. They are held responsible for what is one of the largest industrial accidents in recent history. I happened to meet one of the top managers of a French firm involved in this case, and he said to me "people are just trying to blackmail us, it is not true, it is not us ...". Who is right? In this case, we need a judge, but there is no judge at an international level. So the company exposes and risks its reputation - which is a very precious thing in today's world - without there being a judge to turn to. And in some respects corporate social responsibility is successful because it protects a company's moral position without a binding law. But in my view, this is not sustainable in the long term. The Reemergence of the Logic of Friend / Enemy The reign of the law, in which all people recognise each other as equal before a common law - which is how a political community is achieved - when this is destroyed, one of the effects is a situation in which people look for an internal enemy. I come back to Carl Schmitt here, who says that what is properly political is identifying the enemy, being able to identify the enemy. He thought the Friend / Enemy logic had a universal value because the political community only constitutes itself by designating an enemy, whether outside its frontiers or within them. And he says this is a question of life and death. To my mind, Carl Schmitt does not get to the bottom of the issue of law. Law is something other than establishing an order through violence or force. Law is what makes subjects believe in a common heteronomous reference. And if this acknowledgment that we are all subjects of the same law disappears, the public sphere fragments and the population realigns in terms of Friend / Enemy. The Friend / Enemy theory explains moments of institutional crisis where precisely there is no shared faith in the same law, and people regroup according to affinities, and by naming an enemy. This is revealing because the return of the Friend / Enemy logic is a symptom of a crisis in our legal frameworks. This return is visible at every level, particularly in the way public debate today abandons argumentation, and degenerates into verbal attacks. In public debate in the public sphere, as it appeared in the 18th century, and as Jürgen Habermas has theorised it, we all hold the belief that through reasoned argument with others we can achieve a better common representation of society. With verbal attacks, by contrast, the aim is to find elements which will destroy our opponent. And unfortunately what is called public debate is increasingly becoming a free for all, which is a symptom of this institutional crisis. Chapter 6 - THE ABUSE OF WORK Total Mobilisation, 1914-1918 The First World War was an event of the utmost importance in every respect, and it can be seen as the beginning of a 30 years' war which ended in 1945. It was also, in itself, the very first experiment in what can be called the industrial management of human material. For the war effort, and in order to bring supplies to the front, and reinforcements, which were consumed in a way comparable to market consumption, as Jünger observed, Taylorist techniques were used which until then had only been employed locally. For the requirements of the war, these were generalised. As one of the sensitive souls who did not return from the war unscathed, and among all those who later wrote about their experience of the War, one of the most remarkable witnesses was certainly Ernst Jünger in his attempts to make sense of his experience. He was a Prussian aristocrat who saw a world collapse, and he tried to make sense of it, and he also diagnosed lucidly the radical novelty of this war in relation to previous wars, saying that with these new methods there was not a single seamstress, in her far-flung village, who did not participate in some way or other in the war effort. There was total mobilisation, "Mobilmachung", which characterised this new way of waging war. From Total War to the Total Market In order to confirm the relevance still today of this idea of total mobilisation, - I didn't do so in my lecture because I thought about it just recently - one could look at a speech by David Cameron who, as British Prime Minister, presented his political programme to the British people explaining that we were in a "global race". This implies a deadly race, where we will either sink or swim. So this political project is a kind of generalised Darwinism where the only way ahead is through combat: you survive, at the expense of your neighbour, or you disappear. But the "global race" David Cameron was thinking about was evidently the competitive race on the international markets, and the total market here replaces the total war of 1914. With the return of this theme of total mobilisation, we have the abandonment of the idea which appeared at the end of this 30 years' war, in 1945 - in several founding texts like the Declaration of Philadelphia, the Universal Declaration of Human Rights, and the first plan for an international trade organisation - the idea that one should reconstruct an international legal order based on collaboration between nations. This model was rejected by Northern countries on several occasions, since they did not want to show international solidarity with Southern countries, and they pushed for making the competition of all against all into the norm in international relations. This was finally enshrined by the WTO. And this led to the idea of a "global race" and the return of the idea of total mobilisation: Sunday too, including night work. Women's night work has increased by 100% in 15 years in France. We now know that the effects of night work on the health of both men and women are particularly alarming. So today we are in this atmosphere, that we must mobilise workers, eliminate all limits on working hours, again in this atmosphere of total mobilisation, no longer in the framework of a war of weapons, but an economic war. Reformism and Transformism: the Lessons of Bruno Trentin I had the good fortune to meet Bruno Trentin, and I had a strong friendship with him. His biography is particularly interesting because his father was the only law professor to have refused to swear allegiance to Mussolini. He was brought up in the South of France, with a double French and Italian culture, and was one of the great Italian Trade Union leaders of the 1970s, and one of the agents of the destalinisation of the Italian Left. Towards the end of his life - rather despondently, as he told me
• he was a member of the European Parliament. He wrote a major book called "The 'polis' of Work". It is important because in it Trentin retrieved all the debates circulating under Fordism, in the aftermath of the First World War. The question confronting the political and trade union Left at the time was: "Why do we fight?" It was an important question because without a mobilising force and the idea of a better society, no political struggle is possible. This is one of the problems in our current crisis. On this issue, Trentin opposed reformism and transformism. A reformist politics asks what world one wants to build, and then tries to find the political means to this end; whereas transformism is a term taken from Italian politics, but it can be transposed into France, it is the politics of changing tack and adjusting in order to keep hold of power. We have several examples of this in France - I do not need to specify. So the question posed for the political and union Left after the First World War was whether the new forms of organisation of work, Taylorist forms, which stultify workers, whose whole life is spent enslaved to a machine, monitored by the foreman, with no right to innovate, is that acceptable? He describes the debates on this subject. Some said "no", the real goal of social justice is to enable every worker to have humane conditions of labour. I take this expression from the Preamble to the Constitution of the International Labour Organisation, written in 1919. This position, represented in France by Simone Weil, said that this was the greatest injustice, reducing entire human masses to the state of mindless herds. More generally people said, including in the Soviet Union, that it was the price to pay for technological modernity. It has the blessing of science. The scope of social justice was thus reduced simply to quantitative issues, compensation: what price can I obtain in return for this life devoid of meaning, which I must surrender to my company? At what price and for how long? So I try to reduce the length of time, and that is the theme of the working day; and I increase the price, and that is the theme of salaries; and I ensure my physical safety. Demands for social justice included these three basic elements of all the demands for social justice. This gave rise to the concept of employment. The notion of employment is this sort of exchange, where I abandon all forms of freedom in my work, and I agree to be alienated, because that is progress, but on the other hand, not for too long and I will be well paid, I will receive a pension, etc. This was the pact on which the modern Social State was founded. And Bruno Trentin saw clearly that this pact was disintegrating, and this is what brought us together, the need to get beyond a defensive attitude and to open up new perspectives for mobilisation and seize the opportunities for greater freedom and more humane work provided by new ways of organising work Corporate Social Responsibility Concerning responsibility, the real problem is that in the ties of allegiance we have described, if we take an economic example, international productions chains, where a t-shirt on sale in Paris is the product of a manufacturing chain involving workers in Tunisia, Bangladesh, etc. These production chains make it possible for those who hold economic power to get advantages from this type of organisation without having to be accountable for the damage it can cause. This possibility of disconnecting the positions of power from the positions to which responsibility can be imputed is a major problem. And it is not simple to resolve because we are used to thinking that there is one person responsible. But, on these production chains, if we look at the Rana Plaza case again, the bosses were absolute rogues because they knowingly put these women's lives at risk through naked greed and criminal attitudes. So there is no good reason why these people should get away with it on the pretext that they were working under pressure from the big companies, which preferred not to know about the working conditions of these workers. The problem is identifying responsibility in networks of allegiance, and linking the degree of responsibility to the degree of power held. And also defining a figure with ultimate responsibility. Because even if one cannot find the others, there must be someone who is accountable, and in general, in the last instance, it is the company director. We have some examples of possible solutions, for example in European law, for cases of liability for defective products, where one can work back up the chain to find the company which first put the product into circulation. So bonds do exist between different agents in the economic chain. The Decline of Solidarity Solidarity is perceived as an enemy by neoliberal ideology. Friedrich Hayek states clearly that it is an atavistic remainder which should be done away with, because we are heading for a world he calls catallaxy, that is, "globalisation" in opposition to "worldisation". "Globalisation" is where the globe is peopled by contracting particles which maximise their utilities individually, which interact, and in order for this interaction to function well, the three fundamental laws must be respected: property, liability and the binding force of contracts. Apart from these, nothing must hamper the fluidity of the system. Systems of solidarity are regarded as clots in the blood stream, to be destroyed. This is why neoliberalism keeps attacking freedom of association and the right to strike, which in its view are particularly vexatious forms of solidarity. Also public service agencies, insofar as public services represent monopolies which resist this generalised competition. So the dominant trend is to dismantle the established forms of solidarity which had been instituted by the Social State. If you dismantle these systems, the need to find protectors and to count on people for help does not go away, but it reappears as religious, tribal or ethnic, identity-based solidarities. This analysis sheds light on the present situation, in which there is a collapse and an indictment of all the systems of solidarity established by the Social State, and on the other hand, there reappear particularist, ethnic, identity-based solidarities, which are rarely peace-loving because they are mostly solidarities of combat. This is why we should not sacralise solidarity as such. We saw, with the '14-'18 War, how Darwinism embraced Solidarity by transposing the war of all against all from the individual to the group. So one should not sacralise it, but one should not think one can just do away with it either. So once again we are faced with the question: how rethink systems of solidarity so that they harmonise with the present state of our customs, cultures, and technology, in all their diversity and on the scale of the world. This is the agenda for a real "worldisation". Chapter 7 - FROM THE DECLINE OF THE LAW TO NEW TIES OF ALLEGIANCE The Return of Ties of Allegiance One of the paradoxes of the quest for an impersonal form of power, running human affairs on automatic pilot, a quest already present in the order of the law, because the law could represent an impersonal figure, and even more so now with governance by numbers - the paradox is that this quest made forms of personal dependence reappear. There are two reasons for this. The first is that the way of thinking, in the case of work, but as we saw this can be transposed into relations between companies, or between more and less powerful States, is to say "I set you objectives, I give you a sphere of autonomy, but you are accountable, and you must exercise this autonomy for my benefit". This structure of modern management is exactly what in Medieval law was called "tenure-service". Tenure-service means "I shall grant you a holding, I who am your suzerain, and you will manage it autonomously - a fief for nobles and censive tenure for commoners - and you will manage it for my benefit". This structure of tenure-service corresponds quite precisely to management by objectives. This is the first reason why one can say that allegiance has returned. It is this structure and today's ways of thinking about work that bring back allegiance. Another reason is that the weakening of the figure of "the same law for everyone", the weakening of the figure of the State, this withering-away of the State, its ability to offer protection, especially the Social State which promised everyone security at every moment, this weakening obliges those who are most affected by the disappearance of the State as a tutelary and protective figure to look elsewhere for guarantees. To survive in these environments where a common law no longer prevails, one must pledge allegiance to someone stronger than oneself. One must find a protector, whom in return one pledges to serve. These ties of allegiance are operative at every level, in relations between companies of different strengths, between workers and managers, and also in the relations between countries. During the Greek financial crisis, Greece was requested to pledge allegiance to its EU partners. If you read the text Greece was obliged to sign in July 2015, it says, "Yes, it's all my fault". The Greeks were made to sign that if Greece had an unmanageable level of debt, it was exclusively due to the policies introduced since January 2015, which is utterly untrue. But they had to perform this act of submission so that later they would be granted a loan. When dealing with the Greek deficit, the Troika, that is, the European Commission, the IMF and the European Central Bank decided on the fate of the Greeks using methods which far exceeded the normal powers of European institutions over a Member State. But this was precisely an effect of what we saw with New Public Management, that is, treating a State like a business. When a businessman goes bankrupt, he is forbidden to continue trading, and in the case of Greece, one said that the Greek people should have no say in the matter. They had been put into receivership. So the Troika acted like a sort of receiver. And one can see how this idea of governance by numbers flagrantly contradicts the idea of democracy. So these ties of allegiance shape every level of our institutions, which is why the concept seemed to me to have a particularly powerful operative force. Rule by Men and Rule by Laws We have seen that a Mediaeval structure resurfaces, but this does not mean that we are returning to the Middle Ages. It means that, in the history of law, there are a limited number of ways of thinking about human government, and when one of them is exhausted, another one appears. Some notions are recycled, such as "citizenship", which one can see in Ancient Greece, it is reinterpreted differently in Rome, and again in the Italian City States at the dawn of modern times, then during the French Revolution, and then in the 1980s Auroux Laws, which speak of "citizenship in the work-place". Each time the concept has a different meaning. So it is not that we are returning to the Middle Ages, but that a certain structure is reappearing. Because there are not that many ways of governing people. Here I borrow terms from Chinese political philosophy, where rule founded on laws was distinguished from rule by men. For Confucius, the ideal was that people assimilated the rules of good conduct to such an extent that they did not need laws. That was government by men, in the form of ritualism. Its opposite was government by laws, where a common law applies to everyone. Apart from ritualism, feudalism was another form of rule by men. It works through a bond of personal allegiance, where I become the vassal of my suzerain, who gives me protection. This form had different versions in different societies. There is a magnificent work by the great historian Marc Bloch on feudal society which is well worth rereading because it shows how this feudal structure was expressed very differently in different parts of Europe. Perry Anderson also does this type of comparative work, in "Passages from Antiquity to Feudalism", showing how important Japanese feudalism was in Japan's economic successes at the end of the last century because they knew how to get the best out of this bond through employment for life: I give you life-long employment, but you must serve me faithfully, that was one of the keys to Japan's economic success. It did not take the legal form which existed in Europe, where feudalism developed in the matrix of Roman law. And within Europe itself, English, French and German feudalism were different. An in-depth study would certainly reveal this same type of diversity. And in the case of France, there is an old feudal substratum which can resurface at any moment in forms which are in keeping with the French tradition. In order not to give the impression, which would be false, that this diagnosis of a revival of ties of allegiance reflects a certain pessimism, I must stress the fact that unlike the fantasies around the total market, as something universal, homogeneous, and a homogenisation of systems, from the perspective of "worldisation" as I have tried to define it the issue is rather for every society to get the best out of its own tradition. That is to say, to invent its modernity on the basis of its own tradition. In the case of France, in the long history of French legal culture, there are certain resources which can be mobilised. Instead of this, the tendency today is to use comparative law in much the same way that Dr Frankenstein used surgery, that is, thinking one can graft an English head onto German muscles, with a Swedish heart... No. The problem is to regain confidence in a certain tradition, while not getting enclosed in a fantasised representation of national identity, but also not yielding to the idea that now there is only one way of governing and it should be imported into France. This is very important, and it links with the issue of reform today: how can one best use a legal tradition to tackle the problems of the modern world? An Example from France: Reforming the Labour Code It was foreseeable, and already mentioned in the 1999 report, "Beyond Employment", that the single currency would reduce the scope of Member States' economic action to one adjustment variable, namely labour costs. The rest was not under a country's control. There was only this one leverage, to which they clung absolutely frantically, thinking that with this alone they could adjust to international competition. "Adjust" here means ever lower standards of social protection. So when I saw a politician on television throw a huge French Labour Code in a very theatrical gesture onto the table - in fact it was in fact the Code with commentaries - saying "This is the origin of all of France's ills", it was entirely foreseeable. But I also thought it was irresponsible and showed a lack of political perspective, of contextualisation of problems, because the labour law we inherited from the industrial world was conceived for employment, and corresponded to a system of production which is no longer ours. We must rethink and reformulate the categories of our labour law. It cannot simply be dreamt up by academics. One of the problems of the 2016 El Khomri labour reform was that it was based on expert analyses and not on negotiation. Labour law has always been based on practice, that is, on the experimental knowledge which business leaders and employees via their trade unions have of the world of work. That is where reforms can really take root. The Labour Code's first article, which derives from the Larcher Law, actually makes it obligatory for every labour law reform to be preceded by cross-industry negotiations. But in the case of the El Khomri Law, first came the experts and afterwards, to expiate this original error, there was a succession of negotiations with different trade unions. So it got off on the wrong foot from the start. In the debates on this reform, if I were to make value judgements, with politicians who get the advantages of both the public and the private sector, there is an oligarchic tendency. Seeing them indict the working class's excessive privileges is something obscene, clearly. When one moves from the upper civil service to banking, while keeping the safety of one and the financial advantages of the other, attacking the extravagant entitlements of post-office workers or nurses, and always blaming what remains of the public services in France, it always means pointing the finger, setting immigrants against the others, old against young, pensioners against the working population, insiders against outsiders, this is the result of a breakdown, an incapacity to shape an agenda for political mobilisation valid for all citizens. It is another symptom of the crisis of the political, of our "living together". No Social Harmony without Social Justice How can one, to use the terms of the cybernetic imaginary again, reconnect the political to experience? This notion of experience is very important. Often one regards issues of social justice as a sort of illusory dream, the stuff of boy scouts and pious preachers. actual fact, the principle of social justice was formally advocated on two occasions in the course of the 20th century, once in 1919, and the other time in 1944, that is, following unimaginable butchery and mass murder. And it was asserted twice, first in the Treaty of Versailles, and then in the Declaration of Philadelphia, that "universal and lasting peace can be established only if it is based upon social justice". One foreseeable consequence of a world in which injustices keep growing is that there will be violence. In what form? In wars, it was violence between countries, but now novel forms of violence appear before our very eyes, but they are to a certain extent foreseeable. What is very striking in the Declaration of Philadelphia and in the Universal Declaration is that they are explicit: "Historical experience has shown that if we let injustices flourish, we will have war." So reconnecting the political to lived experience seems to me to be an absolute priority, in order to avert this possibility. So we have before us a mammoth task, in which, first of all, populations must be enabled to reappropriate the political sphere. It should not be confiscated by experts, nor by a class of political careerists, which cannot see the map for the territory, which has lost touch with people's real experience.