Full Terms & Conditions of access and use can be found at https://www.tandfonline.com/action/journalInformation?journalCode=rjpn20
Jurisprudence
An International Journal of Legal and Political Thought
ISSN: 2040-3313 (Print) 2040-3321 (Online) Journal homepage: https://www.tandfonline.com/loi/rjpn20
Democracy laid low by the market
Alain Supiot
To cite this article: Alain Supiot (2018) Democracy laid low by the market, Jurisprudence, 9:3, 449-460, DOI: 10.1080/20403313.2018.1545734
To link to this article: https://doi.org/10.1080/20403313.2018.1545734
Published online: 22 Nov 2018.
Submit your article to this journal
Article views: 22
View Crossmark data ANNUAL LECTURE
Democracy laid low by the market
Alain Supiota,b
a Collège de France, Paris, France; b Nantes Institute for Advanced Study, Nantes, France
ABSTRACT From its origins in antiquity to the emergence of neoliberalism, democracy had always been thought of as a fragile institutional construct, comprising two complementary dimensions: an objective dimension (its formal institutions), and a subjective one (instituting its citizens). Appeared in the 1970s, the Law and economic doctrine has undermined this bases of democracy by assimilating the enactment of laws to negotiation on a market, and reducing democracy to a ‘market of ideas’. The specific status of speech in the democratic area fades out, paving the way for ‘post-truth politics’ and ‘democratic dictatorships’.
KEYWORDS Democracy; inter-diction; reference; law and economics; inequalities; market of ideas; post truth politics
Democracy is one of the solutions invented by human beings to the problem of having to impose on members of a given society the rules by which they must live. It is a vital issue for the human species, and for the human species alone. In order to understand this, we must return briefly to physical anthropology, and LeroiGourhan’s admirable depiction of the process whereby the great apes were cast into a world of signs and objects which could embody their mental images.1 Human beings, like all other animals, inhabit the world first through their senses, but unlike all other animals, they have access to a symbolic universe which transcends the here and now of instinctual life, by means of language and technology. The finitude of organic, instinctual life is complemented by a limitless world of mental representation. However, as the poet Jacques Prévert says, ‘le monde mental ment, monumentalement’. 2
With his two dimensions – his feet on the ground and his head in the stars – man is always liable to lose his footing in reality, and to be swept off his feet by his giddying mental representations. Entering the intoxicating world of symbols comes at a price which other animals never experience: the risk of delusion, and above all the illusion of omnipotence. This is why human beings must be ‘instituted’, that is, subjected to a representation of the world which is shared by all. A society that does not institute its children will see them turn into murderers. Instituting reason means enabling the human being to harmonise the finitude of his physical existence with the infinity of his mental universe. In other words, since our mental images both link us to, and separate us from, the physical
© 2018 Informa UK Limited, trading as Taylor & Francis Group
CONTACT Alain Supiot [email protected] 1 André Leroi-Gourhan, Le geste et la parole (Albin Michel, 1964); Gesture and Speech (Anna Bostock Berger tr, MIT Press, 1993). 2 ‘The mental world lies, monumentally’. Prévert, ‘Il ne faut pas’ in Œuvres complètes (Gallimard-La Pléiade, 1992) 139.
JURISPRUDENCE 2018, VOL. 9, NO. 3, 449–460 https://doi.org/10.1080/20403313.2018.1545734 world, instituting reason enables us to distinguish between what in our images belongs to reality, what to possibility, and what to pure fantasy. This education of reason, which each of us had to go through as a child, and which in reality is never completed, is essential for drawing us out of the solipsism of our subjective lives so that we can have the same representation of the world as others, and so communicate with them. But communication is conditional upon accepting the law of language, that is, having as common reference symbols that are outside of us and that are binding on us all. Only then will we be able to participate in the type of ‘speech assembly’ which we know of as ‘democracy’. To address the question of democracy again at this elementary level of ‘speech assemblies’ can shed light on the factors determining its emergence and survival.
I – Democracy as a type of speech assembly
A brief foray into linguistics is required here in order to understand how linguistic exchange differs from the signals exchanged by animals. If we take the typology drawn up by Charles Peirce (1839–1914), we find three types of representation of the world, to which correspond three types of reference.3 The first is iconic, the icon being the physical image of the represented object, whether this object exists in reality or not; images are icons, as are diagrams, algebraic equations, and metaphors.4 The second is indexical: the index is the physical or temporal mark of the presence of the object; it does not resemble the object, but signals its presence. ‘Everything whichattracts our attention is an index’, Peirce writes, ‘insofar as it marks the juncture between two states of experience.’ 5 Examples include a knock at the door, a clap of thunder, the visitor’s soaked clothes, the swaying gait of the sailor, the calloused hands of the labourer, the president’s flashy watch, or the movements of a wind vane. The third type of reference is symbolic: symbols refer to the object via a mediating system of signs, independently of any resemblance, or physical or temporal link to the object. Peirce refers to symbols as ‘legisigns’: ‘a symbol is a law’, 6 he says, ‘a sign which acts as a law for all its singular uses. Every ordinary word is thus a symbol, applicable to everything which can realise the idea attached to this word.’ 7 Unlike the index, the symbol is not physically linked to an object. It relates to objects via the system of signs of which it is a part. Towards the end of his life, Peirce declared that ‘man is a sign’, in other words, he is a symbolic animal, which precisely differentiates him from animals. Animals exchange many different signals, which respond to different circumstances. But these are indexical, that is, a certain cry or whistle corresponds to a certain object.8
3 Charles S. Peirce, The Essential Peirce, Volume 1 and 2, Selected Philosophical Writings (1867–1893) (Nathan Houser and Christian J. W. Kloesel eds, Indiana University Press, 1992). 4 Ibid. 5 Ibid. 6 Ibid. 7 Ibid. 8 Cf. Terence Deacon, The Symbolic Species. The Co-evolution of Language and the Human Brain (WW. Norton, 1997, reed. Penguin) 69f.
450 A. SUPIOT A rat or a monkey can therefore learn to make a correlation between the sound ‘food’ and the food itself. A direct link is made between a sign and an object, each sign being the index of the presence of an object or a particular situation – a certain danger, for example. It is a stimulus which functions separately from all the others, as long as it is proved by the here and now of sense experience (the stimulus disappears if recurrently the rat sees no food appear when it hears the word ‘food’, just as we stop paying attention to a fire alarm that goes of unexpectedly several times a week). By contrast, the meaning of a word in a language persists independently of its actualisation. I would even go so far as to say that it persists even more forcefully when this actualisation is impossible: conjuring up a swim in the sea or a walk in the hills has much more power for the prisoner locked in his cell, or the hospitalised patient on a drip. This quality of language was highlighted by Leroi-Gourhan, its ability to transport us far from the here and now of our physical existence. It can do this because the words of a language, unlike the cries of animals, are not indices separated from each other, but quite the reverse: they refer to each other as parts of the same linguistic structure. Their sense depends on how they are associated with one another, as we can test by opening a dictionary and taking the word ‘fast’, for example, which has various meanings, relating to going without food, fixity, and speed.9 It is this symbolic structure which allows us to depict both real and imaginary things. ‘Reference’, in linguistics, is thus different from a simple indexing of things, from a collection of signals, each of which points to something. It is above all a reference to a symbolic structure, and this reference is necessarily shared by the language’s speakers. As the great linguist Émile Benveniste wrote:
In an utterance, language [la langue] is used to express certain relations to the world. The precondition for this mobilisation and appropriation of a language is, for the speaker, the need to refer by means of discourse, and, for the interlocutor, the possibility of co-referring identically, in conformity with the pragmatic consensus which makes of each speaker a co-speaker. Reference is an integral part of utterance.10
An index refers to a natural object; language refers to a system of signs. Reference, in the linguistic sense used here by Benveniste, does not mean the direct reference of a word to a thing, but a shared reference to a symbolic system capable of expressing all sorts of experience, both real and imaginary. Reference, capital ‘R’, the precondition for linguistic exchange, is not something we can just get a feel for: that which guarantees sense eludes the senses. Linguistic communication is therefore never binary, but always ternary, because it supposes speakers who already refer to the same symbolic system. This structure involves human beings in what can be called, literally, a logic of inter-diction.11 Reference, a necessary passage via the third, both inter-poses itself between, and links together speakers. In the strict sense, it is the source of inter-diction.
9 Peirce, The Essential Peirce (n 3) 122. 10Émile Benveniste, Problèmes de linguistique générale, t.2 (Gallimard, 1974) 82; Problems in General Linguistics (Mary Elisabeth Meek tr, University of Miami Press, 1973). Also, on this point, Dany-Robert Dufour, Les mystères de la trinité (Gallimard, 1990), especially Part 2, ‘La trinité et la langue’ 73ff. 11This significant way of writing the term was first formulated by Jacques Lacan, Encore. Séminaire, t.XX (Jacques-Alain Miller ed, Seuil, 1975) 151; On Feminine Sexuality, the Limits of Love and Knowledge. 1972-1973. Encore, The Seminar of Jacques Lacan Book XX (Bruce Fink tr, WW. Norton, 1998) 119.
JURISPRUDENCE 451 That is why human societies cannot be assimilated to animal herds, nor political communities to a form of ‘living together’. Human beings do not have access to rationality without society, and they cannot form a society without accepting a common Reference, that is, without complying with the logic of inter-diction thanks to which they can exchange words rather than blows. By taking up the question of democracy at this elementary level we can gain insight into how it resembles, and how it differs from other forms of political organisation. It resembles other forms in the need for a common Reference, and the logic of inter-diction. It differs from these in how the inter-dictions are laid down. In the long history of us poor humans, these interdictions have for the most part been imposed on the many by the few, whose power is rooted in religion, tradition or, more rarely, in force alone. The corresponding regimes have been exhaustively classified by political scientists from Aristotle to Montesquieu – aristocratic, monarchic, and despotic regimes, among others. In all of these, the rules imposed are heteronomous, that is, their source is located in the gods, or in men accorded higher status. Democracy emerged from a rather marginal practice, in Ancient Greece, but not only there, whereby free men in a given society came together as equals to decide on common affairs. Each member of the assembly had the right to contribute to the enactment of the norm, and could, on occasion, contradict the opinion of his peers. This has given us the agonistic dimension of democracy,12 which, from a jurist’s perspective, is expressed nowhere better than in labour law. Comparative research coordinated by Marcel Détienne13 has shown that the democratic practice of speech assemblies has been present at times and in places as varied as the Ochollo in Ethiopia,14 monastic communities in Japan15 and in Medieval Europe,16 assemblies of the clergy in fifteenth-century France, of Cossack warriors in sixteenth- to seventeenth-century Ukraine, and of the inhabitants of Pacific atolls, as described by the first anthropologists to land there in the nineteenth century.17 What these widely varying cases have in common is their institution of a place for politics where people gather in accordance with certain rule-bound procedures to debate as equals on questions of common interest, and to take decisions which will be binding on all. The spatial dimension of democratic debate has been superbly described by Jean-Pierre Vernant from this perspective.18 Once the people are assembled, each person has an equal right to speak (isègoria). A sceptre, symbolising power, is ‘placed in the centre’ (en méso, which also means mediate and measure) of the circle formed by his fellow men (homoïoï). The person who wishes to speak advances to the centre and takes up the sceptre, to signify the public status of the words he is about to speak. When he has finished, he puts the
12Chantal Mouffe, The Democratic Paradox (Verso, 2009). 13Cf. Marcel Détienne (ed) Comparer l’incomparable (Seuil, 2000) ch. V.; Comparative Anthropology of Ancient Greece (Harvard University Press, 2009) and, also coordinated by Détienne, Qui veut prendre la parole? (Seuil, 2003). 14Cf. Marc Abelès, ‘Pouvoir et société chez les Ochollo d’Ethiopie méridionale. à Demeke Dejasse et Salanon Wenjela’ (1978) 18(71) Cahiers d’études africaines 293; ‘Revenir chez les Ochollos’, in Détienne, Qui veut prendre la parole? (n 13) 393 sq. 15Cf. Pierre-François Souyri, in Détienne, Qui veut prendre la parole? (n 13) 85 sq. 16Cf. Hélène Millet, ibid 95 sq. 17Cf. Jean-Paul Latouche, ibid 303 sq. 18Jean-Pierre Vernant, Mythe et pensée chez les Grecs (Maspéro, 1965) vol. 1, 179–80; Myth and Thought Among the Greeks (MIT Press, 2006) 450. See also Pierre Lévêque and Pierre Vidal-Naquet, Clisthène l’Athénien (Les Belles Lettres, 1964).
452 A. SUPIOT sceptre down, and returns to his place. Thereupon, his speech ceases to be public and becomes private again. Like every speech assembly, democracy must presuppose that its members share the same normative reference. In the case of democracy, this reference is not only linguistic, it is also moral and economic.
II – The institution of democracy
From its origins in antiquity to the emergence of neoliberalism, democracy had always been thought of as a fragile institutional construct, comprising two complementary dimensions: an objective dimension (its formal institutions), and a subjective one (instituting its citizens). Democratic regimes, in their objective dimension, both separate and carefully articulate three institutions, each of which has its particular place and rules:
(a) a political assembly, where debate on the public interest takes place; (b) a market, where private interests are negotiated; (c) a space for the sacred (religio in its original legal sense), or sphere of dogmatic Reference, which is both the source of meaning and the guarantee of the trustworthiness of the pledged word, whether in a commercial or political context.
This necessary religious dimension in the institution of the State (which is clearly visible in the layout of Greek Cities and Medieval free towns) should make us sceptical of the idea that democracy is synonymous with a secularisation of the political sphere, or rather, concomitantly, that collective autonomy can be achieved without any heteronomous instance.19 Political freedom, like freedom of speech, requires a heteronomous Reference respected by all. Democracy’s watchword is indeed isonomy, the equal right to take part in enacting legislation. However, in the public sphere, this isonomy is subordinated to what The Digest calls – speaking of public law – ‘sacred affairs’. 20
Tocqueville dwelt on this link between a shared faith and civil liberties when observing the early days of American democracy. ‘If man’, he writes, ‘does not have faith, he must serve, and if he is free, he must believe.’ 21 And indeed, the American Declaration of Independence opens with the assertion that there exist ‘self-evident truths’, that is, an axiological basis and orientation to the political community, which all its members must respect. From this perspective, democracy requires the institution of a demos, a people of citizens, in order to survive. Members of the demos must fulfil three requirements, each of which corresponds to one of the constitutive facets of democracy:
(a) a training and an education which makes them capable of distinguishing between the public interest and their private interests; (b) an economic independence through work, so that citizens are not divided by too great inequalities of wealth, nor enslaved to each other;
19Radical collective autonomy is an idea put forward by Cornelius Castoriadis, for example in Le monde morcelé. Carrefours du labyrinthe 3 (Seuil, 1990) 137–71. 20Sunt enim quædam publice utilia, quædam privatim. Publicum jus in sacris, in sacerdotibus, in magistratibus consistit, (Digeste, 1, 1. §.2). 21Tocqueville, De la démocratie en Amérique, II (Gallimard, 1966) 29.
JURISPRUDENCE 453 (c) an ethic of truth, that is, the courage to say what one thinks and be challenged by what others think, in speech assemblies which aim to come to an agreement on what is and what should be.
Although these three conditions are structurally linked, we shall briefly summarise each one separately. They are the backbone of what a long tradition has called civic virtues, which can also be called the subjective dimension of democracy. (a) Starting with education, which the Greeks called paideia (παιδεία), this is education not in the sense of accumulating knowledge, but in the sense of a formative process for the individual. The practice of democratic debate constitutes a training in rational argumentation during which reasonings based on received authority must give way to the authority of rational argument. Democratic debate both fosters, and relies on, the participants’ ability to distinguish private from public utility, and to make sure that the latter prevails over the former. The ideal of this education is to serve the public interest, not to amass personal wealth. (The Greeks would have been appalled by the idea of having billionaires as a model for their youth). Montesquieu highlights this same point many centuries later, in his well-known typology of governments. He distinguishes three forms – monarchy, despotism and republicanism – each of which is based on a principle, respectively honour, fear and virtue. A mode of government can only perpetuate itself if its associated guiding principle is instilled into the population from their earliest years. This requirement is particularly vital for Republican government.
It is in a republican government that the whole power of education is required. The fear of despotic governments naturally arises of itself amidst threats and punishments; the honour of monarchies is favoured by the passions, and favours them in its turn; but virtue is a self-renunciation, which is ever arduous and painful.
This virtue may be defined as the love of the laws and of our country. As such love requires a constant preference of public to private interest, it is the source of all private virtues; for they are nothing more than this very preference itself. (…)
Everything therefore depends on establishing this love in a republic; and to inspire it ought to be the principal business of education22
(b) Second, a democracy requires its citizens to achieve economic autonomy through work. Following Solon’s reforms in 594–593 B.C.E., the idea that work is necessary for the citizenship of the less wealthy began to take shape. It has been reaffirmed throughout the history of democratic institutions until the twentieth century. The need to shelter democracy from the domination of the richest members of society was a constant concern in the conception of French and American democracy. The founding fathers did not have in mind capitalism, but a population of small-scale independent workers, and the French revolutionaries, faithful to Rousseau, did not aspire to the invisible hand of the market, nor to an appetite for riches, but to the sovereignty of the general will, and the cult of virtue:
22Montesquieu, L’esprit des lois, L. IV, Ch. V, in Œuvres complètes (Gallimard-La Pléiade, 1951) vol. 2, 266–67, translated by Thomas Nugens (1752).
454 A. SUPIOT It is most important not to allow any professional financiers in the Republic, not so much because of their dishonest profits as because of the fatal example they set; an example which, all too promptly diffused throughout the nation, destroys all worthy feelings by making illicit wealth and its advantages respectable, and by covering unselfishness, simplicity, morality and all the virtues with a cloud of scorn and opprobrium.23 Rousseau was not the only French philosopher to hold this opinion. Montesquieu is always quoted for his defense of the civilising virtues of ‘gentle commerce’. The economist Albert Hirschman quotes him at length in his excellent book on the political justifications of capitalism before its prime.24 Curiously, however, Hirschman does not mention Montesquieu’s distinction between the beneficial effects of trade on relations between nations and the harm it causes in relations between individuals.
If the spirit of commerce unites nations, it does not in the same manner unite individuals. We see that in countries where the people move only by the spirit of commerce, they make a traffic of all the humane, all the moral virtues; the most trifling things, those which humanity would demand, are there done, or there given, only for money.25
In order to avoid such excesses, laws should ‘divide up wealth as trade grows’, so that the poor can – and the rich must – live from their labour.
In order to support the spirit of commerce (…) these very laws, by dividing the estates of individuals in proportion to the increase of commerce, should set every poor citizen so far at his ease as to be able to work like the rest, and every wealthy citizen in such a mediocrity as to be obliged to take some pains either in preserving or acquiring a fortune. 26
From Jefferson to Eisenhower via Brandeis and F.D. Roosevelt, work was always conceived as the best training for self-government. But democracy was in mortal danger if ever economic power held sway over political power. Roosevelt mentions this in his last speech, in favour of the adoption of a Second Bill of Rights, in January 1944:
We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. “Necessitous men are not free men.” People who are hungry and out of a job are the stuff of which dictatorships are made.27
(c) The third condition for a democratic society is that its members observe an ethic of truth. This is the ethic which Foucault, discussing Greek classical theatre,28 calls ‘parrêsia’, or truth-telling:
The place of parrêsia is defined and guaranteed by the politeia; but parrêsia, the truth-telling of the political man, is what assures the appropriate game of politics. The importance of parrêsia, it seems to me, is found in this meeting point. At any rate, it seems to me that we find here the
23Jean-Jacques Rousseau, Projet de constitution pour la Corse (1765), in Œuvres complètes (Gallimard/La Pléiade, 1970) t. 3, 933; Constitutional Project for Corsica (Thomas Nelson and Sons Ltd, 1953), http://www.constitution.org/jjr/corsica.htm. 24Albert O. Hirschman, The Passions and the Interests – Political Arguments for Capitalism before Its Triumph (Princeton UP, 1980, revised edition 2013). 25Montesquieu, De l’esprit des lois [1748], livre XX ‘Des lois dans le rapport qu’elles ont avec le commerce considéré dans sa nature et ses distinctions’, chapitre 2 ‘De l’esprit du commerce’. 26Montesquieu, L’esprit des lois, L. V, Ch. VI, in Œuvres complètes (n 22) 280. 27The declaration that ‘necessitous men are not truly free men’ comes from common law, namely the judgement on the Vernon v Bethell case of 1762 (Vernon v Bethell [1762] 28 ER 838). 28Cf. Michel Foucault, Le gouvernement de soi et des autres, Cours au Collège de France, 1982–83 (Gallimard/Le Seuil, 2008); Government of self and others: Lectures at the Collège de France, 1982–83 (Graham Burchell tr, Palgrave Macmillan, 2010). See Maria Andrea Rojas, Michel Foucault : la « parrêsia », une éthique de la vérité (DPhil thesis, Univ. Paris-Est, 2012).
JURISPRUDENCE 455 root of a problematic of a society’s immanent power relations which, unlike the juridical-institutional system of that society, ensure that it is actually governed. The problems of governmentality in their specificity, in their complex relation to but also independence from politeia, appear and are formulated for the first time round this notion of parrêsia and the exercise of power through true discourse.29
This good parrêsia is opposed to a bad parrêsia, which resembles it in order to deceive the citizens more effectively. Bad parrêsia is the demagogue’s ‘saying it straight’, but above all the abuse of speech, that is, the ‘false speech’ of the sophists, who are not interested in the truth, but only in seducing the masses with rousing speeches. It is a rhetoric which can be summed up in the expression selected as ‘Word of the Year 2016’ by Oxford Dictionaries, ‘“post-truth” politics’. Foucault was not the first thinker to foreground the importance of the subjective internalisation of the conditions of democracy, that is, the dependence of democratic institutions on people with the courage to make them thrive. He was rediscovering the crucial role of what a whole lineage of jurists, from Cicero to Vico and Montesquieu, called ‘civic virtues’. This is the list Cicero gives30:
Religio est, quæ superioris cujusdam naturæ, quam divinam vocant, curam caerimoniamque affert; Religion is that which causes men to pay attention to, and to respect with fixed ceremonies, a certain superior nature which men call divine nature. pietas, per quam sanguine conjunctis patriæque benivolis officium et diligens tribuitur cultus; Affection (Piety) is that feeling under the influence of which kindness and careful attention is paid to those who are united to us by ties of blood, or who are devoted to the service of their country. gratia, in qua amicitiarum et officiorum alterius memoria et remunerandi voluntas continetur; Gratitude is that feeling in which the recollection of friendship, and of the services which we have received from another, and the inclination to requite those services, is contained. vindicatio, per quam vis aut iniuria et omnino omne, quod obfuturum est, defendendo aut ulciscendo propulsatur; Avenging is that disposition by which violence and injury, and altogether everything which can be any injury to us, is repelled by defending oneself from it, or by avenging it.. observantia, per quam homines aliqua dignitate antecedentes cultu quodam et honore dignantur; Respect is that feeling by which men obey when they think those who are eminent for worth or dignity, worthy of some special respect and honour. veritas, per quam immutata ea, quæ sunt, aut ante fuerunt, aut futura sunt, dicuntur. Truth is that by which those things which are, or which have been previously, or which are about to happen, are spoken of without any alteration.
Foucault’s good parrêsia is in fact the Latin veritas, a virtue which is vital for the functioning of speech assemblies based on an equal right to speak (isègoria), that is, for democratic institutions in their most essential aspect. Using the term ‘virtue’ has the advantage of highlighting the fact that, for a democracy to function adequately, its citizens must be individually and collectively committed to telling the truth. In other words, they must be educated, they must be inculcated with a respect for the truth, and they must have sufficient economic power to participate in expressing it. So, contrary to what Foucault maintains, parrêsia is not ‘independent of the politeia’, understood as democracy’s legal and institutional framework. Foucault himself – always somewhat uneasy with the question of the law – contradicts this idea of independence
29Foucault, Le Gouvernement de soi et des autres (n 28) 147. Underlying is mine (A.S.). 30Cicero, De inuentione, II, LIII, in Œuvres complètes de Cicéron, English translation by C. D. Yonge (the translation of vindicatio, which is misleadingly translated as ‘vengeance’ (Fr) and ‘revenge’ (Eng) in these editions, has been modified by the author.
456 A. SUPIOT when he notes at the outset, quite rightly, that ‘the place of parrêsia is defined and guaranteed by the politeia’. Although it does indeed take courage to speak out in a democratic assembly, it is not the same courage for the Prince’s counsellor, the Resistance fighter in Nazi-occupied France, and the Soviet dissident or prisoner in the Gulag, as immortalised by Varlan Shalamov in his Kolyma Tales.31 In the latter case, the risk is death, and the virtue required is not only veritas, but also vindicatio: the courage not only to speak the truth, but also to act in defence of others, and denounce injustice. In one of these ‘tales’, Shalamov recounts how he was forced to stand in line in the camp’s training ground for an unbearably long roll call in the depth of a Siberian winter. A prisoner near him collapsed from exhaustion. His face was covered in blood. The soldiers were kicking him to make him stand up:
Suddenly, I felt a wave of warmth come over me. I understood that everything, all my life, was at stake at this moment. If I did not do something - I didn’t really know what - there would have been no point my coming with this convoy, no point to my twenty years of life. My shame at my own cowardice, which had been burning my cheeks, suddenly vanished: I felt them go cold again, and my body felt strangely light.
I stepped out of line, and said in a halting voice:
- I forbid you to strike this man.
Shalamov’s artistry, and his experience of the Gulag, succeed in conveying to us what is meant by the institution of the subject, by the subject’s incorporation of a virtue which, by dint of being practised, takes on an existential value. He also helps us understand the process of dispossession at work in the universe of the camps, where the human being is methodically stripped of the attribute of legal subject, and driven to abandon any sort of virtue. We do not need to be reminded of such extreme situations to realise that the courage required to speak out is different under non-democratic regimes, which willingly grant legal status to their populations, but keep them in such subordination that their freedom of expression is curtailed or abolished. This is particularly evident in business enterprises. The neglect of this institutional context of truth-telling has generated the confusions we see today between collective bargaining and democracy in the company. It must be stressed that a relation of dependence or subordination rules out the possibility of isègoria, or equal right to speech. If we focus on the individual as the sole agent of speaking the truth, we shall erroneously think that business enterprises are a democratic politeia. In so doing, we risk making collective bargaining into an instrument of collective submission.
III – The dislocation of democracy
Insofar as democratic regimes are dependent on the virtue of their members, they are particularly fragile. They run specific risks, described by Giambattista Vico in the closing pages of his New Science. Vico admires the grandeur of what he calls ‘popular commonwealths’ in which ‘entire peoples, who have in common the desire for justice, command
31Varlan Shalamov, Kolyma Tales (John Glad tr, Penguin Classics, 1994).
JURISPRUDENCE 457 laws that are just because they are good for all’. 32 The democratic practice of debating proposed legislation educates the rational faculty, and this leads people to ground the social order in philosophical rather than religious principles.33 But although such commonwealths or republics may be admirable, they are also precarious, because their capacity to survive depends upon the virtue of their citizens. And indeed, just when such commonwealths achieve their greatest political and material successes, they become vulnerable to the ‘barbarism of reflection’. This involves, Vico continues, a misuse of abstraction. Abstraction no longer serves to hold our passions in check and work towards a common, objective view of the world, but to ‘calumniate the truth’ and support any cause at all, as long as it serves private interests. ‘Learned fools’ cast off all common reason, and set about dismissing the very idea of the general interest, or else they subordinate it to the pursuit of private utilities.34 Such diseased commonwealths, in Vico’s view, witness their citizens lose interest in the common good, and so ‘the strength which had led the people to leave their primary solitude disappears’. 35 Thereafter, the society falls apart, and each individual sinks into civic apathy and social isolation. Vico gives a striking description of this state:
Such peoples, like so many beasts, have fallen into the custom of each man thinking only of his own private interests, and having reached the extreme of delicacy, or better of pride, like wild animals they bristle and lash out at the slightest displeasure. Thus in the midst of their greatest wealth and festivities, though physically thronging together, they live like wild beasts in a deep solitude of spirit and will, scarcely any two being able to agree since each follows his own pleasure or caprice. 36
In this state of decomposition, political power becomes the instrument of wealth, which paves the way for demagogy and civil war. Thus, Vico states, ‘do commonwealths fall from a perfect liberty into perfect tyranny’. 37 Only this experience of the return to the barbarousness of the senses can drive them to rediscover a sense of civic virtue, namely ‘the piety, faith and truth which are the natural foundations of justice.’ This diagnosis is remarkably relevant today. Appeared in the 1970s, the economic analysis of law has effectively destroyed the three bases of democracy we outlined above. In 1975, Richard Posner, the founder of the ‘Law and Economics’ doctrine, assimilated the enactment of laws to negotiation on a market, and reduced democracy to a ‘market of ideas’. 38 He was simply extrapolating a thesis formulated by Ronald Coase in the previous year, in a seminal article entitled ‘The Economics of the First Amendment. The Market for Goods and the Market for Ideas’. 39 Coase argues that there is no fundamental difference between these two types of ‘markets’, and so public policy decisions on ‘Goods’ and on ‘Ideas’ should both conform to economic
32Giambattista Vico, The New Science (Thomas Goddard Bergin and Max Harold Fisch tr, from the third edition (1744) Cornell University Press, 1948) §. 1101. 33Ibid §. 1040. Add. Alain Pons, Vie et mort des nations. Lecture de la Science nouvelle de Giambattista Vico (Gallimard, 2015) 307ff. 34Vico, The New Science of Giambattista Vico (n 32) §. 1102. 35Cf. Pons, Vie et mort des nations (n 33) 315. 36Vico, The New Science of Giambattista Vico (n 32) §. 1106. 37ibid §. 1102. 38William M. Landes and Richard A. Posner, ‘The independant Judiciary in an Interest-Group Perspective’ (1975) 18(3) Journal of Law and Economics 875, quoted 877. 39Ronald Coase, ‘The Economics of the First Amendment. The Market for Goods and the Market for Ideas’ (1974) 64(2) American Economic Review, Papers and Proceedings 384.
458 A. SUPIOT rules.40 The United States Supreme Court subsequently confirmed this vision of democracy as a market of ideas in two well-known rulings: Buckley41 and Belotti. 42
These had limited effect until the notorious Citizens United43 ruling of 2010, which demonstrated the full logical implications of this conflation. The case concerned an organisation, called Citizens Union, that despite being nonprofit was massively financed by private funds (its annual budget was roughly 12 million dollars). To coincide with the Democratic primaries of 2008, it wanted to broadcast a free-access documentary called Hillary, which was in fact an attack on the candidate Hillary Clinton. In the terms of the McCain–Feingold law, business enterprises had the right to support certain political opinions, but they could not intervene, in the period preceding elections, for or against a particular candidate. If they did want to do so, their action had to take the form of ad hoc committees, using limited funds, and closely monitored by the Federal Election Commission (FEC). Within this set-up, Citizens Union challenged only the limits placed on the budget. But the 5 conservative judges of the Supreme Court – Justices Roberts, Alito, Scalia, Thomas and Kennedy – seized on this case to forbid any intervention at all on the ‘market of ideas’ other than the minimum required for transparency. In so doing, the Court’s judgement endorsed the two principles which underpin this vision of democracy as a ‘market in ideas’. 44
The first principle is the equivalence between a quantity of money and a quantity of ideas. Consequently, any reduction in the quantity of money spent on political propaganda is equally a reduction in the quantity of political expression, and is presumed to limit the number of subjects discussed, the thoroughness of the discussion, and the size of the audience reached. The second principle is that of the equal treatment of legal persons and physical persons regarding freedom of expression. Ignoring the functionalist vision of legal personality defended previously, the Citizens United ruling sees legal persons as ‘speakers’ like any other:
Quite apart from the purpose or effect of regulating content (…), the Government may commit a constitutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.
As such, any restriction on their contribution to the public debate constitutes a form of censorship incompatible with the First Amendment of the Constitution. This judgment overturned the precedent set by Austin, 45 which had confirmed the restriction:
Austin interferes with the ‘open marketplace’ of ideas protected by the First Amendment. It permits the Government to ban the political speech of millions of associations of citizens.
40ibid 389. 41Buckley v. Valeo [1976] 424 U.S. 1. 42First National Bank v. Bellotti [1978] 435 U.S. 765. 43Citizens United v. Federal Election Comm’n [2010] 558 U.S. 310. 44Cf. Timothy K. Kuhner, Capitalism v. Democracy. Money in Politics and the Free Market Constitution (Stanford Law Books, 2014). 45Austin v. Mich. Chamber of Comm. [1990] 494 U.S. 652.
JURISPRUDENCE 459 The censorship we now confront is vast in its reach. The Government has ‘muffle[d] the voices that best represent the most significant segments of the economy.’ (…)
When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.46
Without batting an eyelid, the Supreme Court thus decided that the voice of big business is the voice which best represents the nation’s economic interests. And it invoked the principle of equality to give big business the same rights of expression as ordinary citizens. Although consequently there should be no distinction made between the voice of a simple citizen and that of a business enterprise, one still has to admit that the voice of business is better, it is the maior et sanior pars of the electorate, to use (and travesty) the vocabulary of the canonists.47 Or, to put it another way, in the words of Orwell’s Animal Farm: ‘All animals are equal but some animals are more equal than others.’ 48
Historically, democracy was assimilated to a marketplace for the first time in 1919, with jurists such as Justice Holmes,49 and the idea flourished, paradoxically, thanks to the New Deal. The New Deal was inspired by a belief in unlimited growth, a sort of economic motor of history, which the Social State could use to reconcile the concentration of capital and social justice. Economic dogma thus acquired the commanding position, which it still occupies for the legal realm. It conferred a ‘scientific legitimacy’ on the assimilation of ideas and beliefs to products in competition on a market, and it also ‘legitimated’ the definition of democracy as a regime which should protect the invention and circulation of such ‘intellectual products’ from any form of legal constraint. The sphere of the market thus absorbed the political realm (the electoral market), as well as the space of the sacred (the market of religions),50 and the figure of the citizen gave way to that of the consumer. In this context, the ethics of citizenship – education, financial independence in and through work, and respect for the truth – lost any meaning. The specific status which political speech had gained in all the experiences of democracy, that is, as a speech designed to express a certain representation of the public good, and not to defend private interests, could no longer be justified. Moreover, in the marketplace of ideas, since all discourses are in principle worth the same, reducing the amount of money invested in one discourse is deemed to directly reduce its freedom to express itself. This situation embodies the replacement of democracy by what Colin Crouch has called ‘post-democracy’, 51 a regime in which the freedom and equality of citizens are subordinated to the free play of economic rules, rather than ensuring that economic activities are subordinated to the requirements of the political sphere. Today, the best example of this ‘post-democratic’ regime can be found in the Chinese Constitution. Its first Article defines the People’s Republic of China as ‘a State of democratic dictatorship’.
46Citizens United (n 43). Underlying is mine (A.S.). 47See Léo Moulin, ‘Les origines religieuses des techniques électorales et délibératives modernes’ (1998) 11(43) Politix 117; Brian Tierney, ‘A Conciliar Theory of the Thirteenth Century’ (1951) 36(4) The Catholic Historical Review 415. 48George Orwell, Animal Farm (Secker and Warburg, 1945). 49Abrams v. United States, [1919] 250 U.S. 616. 50On this extension of the concept of Market, see Alain Supiot, The Spirit of Philadelphia. Social Justice vs. the Total Market (Verso, 2012). 51Colin Crouch, Post-Democracy (Polity Press, 2004).
460 A. SUPIOT