Text of my presentation to the DOCOP Seminar held at the VUB on January 9, 2004. This presentation was expected to present the basic assumptions, doubts and methodological choices that I made in order to get into my doctoral thesis. WARNING: Low content profile!

My researches concern the “principle of representation” in contemporary democratic constitutional states. In this presentation, I will try to make this statement as clear as possible. What does that mean: “principle of representation”? What does it imply? How can we be interested in such a “principle”? What is the relationship between this “principle” and the so-called “democratic constitutional state”? How nowadays is this “principle” connected with the question of sustainability? These questions, among others, must be dealt with if I want to fulfil my duty towards you - which is: to render understandable what I have not discovered yet.

Let me first give you a short picture of the situation we are all involved in now, with regard to the key-problem of genetically modified food (as it is my primary field of researches). For several years now, genetically modified food has become a common concern. We all know - because we are all concerned with it - that genetically modified food is a problem. The problem of this problem, so to speak, is that - as we all know it as well - it is not only a problem for us (i.e. what are we going to eat tomorrow, what are we already eating now, what effects is it going to have on me or my children or my environment, etc.) but it is also a problem for those who are supposed to solve problems for us: the scientists.
We have all grown up in a universe where there was nothing that could not, one way or another, be solved by a gain of scientific knowledge or technological skill. We have been educated in such a belief. However, the confidence we used to share about the necessity of Science to help solving problems has always, in the same time, been challenged by the paranoid stance of the fear of scientific cataclysm, exploited for instance by science-fiction writers or by Hollywood movie directors. The more we gained knowledge, the more we gained a feeling of uncertainty and insecurity towards it. Why? The answer is simple: because we have been more and more aware of the fact that the development of sciences was also the reduction of the number of persons who really knew something about it; and that uncertainty, contrarily to what was continuously claimed, was at the core of scientific practices. The status of the atomic weapon, for instance, during the Cold War was the epitome of such a schizophrenic relationship towards sciences: on the one hand, the extraordinary complexity of the atomic bomb was what allowed a paradoxical peace in the occidental world; but, on the other hand, only a few experts were able to grasp its functioning, and no one was able to fully master the knowledge about it. And the others - profanes - were just frightened.
So, what the controversies about genetically modified food show today, is a refusal to accept this schizophrenic situation anymore. We do not accept anymore the un-assumed power of the few experts supposed to speak for the Nature as such, and we do not accept anymore as well that politicians decide on our behalf that these experts must be trusted. But this is not a question of amount of experts; it is a question of nature of their expertise: the fact that experts monopolize the discourse around what causes problems. On the contrary, what we want now is that our concerns should be taken into account as part of the discourse around a problem that concerns us. What we want is to leave the era of the politics of facts where both decision and knowledge was left to experts, to enter the era of the politics of concerns where the question of concern are dealt with by those who are concerned with it - those who know something about it because of their concern. To put it shortly: we want to assume that there is not only one expertise - i.e. the “scientific” one - anymore, but as many expertises as people concerned, interested, involved, in a problem or a controversy - among which the so-called experts themselves, of course.

The main difficulty in this picture, as it has been recalled by the French anthropologist of sciences Bruno Latour, is that the political structure of our societies denies this possibility to leave behind us the politics of facts and to allow the politics of concerns to receive the floor. Our societies, he says, are still structured by what he called “les Grands Partages” (the Great Divides). The most important of those Great Divides, he adds, is the one between Nature and Culture. For Bruno Latour, by believing that there is something like an existing Nature out there, that we just have to investigate to discover her intrinsic secrets, we have de facto given the full power to speak on her behalf - on behalf of the Nature - to the scientists precisely because there are the ones who are expected to speak on her behalf.
To say it otherwise, by believing that there is something like a real Nature out there, as such, we have given a political role to the scientists: we have given them the political power to speak publicly about non-humans, about things, about facts, about Nature. We have given them the power to speak on behalf of, so to speak, half the world - the second half being us, the humans. This is an enormous power. Moreover, it is a power without counter-power, because if scientists are assumed to “know” about facts, reality, nature, and so on -, we are not. The only one thing we are supposed to “know” about is the ways we are living and want to live. The only one thing we are supposed to know about is our world view. But a worldview is not the world, I mean: the “real” world, of course. Moreover, we express this knowledge of worldviews primarily through the political instances of our societies, i.e. through parliamentary decision, through laws, through rights and freedoms, and so on.
So, to continue with Latour, we can describe our societies (that he calls “modern”) as societies governed or ruled by a parliament divided in two separate chambers: on one hand the secret chamber of non-humans where the scientists are the only ones to decide; and on the other hand the public chamber of humans where the politicians - on behalf of us, the “People”, or more accurately the “Nation” - are the only ones to decide. And the problem is that these two chambers do not communicate. So to speak, they are otherproof. They don’t even have the same status. It is only when questions arise in the chamber of humans concerning matters of fact that something like a communication appears. In those cases, the politicians in the chamber of humans ask the scientists in the chamber of non-humans to wipe out their doubts: the scientists are expected to give certainty, to tell the truth about reality, since they are the ones who are assumed to know it. And, of course, who would be foolish enough to pretend to discuss such a truth? If a scientist comes out and says: “The water boils at hundred degrees”, who would be foolish enough to answer: “This is not true”?

It is at this state of the problem that the question of representation must be introduced, for representation is indeed what is all about with the metaphor of the parliament with two chambers. In this metaphor, both politicians and scientists are getting the power to speak on behalf of others - other people or other things. We can then say that politicians as well as scientists are representatives of the ones they are supposed to relay, as far as this power to speak on behalf of others proceeds from the reduction of a great amount of actual speakers to a little number of empowered speakers. The difference and the legitimatization of the latter’s action (i.e. to speak on behalf of others) lies in this empowerment: the happy few who speak on behalf of the others are legitimatized to do so only if they are empowered to do so. Representation, wherever it happens, is always a question of power.
This is what we have to understand when we interest ourselves to the mechanisms of this empowerment: it is all about legitimatization of this power. However, in democratic constitutional states, the backing to such a phenomenon seems to be very easily describable: it is often assumed that, in democratic constitutional states, there is a principle of representation written down or expressed by constitutional provisions (depending on whether these provisions are implicit or explicit), and that this principle describes the conditions on which somebody can be called representative of another. In Belgium, for instance, these conditions are formulated in article 42 of the Constitution. This article states that “The members of the two Assemblies [i.e. Parliament and Senate - LDS] represent the Nation, and not only those who have elected them.”
Of course, for the profane, such a statement may seem elliptic or even tautological. For the constitutional lawyers, on the other hand, this very simple phrase contains a lot of information. First of all, it is important to notice the fact that the members of the Assemblies do not represent each and every one of those that they are supposed to represent. What they represent is not individuals but a collective: the Nation. Conversely, it is not each and every one of the members of the Assemblies who do represent the Nation, but the Assemblies themselves as collectives. We can call this first feature of representation: “the collective dimension of representation.”

The second feature of representation is a logical consequence of the first one. Lawyers call it “prohibition of the imperative mandate”. What does that mean? It means that the Assemblies acting as representatives for the Nation have not to obey the Nation. Representatives must be considered as free in their action. Once the representatives have been empowered, they get their own freedom of action. They speak only for themselves. Nobody can tell them positively what they have to do. Moreover, every deal contracted between members of the Nation and members of the Assemblies so that the latter can be obliged by the former to perform some particular duty must be considered as legally void.
This is why, in the traditional theory of representative democracy, the only one limit of the representatives’ action lies into the elections, as the elections are also the mechanism that serves the empowerment of representatives. In democratic constitutional states, elections are the origin and term of every representative power. Why? Simply, because it is assumed that representatives who would have not fulfil the expectations that have been put on them when they were elected will merely not be elected again. So, we can say, more generally, that elections are the mechanism of representation in constitutional democratic states, whereas representation, on the contrary, is the principle of legitimatization of the parliamentary system as based on elections.

So far, so good. But, by having said that, I have not said anything yet. Why? Here again, the answer is pretty simple: in this way of presenting representation, representation is only political when it concerns the institutional structure of the state. To put it more simply: when we speak about “political representation”, we do not intend to mention anything else than the way the parliamentary life of our countries is justified; or anything else than the process of justification of the parliamentary structure of our countries. It does not concern, for instance, scientific practices. From the legal point of view, it would be absurd to consider that there can be representation outside the representative institutions - i.e. outside the institutions declared representatives by the constitution. But it is obvious that if we want to open ourselves to the politics of concern, it is necessary to think anew the separation between the fictitious chamber of non-humans and the real chamber of the humans set up by the modern division of power that I described earlier - and then to go beyond the question of justification of existing institutions to open us to what representation allows. We then cannot consider that representation is political only when it concerns our parliamentary system anymore. If we want to get rid of the “Great Divide” between scientific knowledge and political action and to give room to the politics of concern, it is necessary to understand the political reality of representation in every place where representation is at stake - and not only in parliaments; not only when elections are involved.
First of all, we have to stick to the statement that scientists themselves, as speakers on behalf of non-humans, do represent them as well as politicians represent humans. And the most important reason to do so is that the fact that scientists can be called representatives of non-humans has a real impact - i.e. a “political” impact - on the way power was structured around matters of fact. If there are experts and profanes, and if experts are trusted while profanes are not, it is because of the fact that scientists are considered as valuable representatives for the things on behalf of which they speak. Moreover, it is also beacuase they are considered as legitimatized representatives of these things. But, as far as I know it, there are no elections for scientists; there only is a curriculum vitae, a life story full of passions, interests and - yes - concerns.
So, the challenge of any politics of concern will be to gather all the ways that representation is activated in contemporary constitutional states rather than limit them to what happen in the parliamentary life, and to try to think them together so that the old (“modern”) division of power can be put upside down. Representation must become the common political name of what is to speak on behalf of another, if we really want that concerns become the core object of politics; if we want that the word expertise designates our experience of things rather than a title to claim for a monopoly of discourse.

It is in this framework that my PhD thesis takes place. I often describe this thesis as being a “theory of political frustration based on an epistemology of unhappy feelings”. This means to me that my position inside the problem that I tried to summarize for you will be the same as everybody’s position: the position of someone who thinks that there is something rotten in the kingdom of democracy. This uncomfortable position seems rich to me - because the discomfort experienced with the unhappy feeling that there is something rotten in the kingdom of democracy already constitutes a concern. And this concern expresses itself politically by asking that maybe that what is actually rotten in the kingdom of democracy comes from the way representation is thought, even if I don’t know yet. I wanted to add: of course. Of course I don’t know yet. I’m still searching. And what I need to understand first is the full range of implication of what representation is considered to be today, before jumping into the representation as the first concern of the politics of concern.
As you know, the authors that have devoted themselves to the exploration of the concept of representation are mainly political scientists, sociologists, political philosophers, aestheticians, etc. To put it shortly: all people that are interested in things as they remain, whether these things concern society, politics, art, etc. I don’t have such an interest. I am only interested in what moves, since things are always moving. Heraclites against Parmenides: the old story. What is the movement of representation? What kind of movement does it allow? What range of movement does it allow? To me, this is the main question: the question of the range; and then, by way of consequence, the form of this range. So, if one considers that the form of representation depends on the fact that we trust the constitutional provisions when we define the structure of power of our societies - as I do -, one must answer that the form of representation is the form of law. Moreover, one must admit that the paradox of representation that I recalled - the circularity of elections and legitimatization - is a legal paradox. Representation is a principle of justification only insofar as it is a legal principle. In the question of representation, it has not enough been assumed that law had maybe the answer as well as the question. I want to assume that.

Now that I have said that, you will all understand that my thesis is not a thesis on philosophy, sociology or whatever. It is a thesis in legal theory - or, to be more precise: in constitutional legal theory. I strongly believe that legal theory, because of its uncomfortable position into the legal field, is the only one able to render palpable the paradox of representation - and also to show that this paradox continues to live through the attempts to get rid of them. It is only legal theory that can gather the bits and pieces of representation where they are located in our so-called “democratic constitutional states”, and to gather them to offer them as a present to those who want to change the face of politics. This may seem an arrogant statement - and maybe it is. But, to me, it simply helps to put an emphasis on the fact that my thesis is not only interested in what is about to change in the world, it is also interested in the words we need to change in order to understand the changes in the world. So, I understand my thesis as an attempt to create the words to express a reality that has had no words to express it yet.
This is why I consider legal theory as a privileged tool for my topic. To me, legal theory is still a not mature language. It still has to take its full form and its full range. It still has to assume its own position, between, say, philosophy of law and positive law. But this position is not a disciplinary one; it is not the position of the one who has to observe an object - or to construct it. Legal theory is not a meta-discourse on law. To me, the position of legal theory can be described as the site of legal ambiguities. Wherever law reveals its paradoxes, we can find legal theory. The legal paradoxes, such as the paradox of representation as a legal principle that I tried to describe in this presentation, give birth to their own discourse, precisely because they are paradoxes - because, as paradoxes, they are speechless. So, to me, legal theory is the language of this speechlessness of legality - the voice of the legal silence. It has nothing to do with meta-discourse; it only has something to do with the way law can be considered as one of the many truths that make us alive.