This is the ’weblog’ discussion that followed Isabelle Stengers’ seminar of Wednesday 28 september 2005 on "Is legal thinking a practice".
On January 18, 2007, Isabelle posted the transcription of this seminar under the title : "Une approche impressionniste de la question de la théorie du droit"
On 29 September 2006 Mireille Hildebrandt launched the discussion as follows :
Dear Isabelle et les juristes,
This discussion certainly appetizes me. It provides me with a mirror and forces me to rephrase what I hold central to law, legal theory and legal philosophy. Below I make an attempt to think aloud on electronic paper. Maybe we should make this public in a new slot on the weblog?
As to science it seems obvious that science is produced by scientists. If I understand Latour, however, scientific facts are co-produced by humans and things, in networks of actants that co-determine what counts as a (scientific) fact.
As to western law it seems obvious that law is produced by lawyers and politics (the legislator). However, as legal norms constrain all those that share a certain jurisdiction, this again implies that beyond the dictates of legal authority (legislator, judge, administration) non-lawyers co-determine the scope of the law. This - of course - does not happen in the same way as in the field of science. Hereunder I try to localise the way in which this happens in the field of law, by discriminating the practice of professional lawyers, from the practice of legal scientists and the practice of legal subjets. I think they are evidently intertwined but cannot be reduced to each other. I will focus on the practice of legal subjects in relation to the practice of professional lawyers, but this does not mean I think that law as a discipline (the practice of legal scientists that produce doctrine and legal theory) and law as a profession (the practice of legal professionals that produce statutes and case law) is less relevant. However, the overlap between the discipline and the profession is more commonly recognised.
Legal norms are meant to ’work’ between those that share jurisdiction, not only between government authority and citizens. The horizontal dimension (between legal subjects) is often taken for granted or discarded as implementation by lawyers that emphasise the formality of the law. But in as far as for instance private law does not regulate the life of citizens it ceases to exist. Therefor I think it is important to understand law as a practice of citizens, notwithstanding the fact that it is also a practice of professional lawyers. These practices overlap but cannot be reduced to each other. One of the intriguing issues in both law, legal theory and legal philosophy is the relationship between these different practices. They are obviously intertwined, which is visible in two of the informal sources of the law:
* ’custom’ (in legal doctrine this source is defined in terms of ’usus’ (use) and ’opinio necessitatis’ (the opinion of those concerned that this use is legally binding), to differentiate it from non-legal custom) and
* legal principles that have the status of a source of law (legal certainty, proportionality, presumption of innocence, trust etc.; we have principles that apply to law in general, to specific branches of law, to specific legal issues). The validity of a legal principle is a much discussed issue in legal theory. Formalists claim they are only valid when the legislator codifies them, others claim they are only valid when a judge explicitly applies them. Others claim that the legal authority of principles derives from their content not from their formal enactment (by judge or legislator).
Apart from customary law and principles there is a third indication of the intertwining of law as a practice of citizens/other legal subjects and law as a practice of professional lawyers: the use of terms like ’reasonable expectations’, ’good faith’, ’good housefather’ etc. that directly refer to the web of constraints that regulates the interactions of those that share jurisdiction. We find these terms in statutes and in case law.
So, the relevance of law as a practice of legal subjects is not limited to societies without a state. But I think we can learn from other legal traditions with less focus on state-backed law, like the confucian, the hindu or talmudic legal traditions. Not to find general statements about law, but to discover the historicity of our own legal tradition and/or we can discover the solutions that such traditions constructed to problems similar to the one’s we may now face. For instance the challenges related to transnational issues like international terrorism, transnational bussiness enterprise, ecological damage, interactions in cyberspace cannot all be solved with the traditional sources of national and international law. Once the ’horizontal’ aspect of legal norms is made explicit and the fact that law is also (and is meant to be) a practice of citizens that share jurisdictions (multiplicity is a reality here) these challenges can be understood in more accurate terms, not available if law is defined as the practice of lawyers.
All this is not to deny the relevance of a legal theory that is embedded in the continental western tradition (enaction of law by a legislator, (re)construction in case law, doctrine to produce coherence, legal theory to develop internal criticism and/or justification or to test hypothetical solutions to perceived problems). But both common law jurisdictions and international law don’t fit this categorisation and transnational phenomena like the new lex mercatoria that has emerged from consistent practice and international business arbitration cannot be described in such terms. Mostly because there is no transnational legislator. I think it would be too simple to solve that problem by saying that is not ’real’ law or to reduce it to power play. Here is something we can learn from non state societies: they do not function as Hobbes’ state of nature, but weave interesting webs of contraints that ultimately depend on consensus (and ritual) (cf. the Germanic Thing or the African palaver, that had no power to command).
Mireille
Comments
Isabelle Stengers :
Dear Mireille,
I do not feel a legal subject ! And I have not a practice as a legal subject. I feel cautious with regard to the law, and can undestand part of it, but it is really not my cup of tea.
I would love you just to try and give a definition of the practice of legal subjects. Maybe it is in your text, but it seemed to me you mostly use this idea as if it was something with a clear reference, and I am in the mist.
Maybe some others are able to contribute helping me ?
Yours, a very perplex Isabelle
Posted by: Isabelle at September 30, 2005 09:46 AM
Serge Gutwirth :
Dear Mireille, Dear all,
(Please do all correct me if I’m wrong)
If we accept to think law and legal theory as a practice along the lines of an ’ecology of practices’ I think we must make a number of disctinctions, as I already tried to express in our weblog slot : Droit ?nonciation - droit institution - obligations - exigences (20 comments),
1. Of course, science in action shows a network that reaches much further than a closed circle of scientists. So science in action is intertwined with/influenced by a lot of other institutions of society like business, politics, technique, industry, civil society, etc. I think this refers to what Isabelle calls the exigences (in two directions : what the sciences expects from these institutions, what these institutions expect from the sciences)
Similarly, the law is intertwined and linked up with other institutions of society. We, jurists, in our manuals, we define this links with other institutions as ’materi?le bronnen van het recht’, the factors that determine the content of the law. As such, of course, one can say that other institutions and individuals acting as legal subjects have an impact on the law and the law has an impact on their actions (’exigences’).
2. On the other hand, only the scientists are bound by the obligations of their scientific practice (notably the regime d’?nonciation/v?ridiction of their science). If they do not, they loose what makes them scientists. So they resist against the expectations/exigences of industy, policy, etc. which are at odds with these obligations. Inversely, I think you can say that everyone acting along these obligations is a scientist.
Similarly, there is a set of obligations (settings, procedures, hesitations, conditions, what makes the specific r?gime d’?nonciation juridique) that must be respected in order to make law or ’to practice law’. Those have been very sharply described by Bruno, and Isabelle has risked a similar undertaking last Wednesday. Hence I think that indeed not only jurists ’make law’ or ’practice law, but that law is made or practiced by all those who feel bound by these obligations. E.g. The French Conseil d’Etat, as Bruno stresses, is even constituted of a vast majority of persons who are not lawyers at all, but placed in this position, respecting the obligations, they are legal practioners.
I think we lawyers refer to this obligations by what we call ’formele bronnen van het recht’ and which has actually two meanings : they express simultaneously the way valid law is produced and which law is applicable here and now
So, to summarize, I think that thinking law and legal theory as practices is precisely meant to focus on the second aspect. It aims identifying what it is that makes law law and not something else, and this without any denial of and even notwithstanding the fact that (to quote Bruno) "les institutions comme la Science, la Religion, le Droit soient ind?finiment m?l?es, ? la fa?on des marbres vein?s de San Marco dans lesquels aucune figure n’est clairement reconnaissable"
I hope this helps.
Serge
Posted by: serge at September 30, 2005 09:49 AM
Isabelle Stengers :
Dear Serge,
Yes it helps, and I have still an other parallel with physics with this story of two "sources", material and formal. It looks like a presentation of physics with facts and mathematics as its two sources. Not only it is a post hoc description, but it is a poison : many other sciences have tried to use such two sources (with their own data as material) and it more than usually failed. Data or facts do not say what are the right variables, only experimental success tells that.
Isabelle
Posted by: Isabelle at September 30, 2005 10:08 AM
Mireille Hildebrandt
Cher tous,
I agree with most of what Serge writes, but my point is more radical and very important to me. Instead of elaborating a long defense at this point - I summarise my position:
law in the end is made by legal subjects that share jurisdiction, even in societies that have a specialised branch of lawyers
or
law is not in the first place what lawyers do but what legal subjects sharing jurisdiction do - notwithstanding the special role of professional lawyers in the construction of law
I do not refer to something outside law that is used by lawyers as material content for what seems their privilege: to contruct the law; I refer to the fact that in the end legal norms are established by and between legal subjects.
I know this requires a discussion of legal subjects, as Isabelle has immediately detected. I will try to write down what I mean by speaking of those that share jurisdiction as legal subjects and then try to explain what I mean when saying that in the end it is these legal subjects that construct the law by incorporating legal norms into their interactions (even when purposely violating these norms). This - of course - does not deny in any way the paramount role of lawyers in our societies, but is could explain why administrative law has so many problems of what we call ’law enforcement’. I am - of course - not claiming that the role of legal subjects in the construction of the role is the same as the role of the lawyers.
I owe explanations. But am also curious whether this position (that is related in legal theory to Holmes, Frank, Glastra van Loon, Foqu? and ’t Hart, maybe Ter Heide, Von Liszt, etc.) means anything to the lawyers.
Best
Mireille
Posted by: mireille at September 30, 2005 10:31 AM
Serge Gutwirth :
Dear Isabelle,
I am not sure about your parallel with facts and mathematics in physics, for the distinction between "material" and "formal" sources in the legal manuals is a way to distinguish between on the one hand what external factors might explain the moral, political, etc. contents of the law, and on the other hand what the law is, here and now, what is part or not of the law.
In fact, legal manuals generally spend 5 paragraphs to some ’bla bla’ about ’material sources’ and than quickly step over to the serious things, the extensive discussion of ’formal sources’ of ’positive law’.
Kind regards
Serge
Posted by: Serge at September 30, 2005 10:36 AM
Serge Gutwirth
Dear Mireille,
Here a reaction upon what you wrote in your mail : "my point is not about formal and material sources of the law (that is a legal theory I donot agree with, though I know it is often used to save law for the lawyers)."
The fact that I do refer to the disctinction between material and formal sources, made in every thinkable manual for lawyers, is not to say that I agree with it or not. I think the distinction is preeminently interesting, just because is part of all these manuals.
I also think it is very difficult to disagree or agree with it, for it is, in my opinion, impossible to recognize or identify what the law is without taking the formal sources into account even from a double-perspective (horizontal and vertical, recognition and precept) on the norm.
On the other hand, we can disagree about the disdain with which material sources are dealt with in the manuals and in the education of lawyers, and we even must oppose the reign of positivism in the legal faculties. This is also what I do : when I taught first year students, I spent half of the time discussing the relations the impact of politics, morals, hazard, individuals upon the law.
All the best
Serge
Posted by: Serge at September 30, 2005 12:54 PM
Laurent Desutter :
Qu’est-ce qui se passe ? J’ai toujours le sentiment ?trange que lorsqu’un point tr?s fragile a ?t? atteint, un jour, disons lors d’un s?minaire, cela cr?e une sorte d’angoisse dont la r?solution ne peut que passer par une annulation du point atteint. Je veux dire par l? qu’il me semble que la discussion (tr?s int?ressante, l? n’est pas le probl?me) qui a lieu ici n’aide pas ? faire vivre ce point - mais contribue plut?t ? le rabattre sur ce que nous connaissons d?j? : qu’il s’agisse du "sujet de droit", des "sources de droit", de la distinction entre "juriste et "citoyen", etc.
Je crois pour ma part que le d?fi que nous a lanc? Isabelle n’implique pas de devoir ressortir de notre chapeau des concepts que nous aurions le droit de revendiquer comme nous appartenant, et de voir de quelle mani?re ceux-ci pourraient ou ne pourraient pas entrer en correspondance avec ce qui existerait par ailleurs, et dont Isabelle nous a donn? l’exemple ? propos de la physique. Pour moi, cet exemple relevait en effet de l’analogie (c’?tait le mot d’Isabelle), et pas de la correspondance : il relevait d’un art des contrastes dont l’objet n’?tait pas de r?v?ler des points de correspondance (identit? et diff?rence), mais des lieux o? la perplexit? pourrait affirmer une utilit? - des lieux o? la diff?rence, loin d’?tre constitu?e, avait ? ?tre cr??e.
Si nous consid?rons que la r?action par rapport ? une telle perplexit? est de l’ordre de la d?fense, je pense que nous courons le risque de ne pas assez faire confiance ? ce qu’Isabelle a tent? de nous faire penser : que ce que nous consid?rons comme ?vident (par exemple le "sujet de droit" ou les "sources du droit") ne l’est pas du tout. Ou que si c’est ?vident, cette ?vidence existe sur un mode dont il s’agit pr?cis?ment d’entamer la description. En gros : il ne s’agit pas de dire ce qu’est le droit, le sujet de droit, etc., ni m?me de dire ce qu’ils font (quelles sont leurs fonctions non seulement juridiques, mais aussi sociales, etc.), mais d’examiner comment cette ?vidence contribue ou pas ? la possibilit? qu’ont les juristes de se pr?senter ? autrui comme des praticiens oblig?s.
Comprenez-moi bien : je ne veux pas du tout dire que personne n’a rien compris (sauf moi) ? ce que sugg?rait Isabelle. La seule chose que je dis, c’est que j’ai le sentiment qu’Isabelle nous a propos? de nous mettre en risque d’une fa?on tr?s sp?cifique, une mise en risque qui requiert de nous d’adopter aussi une attitude perplexe vis-?-vis de ce qui constitue l’ensemble des "bo?tes noires" de notre "pratique". C’?tait aussi cela, me semble-t-il, le sens de la distinction entre "th?orie du droit" (le r?gime disciplinaire de d?fense d’un savoir constitu?) et "pens?e du droit" : la "pens?e du droit" pourrait ?tre une mani?re de rendre compte de l’existence de choses comme le "sujet de droit" d’une mani?re qui permette ? ce "sujet de droit" d’exister autrement que comme une sommation ? se soumettre ? son ?vidence. Car, la r?action imm?diate d’Isabelle en t?moigne, rien n’est moins ?vident que le "sujet de droit".
R?pondre au d?fi d’Isabelle implique donc, me semble-t-il toujours, non pas d’en finir avec un certain nombre de choses, mais d’au moins pour un temps les consid?rer comme inint?ressantes. Que les citoyens contribuent en achetant du pain ? quelque chose comme du droit, et alors ? Qu’est-ce que cela change ? Qu’il y ait des soci?t?s sans droit qui fonctionnent, fort bien, mais qu’est-ce qu’on en a ? faire ? Vous voyez ce que je veux dire ? C’est "essentiel" ? Peut-?tre. Mais n’est-ce pas pr?cis?ment ce caract?re "essentiel" qui nous emp?che de nous pr?senter ? autrui avec un minimum d’humilit? - pour utiliser ce gros mot, surtout ? la fin d’un message comme celui-ci ?
Enfin, tout cela est fort confus, pardonnez-moi.
Posted by: Laurent De Sutter at September 30, 2005 12:56 PM
Mireille Hildebrandt :
Dear Serge,
As I wrote, I know many - though not all - introductions to law make such distinctions. This is not my point. I think it is a sign of a naive sociological interpretation of law (while the lawyers stick to a Kelsian approach to law, the sociologists invent ’real’ law; I think we agree that they are equally positivist).
That the formal sources have to be taken into account is not under discussion as far as I am concerned, to us western lawyers it is like the air we breathe. Law in our tradition always has an imperative aspect (linking it to state authority) - my point is that legal norms that do not manage to ’interest’ legal subjects in their horizontal dealings, will in the end lose their meaning as legal norms. Also, when you look at transnational law like lex mercatoria and international law, the formal sources dry up rather easily - this is a challenge for some of the major issues we are faced with and I am not sure the solutions lies in creating formal sources at that level.
Mireille
Posted by: mireille at September 30, 2005 12:56 PM
Mireille Hildebrandt :
Cher Laurent,
Who is defending what? I don’t get your point, but that is obviously my problem.
Why criticise an interesting discussion instead of stepping in and see if you can enlighten us. My point is ’law is not only what lawyers do’, I said it is very important to me. You can discard it, of course, but then the conversation ends. Would be a pity. I hoped you would get an appetite and step in.
The discussion between Serge and me hopefully clarified that I am not talking about a pregiven ’outside’ of law that law should take into consideration. That would be solid Luhmann. That is certainly not how I understand Isabelle’s challenging perspective.
Merci en tout cas
Mireille
Posted by: Mireille at September 30, 2005 03:36 PM
Isabelle Stengers :
I do think that the challenge Laurent was speaking about entails accepting, even if it is to challenge it afterwards, the use of the words - here, the word "practice" : I claimed to be perplexed by the idea of the "practice of legal subject", but behind that, there was a protest : it is my whole use of "practice" which was doomed, because it may be that "from the point of view of the law, I may indeed be a "legal subject", but I do not feel at all obliged by this point of view, and rightly so. Laws constraint me, I have to take them into account, but I mostly hope to escape their grasp (Ni vu ni connu; pour vivre heureux vivons cach?...)
However maybe there is a true misunderstanding. I did not pay attention enough to Mireille beginning sentence "If I understand Latour, however, scientific facts are co-produced by humans and things, in networks of actants that co-determine what counts as a (scientific) fact". This is indeed good "action-network theory" (ANT) but it is an OTHER point of view, the value of which is complementary. There is no room for obligation, or practice there, because the network are networking through any boundary. It is very useful, but then indeed what I told, and also the very idea of a thory, or pens?e, du droit has no room either.
Again no contradiction, it is the mixture that is dangerous. Indeed I incorporate the law, some laws, in my behavior, but this is NOT a legal practice, more a matter either of habit or of cautious choice. Morality is involved for those who feel obliged to obey the law, but obedience is NOT what makes a practionner. It can also happen that what I would not do (poison my neighbour) happens to be prohibited by the law. What a fat chance, but I can still do many many nasty thigs under the blind eye of the law.
Also "faire du droit" is not a privilege, something we should dream being allowed to everybody. Just as "faire de la physique".
About formal and material. Mireille argument that legal norms that cannot interest legal subjects are doomed is a bit strange. If those legal norms are enforced, they will interest legal subjects, see the prosecution of young people nicel dowloading and exchanging songs thoug the web. There are always some legal subjects VERY interested in mis legal norms. Indee when nobody is any longuer, "la loi tombe dans la d?sh?rence". As for the transnational problem, it is INDEED a problem. And to be handled as such. It may be one of the interests of the idea of practice to allow for une pens?e, not only of law, but of very dangerous trend. IN contrast with ANT, law people may feel obliged to take that as a matter of concern, and even of danger.
To Serge about the same, the duality facts/math was just an exemple of a misplaced substantialisation of what it is the very challenge of a practice to co-produce, to produce together, meaning that independently of that togetherness, none have determinate meaning as for the consequences they entail.
Posted by: Isabelle at September 30, 2005 05:32 PM
Mireille Hildebrandt :
Cher Isabelle,
I do not wish to ’doom’ your use of the term practice, but we seem to speak of law in two different ways.
Legal subjects do not incorporate law into their behavior only because a legal authority commands them to do so. This would be a matter of only obedience, indeed, and implies a specific conception of law in which legal rules are commands of one in authority to his subjects. A conception of law that reduces law to this vertical perspective is formalist and/or instrumentalist. At this point Foqu? and ’t Hart make a crucial distinction between an instrumentalist conception of law (whereas law is only an instrument to realise purposes determined by those in command) and a relational conception of law, that is both instrumental and legitimate (law is more that a means to an end in that case).
In a relational theory of law the vertical perspective concerns one of two aspects of legal norms. For law to work and be legitimate, it will have to work as something between legal subjects, not only between them and an authority. This horizontal functioning between those that share jurisdiction, concerns the second, normative aspect of the law (in a nonmoral sense of normative). This implies that law to a large extent follows our legitimate habits (rather: is constituted by our legitimate habits), instead of initiating them. Law is not in the final instance decided by the lawyers but by those that tune their interaction to the relevant legal norms. The relational conception of law, elaborated by Foqu? and ’t Hart, that I follow here, attaches pertinent relevance to both aspects (imperative and normative) and to their intricate interrelation.
Yes, transnational law poses many questions and can be termed dangerous, but it also opens new horizons. Maybe it indicates the myopic view of lawyers that think law is only constituted by lawyers or by those in authority. In the US we had Robert Cover, a legal theorist drawing on the talmudic legal tradition, who claims law should orient more to duties and less to rights (see e.g. his ’Narrative, violence, and the law). This is directly connected to a law that is less dependent on state authority: rights can be enforced by the state (to a certain extent), but duties in the end depend on whether a legal subject feels obliged (not to those in authority but to her fellow legal subjects).
I am not saying I defend a position like Cover’s, and would certainly not plead against individual rights as he does in some of his writings. But I think his position is interesting for the reasons mentioned above.
Mireille
Posted by: mireille at October 2, 2005 12:31 PM
Serge Gutwirth
Dear all,
Let me pick up again with what I already wrote in my first intervention in this debate, namely that we should not mix up two perspectives which are, as Isabelle rightly pointed at, complementary and hence do not exclude neither discard each other. I think the link between both might something extremely interesting to be thought.
1.a (@sciences) From the point of view of ANT (action-network theory) science (in action) is a network that reaches much further than a closed circle of scientists. As Latour abundantly evidenced the sciences are intertwined with/influenced by a lot of other ’institutions’ or ’cit?s’ of society like business, politics, technique, industry, civil society, law, etc. What is studied here is NOT what the scientific practices are: it is NOT a description of what makes a physicist a physicist, a biologist a biologist, and so on. No, on the contrary, the description focusses on the way sciences (notwithstanding their claim they are not) are intertwined, entangled and intermingled with other institutions. Of course, this intertwining puts pressure upon the sciences as practices because it trangresses the boundaries of the practices and might confront scientists to demands they cannot accept without betraying their ’identity’ as scientists. Again, but I am no longer that sure, I think this refers to what Isabelle calls the ’demands’ of exigences in two directions, namely what the sciences expects from these institutions, what these institutions expect from the sciences.
1.b. (@law) Similarly, from an ANT point of view, the law is intertwined and linked up with other institutions of society like politics, economy, morals, sciences, religion and so on. These interrelations are co-determining and explain what the ’content’ of the law is (you may or you may not have sex in public, an electronic signature is or is not a valid signature, you must or not put on your safety belt ...). As such, it is evident that networking wipes and dilutes boundaries and that other institutions and individuals acting as legal subjects have an impact on the law and the law has an impact on their actions.
I am convinced that everything Mireille, and I and Foqu? and ’t Hart have been working on under the common denominator of a ’relational theory of law’ (which is still my concern) is related to this question: what is, or even stronger, what should be the role and the place of law in (our) society, amongst the other ’institutions’, given a belief in the political, moral, historical, scientifical economical, legal etc context of the democratic constitutional state. Here we deal with "conceptions" and "theories of law", which are not (or not necessarily) shared by legal practionners and does not as such oblige them (which does not mean at all that we shouldn’t demand that).
The questions of legitimacy of the legal rule, its dependance from the acceptance of the norm by the individual, and all the other issues raised by Mireille are part of this register of studying law: law in interaction, conceptions of law, law from the ANT perspective ... The question: is the legitimacy of the law dependent on its acceptence by legal subject ?, is a question that can indeed only be seriously reflected upon from a perspective that is (at least a partly) oriented from outside the law, for the legitimacy of the law in a society is of course dependent on much more than its validity from an ’internal’ point of view.
2.a. (@sciences) From the point of view of an ecology of practices and the use Isabelle proposes of ’practice’, on the other hand, the focus is laid on something else and very different. It focusses on the obligations of scientists, it focusses on what they cannot betray. Only the scientists are bound by the obligations of their scientific practice, namely, as Latour writes, the regime d’?nonciation/v?ridiction of their science. If they do not, they loose what makes them scientists. So, when networkes and when networking, they resist against the demands/expectations/exigences of industy, policy, etc. which are at odds with these obligations. (Inversely, I think you can say that everyone acting along the obligations of a science is a scientist).
In the ANT context of ’an ecology of practices’ scientists’ are thus always pulled away from their obligations, but simultaneously they are ’obliged’ and must stick to it. This is, I think, the famous problem of ’diplomacy’ : you present yourself as an ’obliged practionner’ open to demands, but not to the point of betrayal.
2.b.(@law) Similarly, Bruno and Isabelle have invited us to think the law from respectively their perspective of ’r?gime d’?nonciation’ and of ’practices’. This is, indeed a very different perspective as the ANT-perspective we’ve used to work in. Moreover, the challenge they proposed us is to ’go back’ and reconsider what we’ve been rightfully fighting against for so long, namely the arrogance of blinded ’positivist legal professionals’, but, and that is new for me, with a reoriented interest : taking seriously what they consider to oblige them as legal practioners, and taking seriously their indignation when confronted with their denunciation as ignorant instruments of ... politics, morals, sciences or whatever. So, there is a set of obligations (settings, procedures, hesitations, ... that form the specific r?gime d’?nonciation juridique) which must be respected in order to make law or ’to practice law’. Those have been very sharply described by Bruno, and Isabelle has risked a similar undertaking last Wednesday. All the more interesting is, I remember now, the chapter 5 (already translated in English) of La fabrique du droit, where Bruno compares the respective r?gime d’?nonciation of the law and the sciences, because here he shows, very differently from his earlier ANT-approaches of the sciences, what it is (and how different it is) to identify the r?gime d’?nonciation/v?ridiction of the sciences.
By inviting us to think the law a a practice, Isabelle has thus challenged us to focus on the obligations that count when law (and for us ’legal thinking’) is practised, in the sense that law can only be said to be made or practiced when these obligations are respected. The focus is now on the "identity of legal practioners" in the ecology of practices, not on the interwining and mixing with other practices.
I still think that not only jurists ’make law’ or ’practice law, but that law is practices or made by all those who feel bound by these obligations. E.g. The French Conseil d’Etat, as Bruno stresses, is even constituted of a vast majority of persons who are not lawyers at all, but placed in this position, respecting the obligations, they are legal practioners. From this point of view, as Bruno has extensively dealt with, it is extremely important to focus on the way the ’sources of the law’ are obliging legal practionners (be it in Parliament, in the court or in the doctrine or legal sciences).
So, all this being said, I think that Isabelle is right to say that individuals/legal subjects have no legal practice (in the sense of practice in ’ecology of practices’), because they are not obliged by the same constraints as legal practioners. But that does not affect something as proposing a relational conception of law as a normative principle.
Thinking law as a practice puts us on another track and obliges us to identify what it is that enables law to be law amongst and different from other practices as politics, morals, science, religion and so on. And that is why, I think, a re-analysis of the way law is produced by legal practices related and applied to ’the sources of the law’ (from legislation to custom and equity) is so relevant, the more this can tell us something of our obligations as ’penseurs du droit’.
Warm regards,
Serge
Posted by: Serge at October 2, 2005 08:24 PM
Mireille Hildebrandt :
Dear Serge, Isabelle, tous,
Probably I don’t yet understand Isabelle’s ecology of practices. Perhaps there is no room in it for non-lawyers co-producing legal practices. Perhaps what counts as a practice is not clear to me.
What I would call my practice as a legal subject depends on the fact that as my interactions with others may have legal consequence, I will act in anticipation of these legal consequences. I buy, sell, marry, transfer property, request a licence, commit a crime or a tort. All these ’actions’ have - intended or unintended - legal consequences, that co-determine what kind of actions they are. They are habits (not necessarliy consciously acquired or performed), ruled by the demands of the legal system and the obligations we feel as legal subjects to act legitimately within the law. These obligations should not be understood only in terms of obedience (vertical aspect), but also in terms of legitimate expectations between ourselves. Most interactions with legal consequences (most of our ’legal’ habits), for most of the time, are not ruled by fear of disobedience but by the legal obligations I feel towards my fellows. The vertical aspect of the legal habits cannot survive on its own, in the end - and the horizontal aspect cannot be reduced to the vertical aspect.
Does this clarify what I mean with a legal practice of fellow citizens, living together within the scope of a shared law (that is never a given, however sophisticated our lawyers provide for legal certainty)?
Merci beaucoup
Mireille
Posted by: mireille at October 3, 2005 06:29 PM
Isabelle Stengers :
I completely agree with Serge, and would add a small point.
When one deals with complementary approaches, the important point is not to mix them.
Thus I would say that legal practitionners may worry about the reasons why "legal subjects" conform, but they cannot define it. I do not wish to have what obliges me as a person to be a matter of d?bate and discussion, and I do not recognize legal thinkers as entitled to speak about me. To accept opacity in this case is something they HAVE to accept, it is the price of the fact that whatever the reason why I submit, or do not, to a law, I will eventually pay the price. In other words, to abstain speculating about "me" is the legitmate price I would ask from legal theorists because of their (legitimate, law defining) relation with power).
This does not mean that the way a particular law is or is not accepted may not be a concern for the legal practionners. And the way this concern is spelled out depends on the legal institution. For instance, the US supreme Court, when interpretating the US Cosntitution, which is not a law but a commitment bounding all US citizens, calls to US citizens to recognize thenselves as bounded by their interpretation. Call, but has no power to impose. But this call constraints them (the judges), as the continuity of administrative law (since Clovis !)constraints the Latour Conseil d’Etat.
Those are what I would call specific obligations characterizing those institutions, producing a distinct touch in the ecology of practice.
However they cannot derive from what obliges them the right to demand that "legal subjects" feel indeed obliged. Obligations are and MUST remain practitionners’ obligations.
There is a very rich Talmudic tradition about the (divine) Law that must be interpreted, and never an interpretation can hope to be ratified by the Divine Author. The relation between the God-given-obliging-attaching-bounding-all-Jews character of the Law is constraining the rabbi’s interpretation, but never can an interpreter ask that his/her interpretation obliges-attaches-bounds jewish people in the same way.
More generally the WORRY about what legal subjects may feel is a quite legirtimate part of what may have legal practionners hesitating, what is for them a MATTER OF CONCERN, and the absence of such a worry a very legitimeta way of characterizing some institutions (the WTO ?, all the institutions that devine legal subjects as "childrend" from a "I know better" position - for the WTO, whatever you believe we know that market laws are the best for you)
But I would really prefer to speak in terms of concern, or worry of practionners, not in termes of a definition of a relational system, which for me is a dangerous utopia of the best of all worlds. Dangerous because in the name of this Utopia, law practitionners may forget about their "place", ou situation, or standpoint, and dream to be the voice of every (good) citizen, and dream about an innocent, good power.
Power is never innocent and it is very dangerous for any power to dream a dream of innocence. It produces very unethical judgement about those who would spoil this dream by not conforming : they would become "bad" from a moral point of view. You hesitate well whan you know that hesitation is not an instrument to reach the "good" solution, the solution where you van forget about yourself. There is NO good solution, only hard, demanding hesitation, the "quality" of which may be spoiled as soon as the hesitationg practitionner forgets about himself/herself and thinks the hesitation is that of a "human, relational, being".
There is a good science fiction story where some people have taken upon themselves to do what they feel needed in order to change humans through a clandestine selective pressure nobody else must know about. They call themselves the "circle of the damned", in order to remember that nobody should have the power they hold (in a clandestine way).
I would not say that law people are damned, but worrying means that whatever their (good) intentions, they need to remember that they are in a dangerous, exposed position (from an ecology of practices point of view) and that whatever reason they give to forget about that, to cool down worry, is the path to damnation.
Posted by: Isabelle at October 4, 2005 10:36 AM
Laurent Desutter :
Dear Mireille,
I do apologize for the little misunderstanding that made you believe that I was targeting you with my previous message. I must admit that, during ? few moments, I was afraid of the fact that we could refuse to at least try to engage with what Isabelle told us, in order to experiment what this engagement could lead us to do. The misunderstanding, then, came only from the fact that the unhappy expression of my fear could make believe that I was discarding all the rest - which was, trust me on that, not what I wanted. The more recents messages of this thread are reassuring me - so I would drop my previous message into some background, rather than on the expression foreground where I put it. I hope that you feel reassured also.
On the discussion itself, I must confess that I do not have much to say. I think that Serge, with his usual sense of distinguishing (an art which is, as it has been shown by John Gardner, very important to the practice of the judges) has made things pretty clear. The only one deduction I would like to draw from Serge’s summary is the same that I formulated during our two meetings with Isabelle : how, for us, "legal thinkers" rather than "legal theorists" (at least for a while - and maybe forever), make exist in an interesting way the objets on which the legal practice(s) (?) elaborate(s) its constraints ? How to present them ? How to describe them ? When Isabelle suggests that the "legal subject" must be a matter of concern for the lawyers, she already suggests a new description of the legal subject : not what are its attributes, its rights, and its duties, but why the necessity of a legal subject makes the difference from its absence. How does the "legal subject" counts - not only why, but on which mode, to whom, etc. ? I think that what we are trying to grasp as "legal thinking" would mean to accept the possibility of asking such questions to what matters to the lawyers : norms, order, system, legal certainty, principles, cases, etc. That also maybe help in the assumption of the hesitation that Isabelle was speaking about.
Posted by: Laurent De Sutter at October 4, 2005 12:01 PM