Droit ?nonciation - droit institution - obligations

Posted by mireille at March 7, 2005 10:11 AM
Dear all,
I am looking forward to replies on this issue. It seems that I cannot grasp the way Bruno understands ’institution’, since to me an institution is the process and ever re-negotiated result of the contraints/habits of both the discipline (obligations) and its context/environment/field (exigences).
Since the constaints of a discipline like law are forever in a process of becoming - due to interaction with the world it creates and is created by - I do not understand how the ’regime d’enonciation’ cannot be part of the institution. Could it be than that the obligations of the discipline and the exigence of the world with which it has to create a fit, together produce the institution??
Mireille

Posted by serge at March 8, 2005 11:04 AM
Dear Mireille,
Thank you very much for your reaction.
I think Bruno has a very particular way to use the terms ’institution’ and ’r?gime d’?nonciation’. In his imbroglio tree posts 144 and 148 (published now in Cosmopolitiques) he has tried to make this clear to us by comparing with the semiotician’s distinction between on the one hand the ’r?gime d’?nonciation’ of Fiction, and the contents and theories of the novel (’institution’).
So the ’r?gime d’?nociation’ of the law, namely to link and assign (enchainement, attachment, assignation) in a specific way, characterises the law, makes it recognizable as law. If we are confronted with this ’r?gime d’?nonciation’ we know that it is law. In the French Conseil d’Etat Bruno could find this r?gime in its most cristaline or pure form and visibly extract it. In other jurisdictions this particular r?gime is also present, but mixed with other ’r?gimes d’?nonciation’ (a ruling in a case is very often much more than law, sometimes it is even more something else than law ...)
So, the regime d’?nonciation doesn’t explain the law : to understand the law as institution, it must be looked at as a hybrid of politics, morals, organisation, sciences etc. of which it is a part, or better, with which it is intertwined ("ind?finiment m?l?es, ? la fa?on des marbres vein?s de San Marco dans lesquelles aucune figure n’est clairement reconnaissable")
What I did by proposing to think the Latourian ’r?gime d’?nonciation’ and ’institution’ respectively as a stengersian ’obligation’ and ’exigence’, was searching for a way to link them from the perspective of the legal practice, the law in action : how, as a lawyer, simultaneously remain loyal to your obligations/r?gime d’?nociation ("bien h?siter"), and respond to exigences of what lies ahead and in which the part/role of law has still to be created.
Maybe we - the practitioners of legal theory - have always been dealing with politics and morals, but bound by our lawyer’s loyalties.
Which is actually fine for me.
Serge

Posted by Daniel de Beer at March 8, 2005 01:00 PM
Let me play the role of an idiot. What about the law in action, or the practice of the law at the level of WTO for instance? In other words, how a lawyer could both remain loyal to his (her) obligation (r?gime d’?nonciation) and respond to exigences? If you think that that law is not loyal to both the constraints linked with what is a law and does not accept your own constraints linked with what is a lawyer? The Latourian example of law at the time of Vichy does not answer. The matter of concern is not the question of personal ethic. In the Vichy time, the courts were and act in the same way as they were and act before and are and act nowadays. We have now a global "device" which is a "problem"...

Posted by serge at March 8, 2005 02:38 PM
What you write, might well precisely show that the problem is not so much a legal problem (in the sense of ’r?gime d’?nonciation’)than a problem linked, amongst others, to political and ethical choices (Vichy) and so called economic necessities (WTO)(in the sense of ’institution’)
Also : in my opinion it is far from established that the lawyers under Vichy and WTO did and do effectively remain loyal to their obligations.
Indeed, some ’exigences’ might be incompatible with the ’obligations’ of the lawyers : this will be the case when a transformation of the practice in order to meet them, will imply a self-denial or treason.
Comment se transformer sans trahir ? Zat ze kvestion !

Posted by mireille at March 8, 2005 02:58 PM
So, as I tried to articulate: the institution of law is the practice of law as it is negotiated/constituted by both the lawyer’s obligations and its environments demands? What would disturb me would be the idea that the obligations are the essence of the law, while the demands are its institution: the law to me is the hybrid, the imbroglio, the institution, the practice.
And is it really the case that the obligations of the law are always those of attachment, or could they be understood as mediation (lawyers as diplomates, permamently re-inventing their obligations as they try to assemble or divide conflicting parties).
WTO is an excellent example of the way in which law can move beyond mere power politics (WTO is of course first of all a political institution): the fact that Brazil won its case against illegitimate (and illegal) subsidies to US cotton farmers in 2004 means even within the framework of the WTO possibilities sometimes win out over probabilities. A - maybe sparse - example of transformation without treason?
Mireille

Posted by serge at March 9, 2005 09:14 AM
Dear Mireille,
I tend to agree completely with what you say, because I no longer see an important conflict with the distinctions brought by Bruno. If you read the last part of his article in Cosmopolitiques(art. 148 in imbroglio) - where he uses the metaphor of a rather special LEGO-game with pieces with different "plods" - it becomes precisely clear to me how quintessential the heterogeneous or hybrid character of "law" -encompasing both its enonciative and institutional dimensions- really is.
Maybe, up to now, in our researches, we have been focussing upon questions about the role of law in politics, ethics, economy, and so on. Of course, we knew that something distinguished law from the other fields and we knew that is was to be found in positive law and its practice (not only in courts, but also by lawyers, legal counsels, legislative workers, etc.). We (you and I) always higly respected the skills and ’obligations’ of positive lawyers.
Well, I think that Bruno made an important contribution by trying to formulate or extract the what precisely are the distinctive qualities/features/properties of that practice of positive law (and that Isabelle summarizes in one sentence : ’nous avons bien h?sit?’).
As regards m?diation, this is what I wrote in Cosmopolitiques :
"Peut-on pour autant dire que le droit ne fait que suivre le mouvement – qu’il soit vou? ? flotter – et qu’il ne peut faire autre chose qu’ent?riner ce que lui dictent les autres institutions ? Non, certainement pas, car le droit, comme l’a si joliment montr? Bruno Latour, prend en charge, ? sa fa?on propre, la coh?sion des liens et des attachements qui nous (les Occidentaux) lient les uns aux autres et aux choses. Il lie, d?lie et relie, il tisse, d?tisse et retisse, il tricote, d?tricote et re-tricote en pr?sence d’int?r?ts et de prises de paroles conflictuels. Il nous tient ensemble et il cr?e cette stabilit? que les juristes appellent la ? s?curit? juridique ?. Pour employer le mot de Joest ’t Hart, le droit ? compatibilise ? incessamment. A ce titre, il participe, ? sa fa?on, au monde que nous nous construisons et qui aujourd’hui est un ?tat de droit d?mocratique.
En liant les uns aux autres, les humains et les choses, le pass? au pr?sent, les lois au cas, le droit n’ex?cute pas de directives, mais il se construit et reconstruit ? partir d’elles, ? partir de cas d’esp?ce, ? partir de proc?dures. Le changement n’y est pas impossible, mais il faut qu’il tienne, quitte ? en changer le dessin, dans la toile qui nous lie d?j? tous. On comprendra d?s lors que les juristes proc?dent lentement, m?ticuleusement, selon des processus de r?flexion et de jauge r?p?titifs et cod?s. Car enfin : comment innover sans trahir ? Comment incorporer sans contaminer ? Le droit h?site, et donc temporise. Il assimile prudemment et lentement. Il ralentit le cours de choses. Il instaure un passage oblig? par des proc?dures contraignantes, m?ticuleuses et capillaires." (p. 87)

Posted by Daniel de Beer at March 9, 2005 12:37 PM
Dear Mireille and Serge,
Mediation yes as well as they "compatibilisent". But it seems to me that lawyers are not "diplomates" (in the meaning of Isabelle) as they work "inside" and have to stay inside. They are not allowed to take "all" in consideration. Or they are obliged to force what law allows upon things (ils sont oblig?s de plier les "choses" qui leur sont pr?sent?es pour qu’elles rentrent dans le droit, pour que le droit puisse les prendre en consid?ration). It is not the position of diplomat which says "me, I am constraint by..., and you?"(On the other hand, the legislator could or should take up the posture of diplomat in the process of law making, but it is an other question, is’nt it?).
About WTO and Brasil. O so much I would like you’r right. But I am not sure. No matter of concern with the case of cotton. Within the facts and the rules that WTO "accept" to take in consideration, to deal with, the play can be more or less loyal. The problem is what can be take in consideration, what is debatable. I am going to initiate a new topic about it: "law and new economy of knowledge, what is going on?". I will post an article trying to show my concern, unfortunetaly in French.

Posted by Laurent at March 14, 2005 02:58 PM
The interest of the distinction between "?nonciation" and "institution" - or, more precisely : "r?gime d’?nonciation" and "institution" - lies to me in the possibility of articulating them. This distinction does not set apart two different problems, but poses the problem of their distinction or differences. The problem that Latour help us to go with is the problem of that distinction, and the necessity to do so. Why ? Simply because it help to explain what lawyers are actually doing - and that is not, of course, a diplomacy. Lawyers are not compelled to diplomacy, mediation, or whatever, as Isabelle said in her interview in "Cosmopolitiques". They do not have any mission. What they do is all the way more concrete and more abstract : bonding bonds. This is why the question of the separation of law and politics does not make sense anymore : it does not make sense because the practice of lawyers is a practice that has to do with the necessity of politics. And they have to do so inasmuch that politics constitutes, indeed, a constraint of law - or, at least, a constraint of legal practice. A lawyer that does his/her job well, is a lawyer that does not forget that politics his something he/her has to count with. But this does not go further. It does not mean that law is all about politics, or that politics dominates the practice of law. This is not true : politics dominates the politics of law, not its practice - since its practice is already constrained by the existence of politics. So, the latourian distinction between "r?gime d’?nonciation" and "institution" seems to be readable as the distinction between the practice of the one who has already taken into account this intertwining (let us say : the "good" lawyer), and the practice of those for which law counts. Law as institution, to me, concerns those who are not lawyers, but have to do something with it. It concerns other practices where law itself becomes a constraint. It does not concern the lawyers themselves. It does not concern their practice of bonding. It does concern the state of bonds, and the way the articulations of this state constitute a further constraint for, e.g. politics.
My problem, then, is to know how far this distinction can (or cannot) double Isabelle’s distinction between "obligations" and "exigences". I would say that, for lawyers, politics is both "obligation" and "exigence". But I would say so simply because I am personnally unable to make such a distincion in law - which does not mean in any way that I think that such a distinction is impossible. I simply don’t see its possibility. It is a question of perception.

Posted by serge at March 15, 2005 09:29 AM
Dear Laurent,
Thanks for your comment. But, sorry, I don’t get your point. I have the impression that your argumentation goes like a snake who’s eating his own tail. For, how can a distinction be interesting from the perpective of the articulation of the things distinguished, if this distinction cannot be made ?
I’m a little bit puzzled by this position.
I understood Latour as follows : you can make a distinction at the level of the r?gimes d’?nonciation or de v?r?diction, for these r?gimes are the clefs de lecture (cf. la clef de sol, la clef d’ut, la clef de droit, la clef de sciences, la clef de politique)of the different aspects of society. See again : the peculiar Latourian Lego-game.
Cheers
Serge

Posted by laurent at March 15, 2005 05:09 PM
Well, the truth is that I have nothing to say about this distinction as such. I love Bruno’s study of the "r?gime d’?nonciation" of law, I can understand his urge in making the difference between that "r?gime" and what he calls "institution", but that’s it. I mean : if "institution" does not concern the practice of lawyers as such, it means that it must concern the practice of other people, in which the "r?gime d’?nonciation" of law plays the role of a black box, mustn’t it ? And what we are doing as legal theorist, in this perspective, is to try to come back to this black box regularily, in order to re-open it - with our questionings concerning its "systemic" character, its "rationality", its relationship to morality, politics, sciences, and so on. That is the only one thing I said that was worth the reading of my previous message. As a matter of fact, I had already forgotten the beginning of this message when I wrote the end and posted it all. So, just skip it.

Posted by serge at March 20, 2005 11:51 AM
So, as legal theorists we are again and again trying to find some link(s) between the black box of law-r?gime d’?nonciation and its interpellations by ’social’ issues and concerns.
Why are we doing that ? Because we assume there is something interesting to find or to invent in and through these link(s), don’t you think so ? And that is precisely what I was after in my first intervention : maybe it is useful to try to think the work of the law in context, by thinking the links between law-r?gime d’?nonciation-obligation de la pratique juridique on the one hand and law-institution-exigences auquel doit r?pondre la pratique juridique.
Maybe we can even borrow from Callon-Lascoumes-Barthe by saying that there is a triple process of translation going on : from the real world to the legal lab, in the legal lab (the law’s work as seen by Bruno) and back to the the real world. "The triple translation of the law", isn’t that a nice title for a next common article ? Anyone interested ?

Posted by Laurent at March 21, 2005 03:55 PM
Mmmmh. Why not ? In "Pandora’s Hope", Bruno set a very interesting meaning to the word "institution". He basically says that the "institution" in sciences is what in an artefact is superior to the sum of its parties. For instance, the fact that Pasteur’s bacterias are INDEED bacterias, even if they are so ONLY because of the set of articulations that has made them exist. Does it shed a new light on what we are trying to say, or am I still lost ?

Posted by Daniel at March 23, 2005 05:11 PM
I am interested in it. So, let us try.
Mireille, I wonder if WTO is mainly a political institution as such. I mean, maybe we are able to draw a parallel between the WTO et the European institutions. In both cases, we have a court acting as the guardian of the treaty and doing that, it decides about all things (all polical decisions) only in the sight of the treaty, and without paying attention for whatever else. That means the court doesn’t consider all the reality (even not what we could say the reality as it is considered by the law -cfr. the Latourian "filet ajour?"). That is "the law" usually encompass all the laws. At the European level as well as the WTO level, the laws which are not compatible with the treaty are ignored or rejected. See by instance the discussion about the European Convention on Human Rights to decide whether or not it constraints the court. So could a judge take in consideration something (a law, a principle, a human right...) that is not in the treaty without treason?

Posted by Laurent at March 25, 2005 05:17 PM
Well, a different and maybe somewhat misplaced question : what difference does it make if WTO (for instance) concerns law AND/OR politics ? Rather than concerning one or both of them, isn’t it more intersting to say that WTO is a way of reconfiguring the imbroglio, the articulation that mingles politics into law and vice-versa - and that it is then this novelty that is interesting, rather than continuing on focusing on the pointless question to ask where or whether there is something somewhere "as" law or not ? Whatever law is or is not in WTO, what counts is what WTO does with law-whatever-it-is, what it changes whatever the "substance" of law would be, isn’t it ?

Posted by Isabelle at April 6, 2005 10:14 AM
Thank you Serge for telling me about this discussion. Here are some disordered remarks...
I like your starting point and indeed if Bruno could find in the Conseil d’Etat a beautiful observation point for his r?gimes d’?nonciation, it is because it is such a peculiar institution, with this extraordinary obligation to maintain the continuity of the state since Clovis. Which does not mean that other institutions are impure but that it is disclosing and making observable an aspect which is usually reducible by sociological approaches to "illusions of autonomy", what they (the sociologists) have to dissolve.
As for the relation between institution and demands, it is interesting if and only if it is not the institution but the strongest plural "institutions".
When I first thought about demands it was demands on the environment. For instance, in the "white event" when the workers of Volkswagen came in Brussels, because of the revocation of Connerotte, to me it was clearly a "rapport de force", as I saw legal people aghast, afraid that people would not keep their distance. The Dreyfus Affair (seen as a case when tribunals did follow the rule of passionate nationalist antisemitic opinion) played thesame kind of role the Lyssenko affair plays for scientists). Their disarray was a bit the equivalent to scientists aghast at the idea that activists intervene in the normal process of scientific innovation (scientists, state, industry).
On the Conseil d’Etat, the outside is present indeed, but it has to "wait" for the good occasion, the good case. It is an institution indeed but like a research institution, with its own time and no actual people (parents, workers, vocal publi opinion) having to be kept at distance.
Now I conceive demands as two-ways : what do you demand, what is demanded from you, and by whom. When this is settled, you have the institution, with its public represntation deducing what has been settled from principles but those principles are able to justify the institution only as long as the situation remains settled.
Obligations are to be protected, but they do not tell how they obligate. When I read Marion Jacot Descombes about the role of the Cassation in the droit du travail, it was clearly a case of power habits weakening obligation since the (justified) you cannot use this law like that was (unjustifiably) translated as : hesitation is over, you cannot use that law any longer in your dispositif. Thus in this case, I would say the institution itself puts obligations at risk as it admits a voice which transcends and cuts short the process of hesitation.
As for the WTO, as a new institution, it should (normally ?) have been initially associated to a phase of "diplomacy", a negociation about the (two ways) demands which would ensure that it is indeed a legal institution, that there is a space for legal hesitation ("autonomy"). Is this phase of settlement a matter of public knowledge ? Who was associated ????? What were the concern ? Again, the explicit idea that there are obligations is not a descriptive, neutral notion, its role is to claim that obligations have to be protected, that they have to be maintained in the active sense, nourrished, be a matter of concern.
As for Vichy, I would see the point not in terms of did they respect their obligations ? Because the formulation of what is an obligation is not settled (no theory of). The fact that Vichy was possible is thus a matter of concern for law people who may wonder how to give a formulation which would exclude this possibility. In my utopia, it would be a matter of consultation or palabre, learning to tell the right words in order to localize and identify new formulations of obligations. It is a bit like the histofry of Catholic dogma, which is produced under the constraint that it appears like a process of penetration of something nobody can appropriate.
This to me is the most important distinction between obigations and demands. Demands are a matter of explicit settlement, they are plural, according to the institutional settlement, and they can be usettled. They are conventions.
Obligations are not conventions, and the question do they evolve or do they not is not the right question. Their formulation indeed evolves but not along a negociation process. This is why I call it a consultation, the concerned people (the practitionners) having to wonder how not to BETRAY what makes them what they are. They can easily be confused with professional folklore or habits or seem to be obvious. To make them explicit, as contrasted with settled institutional demands has a double aim : not to confuse the contestation against an institution with an attack against the practice (activists as irrational, attacking science as instituted ratinality) ; taking seriously the fact that some demands may indeed jeopardize them (this is what may be happeing for sciences in the new economy of knowledge).
For me the Cassation power does jeopardize the obligations of law practitionners even if they got used to it. And if they got used to it, maybe we can learn from Marion experience, linking this fact to the break of the very strange link, to be achieved each time and not to be defined, a matter of concern, and not a matter of fact, between "what is juridically correct" and "what is just".
The worse ennemy of obligations is cleverness. See Deleuze’s theme of the idiot telling "yes, but there is something more important. I cannot tell what in a way you, clever people, would be constrained to accept, but..."

Posted by mireille at April 6, 2005 11:07 AM
dear all,
This is getting to be really interesting. What strikes me is the link between something Isabelle discusses in one of the first texts she put on Imbroglio (’for a speculative approach of biological evolution’) and the interaction between lawyers (with their obligations) and their context (with its demands). Neither the obligations nor the demands can be determined entirely in advance, and the law emerges from the interplay. Fragile and robust at the same time as most hybrids.
This of course does not imply that obligations are neutral, or political or up for grabs (as Hans would say). It does imply - for me - that law is an institution that emerges at the nexus of obligation and demand, on a case to case basis: being constituted by its practice and constituting it at the same time. Legal practice (in the broad sense, including legislation) and legal institution are - to me - mutually constitutive.
Two questions (both demonstrating my ignorance): why this emphasis on law as something that bonds? Law also divides, excludes etc. And bonding is not typical for law, as one could say that politics and economy also bond (and divide). So the point should be the way in which it bonds, not that it does?
what do you mean when you refer to the new economy of knowledge? Sounds intriguing. Please have a look at my paper on ’is knowledge justiciable’, posted on the tree two weeks ago. Comments welcome - maybe there are links?
Mireille

Posted by Isabelle at April 7, 2005 08:41 AM
Dear Mireille,
It is not so much the law that bonds (even if every Belgian is reputed to know it) it is the functioning of the law that presupposes what binds lawyers which are NOT general human qualities, even if it looks like it. Just as taking part in experimental research presupposes something which looks like rationality but...
This presupposition is not always actually fulfilled but it is needed even then to understand the judgement and evaluation on the situations when it is not. For instance, "my" reaction about the cassation is the direct outcome of having learned to feel with Marion as a practitionner : it is a case of what I claimed in Cosmo 7, that what one can learn about a practice from the outside, when listening to insiders, is about what I called their sedentary dimensions, what bonds them, how they are affected by what puts those bonds into question.
So bond is not THE descrption of the law, just a partial, non neutral, approach.
Economy of knowledge is the new masterword about science becoming directy involved in economic development (start up, spin off, intellectual property rights, data bases ...) Out with the ovory tower and all those fairy tales about "autonomy". It may quite well dissolve the bonds between scientists, which are the only source of the (relative) reliability of what they claim : no controversy any longer because it would be to cstly in terms of what would bind scientists to their industrial partners. See the first pages of Jurassic Park, by Crichton : prophetic.

Posted by mireille at April 8, 2005 09:38 PM Dear Isabelle,
I like very much the idea of thinking the obligations of lawyers as that - indeterminate - notion of the law - that binds them together as lawyers. Perhaps an economy of fear will bind lawyers to politicians and other brokers for total security and comfortable safety in the face of terrorist attacks and other uncertainties.
The Dutch journalist Geert Mak has written a nice little pamflet about that after the murder of Theo van Gogh (helas not - yet - translated).

Droit ?nonciation - droit institution - obligations - exigences

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