Laurent de Sutter - After Law

Identifiers: LCCN 2020020737 (print) | LCCN 2020020738 (ebook) | ISBN 9781509542369 (hardback) | ISBN 9781509542376 (paperback) | ISBN 9781509542383 (epub) | ISBN 9781509545438 (adobe pdf)

Subjects: LCSH: Law--Philosophy. | Law (Philosophical concept) | Law--History.

Classification: LCC K230.D4343 D4713 2020 (print) | LCC K230.D4343 (ebook) | DDC 340/.1--dc23

LC record available at https://lccn.loc.gov/2020020737

LC ebook record available at https://lccn.loc.gov/2020020738

Typeset in 10.5 on 12pt Sabon

by Fakenham Prepress Solutions, Fakenham, Norfolk NR21 8NL

Printed and bound in Great Britain by TJ International Limited

The publisher has used its best endeavours to ensure that the URLs for external websites referred to in this book are correct and active at the time of going to press. However, the publisher has no responsibility for the websites and can make no guarantee that a site will remain live or that the content is or will remain appropriate.

Every effort has been made to trace all copyright holders, but if any have been overlooked the publisher will be pleased to include any necessary credits in any subsequent reprint or edition.

For further information on Polity, visit our website: politybooks.com

For Serge Gutwirth

The English translation of Après la loi – After Law – presents a particular problem, apparent in the final word of the title and traversing the entire text until the last sentence of the Postlude. Put simply, the English language collapses two concepts that are separated in the French terms ‘loi’ and ‘droit’ into the single all-embracing ‘law’. In some ways, this is a striking confirmation of one of the central theses of the work: that over the course of Western history, the law, ‘la loi’, with everything it entails in terms of abstraction and normativity, has come to dominate and determine the concrete and casuistic ‘droit’. The obvious solution, and the one used throughout this work is to translate ‘loi’ with ‘law’ and ‘droit’ with ‘right’. This procedure is not, however, perfect, and carries certain risks. The most significant of these is that ‘right’ in English has come to be associated almost exclusively with the ‘rights’ of the ‘subject’, which is to say the individual rights the subject embodies within a political construct. ‘Right’, as it is predominantly used in this work, is better understood in its opposition to ‘Law’: a disruptive activity of becoming that challenges, perhaps deconstructs, the being of Law. All this becomes most explicit in the ‘Postlude’, which returns to all the oppositions in play throughout the work as it passes through a global series of legal traditions. Throughout the English text, as it builds to this finale, I have, therefore, capitalized ‘Law’ and ‘Right’ when they are clearly to be understood in the tension of this opposition. This is intended to serve as a visual reminder that neither ‘Law’ nor ‘Right’ quite map onto the common meanings the terms carry in English, and it will be to some degree the responsibility and the experience of the reader to come to an understanding of how they operate across this text.

Our relation to the law is not easy to untangle or tame using merely historical narrative. Fortunately, Laurent de Sutter provides us with a scanning apparatus, hermeneutically fine-tuned, by which to measure essential prompts of juridical life. With the care of a relentlessly searching analysis, his text hands us a number of flagged contracts to renegotiate and, where necessary, to repudiate.

We know that, beginning with Cleisthenes’ fateful intervention, philosophers bristled while they defended the demos , worried about the takeover of a mob primed to go off locked and loaded, lawless and intemperate. After Law offers a sweeping historical account of conceptual overhauls that are responsible for boosting democratic tenacity in the face of so many obstacles and their punctual power failures. Perhaps now more than ever our legal and juridical inheritance presses upon us, urging a review of a speculative jurisprudence that involves an untold history and stealth attack plans.

Timely and incisive, this work repurposes our juridical scaffolding, making allowances for wide-ranging effects of existential fallout in the political realms that affect us today. It faces down the transcendental assumptions that fuel our relation to the law and its legally constellated satellites. Without explicitly calling up psychoanalytic theory, After Law locates the power-pump of social narcissism and forms of drivenness that undergird an abiding relation to the law. We are given to understand that, like Kafka’s man from the country, one’s condition of sheer stuckness ‘before the law’ cannot be abrogated. This predicament holds for a diverse and often incompatible cultural rhetoric of law and governance, a temporal span that involves the subtle implications of finding oneself called before the law only to be snagged after the law’s epoch of authority.

On civic alert, Professor de Sutter examines the moves that were made historically in order to supplant familial logic with the idea of Law and the implementation of human rights. He trains his analysis on distinctions drawn by the fundamental juridical structures reconfigured under structural mutation, their emergence and inherent instabilities – in some cases, their unapologetic takeover stratagems. The text’s questioning looks at the foundational yet elusive facets of law and aporias of power. Its microanalyses interrogate the workings of Law, constitutions, penal codes, institutions, acts of positing and the co-implicating force of hypothetical judgement that hold them together as well as apart. The account of juridical presuppositions reflects the processes of corresponding historical changes in political vocabularies. So that ‘no tyranny could ever return’, the reigning god or legislator in Greek legal arbitration had to be replaced by the City itself, a repartition involving a new understanding of sharing together with an ever new distribution of civic responsibility. The strife between human nomos and divine nomos , in the limited yet self-replicating instance of ancient Greek philosophy, has had to be renegotiated at crucial junctures in modernity. At one point, the agonistic terms of law-giving powers reappear with the Spaltung (split-off) discussed in Walter Benjamin’s reflections on law and violence in terms of the striking force that differentiates human from divine law. Yet, how do we live with a relation to law whose authority is eroding?

In Freudian terms of social pessimism, it may well be the case that we will never be able to effect a jailbreak from narcissistic lockdown and expunge the vacuity of shameless self-promotion that pervades our times, exercising a reckless disregard for the rule of law and its principled apportionment of equality. We’re neither the only nor the first ones to contend with encroaching morphs in despotism, the chokehold of a lawless political organization. De Sutter’s argument indicates that every social body on record has been tempted by tyrannical excess.

Ensnarled in familialisms and archaic structures of troubled coexistence, each phase of civilization has registered a will to break free of local bullying tendencies, hoping to dissolve tenacious political strangleholds. The tyrannical impulse exposed by Plato’s legendary analyses and the refinements of Aristotle’s political warning system exemplifies philosophical pushback on autocratic incursions. In the assertive span of Athenian juridical life, Cleisthenes was the first to call up Greek democracy. Not everyone in the history of philosophy was on board with the initial rallying call, and certainly no philosopher proved more ready to march along with a destructive politics than Martin Heidegger in 1934. What does this tell us about philosophers –not to say of formations of will-to-power, and the enduring appeal, whether heeded or dismissively cast, made in theoretical studies of Law?