# The Role of the Law in Critical Theory: An Engagement with Hardt and Negri's Commonwealth

Mikhail Xifaras

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Mikhail Xifaras. The Role of the Law in Critical Theory: An Engagement with Hardt and Negri's Commonwealth. Law and Critique, 2024, 35 (1), pp.19-62. 10.1007/s10978-024-09376-7. hal-04565977

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# The Role of the Law in Critical Theory: An Engagement with Hardt and Negri's Commonwealth

Mikhail Xifaras

► To cite this version:

Mikhail Xifaras. The Role of the Law in Critical Theory: An Engagement with Hardt and Negri's Commonwealth. Law and Critique, 2024, 35 (1), pp.19-62. 10.1007/s10978-024-09376-7. hal-04565977

HAL Id: hal-04565977

https://sciencespo.hal.science/hal-04565977v1

Submitted on 2 May 2024

HAL is a multi-disciplinary open access
archive for the deposit and dissemination of sci-
entific research documents, whether they are pub-
lished or not. The documents may come from
teaching and research institutions in France or
abroad, or from public or private research centers.

L'archive ouverte pluridisciplinaire HAL, est
destinée au dépôt et à la diffusion de documents
scientifiques de niveau recherche, publiés ou non,
émanant des établissements d'enseignement et de
recherche français ou étrangers, des laboratoires
publics ou privés.

<figure><img src="image_1.png" /></figure>

Distributed under a Creative Commons Attribution 4.0 International License
<figure><img src="image_2.png" /></figure>

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updates

# The Role of the Law in Critical Theory: An Engagement with
Hardt and Negri's *Commonwealth*

Mikhail Xifaras<fnref n="1" />,<fnref n="2" />

Accepted: 8 February 2024 / Published online: 16 April 2024

© The Author(s) 2024

## Abstract

This paper discusses the role of Law and Legal Thinking in Critical Theory with specific reference to the arguments that Michael Hardt and Antonio Negri offer in their book *Commonwealth*. The core idea is that Critical Theory is no less radical, but much more concrete, when it is performing not only an external, but also an internal critique of the Law. It shows that the role of the law in critical theory emerges as a problem when the latter claims that ‘there is no outside’ and that ‘the legal base of the system structures our lives.’ It then discusses optimistic and pessimistic strategies to overcome the problem, and argue for a demanding strategy which consist in articulating the external and the internal critique of the law. To make this point, the paper goes back to the epistemic context in which critical attitudes are deployed (the ‘Conflict of the Faculties’), describes the four theoretical moves constitutive of the historical moment in which, at the end of the 18th Century, modern law as we know it was conceived of and founded; and sketches the key moments of the history of the internal critique of the law. It then illustrates the demanding strategy with examples taken from the field of Intellectual Property, and concludes that the Law is malleable and open enough to allow the thinking and practicing of radical alternatives from within the legal system and also that alternatives spoken in the language of the law are no less radical, but certainly, more concrete than others.

**Keywords** Critical legal theory · Negri · Hardt · Commonwealth · Legal strategy · Copyleft

<figure><img src="image_3.png" /></figure>

<footnote>Mikhail Xifaras
Mikhail.xifaras@sciencespo.fr; mdx1@nyu.edu</footnote>

<footnote n="1">¹ Sciences Po Law School, Paris, France</footnote>

<footnote n="2">² New York University, Abu Dhabi, United Arab Emirates</footnote>
<figure><img src="image_2.png" /></figure>

Check for
updates

# The Role of the Law in Critical Theory: An Engagement with
Hardt and Negri's *Commonwealth*

Mikhail Xifaras<fnref n="1" />,<fnref n="2" />

Accepted: 8 February 2024 / Published online: 16 April 2024

© The Author(s) 2024

## Abstract

This paper discusses the role of Law and Legal Thinking in Critical Theory with specific reference to the arguments that Michael Hardt and Antonio Negri offer in their book *Commonwealth*. The core idea is that Critical Theory is no less radical, but much more concrete, when it is performing not only an external, but also an internal critique of the Law. It shows that the role of the law in critical theory emerges as a problem when the latter claims that ‘there is no outside’ and that ‘the legal base of the system structures our lives.’ It then discusses optimistic and pessimistic strategies to overcome the problem, and argue for a demanding strategy which consist in articulating the external and the internal critique of the law. To make this point, the paper goes back to the epistemic context in which critical attitudes are deployed (the ‘Conflict of the Faculties’), describes the four theoretical moves constitutive of the historical moment in which, at the end of the 18th Century, modern law as we know it was conceived of and founded; and sketches the key moments of the history of the internal critique of the law. It then illustrates the demanding strategy with examples taken from the field of Intellectual Property, and concludes that the Law is malleable and open enough to allow the thinking and practicing of radical alternatives from within the legal system and also that alternatives spoken in the language of the law are no less radical, but certainly, more concrete than others.

**Keywords** Critical legal theory · Negri · Hardt · Commonwealth · Legal strategy · Copyleft

<figure><img src="image_3.png" /></figure>

<footnote>Mikhail Xifaras
Mikhail.xifaras@sciencespo.fr; mdx1@nyu.edu</footnote>

<footnote n="1">¹ Sciences Po Law School, Paris, France</footnote>

<footnote n="2">² New York University, Abu Dhabi, United Arab Emirates</footnote>
An earlier version of this paper was presented at the Critique and Praxis 13/13 semi-
nar, held at Columbia Law School the 5th of December 2018. I would like to warmly
thank Bernard Harcourt for organizing the event and Etienne Balibar for his insight-
ful responses as commentator, I greatly benefited from the discussion. The exercise
required the circulation of a working paper on a single chapter of an "important text."
I selected the first chapter of Toni Negri and Michael Hardt's *Commonwealth*. I am
very grateful to the authors for honoring my comments with their response. Both the
paper and their response were published in Italian in the *Revista Critica de Diritto
Privato*. This paper is the initial English version of my text, the one Toni Negri and
Michael Hardt responded to. Because of the setting, I was exclusively focused on
commenting on *Commonwealth*. I have decided to keep that focus but have made
one exception, the adding of a footnote (no 23) to mention an important development
on a matter Negri and Hardt published on in their later book, *Assembly*. My warmest
thanks to Maria Rosaria Marella, the editor-in-chief, for publishing us in the *Revista*.
My gratitude also goes to Giacomo Capuzzo, who translated the response from Ital-
ian to English. Lastly, I wish to thank Emilios Christodoulidis for hosting the English
version of this conversation in *Law and Critique*, and him and Jamie Haughton, for
their help with the English text.

The Problem of the ‘Role of the Law’ in Critical Theory

In this paper, I would like to present some remarks about the role of Law and Legal
Thinking in Critical Theory (hereafter CT) with specific reference to the arguments
that Michael Hardt and Antonio Negri offer in their important book *Commonwealth*.
In a nutshell, my argument is that Critical Theory is no less radical, but much more
concrete when it is performing not only an external, but also an internal critique of
the Law.

In the first section, I will argue that ‘the role of the Law in CT’ emerges as a prob-
lem at the intersection of two of CT’s ordinary claims: that ‘there is no outside’ and
that ‘the legal base of the system is structuring our lives’. In the second section, I
will argue against CT’s ‘anti-juristic stance’ (in French: *anti-juridisme*). In the third,
I will describe the epistemic context in which critical attitudes are deployed (which I
call the ‘*Conflict of the Faculties*’). This will lead me to describe the four theoretical
moves constitutive of the historical moment in which, at the end of the 18th Century,
modern law as we know it was conceived of and founded. This will allow me to pres-
ent this structure and demonstrate that, too often, CT is incomplete when only focus-
ing on the critique of the ‘*Law of the philosophers*’ whilst ignoring the ‘*Law of the
Jurists*’. Put differently, CT is too often only about the external critique of the Law,
to the detriment of the internal critique. In the fourth section, I will provide a brief
summary of the history of the internal critique of law, which will lead me to propose
a different (less ‘modern’) conceptualization of the concrete operations of the ‘Law
of the Jurists’. In section five, I will illustrate this conceptualization by the example
of Intellectual Property, specifically the copyleft. This will lead me, in section six,
to express my core argument: that Law is malleable and open enough to allow the
thinking and practicing of radical alternatives from within the legal system. I will

<figure><img src="image_4.png" /></figure>
An earlier version of this paper was presented at the Critique and Praxis 13/13 semi-
nar, held at Columbia Law School the 5th of December 2018. I would like to warmly
thank Bernard Harcourt for organizing the event and Etienne Balibar for his insight-
ful responses as commentator, I greatly benefited from the discussion. The exercise
required the circulation of a working paper on a single chapter of an "important text."
I selected the first chapter of Toni Negri and Michael Hardt's *Commonwealth*. I am
very grateful to the authors for honoring my comments with their response. Both the
paper and their response were published in Italian in the *Revista Critica de Diritto
Privato*. This paper is the initial English version of my text, the one Toni Negri and
Michael Hardt responded to. Because of the setting, I was exclusively focused on
commenting on *Commonwealth*. I have decided to keep that focus but have made
one exception, the adding of a footnote (no 23) to mention an important development
on a matter Negri and Hardt published on in their later book, *Assembly*. My warmest
thanks to Maria Rosaria Marella, the editor-in-chief, for publishing us in the *Revista*.
My gratitude also goes to Giacomo Capuzzo, who translated the response from Ital-
ian to English. Lastly, I wish to thank Emilios Christodoulidis for hosting the English
version of this conversation in *Law and Critique*, and him and Jamie Haughton, for
their help with the English text.

The Problem of the ‘Role of the Law’ in Critical Theory

In this paper, I would like to present some remarks about the role of Law and Legal
Thinking in Critical Theory (hereafter CT) with specific reference to the arguments
that Michael Hardt and Antonio Negri offer in their important book *Commonwealth*.
In a nutshell, my argument is that Critical Theory is no less radical, but much more
concrete when it is performing not only an external, but also an internal critique of
the Law.

In the first section, I will argue that ‘the role of the Law in CT’ emerges as a prob-
lem at the intersection of two of CT’s ordinary claims: that ‘there is no outside’ and
that ‘the legal base of the system is structuring our lives’. In the second section, I
will argue against CT’s ‘anti-juristic stance’ (in French: *anti-juridisme*). In the third,
I will describe the epistemic context in which critical attitudes are deployed (which I
call the ‘*Conflict of the Faculties*’). This will lead me to describe the four theoretical
moves constitutive of the historical moment in which, at the end of the 18th Century,
modern law as we know it was conceived of and founded. This will allow me to pres-
ent this structure and demonstrate that, too often, CT is incomplete when only focus-
ing on the critique of the ‘*Law of the philosophers*’ whilst ignoring the ‘*Law of the
Jurists*’. Put differently, CT is too often only about the external critique of the Law,
to the detriment of the internal critique. In the fourth section, I will provide a brief
summary of the history of the internal critique of law, which will lead me to propose
a different (less ‘modern’) conceptualization of the concrete operations of the ‘Law
of the Jurists’. In section five, I will illustrate this conceptualization by the example
of Intellectual Property, specifically the copyleft. This will lead me, in section six,
to express my core argument: that Law is malleable and open enough to allow the
thinking and practicing of radical alternatives from within the legal system. I will

<figure><img src="image_4.png" /></figure>
also argue that alternatives spoken in the language of the Law are no less radical, but
certainly, more concrete than others.

The problem of the ‘role of the law’ in CT is located at the crossroad of two ideas,
widely spread throughout the critical literature, which are very well expressed by
Negri and Hardt in *Commonwealth*. These ideas are that ‘*There is no outside*’ and that
‘*The Law structures our lives.*’

There Is No Outside

Domination and oppression do not come from the outside (as God's punishment,
Nature's necessary functioning etc.), but are consequences of the inner logic of the
systems and institutions which shape our world. The alternatives to oppression and
domination are also to be found within our societies; emancipation will not come
from the outside, there will be no divine intervention, and no return to Pure Nature
— such calls cannot seriously ground emancipatory projects.

That ‘there is no outside’ does not only mean that the alternatives are already
available, in our world (or in its margins), but moreover that they are produced from
within the system of oppression and domination, in the context of its inner logic of
development. The emancipatory alternative is immanent to the system of domina-
tion. Negri and Hardt certainly take this line (2009, p. 1).<fnref n="1" /> According to them, the
revolutionary forces emerge from within the system — they are produced by it but
are necessarily antagonistic to it (Negri and Hardt 2009, pp. 39–40).<fnref n="2" />

So far, so good.

Law Structures Our Lives

Law generally appears in CT as the ‘bad guy’. This is not surprising. From its origins,
CT has been directed at realizing the critique of practical reason, and later the critique
of social ontology. And because, in our modern societies, human activities and social
institutions are structured by the law, CT has mainly engaged with legal institutions
and systems confrontationally.<fnref n="3" /> For Negri and Hardt, what constitutes the current

<footnote n="1">¹ ‘One primary effect of globalization, however, is the creation of a common world, a world that, for the better or worse, we all share, a world that has no “outside”.’</footnote>

<footnote n="2">² ‘Since the dominant form of the republic is defined by property, the multitude, insofar as it is character-
ized by poverty, stands opposed to it. This conflict, however, should be understood in terms of not only
wealth and poverty but also and more significantly the forms of subjectivity produced. Private property
creates subjectivities that are at once individual (in their competition with one another) and unified as a
class to preserve their property (against the poor) (...). The poverty of the multitude, then, seen from this
perspective, does not refer to its misery of deprivation or even its lack, but instead manes a production
of social subjectivity that results in a radically plural and open body politic, opposed to both the indi-
vidualism and the exclusive, unified social body of property. The poor, in other words, refer not to those
who have nothing but to the wide multiplicity of all those who are inserted in the mechanisms of social
production regardless of social order or property.’</footnote>

<footnote n="3">³ In Negri and Hardt’s words: “The primary form of power that really confronts us today, however, is not so dramatic and demonic but rather earthly and mundane. We need to stop confusing politics with theol-
ogy. The predominant contemporary form of sovereignty — if we still want to call it that — is completely
embedded within and supported by the legal systems and institutions of governance, a republican form
characterized not only by the rule of law but also equally by the rule of property” (2009, p. 5).</footnote>
also argue that alternatives spoken in the language of the Law are no less radical, but
certainly, more concrete than others.

The problem of the ‘role of the law’ in CT is located at the crossroad of two ideas,
widely spread throughout the critical literature, which are very well expressed by
Negri and Hardt in *Commonwealth*. These ideas are that ‘*There is no outside*’ and that
‘*The Law structures our lives.*’

There Is No Outside

Domination and oppression do not come from the outside (as God's punishment,
Nature's necessary functioning etc.), but are consequences of the inner logic of the
systems and institutions which shape our world. The alternatives to oppression and
domination are also to be found within our societies; emancipation will not come
from the outside, there will be no divine intervention, and no return to Pure Nature
— such calls cannot seriously ground emancipatory projects.

That ‘there is no outside’ does not only mean that the alternatives are already
available, in our world (or in its margins), but moreover that they are produced from
within the system of oppression and domination, in the context of its inner logic of
development. The emancipatory alternative is immanent to the system of domina-
tion. Negri and Hardt certainly take this line (2009, p. 1).<fnref n="1" /> According to them, the
revolutionary forces emerge from within the system — they are produced by it but
are necessarily antagonistic to it (Negri and Hardt 2009, pp. 39–40).<fnref n="2" />

So far, so good.

Law Structures Our Lives

Law generally appears in CT as the ‘bad guy’. This is not surprising. From its origins,
CT has been directed at realizing the critique of practical reason, and later the critique
of social ontology. And because, in our modern societies, human activities and social
institutions are structured by the law, CT has mainly engaged with legal institutions
and systems confrontationally.<fnref n="3" /> For Negri and Hardt, what constitutes the current

<footnote n="1">¹ ‘One primary effect of globalization, however, is the creation of a common world, a world that, for the better or worse, we all share, a world that has no “outside”.’</footnote>

<footnote n="2">² ‘Since the dominant form of the republic is defined by property, the multitude, insofar as it is characterized by poverty, stands opposed to it. This conflict, however, should be understood in terms of not only wealth and poverty but also and more significantly the forms of subjectivity produced. Private property creates subjectivities that are at once individual (in their competition with one another) and unified as a class to preserve their property (against the poor) (...). The poverty of the multitude, then, seen from this perspective, does not refer to its misery of deprivation or even its lack, but instead manes a production of social subjectivity that results in a radically plural and open body politic, opposed to both the individualism and the exclusive, unified social body of property. The poor, in other words, refer not to those who have nothing but to the wide multiplicity of all those who are inserted in the mechanisms of social production regardless of social order or property.’</footnote>

<footnote n="3">³ In Negri and Hardt’s words: “The primary form of power that really confronts us today, however, is not so dramatic and demonic but rather earthly and mundane. We need to stop confusing politics with theology. The predominant contemporary form of sovereignty — if we still want to call it that — is completely embedded within and supported by the legal systems and institutions of governance, a republican form characterized not only by the rule of law but also equally by the rule of property” (2009, p. 5).</footnote>
‘system of domination’ is the intertwinement of two legal regimes: the first is called ‘The Republique’, a word they use in a sense which is close to the idea of the Rule of Law, understood as the prevalence or the supremacy of the Law upon other normative orders. Under this regime, the dominant powers and relations of domination are produced and reproduced *through Law*. They are defined, constituted, and enacted by complex sets of legal rules, procedures, and institutions. The second is ‘Property’, understood as the legal form of capital domination on men and things, through a certain design and distribution of property rights. What Negri and Hardt underline is that these two legal regimes are coupled, to form a ‘system’, which they call ‘The Republic of Property’. Under this system, the formalization of the constitutional order turns on the protection and legitimization of property rights. The Republic of Property might not be the only thinkable version of Republicanism, but it’s the one which has triumphed over all other candidates, to become hegemonic. What you therefore get in this Republic is the prevalence of the legal regime which structures capitalist relations of domination — the Law of Property.<fnref n="4" /> That’s the ‘bad guy’.

There is more. The Law is also a concealer: it veils and misrepresents. For Negri and Hardt, the emancipatory forces are not to be found ‘outside’, they are already in the system, but their historical manifestation is at first veiled by the ‘bad’ forms imposed upon them by the dominant system. The unity of humanity is hidden by class distinctions, socialization is hidden by private property, cooperation at work is hidden by institutionalized competition and employer power.<fnref n="5" /> Thus, the Common is hidden by the hegemony of the public/private divide.<fnref n="6" /> Hence Law as both ‘bad guy’ and ‘concealer’.

The striking element of these arguments is that the role of the Law is absolutely central to the everyday running of our lives. Law is not only a kind of ‘general form’ which would shape institutions and social relations at large, its negative effects are to be felt in every aspect of our lives including the most intimate, including the shaping of our bodies. Private property regimes do not simply protect owners then, they produce ‘the human as commodity’ (Negri and Hardt 2009, p. 22), in a deeper, diffused, and generalized way. But how?

If the Law affects every aspect of our intimate lives everywhere in the world, it must be because legal institutions structure the entirety of social relations and human activities at a micro-level. And if it is the case, the Republic of Property must be a complete, concrete, detailed, and effective legal system which rules all aspects of our existences, not only formally, but ‘down to the bones’. Such a legal system cannot

<footnote n="4">⁴ ‘... one specific definition of modern republicanism eventually won out over the others : a republicanism based on the rule of property and the inviolability of the rights of private property, which excludes or subordinates those without property ... Our point is simply that the republic of property emerged historically as the dominant concept. The course of the three great bourgeois revolutions — the English, the American and the French — demonstrates the emergence and consolidation of the republic of property. In each case, the establishment of the constitutional order and the rule of law served to defend and legitimate private property?’ (Negri and Hardt 2009, p. 9).</footnote>

<footnote n="5">⁵ ‘With the blinders of today’s dominant ideologies, however, it is difficult to see the common, even though it is all around us.’ (Negri and Hardt 2009, p. VIII).</footnote>

<footnote n="6">⁶ ‘The standard view, however, assumes that the only alternative to the private is the public, that is, what is managed and regulated by states and other governmental authorities, as if the common were irrelevant or extinct’ (Negri and Hardt 2009, p. VIII).</footnote>
‘system of domination’ is the intertwinement of two legal regimes: the first is called ‘The Republique’, a word they use in a sense which is close to the idea of the Rule of Law, understood as the prevalence or the supremacy of the Law upon other normative orders. Under this regime, the dominant powers and relations of domination are produced and reproduced *through Law*. They are defined, constituted, and enacted by complex sets of legal rules, procedures, and institutions. The second is ‘Property’, understood as the legal form of capital domination on men and things, through a certain design and distribution of property rights. What Negri and Hardt underline is that these two legal regimes are coupled, to form a ‘system’, which they call ‘The Republic of Property’. Under this system, the formalization of the constitutional order turns on the protection and legitimization of property rights. The Republic of Property might not be the only thinkable version of Republicanism, but it’s the one which has triumphed over all other candidates, to become hegemonic. What you therefore get in this Republic is the prevalence of the legal regime which structures capitalist relations of domination — the Law of Property.<fnref n="4" /> That’s the ‘bad guy’.

There is more. The Law is also a concealer: it veils and misrepresents. For Negri and Hardt, the emancipatory forces are not to be found ‘outside’, they are already in the system, but their historical manifestation is at first veiled by the ‘bad’ forms imposed upon them by the dominant system. The unity of humanity is hidden by class distinctions, socialization is hidden by private property, cooperation at work is hidden by institutionalized competition and employer power.<fnref n="5" /> Thus, the Common is hidden by the hegemony of the public/private divide.<fnref n="6" /> Hence Law as both ‘bad guy’ and ‘concealer’.

The striking element of these arguments is that the role of the Law is absolutely central to the everyday running of our lives. Law is not only a kind of ‘general form’ which would shape institutions and social relations at large, its negative effects are to be felt in every aspect of our lives including the most intimate, including the shaping of our bodies. Private property regimes do not simply protect owners then, they produce ‘the human as commodity’ (Negri and Hardt 2009, p. 22), in a deeper, diffused, and generalized way. But how?

If the Law affects every aspect of our intimate lives everywhere in the world, it must be because legal institutions structure the entirety of social relations and human activities at a micro-level. And if it is the case, the Republic of Property must be a complete, concrete, detailed, and effective legal system which rules all aspects of our existences, not only formally, but ‘down to the bones’. Such a legal system cannot

<footnote n="4">⁴ ‘... one specific definition of modern republicanism eventually won out over the others : a republicanism based on the rule of property and the inviolability of the rights of private property, which excludes or subordinates those without property ... Our point is simply that the republic of property emerged historically as the dominant concept. The course of the three great bourgeois revolutions — the English, the American and the French — demonstrates the emergence and consolidation of the republic of property. In each case, the establishment of the constitutional order and the rule of law served to defend and legitimate private property?’ (Negri and Hardt 2009, p. 9).</footnote>

<footnote n="5">⁵ ‘With the blinders of today’s dominant ideologies, however, it is difficult to see the common, even though it is all around us.’ (Negri and Hardt 2009, p. VIII).</footnote>

<footnote n="6">⁶ ‘The standard view, however, assumes that the only alternative to the private is the public, that is, what is managed and regulated by states and other governmental authorities, as if the common were irrelevant or extinct’ (Negri and Hardt 2009, p. VIII).</footnote>
simply be a formal set of legal rules and principles — a Constitution or a codified body of legislation — it has to include a whole set of concrete and efficient practices. That, for Negri and Hardt, requires to move ‘beyond’ Marx. Indeed, Marx failed to ‘grasp the entire set of effects that property, operating through law, determines over human life’ (2009, p. 23). But ‘many twentieth-century Marxist authors extend the critique of private property beyond the legal context to account for the diverse material dynamics that constitute oppression and exploitation in capitalist society’ (Negri and Hardt 2009, p. 23).

So, the aim of an extended critique is to grasp ‘the entire set of effects that property, operative through law, determines over human life’, which requires moving beyond Marx, that is, ‘beyond the legal context’ (Negri and Hardt 2009, p. 23). That’s exactly what Foucault did in *Surveiller et Punir*, with the concept of ‘discipline’ (1995, pp. 222–223). This sphere of disciplinary regimes is understood as distinct from the sphere of relations which are produced and ruled by the Law — a kind of ‘counter-Law’ (1995, pp. 222–223). Such a gesture introduces a tension, however.

If the structure of capitalist domination is legal (the Republic of Property), and if capitalist domination is producing our alienated and exploited bodies and subjectivities, why is it necessary to look ‘beyond the legal context’ to analyze it? And what can there be ‘beyond the legal context’? How is it even possible to conceive anything ‘beyond the legal context’, if the legal system is the structure and the direct cause of every micro-effect of capitalist oppression and domination, and if, at the same time, ‘there is no outside’? Or is it that the law does not structure everything? Or that, after all, there is an outside? Or that, actually, there is no need to go ‘beyond the legal context’ to grasp the micro-effects of the legal system upon our lives?

A possible way to answer these questions would be to introduce the distinction between the legal *frame* and the legal *context*. The legal frame would be the legal structure, as ‘abstract representations of social reality, relatively indifferent to social contents’ (Negri and Hardt 2009, p. 22) — the Constitution, or codified legislation that is ‘formal law’. The legal context would comprise the concrete and effective operations through which legal practice shape our everyday lives and our subjectivities — the concrete practical operations of the law. One could also speak of a legal *order*, as distinct from the formal legal *system*. It would then be possible to assert that the legal frame is indeed structuring our lives, but also that, in order to understand its concrete effects, one would need to analyze the entire ‘legal context’, as the ‘entire set of effects that property determines over human life’, and this by looking ‘beyond the legal frame’. Put differently, one should not only look at the formal rules and principles, but also embrace the effects of their concrete legal enforcement at a micro-level. But Negri and Hardt do not introduce the distinction between abstract legal forms and concrete legal practices,<fnref n="7" /> they locate the entirety of the Law in the abstract, and as a result, when they plea for a more concrete analysis, they have to look not only beyond the legal *frame*, but beyond the legal *context*, that is — beyond the law *itself*, in search for the ‘diverse material dynamics that constitute oppression and exploitation in capitalist society’ (Negri and Hardt 2009, p. 23).

<footnote n="7">⁷ To such point the French translation gives “cadre juridique” — literally “legal frame” — for “legal context” (Hardt and Negri 2012, p. 51).</footnote>
simply be a formal set of legal rules and principles — a Constitution or a codified body of legislation — it has to include a whole set of concrete and efficient practices. That, for Negri and Hardt, requires to move ‘beyond’ Marx. Indeed, Marx failed to ‘grasp the entire set of effects that property, operating through law, determines over human life’ (2009, p. 23). But ‘many twentieth-century Marxist authors extend the critique of private property beyond the legal context to account for the diverse material dynamics that constitute oppression and exploitation in capitalist society’ (Negri and Hardt 2009, p. 23).

So, the aim of an extended critique is to grasp ‘the entire set of effects that property, operative through law, determines over human life’, which requires moving beyond Marx, that is, ‘beyond the legal context’ (Negri and Hardt 2009, p. 23). That’s exactly what Foucault did in *Surveiller et Punir*, with the concept of ‘discipline’ (1995, pp. 222–223). This sphere of disciplinary regimes is understood as distinct from the sphere of relations which are produced and ruled by the Law — a kind of ‘counter-Law’ (1995, pp. 222–223). Such a gesture introduces a tension, however.

If the structure of capitalist domination is legal (the Republic of Property), and if capitalist domination is producing our alienated and exploited bodies and subjectivities, why is it necessary to look ‘beyond the legal context’ to analyze it? And what can there be ‘beyond the legal context’? How is it even possible to conceive anything ‘beyond the legal context’, if the legal system is the structure and the direct cause of every micro-effect of capitalist oppression and domination, and if, at the same time, ‘there is no outside’? Or is it that the law does not structure everything? Or that, after all, there is an outside? Or that, actually, there is no need to go ‘beyond the legal context’ to grasp the micro-effects of the legal system upon our lives?

A possible way to answer these questions would be to introduce the distinction between the legal *frame* and the legal *context*. The legal frame would be the legal structure, as ‘abstract representations of social reality, relatively indifferent to social contents’ (Negri and Hardt 2009, p. 22) — the Constitution, or codified legislation that is ‘formal law’. The legal context would comprise the concrete and effective operations through which legal practice shape our everyday lives and our subjectivities — the concrete practical operations of the law. One could also speak of a legal *order*, as distinct from the formal legal *system*. It would then be possible to assert that the legal frame is indeed structuring our lives, but also that, in order to understand its concrete effects, one would need to analyze the entire ‘legal context’, as the ‘entire set of effects that property determines over human life’, and this by looking ‘beyond the legal frame’. Put differently, one should not only look at the formal rules and principles, but also embrace the effects of their concrete legal enforcement at a micro-level. But Negri and Hardt do not introduce the distinction between abstract legal forms and concrete legal practices,<fnref n="7" /> they locate the entirety of the Law in the abstract, and as a result, when they plea for a more concrete analysis, they have to look not only beyond the legal *frame*, but beyond the legal *context*, that is — beyond the law *itself*, in search for the ‘diverse material dynamics that constitute oppression and exploitation in capitalist society’ (Negri and Hardt 2009, p. 23).

<footnote n="7">⁷ To such point the French translation gives “cadre juridique” — literally “legal frame” — for “legal context” (Hardt and Negri 2012, p. 51).</footnote>
The justification for this move is the following: the anti-capitalist emancipatory forces are to be found ‘*within our world*’, but not ‘*within the legal context*’, because what constituted them is precisely their exclusion from the Republic of Property. In Negri and Hardt’s own words: “property is the key that defines not only the republic, but also the people, both of which are posed as universal concepts but, in reality, exclude the multitude of the poor” (2009, p. 51). Creative and emancipatory life-forms are emerging and expanding in this world, but do so *outside* of the legal frame which hides and excludes them. Otherwise said, these forms constitute the inner limit to the hegemony of the Republic of Property, they create a kind of ‘internal outside’, or a counter power, something like an inner enemy. And most importantly, this inner enemy is *not* structured by the Law. To the contrary, the multitudes are self-structured by their own material, creative lively forces, and these forces are not subjected in the sense of being *subjectified* (i.e. made into subjects; ‘*assujéties*’ in French) in the legal frame, because they are excluded from the ‘social body’ which is constituted by it, but instead they are subjected as *dominated* (‘*soumises*’ in French) to the power of capital. In other words, they are subjected to, but not constituted by, capital. The force of the multitude is to embody the otherness of capitalist lifeforms - their enemy - and therefore the political alternative to the sphere of biopower as constituted by the legal system.

This clearly means that Negri and Hardt do not deny the productivity of the Law. According to them, the Law does actually structure most social relations and human activities in our world — but its productivity is only negative. The relations, activities, and subjectivities it produces are only subjugated, dominated, alienated, forms of life. Think of property, which only produces subjectivities that are impaired by individualism, competition, and identity. The positive productivity of lifeforms — the force to produce the Common — takes place *inside* our world, but *outside* of the power relations regulated by the Law. This outside is not only the sphere structured by the legal system (the Republic of Property), but it is an outside of the legal context in general, far from the negative productivity of the Law. The Common is a ‘non-law sphere’. And this is where alternatives to the system emerge and self-constitute. Which means that the legal frame does not structure all our world, but only the field of oppression and exploitation, while the Common, understood as the principle of activity of the Multitudes, is not structured by the legal system, as it is located outside of the legal context.

To sum up: within this world, there is an outside of the system, as its limit and ‘other’. The border of this internal outside is drawn by the Law/non-Law divide, and constitutes the core dynamic contradiction, namely the political contradiction between the (bad) capitalist domination and the (good) creativity of the multitude. In other words, the legal system allows the constitution of ‘non-law spheres’ located outside of itself, it does not structure the entirety of our lives. Negri and Hardt’s theory, however fascinating, therefore contradicts its own presuppositions.

## The “Role of the Law in CT” Problem

This is the ‘role of the Law in CT’ problem. On the one hand, to be systemic, the analysis of capitalism requires that the (legal) structure of the system produces its

<figure><img src="image_5.png" /></figure>
The justification for this move is the following: the anti-capitalist emancipatory forces are to be found ‘*within our world*’, but not ‘*within the legal context*’, because what constituted them is precisely their exclusion from the Republic of Property. In Negri and Hardt’s own words: “property is the key that defines not only the republic, but also the people, both of which are posed as universal concepts but, in reality, exclude the multitude of the poor” (2009, p. 51). Creative and emancipatory life-forms are emerging and expanding in this world, but do so *outside* of the legal frame which hides and excludes them. Otherwise said, these forms constitute the inner limit to the hegemony of the Republic of Property, they create a kind of ‘internal outside’, or a counter power, something like an inner enemy. And most importantly, this inner enemy is *not* structured by the Law. To the contrary, the multitudes are self-structured by their own material, creative lively forces, and these forces are not subjected in the sense of being *subjectified* (i.e. made into subjects; ‘*assujéties*’ in French) in the legal frame, because they are excluded from the ‘social body’ which is constituted by it, but instead they are subjected as *dominated* (‘*soumises*’ in French) to the power of capital. In other words, they are subjected to, but not constituted by, capital. The force of the multitude is to embody the otherness of capitalist lifeforms - their enemy - and therefore the political alternative to the sphere of biopower as constituted by the legal system.

This clearly means that Negri and Hardt do not deny the productivity of the Law. According to them, the Law does actually structure most social relations and human activities in our world — but its productivity is only negative. The relations, activities, and subjectivities it produces are only subjugated, dominated, alienated, forms of life. Think of property, which only produces subjectivities that are impaired by individualism, competition, and identity. The positive productivity of lifeforms — the force to produce the Common — takes place *inside* our world, but *outside* of the power relations regulated by the Law. This outside is not only the sphere structured by the legal system (the Republic of Property), but it is an outside of the legal context in general, far from the negative productivity of the Law. The Common is a ‘non-law sphere’. And this is where alternatives to the system emerge and self-constitute. Which means that the legal frame does not structure all our world, but only the field of oppression and exploitation, while the Common, understood as the principle of activity of the Multitudes, is not structured by the legal system, as it is located outside of the legal context.

To sum up: within this world, there is an outside of the system, as its limit and ‘other’. The border of this internal outside is drawn by the Law/non-Law divide, and constitutes the core dynamic contradiction, namely the political contradiction between the (bad) capitalist domination and the (good) creativity of the multitude. In other words, the legal system allows the constitution of ‘non-law spheres’ located outside of itself, it does not structure the entirety of our lives. Negri and Hardt’s theory, however fascinating, therefore contradicts its own presuppositions.

## The “Role of the Law in CT” Problem

This is the ‘role of the Law in CT’ problem. On the one hand, to be systemic, the analysis of capitalism requires that the (legal) structure of the system produces its

<figure><img src="image_5.png" /></figure>
negative effects on every aspect of our lives. On the other hand, if the system *necesita*arily produces its negative effects upon every aspect of our lives, how can the ‘good’ alternative lifeforms be found within the system?

This quandary is not easy to circumvent or navigate. What makes the critique radical seems precisely to be that it analyzes the concrete micro-powers and disciplinary mechanisms as necessary effects of a structural domination (how radical would the critique be if its conclusion was *not* that bad effects are necessary outcomes of a *system*?). The more radical the critique is, the more totalizing and the more necessary its systemic (bad) effects shall be. Negri and Hardt's critique of capitalism is radical precisely because it claims that the Republic of Property is everywhere, *really* and *completely* shaping our lives. But then, how is it that the 'good' lifeforms are immune from being shaped by the 'bad' legal structure, although they are to be found *within* the world which is itself entirely shaped by this structure? What can possibly be the meaning of the words 'structure' and 'system', if the structure is not structuring the system *as a whole*, and if the whole does not structure every one of its parts?

## The Law / Non-law Binary

There are many ways to try to solve this problem, either from outside or from within the legal context. I will return to the latter in a moment. When the critical theorist goes for the former, she has to weaken the 'there is no outside' premise in such way she can make room for an 'internal outside', something like a 'non-law sphere' located in this world but 'beyond the legal context'. The next step is generally a plea for a change of frame (e.g. a revolution). There are two versions of this strategy, the optimistic and the pessimistic. The optimistic version generally leads to arguments like: 'the law of capital is ruining our lives, and it veils a range of 'non-law spheres' where healthy human relations can flourish.' The possibility of a revolution lies in these healthy relations being left untouched by the legal structure of capital. The pessimistic version considers that human relations in the 'non-law spheres' are not that healthy, because the non-law sphere is not immune to power relations (though these are not legal ones). Otherwise said, the non-law sphere is where discipline, not love or friendship, is flourishing. This pessimistic version acknowledges that power relations and constraining mechanisms are not all legal, and generally leads to abandoning the very possibility of revolution in order to content oneself with (localized) 'resistances' and the *souci de soi*.

Negri and Hardt are certainly trying to seek alternatives from outside the legal context, and their version of this strategy is undeniably an optimistic one. In their view, non-legal alternative lifeforms can emerge, be deployed, and allow multitudes to self-constitute. But this move leads us from Charybdis to Scylla: if the sphere of non-legal relations is meaningful, it means the legal system does not structure every aspect of our lives, that its domination is *not* systemic. Their 'optimistic' view does not solve the problem.

Another way to navigate the problem would be to temper the law/non-law divide instead of tempering the 'there is no outside' claim. A way to do this would be to claim that contrary to the Foucault of *Surveiller et Punir*, the non-law sphere is not a counter-law, neither independent from nor immune to the law, but an extension of
negative effects on every aspect of our lives. On the other hand, if the system *necesita*arily produces its negative effects upon every aspect of our lives, how can the ‘good’ alternative lifeforms be found within the system?

This quandary is not easy to circumvent or navigate. What makes the critique radical seems precisely to be that it analyzes the concrete micro-powers and disciplinary mechanisms as necessary effects of a structural domination (how radical would the critique be if its conclusion was *not* that bad effects are necessary outcomes of a *system*?). The more radical the critique is, the more totalizing and the more necessary its systemic (bad) effects shall be. Negri and Hardt's critique of capitalism is radical precisely because it claims that the Republic of Property is everywhere, *really* and *completely* shaping our lives. But then, how is it that the ‘good’ lifeforms are immune from being shaped by the ‘bad’ legal structure, although they are to be found *within* the world which is itself entirely shaped by this structure? What can possibly be the meaning of the words ‘structure’ and ‘system’, if the structure is not structuring the system *as a whole*, and if the whole does not structure every one of its parts?

## The Law / Non-law Binary

There are many ways to try to solve this problem, either from outside or from within the legal context. I will return to the latter in a moment. When the critical theorist goes for the former, she has to weaken the ‘there is no outside’ premise in such way she can make room for an ‘internal outside’, something like a ‘non-law sphere’ located in this world but ‘beyond the legal context’. The next step is generally a plea for a change of frame (e.g. a revolution). There are two versions of this strategy, the optimistic and the pessimistic. The optimistic version generally leads to arguments like: ‘the law of capital is ruining our lives, and it veils a range of ‘non-law spheres’ where healthy human relations can flourish.’ The possibility of a revolution lies in these healthy relations being left untouched by the legal structure of capital. The pessimistic version considers that human relations in the ‘non-law spheres’ are not that healthy, because the non-law sphere is not immune to power relations (though these are not legal ones). Otherwise said, the non-law sphere is where discipline, not love or friendship, is flourishing. This pessimistic version acknowledges that power relations and constraining mechanisms are not all legal, and generally leads to abandoning the very possibility of revolution in order to content oneself with (localized) ‘resistances’ and the *souci de soi*.

Negri and Hardt are certainly trying to seek alternatives from outside the legal context, and their version of this strategy is undeniably an optimistic one. In their view, non-legal alternative lifeforms can emerge, be deployed, and allow multitudes to self-constitute. But this move leads us from Charybdis to Scylla: if the sphere of non-legal relations is meaningful, it means the legal system does not structure every aspect of our lives, that its domination is *not* systemic. Their ‘optimistic’ view does not solve the problem.

Another way to navigate the problem would be to temper the law/non-law divide instead of tempering the ‘there is no outside’ claim. A way to do this would be to claim that contrary to the Foucault of *Surveiller et Punir*, the non-law sphere is not a counter-law, neither independent from nor immune to the law, but an extension of
the legal system. Which means that even if there are spheres that seem to be ‘non-law’ ones, they too are, at least indirectly, structured by the legal system, and therefore cannot be considered as being outside the legal context. In other words, human relations spoken in the language of the law condition, organize, or structure human relations spoken in other, non-legal languages. The argument goes like this: non-law spheres are in fact, if not ostensibly, legal spheres. A non-law sphere is only a sphere that the law does not regulate directly because it has explicitly withdrawn from it. But ‘explicit withdrawal’ is just another kind of legal regime (generally based on entitlements and permissions rather than prohibitions and sanctions). A classic example: during the 19th Century, the common sense among jurists was that the household, and family life, were where the powers of the head of the household — the *paterfamilias* — were exerted, and that therefore the domain of private life was where the Law should not enter — a ‘non-Law’ zone. But actually, what the law did was to entitle the *pater familias* to freely legislate, execute and adjudicate the household. That too is a legal regime. Except that it is enabling an authority to regulate instead of regulating itself. When, a century (and many feminist struggles) later, the law decided to limit the powers of the *pater familias*, to declare conjugal equality and to grant children with rights, one could certainly say that ‘the law had finally entered the household,’ but it would be more accurate to simply say that ‘the legal regime applicable to the household changed.”

From this perspective, what Foucault calls the ‘disciplines’ are not a ‘counter-law’, distinct and separate from the law (Kennedy 1991). At most they are its mere extension, through legal mechanisms of delegation of power. The *paterfamilias* regulates the household and subjects women and children to his authority, as a husband and as a father, *because* the enforceable family law enables him. Factory regulations are the concrete exercise of the legal powers of the employer, directly flowing from his property rights over the means of production. The way tables and chairs are disposed in the classroom is a result of the school’s director exercising their legal prerogatives in the organization of the school, under the (legal) guidelines provided by the Ministry of Education. Legal theorists have shed light on how these apparently non-legal relations are shaped by the legal system — the actors are producing them ‘in the shadow of the law’. A classic example is the case of amicable divorce, where spouses negotiate between themselves whilst keeping in mind what would happen if one of them were to change their mind and go to the judge. Of course, these relations are ‘non legal’, but although they are not spoken in the language of the law they are structured by the legal frame, and they are certainly not located ‘beyond the legal context’.<fnref n="8" />

When people bargain in the shadow of the law, conflicts and bargains are conditioned by the way that the enforceable legal regime distributes powers and more generally legal prerogatives to the parties in conflict. Otherwise said, the law constitutes the force of these parties, or better said, constitutes these parties as social and political forces (for example, there are no classes without unequal distribution of property rights in the means of production) and orders the conditions of the conflicts and negotiations between them (there are no factory regulations without employers’ powers to regulate the workplace, nor workers’ rights without collective agreements between

<footnote n="8">⁸ See Mnookin and Kornhauser (1979).</footnote>
the legal system. Which means that even if there are spheres that seem to be ‘non-law’ ones, they too are, at least indirectly, structured by the legal system, and therefore cannot be considered as being outside the legal context. In other words, human relations spoken in the language of the law condition, organize, or structure human relations spoken in other, non-legal languages. The argument goes like this: non-law spheres are in fact, if not ostensibly, legal spheres. A non-law sphere is only a sphere that the law does not regulate directly because it has explicitly withdrawn from it. But ‘explicit withdrawal’ is just another kind of legal regime (generally based on entitlements and permissions rather than prohibitions and sanctions). A classic example: during the 19th Century, the common sense among jurists was that the household, and family life, were where the powers of the head of the household — the *paterfamilias* — were exerted, and that therefore the domain of private life was where the Law should not enter — a ‘non-Law’ zone. But actually, what the law did was to entitle the *pater familias* to freely legislate, execute and adjudicate the household. That too is a legal regime. Except that it is enabling an authority to regulate instead of regulating itself. When, a century (and many feminist struggles) later, the law decided to limit the powers of the *pater familias*, to declare conjugal equality and to grant children with rights, one could certainly say that ‘the law had finally entered the household,’ but it would be more accurate to simply say that ‘the legal regime applicable to the household changed.”

From this perspective, what Foucault calls the ‘disciplines’ are not a ‘counter-law’, distinct and separate from the law (Kennedy 1991). At most they are its mere extension, through legal mechanisms of delegation of power. The *paterfamilias* regulates the household and subjects women and children to his authority, as a husband and as a father, *because* the enforceable family law enables him. Factory regulations are the concrete exercise of the legal powers of the employer, directly flowing from his property rights over the means of production. The way tables and chairs are disposed in the classroom is a result of the school’s director exercising their legal prerogatives in the organization of the school, under the (legal) guidelines provided by the Ministry of Education. Legal theorists have shed light on how these apparently non-legal relations are shaped by the legal system — the actors are producing them ‘in the shadow of the law’. A classic example is the case of amicable divorce, where spouses negotiate between themselves whilst keeping in mind what would happen if one of them were to change their mind and go to the judge. Of course, these relations are ‘non legal’, but although they are not spoken in the language of the law they are structured by the legal frame, and they are certainly not located ‘beyond the legal context’.<fnref n="8" />

When people bargain in the shadow of the law, conflicts and bargains are conditioned by the way that the enforceable legal regime distributes powers and more generally legal prerogatives to the parties in conflict. Otherwise said, the law constitutes the force of these parties, or better said, constitutes these parties as social and political forces (for example, there are no classes without unequal distribution of property rights in the means of production) and orders the conditions of the conflicts and negotiations between them (there are no factory regulations without employers’ powers to regulate the workplace, nor workers’ rights without collective agreements between

<footnote n="8">⁸ See Mnookin and Kornhauser (1979).</footnote>
trade unions and employers). To be sure, the law does not entirely determine the outcome (perhaps the trade union will be capable of resisting the application of the factory regulations), it nonetheless draws the battle lines and distributes the weapons (resisting the application of the factory regulations is easier if striking is not illegal).

According to this line of reasoning, one of the main tasks of CT is to make sense of the articulation of the legal frame with the myriads of micro-powers and disciplines it conditions and produces under capitalism. And of course, to remain critical, the theory must go ‘beyond the legal frame’, in the sense that CT should not satisfy itself with just analyzing the formal frame itself but should also expand the critique to the analysis of its enforcement and concrete (devastating) consequences on our lives and bodies. But CT should certainly not go ‘beyond the legal context’, by separat- ing (or worse by counter-posing) the analysis of the legal frame from the analysis of micro-powers and disciplinary mechanisms, which are, in fact, the very means of its enforcement. This is precisely because what matters is to understand how the micro- powers and disciplinary mechanisms are produced and organized by the legal frame, although they are not always spoken in the language of the law. In other words, the micro-powers and disciplinary mechanisms *are* the (legal) context in which conflicts among contradictory social forces take place.

From this viewpoint, ‘Law is everywhere’, not in the sense that everything would be directly regulated and determined by legal rules and principles (that is, not thanks to some kind of generalization of a purely juridical conception of social relations and human existences — in French “juridisme”), but in the sense that even the non-law spheres are ‘within the legal context’, in the sense that they are directly or indirectly structured by the legal system. The law, produces the constitutive forces of our soci- eties and conditions the conflicting relations between these forces, even at the level of micro-powers and disciplinary mechanisms, and even if the language spoken at this level is not the legal one (and even if they are ‘good’ forces).

To conclude this point: the motto ‘there is no outside’ is more pervasive than just ‘capitalism has expanded worldwide’ or even than ‘there is no transcendent prin- ciple or external force to wait for.’ It means that if the legal frame is the structure of capitalist societies, alternatives to capitalism shall be found within, not beyond, the legal context produced by this legal frame. Or, simply, there is no outside of the legal context. The optimistic version of the ‘from the outside’ strategy to overcome the problem of the role of the law in CT does not lead anywhere.

This leaves us with two options: the first is depressing, the second is demand- ing. If ‘there is no outside’ and if ‘law structures our lives’ to the point that ‘law is everywhere’, even in the non-law zones, conceiving emancipatory forces and prin- ciples from within is a mere fantasy — that’s the pessimistic version of the ‘from the outside’ strategy. A depressing option, indeed. The only remaining alternative is to consider that the emancipatory forces and principles are to be found *within* the legal context. That’s the demanding option.

According to many of his commentators, Foucault famously chose the depressing option, reducing the possibilities of action against the system to mere resistances within it. Negri and Hardt are not prepared ‘simply’ to resist (although they love resistance too). They want to ground the concrete and theoretical possibility of the complete destruction/overcoming of the system — a revolution, understood as a
trade unions and employers). To be sure, the law does not entirely determine the outcome (perhaps the trade union will be capable of resisting the application of the factory regulations), it nonetheless draws the battle lines and distributes the weapons (resisting the application of the factory regulations is easier if striking is not illegal).

According to this line of reasoning, one of the main tasks of CT is to make sense of the articulation of the legal frame with the myriads of micro-powers and disciplines it conditions and produces under capitalism. And of course, to remain critical, the theory must go ‘beyond the legal frame’, in the sense that CT should not satisfy itself with just analyzing the formal frame itself but should also expand the critique to the analysis of its enforcement and concrete (devastating) consequences on our lives and bodies. But CT should certainly not go ‘beyond the legal context’, by separat- ing (or worse by counter-posing) the analysis of the legal frame from the analysis of micro-powers and disciplinary mechanisms, which are, in fact, the very means of its enforcement. This is precisely because what matters is to understand how the micro- powers and disciplinary mechanisms are produced and organized by the legal frame, although they are not always spoken in the language of the law. In other words, the micro-powers and disciplinary mechanisms *are* the (legal) context in which conflicts among contradictory social forces take place.

From this viewpoint, ‘Law is everywhere’, not in the sense that everything would be directly regulated and determined by legal rules and principles (that is, not thanks to some kind of generalization of a purely juridical conception of social relations and human existences — in French “juridisme”), but in the sense that even the non-law spheres are ‘within the legal context’, in the sense that they are directly or indirectly structured by the legal system. The law, produces the constitutive forces of our soci- eties and conditions the conflicting relations between these forces, even at the level of micro-powers and disciplinary mechanisms, and even if the language spoken at this level is not the legal one (and even if they are ‘good’ forces).

To conclude this point: the motto ‘there is no outside’ is more pervasive than just ‘capitalism has expanded worldwide’ or even than ‘there is no transcendent prin- ciple or external force to wait for.’ It means that if the legal frame is the structure of capitalist societies, alternatives to capitalism shall be found within, not beyond, the legal context produced by this legal frame. Or, simply, there is no outside of the legal context. The optimistic version of the ‘from the outside’ strategy to overcome the problem of the role of the law in CT does not lead anywhere.

This leaves us with two options: the first is depressing, the second is demand- ing. If ‘there is no outside’ and if ‘law structures our lives’ to the point that ‘law is everywhere’, even in the non-law zones, conceiving emancipatory forces and prin- ciples from within is a mere fantasy — that’s the pessimistic version of the ‘from the outside’ strategy. A depressing option, indeed. The only remaining alternative is to consider that the emancipatory forces and principles are to be found *within* the legal context. That’s the demanding option.

According to many of his commentators, Foucault famously chose the depressing option, reducing the possibilities of action against the system to mere resistances within it. Negri and Hardt are not prepared ‘simply’ to resist (although they love resistance too). They want to ground the concrete and theoretical possibility of the complete destruction/overcoming of the system — a revolution, understood as a
complete shift from this system to a better one. They want to act and think beyond
capitalist and state domination, and all its devastating effects on our lives. But if they
are serious about the immanence of their emancipatory project, they must opt for
the demanding route: to act and think beyond the legal system, from within the legal
context. Another way to express this idea is that CT should certainly be critical of
*juridism*, whilst avoiding the trap of *anti-juridism*.

A Plea for Critical Theory to Abandon Anti-Juridism

Many critical theorists consider the law to be a constitutive part of the problem. They also think that the law cannot be part of the solution. Law is part of the problem because relations of domination need the help of the law to be sustained and more-over, because the law as such can only institute relations of domination. To use Ran-cière's terms, law is 'police' (1995) — the fact that a society must function through law is a symptom of it being ill-constituted. A society emancipated from relations of oppression and domination would not need a legal system.

From this viewpoint, the law is indeed totally embedded in an individualistic con-
ception of human relations determined through ownership, and a cynical and nega-
tive conception of the political in which any collective activity translates into abyssal
inequalities and relations of domination and power. In other words, the law is not
only a 'bad guy' and a concealer, it also institutionalizes relations of domination
and conveys a social ontology which formalizes, naturalizes, and essentializes these
relations. So, CT ought not only look beyond the legal frame, and beyond the legal
context, but more radically, beyond this legalistic vision of the world (Deleuze 1982).
This last task is about emancipating our imaginary from the negative anthropology
carried by legal thought in general. In other words, CT has to produce alternative
conceptions of political activity, social ontologies purged from any theoretical and
practical trace of juridism, in order to allow ourselves to conceive of another world,
another humanity. In this too Toni Negri is a master (see Negri, 1999).

To conceive alternative forms of humanity, social relations, and political activity
which would not need to be constituted by laws, one must start from principles posi-
tive enough to not require a corrective. Creativity, cooperation, friendship, or love are
good candidates. The critique can then develop outside the law, in ‘non-law spheres’
like Temporary Autonomous Zones, and as *souci de soi*. Negri and Hardt’s ‘Common’
depends on such a principle, conceptualized in contradistinction to the Republic of
Property. The Common as a political principle invokes and deploys an anthropology
(of the multitudes) and an ontology (of creativity) which are difficult to express in the
language of the law, precisely because this language is made to express relations of
domination, competition, and identity. To use Spinoza’s words (in fidelity to Negri),
law is the language of *potestas* (power as domination), but hardly the language of
*potentia* (power as empowerment/capability). Jacques Rancière also expresses this
idea clearly: everything which is not the deployment of democratic power is on the
side of police, and therefore the law is entirely on the side of police (2005). From this
perspective, to be radical, CT ought to locate itself not only outside and against the

<figure><img src="image_6.png" /></figure>
complete shift from this system to a better one. They want to act and think beyond
capitalist and state domination, and all its devastating effects on our lives. But if they
are serious about the immanence of their emancipatory project, they must opt for
the demanding route: to act and think beyond the legal system, from within the legal
context. Another way to express this idea is that CT should certainly be critical of
*juridism*, whilst avoiding the trap of *anti-juridism*.

A Plea for Critical Theory to Abandon Anti-Juridism

Many critical theorists consider the law to be a constitutive part of the problem. They also think that the law cannot be part of the solution. Law is part of the problem because relations of domination need the help of the law to be sustained and more-over, because the law as such can only institute relations of domination. To use Ran-cière's terms, law is 'police' (1995) — the fact that a society must function through law is a symptom of it being ill-constituted. A society emancipated from relations of oppression and domination would not need a legal system.

From this viewpoint, the law is indeed totally embedded in an individualistic con-
ception of human relations determined through ownership, and a cynical and nega-
tive conception of the political in which any collective activity translates into abyssal
inequalities and relations of domination and power. In other words, the law is not
only a 'bad guy' and a concealer, it also institutionalizes relations of domination
and conveys a social ontology which formalizes, naturalizes, and essentializes these
relations. So, CT ought not only look beyond the legal frame, and beyond the legal
context, but more radically, beyond this legalistic vision of the world (Deleuze 1982).
This last task is about emancipating our imaginary from the negative anthropology
carried by legal thought in general. In other words, CT has to produce alternative
conceptions of political activity, social ontologies purged from any theoretical and
practical trace of juridism, in order to allow ourselves to conceive of another world,
another humanity. In this too Toni Negri is a master (see Negri, 1999).

To conceive alternative forms of humanity, social relations, and political activity which would not need to be constituted by laws, one must start from principles positive enough to not require a corrective. Creativity, cooperation, friendship, or love are good candidates. The critique can then develop outside the law, in 'non-law spheres' like Temporary Autonomous Zones, and as *souci de soi*. Negri and Hardt's 'Common' depends on such a principle, conceptualized in contradistinction to the Republic of Property. The Common as a political principle invokes and deploys an anthropology (of the multitudes) and an ontology (of creativity) which are difficult to express in the language of the law, precisely because this language is made to express relations of domination, competition, and identity. To use Spinoza's words (in fidelity to Negri), law is the language of *potestas* (power as domination), but hardly the language of *potentia* (power as empowerment/capability). Jacques Rancière also expresses this idea clearly: everything which is not the deployment of democratic power is on the side of police, and therefore the law is entirely on the side of police (2005). From this perspective, to be radical, CT ought to locate itself not only outside and against the
law, but also outside and against legal thinking — the legalistic vision of the world. This is full-blown Anti-juridism.

Now, I would wish to underline that the ‘demanding’ strategy to which I am refer-
ring suggests the possibility of a strategy for critique which would be not *less*, but
actually *more* radical that the anti-juridical one, as it would be radically critical not
only in theory, but also in practice.

This strategy is demanding, because it seeks the ‘remedy in the evil’ (*le remède
dans le mal*, in French, (Starobinski 1976). It is a strategy which seeks to locate
alternatives within the legal context and aims at conceiving these alternatives by
using any possible resources, including those provided by the legal tradition. Such a
strategy locates CT at times ‘outside and against’, but also at times ‘inside and for’
legal thinking depending on the expected productivity of the move. Key here is that
CT commits not only to the external but also the internal critique of the law.

Before going further, I would wish to repeat my admiration for critical theories
that are motivated by the desire to move beyond the ‘legalistic vision of the world’
which is indeed colonizing our imaginaries. Thinking ‘beyond’ and ‘below’ is a noble
ambition which has produced significant emancipatory effects, because, for sure, the
law, legal regimes, legal categories and modes of reasoning do play a structural role
in reproducing an impoverished conception of the world and of the human being
that inhabits it. I am therefore not principally against *anti-juridism*; in fact, I am not
against it at all. I am instead against the way that it curtails and depletes possibilities
to ‘remedy the evil’ and to allow that ‘effects of truth’ (*effets de vérité* in French) in
the broadening of the political imaginary and the pursuit of practicable alternatives
can also be achieved through strategies that deploy the legal imagination rather than
oppose it. To put it another way, if the critical enterprise is a search for an *Ausgang*
— an ‘exit’ or a ‘way out,’ as Foucault reading Kant would put it (1984) — from
relations of alienation, dispossession, and domination, such a project can certainly
take many forms: the destruction or the overcoming of the dominant system, but also
the crossings, bifurcations, subversions and reversions of it. My point is that destruc-
tion and overcoming are not always more radical than other patterns of critique. The
radicalization of critique does not necessarily consist only in producing alternative
anthropologies and social ontologies, but also in exploring and deploying the eman-
cipatory potential of existing anthropologies and ontologies from within our existing
world, as it is. That is, as it is structured by the law.

This, of course, requires learning to navigate the legal context, and learning the
language in which it is spoken and its modes of reasoning and categories, in order
to know it intimately enough to perform its internal critique. And, yes, such a strat-
egy may be at the same time radical and concrete, where the radicalizing of critique
through a rigorous anti-juridism is only a theoretical radicalization which sometimes
leads to the practical weakening of critique. My bet is that, to achieve both radicaliza-
tion and concreteness, CT should not perform solely the external critique of law and
legal thought, but also its internal critique. Such a strategy also reveals the potential
positive productivity of the law, in such a way that it becomes possible to locate radi-
cal alternatives (some of them drawn from the outside) in the only place they should
be located in order to be concrete and practical, that is *within* the legal context of the
existing system.
law, but also outside and against legal thinking — the legalistic vision of the world. This is full-blown Anti-juridism.

Now, I would wish to underline that the ‘demanding’ strategy to which I am refer-
ring suggests the possibility of a strategy for critique which would be not *less*, but
actually *more* radical that the anti-juridical one, as it would be radically critical not
only in theory, but also in practice.

This strategy is demanding, because it seeks the ‘remedy in the evil’ (*le remède
dans le mal*, in French, (Starobinski 1976). It is a strategy which seeks to locate
alternatives within the legal context and aims at conceiving these alternatives by
using any possible resources, including those provided by the legal tradition. Such a
strategy locates CT at times ‘outside and against’, but also at times ‘inside and for’
legal thinking depending on the expected productivity of the move. Key here is that
CT commits not only to the external but also the internal critique of the law.

Before going further, I would wish to repeat my admiration for critical theories
that are motivated by the desire to move beyond the ‘legalistic vision of the world’
which is indeed colonizing our imaginaries. Thinking ‘beyond’ and ‘below’ is a noble
ambition which has produced significant emancipatory effects, because, for sure, the
law, legal regimes, legal categories and modes of reasoning do play a structural role
in reproducing an impoverished conception of the world and of the human being
that inhabits it. I am therefore not principally against *anti-juridism*; in fact, I am not
against it at all. I am instead against the way that it curtails and depletes possibilities
to ‘remedy the evil’ and to allow that ‘effects of truth’ (*effets de vérité* in French) in
the broadening of the political imaginary and the pursuit of practicable alternatives
can also be achieved through strategies that deploy the legal imagination rather than
oppose it. To put it another way, if the critical enterprise is a search for an *Ausgang*
— an ‘exit’ or a ‘way out,’ as Foucault reading Kant would put it (1984) — from
relations of alienation, dispossession, and domination, such a project can certainly
take many forms: the destruction or the overcoming of the dominant system, but also
the crossings, bifurcations, subversions and reversions of it. My point is that destruc-
tion and overcoming are not always more radical than other patterns of critique. The
radicalization of critique does not necessarily consist only in producing alternative
anthropologies and social ontologies, but also in exploring and deploying the eman-
cipatory potential of existing anthropologies and ontologies from within our existing
world, as it is. That is, as it is structured by the law.

This, of course, requires learning to navigate the legal context, and learning the
language in which it is spoken and its modes of reasoning and categories, in order
to know it intimately enough to perform its internal critique. And, yes, such a strat-
egy may be at the same time radical and concrete, where the radicalizing of critique
through a rigorous anti-juridism is only a theoretical radicalization which sometimes
leads to the practical weakening of critique. My bet is that, to achieve both radicaliza-
tion and concreteness, CT should not perform solely the external critique of law and
legal thought, but also its internal critique. Such a strategy also reveals the potential
positive productivity of the law, in such a way that it becomes possible to locate radi-
cal alternatives (some of them drawn from the outside) in the only place they should
be located in order to be concrete and practical, that is *within* the legal context of the
existing system.
To develop this idea more in detail, I will start with a set of short genealogical remarks about the *epistemic dispositif* in which the critique of law is situated today, which I will call, after Kant (1992), The Conflict of the Faculties. This detour is helpful because the understanding of the frame in which this discussion is taking place matters to the discussion itself. Additionally, this detour offers an historical perspective on the articulation of the external and internal critique of the Law.

## The Epistemic Dispositif of the Critique of the Law — The Conflict of the Faculties

When a critical theorist is asked to say something about the law, the common reaction is embarrassment (excluding, of course, Toni Negri, who, among many other things, has been a law professor). Law has the reputation of being very technical, difficult, obscure, and yes, boring. ‘The law’ here is the ‘Law of the Jurists’, the thing that lawyers do when they practice law, and when they theorize it, under the name of legal dogmatics or doctrine. That law is indeed technical, obscure, and, yes, somehow boring, although not always. Certainly, discussing it without proper knowledge is risky. Nonetheless, critical theorists do engage with the law all the time, as the critique of the law is indeed a central piece in CT. There is no paradox here, because what they are talking about when they talk about law is generally not the ‘Law of the Jurists’, but something else, that we might call the ‘Law of the Philosophers’.

### Law of the Jurists / Law of the Philosophers

It seems that this ‘Law of the Philosophers’ emerged at the end of the 18th Century, under the name of the ‘science of the legislation’ (Filangieri 2003), a new knowledge associated with the names of Filangieri, Beccaria, Bentham, but also Kant, Sieyès, Condorcet and many others. For them, the ‘Law of the Jurists’ was only the law actually enforced — that is, the law flowing from the will of the Prince and its agents. Such law was to be considered as fairly unrelated, or even not related at all, to the set of rational laws any Radical Enlightenment might wish to be adopted. ‘Legal science’ being associated with some obscure and boring commentaries of the *Corpus iuris civilis* was considered by them as a contradiction in terms. What this was called for was a new science, as the knowledge required to produce a new — more rational — law. To produce such new knowledge, it was necessary first deeply to entrench the sharp distinction between the description of existing enforceable laws and the reflection on what they ought to be, as the latter could certainly not be deduced from the former. Secondly, it was necessary to assign the description of what law is to the Jurists, and the conception of what law ought to be to another (new) kind of thinker, the ‘Philosopher’, also called the ‘Publicist’. Why? Because the Jurists would ground their knowledge on the existing laws, that is on the authority of the government, and on the authority of authoritative texts and commentaries, mainly the *Corpus iuris civilis*, while the Philosophers would ground their knowledge solely on the authority of Reason as the only legitimate ground. Of course, there would be no agreement amongst them as to what Reason actually is. Bentham would oppose ‘the law

<figure><img src="image_7.png" /></figure>
To develop this idea more in detail, I will start with a set of short genealogical remarks about the *epistemic dispositif* in which the critique of law is situated today, which I will call, after Kant (1992), The Conflict of the Faculties. This detour is helpful because the understanding of the frame in which this discussion is taking place matters to the discussion itself. Additionally, this detour offers an historical perspective on the articulation of the external and internal critique of the Law.

## The Epistemic Dispositif of the Critique of the Law — The Conflict of the Faculties

When a critical theorist is asked to say something about the law, the common reaction is embarrassment (excluding, of course, Toni Negri, who, among many other things, has been a law professor). Law has the reputation of being very technical, difficult, obscure, and yes, boring. ‘The law’ here is the ‘Law of the Jurists’, the thing that lawyers do when they practice law, and when they theorize it, under the name of legal dogmatics or doctrine. That law is indeed technical, obscure, and, yes, somehow boring, although not always. Certainly, discussing it without proper knowledge is risky. Nonetheless, critical theorists do engage with the law all the time, as the critique of the law is indeed a central piece in CT. There is no paradox here, because what they are talking about when they talk about law is generally not the ‘Law of the Jurists’, but something else, that we might call the ‘Law of the Philosophers’.

### Law of the Jurists / Law of the Philosophers

It seems that this ‘Law of the Philosophers’ emerged at the end of the 18th Century, under the name of the ‘science of the legislation’ (Filangieri 2003), a new knowledge associated with the names of Filangieri, Beccaria, Bentham, but also Kant, Sieyès, Condorcet and many others. For them, the ‘Law of the Jurists’ was only the law actually enforced — that is, the law flowing from the will of the Prince and its agents. Such law was to be considered as fairly unrelated, or even not related at all, to the set of rational laws any Radical Enlightenment might wish to be adopted. ‘Legal science’ being associated with some obscure and boring commentaries of the *Corpus iuris civilis* was considered by them as a contradiction in terms. What this was called for was a new science, as the knowledge required to produce a new — more rational — law. To produce such new knowledge, it was necessary first deeply to entrench the sharp distinction between the description of existing enforceable laws and the reflection on what they ought to be, as the latter could certainly not be deduced from the former. Secondly, it was necessary to assign the description of what law is to the Jurists, and the conception of what law ought to be to another (new) kind of thinker, the ‘Philosopher’, also called the ‘Publicist’. Why? Because the Jurists would ground their knowledge on the existing laws, that is on the authority of the government, and on the authority of authoritative texts and commentaries, mainly the *Corpus iuris civilis*, while the Philosophers would ground their knowledge solely on the authority of Reason as the only legitimate ground. Of course, there would be no agreement amongst them as to what Reason actually is. Bentham would oppose ‘the law

<figure><img src="image_6.png" /></figure>
according to the science of utility' to the fallacies of the Jurists, while Kant would consider that the task of the philosopher is to deduce from the pure concept of law the immutable principles of justice of any possible positive legislation, and so on. What is significant here is that despite their sharp differences, they would unite in claiming competence over the rationalization of the existing laws, and the subsequent need to depose the Jurists from their previous monopoly over the matter. They would introduce a 'Conflict of the Faculties', more precisely, a conflict between the faculties of law and philosophy. As a result of this conflict, the Jurists would be confined to describing the existing laws while the Philosophers would produce the model for transforming these existing laws into better, more rational ones. This conflict is obviously and directly political — it's about depriving legal science of its key function of providing guidelines for orienting legal change. Or, more bluntly, it's about determining who shall whisper in the ear of the reformer Prince. The introduction of this conflict is the birth of critique.

In other words, *Critique* emerged as a specific epistemic and political dispositive (in the sense of the knowledge/power dyad), or more precisely, as a new way to conceive and produce the law and legal thinking. What follows is an outline sketch of the four theoretical moves which constitute this dispositif, in telegraphic style.<fnref n="9" />

## The Project of the Radical Enlightenment for the Law

At the end of the 18th Century, something like a 'radicalization of the Enlightenment' occurred. For clarity, I am using the term 'Radical Enlightenment' with all due respect to the work of Jonathan Israël but with a very different meaning (2001). I do not equate it with the fate of Spinozism in the 18th Century but rather with the emergence of the ideal of autonomy and specifically of 'political autonomy' (Castoriadis 1990). The idea here is that after losing faith in every traditional authority (clerical, feudal, and monarchical), it appears that the only way to avoid chaos and corruption is to found society on the unique principle that people shall be autonomously governed — that is governed by themselves — and that all social and political institutions should flow from this principle.

My hypothesis is that, after 1760, the core question of the period is this collapse of traditional authority. Thus, the projects that seek to answer to this question are developing the idea that autonomy is the only legitimate ground, both in the life of the mind (the authority of reason as autonomous thinking) and in real life (the authority of the self-governed community), for both the individual (the free person) and the collective (the sovereign people). This may be why these projects share a certain family resemblance, despite their obvious differences – one could name Rousseau, Beccaria, Kant, Bentham, Sieyès, Condorcet, and many others. There is a sense, then, that these projects all perform in diverse and contradictory ways the four same structural moves which produce a new intellectual space within which it becomes possible to conceive of a 'politically autonomous' community, as the legitimate and desirable answer to the collapse of traditional authorities. I will illustrate each of these moves

<footnote n="9">⁹ A whole book is needed to offer a complete exposition of this epistemic dispositif. At the moment this article is written, the book does exist as a project and as a work in progress.</footnote>
according to the science of utility' to the fallacies of the Jurists, while Kant would consider that the task of the philosopher is to deduce from the pure concept of law the immutable principles of justice of any possible positive legislation, and so on. What is significant here is that despite their sharp differences, they would unite in claiming competence over the rationalization of the existing laws, and the subsequent need to depose the Jurists from their previous monopoly over the matter. They would introduce a 'Conflict of the Faculties', more precisely, a conflict between the faculties of law and philosophy. As a result of this conflict, the Jurists would be confined to describing the existing laws while the Philosophers would produce the model for transforming these existing laws into better, more rational ones. This conflict is obviously and directly political — it's about depriving legal science of its key function of providing guidelines for orienting legal change. Or, more bluntly, it's about determining who shall whisper in the ear of the reformer Prince. The introduction of this conflict is the birth of critique.

In other words, *Critique* emerged as a specific epistemic and political dispositive (in the sense of the knowledge/power dyad), or more precisely, as a new way to conceive and produce the law and legal thinking. What follows is an outline sketch of the four theoretical moves which constitute this dispositif, in telegraphic style.<fnref n="9" />

## The Project of the Radical Enlightenment for the Law

At the end of the 18th Century, something like a 'radicalization of the Enlightenment' occurred. For clarity, I am using the term 'Radical Enlightenment' with all due respect to the work of Jonathan Israël but with a very different meaning (2001). I do not equate it with the fate of Spinozism in the 18th Century but rather with the emergence of the ideal of autonomy and specifically of 'political autonomy' (Castoriadis 1990). The idea here is that after losing faith in every traditional authority (clerical, feudal, and monarchical), it appears that the only way to avoid chaos and corruption is to found society on the unique principle that people shall be autonomously governed — that is governed by themselves — and that all social and political institutions should flow from this principle.

My hypothesis is that, after 1760, the core question of the period is this collapse of traditional authority. Thus, the projects that seek to answer to this question are developing the idea that autonomy is the only legitimate ground, both in the life of the mind (the authority of reason as autonomous thinking) and in real life (the authority of the self-governed community), for both the individual (the free person) and the collective (the sovereign people). This may be why these projects share a certain family resemblance, despite their obvious differences – one could name Rousseau, Beccaria, Kant, Bentham, Sieyès, Condorcet, and many others. There is a sense, then, that these projects all perform in diverse and contradictory ways the four same structural moves which produce a new intellectual space within which it becomes possible to conceive of a 'politically autonomous' community, as the legitimate and desirable answer to the collapse of traditional authorities. I will illustrate each of these moves

<footnote n="9">⁹ A whole book is needed to offer a complete exposition of this epistemic dispositif. At the moment this article is written, the book does exist as a project and as a work in progress.</footnote>
by reference to the work of Kant, as I admire him as much as Toni Negri and Michael
Hardt do.

First Move: Autonomy of Thought

In the first move, philosophy, understood as the free and public use of reason, is
elevated to the rank of an architectonic knowledge. In doing so, the capacity of each
human being to think autonomously, not only *without* but *against* institutionalized
knowledges and traditional authorities is claimed. For centuries, the good old scientia
iuris had claimed a monopoly on theorizing and rationalizing the law — well, one
is not obliged to defer! Each of us can (and therefore should) freely wonder if the
laws to which she is subjected are just and if their justification is rational. Philosophy
therefore becomes the proper knowledge to answer these questions. Philosophy here
does not mean a discipline, but the free and public use (individual and collective) of
each's capacity to reason freely, that is autonomously, which is not only the capacity
to think according to the rules reason gives to itself, but also the capacity to endlessly
question and criticize these rules — philosophy here is critique, and includes the cri-
tique of philosophy. For Kant, this critique takes the form of a transcendental deduc-
tion. For other thinkers, it will enter the scene under the name of ‘social science’,
‘new social science’, ‘social physiology’, ‘science of utility’, ‘political economy’ etc.

This free knowledge is architectonic in the sense that it has universal competence
over our actions in real life and over our thoughts in the life of the mind, including
over the constitution of other knowledges (Kant would say that both pure and prac-
tical reason are the object of transcendental deduction). For Kant indeed, reason is
sovereign and only the free use of reason can trace the boundaries and establish the
rules of its correct (rational) use.

Second Move: Autonomy in the Production of Knowledges of Government

The first move is clearly happening in theory but has concrete practical consequences as well. Among the various human knowledges which fall under the sovereignty of philosophy is the knowledge of practical reason, and more specifically the knowledge of the law, and further, the knowledge of the legislation.

In the Western Legal Tradition (see Berman 1985), the law claims its autonomy,
and realizes it by ascribing to a specifically *legal* knowledge the task of rationalizing
the bodies of applicable legal rules and the guiding of its evolution — a knowledge
internal to the law itself. This knowledge is internal because it is made by lawyers and
because it is a constitutive element of the law itself, in the form of doctrines and opin-
ions of the jurisprudent. This is precisely because the law produces its own science
that it can pretend to evolve autonomously (systems-theory here would speak of the
‘self-referentiality’ of the law as an ‘autopoietic system’). Thus, the rationalization of
the bodies of applicable legal rules amounts to inducing from these bodies the general
principles of justice which guide their evolution, in such way that this evolution will
always be harmonious and continuous, as it should be for a living organic totality.
Legal change is determined by the law itself. That is very precisely what the Radical
Enlighteners are aiming to dismantle (and what makes their project so radical).

<figure><img src="image_8.png" /></figure>
by reference to the work of Kant, as I admire him as much as Toni Negri and Michael
Hardt do.

First Move: Autonomy of Thought

In the first move, philosophy, understood as the free and public use of reason, is
elevated to the rank of an architectonic knowledge. In doing so, the capacity of each
human being to think autonomously, not only *without* but *against* institutionalized
knowledges and traditional authorities is claimed. For centuries, the good old scientia
iuris had claimed a monopoly on theorizing and rationalizing the law — well, one
is not obliged to defer! Each of us can (and therefore should) freely wonder if the
laws to which she is subjected are just and if their justification is rational. Philosophy
therefore becomes the proper knowledge to answer these questions. Philosophy here
does not mean a discipline, but the free and public use (individual and collective) of
each's capacity to reason freely, that is autonomously, which is not only the capacity
to think according to the rules reason gives to itself, but also the capacity to endlessly
question and criticize these rules — philosophy here is critique, and includes the cri-
tique of philosophy. For Kant, this critique takes the form of a transcendental deduc-
tion. For other thinkers, it will enter the scene under the name of ‘social science’,
‘new social science’, ‘social physiology’, ‘science of utility’, ‘political economy’ etc.

This free knowledge is architectonic in the sense that it has universal competence
over our actions in real life and over our thoughts in the life of the mind, including
over the constitution of other knowledges (Kant would say that both pure and prac-
tical reason are the object of transcendental deduction). For Kant indeed, reason is
sovereign and only the free use of reason can trace the boundaries and establish the
rules of its correct (rational) use.

Second Move: Autonomy in the Production of Knowledges of Government

The first move is clearly happening in theory but has concrete practical consequences as well. Among the various human knowledges which fall under the sovereignty of philosophy is the knowledge of practical reason, and more specifically the knowledge of the law, and further, the knowledge of the legislation.

In the Western Legal Tradition (see Berman 1985), the law claims its autonomy,
and realizes it by ascribing to a specifically *legal* knowledge the task of rationalizing
the bodies of applicable legal rules and the guiding of its evolution — a knowledge
internal to the law itself. This knowledge is internal because it is made by lawyers and
because it is a constitutive element of the law itself, in the form of doctrines and opin-
ions of the jurisprudent. This is precisely because the law produces its own science
that it can pretend to evolve autonomously (systems-theory here would speak of the
‘self-referentiality’ of the law as an ‘autopoietic system’). Thus, the rationalization of
the bodies of applicable legal rules amounts to inducing from these bodies the general
principles of justice which guide their evolution, in such way that this evolution will
always be harmonious and continuous, as it should be for a living organic totality.
Legal change is determined by the law itself. That is very precisely what the Radical
Enlighteners are aiming to dismantle (and what makes their project so radical).

<figure><img src="image_7.png" /></figure>
Indeed, according to those philosophers (or critical theorists), once the sovereignty of philosophy has been reclaimed, the competence of critique will extend as far as determining the guiding principles of the evolution of the law. As such, these principles will *not* be induced from the existing bodies of legal rules, but entirely determined by a philosophical inquiry, which appears to be completely distinct and indifferent to the knowledge of the existing laws, seen as entirely irrelevant for determining what the law ought to be. Therefore, because legal change takes the form of adopting new statutory laws, this new external knowledge of the law — the ‘Science of Legislation’ — appears as a philosophical one (see (Baranger 2018), and often takes the form of projects of legal reform through the adoption of new codes. Kant, on this, is particularly sober, as he considers that philosophy ought only to determine the principles of justice and not the specific legal rules. His *Doctrine of Right* is committed to revealing the immutable principles for any positive legislation.<fnref n="10" /> This is achieved by deducing those principles from pure reason — that is, from a reason purified from the will of the Prince, the authority of the authoritative texts, and their hermeneutic traditions. As such, it is a knowledge *external* to the law, produced by non-lawyers and meant to criticize the law from the point of view of external principles of justice. What results is a critical knowledge, or, better said, a knowledge of “opposition” to use Lorenz von Stein’s words.

This move has at least three direct political consequences.

1) It locates the external critique of the law inside the new epistemic dispositif responsible for the rationalization and development of the law. The evolution of the law will, henceforth, not be determined by the internal development of the law itself, but by the dictates of heterogeneous principles of justice. Or, legal change is determined by Critique itself.

2) When determining those principles of justice, critical philosophy has an imperative duty to *ignore* the existing dominant legal dogmas and opinions, the inherited traditions and the enforceable law (which express the will of the Prince). Which means that, going forward, future law will not flow from present law, nor from legal tradition. This also means that its evolution could very well be discontinuous, and lead to abrupt bifurcations, like for example the immediate and complete abolition of unjust laws, followed by the adoption of radically new ones. Legal revolutions therefore become possible, and even desirable.

3) The Enlightened Prince should therefore make immediate and radical changes in his cabinet. Concretely, he should fire his advisors — the Legists — and hire new ones — the Philosophers. The Conflict of the Faculties is not only an epistemic conflict, but a direct political conflict, between the representatives of the legal tradition and the free thinkers, as to who should advise to the prince what the new laws ought to be.

Conceiving new just laws alone is not enough, however — an Enlightened Prince, eager to promulgate such laws must be found, or better said constituted. Such a constitution can only be made under certain conditions: this is the third move.

<footnote n="10">¹⁰ See Introduction of the Doctrine of Rights, § A p. 55 in Kant (1797).</footnote>
Indeed, according to those philosophers (or critical theorists), once the sovereignty of philosophy has been reclaimed, the competence of critique will extend as far as determining the guiding principles of the evolution of the law. As such, these principles will *not* be induced from the existing bodies of legal rules, but entirely determined by a philosophical inquiry, which appears to be completely distinct and indifferent to the knowledge of the existing laws, seen as entirely irrelevant for determining what the law ought to be. Therefore, because legal change takes the form of adopting new statutory laws, this new external knowledge of the law — the ‘Science of Legislation’ — appears as a philosophical one (see (Baranger 2018), and often takes the form of projects of legal reform through the adoption of new codes. Kant, on this, is particularly sober, as he considers that philosophy ought only to determine the principles of justice and not the specific legal rules. His *Doctrine of Right* is committed to revealing the immutable principles for any positive legislation.<fnref n="10" /> This is achieved by deducing those principles from pure reason — that is, from a reason purified from the will of the Prince, the authority of the authoritative texts, and their hermeneutic traditions. As such, it is a knowledge *external* to the law, produced by non-lawyers and meant to criticize the law from the point of view of external principles of justice. What results is a critical knowledge, or, better said, a knowledge of “opposition” to use Lorenz von Stein’s words.

This move has at least three direct political consequences.

1) It locates the external critique of the law inside the new epistemic dispositif responsible for the rationalization and development of the law. The evolution of the law will, henceforth, not be determined by the internal development of the law itself, but by the dictates of heterogeneous principles of justice. Or, legal change is determined by Critique itself.

2) When determining those principles of justice, critical philosophy has an imperative duty to *ignore* the existing dominant legal dogmas and opinions, the inherited traditions and the enforceable law (which express the will of the Prince). Which means that, going forward, future law will not flow from present law, nor from legal tradition. This also means that its evolution could very well be discontinuous, and lead to abrupt bifurcations, like for example the immediate and complete abolition of unjust laws, followed by the adoption of radically new ones. Legal revolutions therefore become possible, and even desirable.

3) The Enlightened Prince should therefore make immediate and radical changes in his cabinet. Concretely, he should fire his advisors — the Legists — and hire new ones — the Philosophers. The Conflict of the Faculties is not only an epistemic conflict, but a direct political conflict, between the representatives of the legal tradition and the free thinkers, as to who should advise to the prince what the new laws ought to be.

Conceiving new just laws alone is not enough, however — an Enlightened Prince, eager to promulgate such laws must be found, or better said constituted. Such a constitution can only be made under certain conditions: this is the third move.

<footnote n="10">¹⁰ See Introduction of the Doctrine of Rights, § A p. 55 in Kant (1797).</footnote>
Third Move: Autonomy of the Constituent Power (the Politicization of the Source of the Law)

To institutionalize the autonomy of the political community, one can either rely on contingent and precarious miracles (à la Frederic the Great), or travel to Petrograd (à la Catherine the Second) or write a book to explain what an Enlightened Prince complying to his own concept should be (à la Kant the Doctrine of Right). Such a book would certainly conclude that the State should be constituted, which would mean that no private individual could claim to own it privately (the critique of the doctrine of the Patrimonial State); and that the people (the constituency of the members who are capable of being citizens) would form the political sovereign of the polity. This is the basic formula of political autonomy: that the people subjected to the laws are the ones who are making them; such sovereignty should be exercised either directly by the people assembled or by its elected representatives, gathered in a legislative body. The sovereign will of the people should therefore be expressed under the form of a coherent system of general and impersonal legal rules — a codified legislation. As a result, within the constituted State, only the legislative authority shall be sovereign, in the sense of being competent for the making of the law. Any legal rule that does not originate in this legislative power should be considered illegitimate. Or, to be legitimately enforceable, a legal rule must necessarily flow from the political will of the sovereign in statutory form. In the case of Kant, this means that to be just, the law should not only consist of rational legislation in accordance with the immutable principles of justice, but should also be an autonomous, freely legislated, and coherent set of general legal principles — a codified legislation. The Kantian well-ordered state would be republican, statutory, and legiscentrist. In other contexts, the same ideals might lead to different outcomes. In the US for example, the locus of autonomous political power articulates itself in the Constitution — ‘We, the people’; the problem, of course, is to decide what to do with the inherited common law tradition.

This idea brings with it a major difficulty: it is widely accepted that nothing is less rational than a political force which expresses itself through a collective will. The constituent power and its activities are located on the side of flux, contradictions, movements, mere opinions, passions, in one word — life (not as a pre-existing natural order but as the sound and fury of vital energy, without form). So, how can one dream the expression of this collective will to take a rational form? The typical answer is that the new ‘knowledge of government’ invented by the Philosophers is here to establish a dispositif of rationalization through which the lively irrational will of the constituent power will be encoded into rational codified legislation (or a rational constitution, or any other rational form the fundamental Laws of the community might take). For Kant, this dispositif of rationalization is the dialectical progress of public reason, which requires the institution of the faculty of Philosophy and the guarantee of freedom of thought and expression, which constitute a public space in which it becomes possible to make free and public use of reason. Critique therefore becomes a key element for the emergence and institutionalization of an always improving Enlightened public opinion, capable of constituting itself as a political subjectivity — a political force aimed at the transformation of the existing laws. Would this alone be enough to actually realize the just laws dictated by the new prin-

<figure><img src="image_9.png" /></figure>
Third Move: Autonomy of the Constituent Power (the Politicization of the Source of the Law)

To institutionalize the autonomy of the political community, one can either rely on contingent and precarious miracles (à la Frederic the Great), or travel to Petrograd (à la Catherine the Second) or write a book to explain what an Enlightened Prince complying to his own concept should be (à la Kant the Doctrine of Right). Such a book would certainly conclude that the State should be constituted, which would mean that no private individual could claim to own it privately (the critique of the doctrine of the Patrimonial State); and that the people (the constituency of the members who are capable of being citizens) would form the political sovereign of the polity. This is the basic formula of political autonomy: that the people subjected to the laws are the ones who are making them; such sovereignty should be exercised either directly by the people assembled or by its elected representatives, gathered in a legislative body. The sovereign will of the people should therefore be expressed under the form of a coherent system of general and impersonal legal rules — a codified legislation. As a result, within the constituted State, only the legislative authority shall be sovereign, in the sense of being competent for the making of the law. Any legal rule that does not originate in this legislative power should be considered illegitimate. Or, to be legitimately enforceable, a legal rule must necessarily flow from the political will of the sovereign in statutory form. In the case of Kant, this means that to be just, the law should not only consist of rational legislation in accordance with the immutable principles of justice, but should also be an autonomous, freely legislated, and coherent set of general legal principles — a codified legislation. The Kantian well-ordered state would be republican, statutory, and legiscentrist. In other contexts, the same ideals might lead to different outcomes. In the US for example, the locus of autonomous political power articulates itself in the Constitution — ‘We, the people’; the problem, of course, is to decide what to do with the inherited common law tradition.

This idea brings with it a major difficulty: it is widely accepted that nothing is less rational than a political force which expresses itself through a collective will. The constituent power and its activities are located on the side of flux, contradictions, movements, mere opinions, passions, in one word — life (not as a pre-existing natural order but as the sound and fury of vital energy, without form). So, how can one dream the expression of this collective will to take a rational form? The typical answer is that the new ‘knowledge of government’ invented by the Philosophers is here to establish a dispositif of rationalization through which the lively irrational will of the constituent power will be encoded into rational codified legislation (or a rational constitution, or any other rational form the fundamental Laws of the community might take). For Kant, this dispositif of rationalization is the dialectical progress of public reason, which requires the institution of the faculty of Philosophy and the guarantee of freedom of thought and expression, which constitute a public space in which it becomes possible to make free and public use of reason. Critique therefore becomes a key element for the emergence and institutionalization of an always improving Enlightened public opinion, capable of constituting itself as a political subjectivity — a political force aimed at the transformation of the existing laws. Would this alone be enough to actually realize the just laws dictated by the new prin-

<figure><img src="image_8.png" /></figure>
ciples of justice? Well, even Kant is inclined to think that, sometimes, strong revolu-
tionary moves which result in the promulgation from scratch of brand-new laws
might help greatly in this endeavor and discusses how ‘strong’ those moves ought to
be, and what would be the fair price to pay for those shortcuts.

But certainly, the encoding of the general will of the community into a rational
system of laws has to be realized: its mode of production is philosophy understood
as the free and public use of reason (or critique), its sword arm is public opinion, and
its aim is to convince/dictate new Laws to the Princes. If those Princes are reluctant,
revolutions may follow. At the core of this dispositif is the continuous transformation
of the informal will of the community into a formal system of general and imper-
sonal legal principles — a system of general laws. Sometimes this formal system is
a Constitution, sometimes a body of codified legislation (a common idea in France
is that for centuries, the Napoleonic Code was the ‘civil constitution’ of France) and
sometimes it takes the form of a doctrinal / scientific reconstruction of judge-made
Law. Space prevents further explication here, so let us just say that modern positiv-
ism can take many different forms. The key element here is that to realize in practice
what philosophy dictates in theory, the critical thinker requires the general will of the
community to be embodied in the establishment of a rational system of Laws. That
is necessary for the realization of the principle of political autonomy but is not yet
enough. Once the rational system of Laws is established and promulgated as enforce-
able Law, one still must make sure that this system will be concretely applied: that is
the fourth move.

Fourth Move: Heteronomy of the Functioning of the Law

We might consequently think of the legal order as a vast system of *plumbing*, in
which the ‘will of the sovereign’ is *encoded* in legislation, and *flows down* through a
series of texts, in such a way that it can be *decoded* when applied to concrete cases.
Thus, to ensure that this will is accurately decoded, it is necessary to expunge from
the system those sites at which the arbitrary idiosyncrasies and prejudices of indi-
vidual judges and administrators might take effect. This fourth move then, is about
neutralizing the apparatus in charge of the application of the legislation.

In the 18th Century, this problem is acute. Whilst French politics at this time were
revolving around the role of the ‘parliaments’, the harshest critique of the arbitrari-
ness of the Jurists is arguably to be found in England, with Bentham. If those agents
in charge of applying the law can simply use the system to realize their own arbitrary
will, then the effort of establishing a rational system of law that expresses the general
will of the people is surely futile. But depoliticizing the process of application of
the legal system is not an easy task. Kant, for example, has many ideas on how to
manage this — chiefly, judges and administrators should be public servants harshly
submitted to the hierarchical power of the executive. Another common idea at this
time was to have Courts of Appeal review the decision of first instance judges, and
Supreme Courts review the decisions of Courts of Appeal (a very efficient tool, as
every Judge who wants to make a career will do their best to please the upper level).
Sieyès thought that a special body of advisers of the State (Conseil d’État) with the
competence of surveilling the whole process would efficiently realize the task. Ben-
ciples of justice? Well, even Kant is inclined to think that, sometimes, strong revolu-
tionary moves which result in the promulgation from scratch of brand-new laws
might help greatly in this endeavor and discusses how ‘strong’ those moves ought to
be, and what would be the fair price to pay for those shortcuts.

But certainly, the encoding of the general will of the community into a rational
system of laws has to be realized: its mode of production is philosophy understood
as the free and public use of reason (or critique), its sword arm is public opinion, and
its aim is to convince/dictate new Laws to the Princes. If those Princes are reluctant,
revolutions may follow. At the core of this dispositif is the continuous transformation
of the informal will of the community into a formal system of general and imper-
sonal legal principles — a system of general laws. Sometimes this formal system is
a Constitution, sometimes a body of codified legislation (a common idea in France
is that for centuries, the Napoleonic Code was the ‘civil constitution’ of France) and
sometimes it takes the form of a doctrinal / scientific reconstruction of judge-made
Law. Space prevents further explication here, so let us just say that modern positiv-
ism can take many different forms. The key element here is that to realize in practice
what philosophy dictates in theory, the critical thinker requires the general will of the
community to be embodied in the establishment of a rational system of Laws. That
is necessary for the realization of the principle of political autonomy but is not yet
enough. Once the rational system of Laws is established and promulgated as enforce-
able Law, one still must make sure that this system will be concretely applied: that is
the fourth move.

Fourth Move: Heteronomy of the Functioning of the Law

We might consequently think of the legal order as a vast system of *plumbing*, in
which the ‘will of the sovereign’ is *encoded* in legislation, and *flows down* through a
series of texts, in such a way that it can be *decoded* when applied to concrete cases.
Thus, to ensure that this will is accurately decoded, it is necessary to expunge from
the system those sites at which the arbitrary idiosyncrasies and prejudices of indi-
vidual judges and administrators might take effect. This fourth move then, is about
neutralizing the apparatus in charge of the application of the legislation.

In the 18th Century, this problem is acute. Whilst French politics at this time were
revolving around the role of the ‘parliaments’, the harshest critique of the arbitrari-
ness of the Jurists is arguably to be found in England, with Bentham. If those agents
in charge of applying the law can simply use the system to realize their own arbitrary
will, then the effort of establishing a rational system of law that expresses the general
will of the people is surely futile. But depoliticizing the process of application of
the legal system is not an easy task. Kant, for example, has many ideas on how to
manage this — chiefly, judges and administrators should be public servants harshly
submitted to the hierarchical power of the executive. Another common idea at this
time was to have Courts of Appeal review the decision of first instance judges, and
Supreme Courts review the decisions of Courts of Appeal (a very efficient tool, as
every Judge who wants to make a career will do their best to please the upper level).
Sieyès thought that a special body of advisers of the State (Conseil d’État) with the
competence of surveilling the whole process would efficiently realize the task. Ben-
tham thought that the decisions of the agents should be harshly scrutinized by a 'Tri-
bunal of Public Opinion'.

Institutional disciplines, checks and balances mechanisms, hierarchical submis-
sion to executive powers are certainly effective neutralizing devices, but cannot alone
be enough, as the conflict is a conflict of *wills*, between the sovereign will and the
will of the agents (individual will, as subjectivity and arbitrariness, but also collec-
tive will as ideological bias and professional corporative interests). This conflict is
therefore happening both externally (in their life) *and* internally (in their mind) for
these agents, so the control cannot simply be external, it must operate on an internal
register in order to structure the ways that those agents think and argue.

Kant thinks that this problem can be solved by ensuring that legal decisions are
the conclusion of a syllogism, whose major premise is the applicable text and minor
premise is the facts of the case. Where this works, decisions will be only an act of
knowledge, and not an act of will, an objective judgment, not a subjective one. Pos-
terity has called this move 'mechanical jurisprudence' (Pound 1908). Kant himself
speaks of judges as mere 'agile workers' (Kant 1992).

This could, of course, lead us to identify a ‘fifth’ move — that the best way to
ensure ‘objective’ judges is to conceive of the law as a pure form, that is, a form puri-
fied from everything other than the will of the sovereign and legal interpretation as
mere *literal textualism*. Kant — and Bentham in many ways — will go as far as mak-
ing that claim. Formalism means here that any consideration other than the pure will
encoded in the legal rule must not be considered by the judge when adjudicating the
case. So, no equity, natural law, factual circumstances, not even a possible change of
will in contractual relations, no administrability of the case, nor, of course, any politi-
cal considerations are to be considered as ‘law’. Law is only the will as expressed
literally in the applicable text.

A legal historian would recognize here a project of the complete subordination
of the traditional *Ius* to a modern, codified, and republican *Lex*. The triumph of this
*Lex* over the *Ius* would generate something like a ‘law without lawyers’ or at least a
law without the intellectual authority and the political power of the lawyers. A law
entirely politicized at its source, and entirely depoliticizing in its functioning. This
chiasma is both producing and reproducing a political maxim: that the political com-
munity will be autonomous in so far as its legal system is heteronomous. Indeed, the
project of the Radicalized Enlighteners for the law is a project of ‘exiting’ the western
legal tradition — and of course, this project did not please the Jurists.

Toward a Status Quo (circa 1830)

Soon after, by the beginning of the 19th Century, many jurists like Portalis and Savi-
gny explicitly reacted to, but also silently internalized, some key features of this
project. In their reactive mode, they sought to throw away the ideal of political auton-
omy, to reclaim the autonomy of the law (the monopoly of legal science over its
own rationalization) and to advance the restitution of the intellectual authority and
political power of the jurists (although very often masquerading as mere servants of
the legislation, especially in France). In their internalizing mode, they embraced the
preeminence of written texts over other sources, the centrality of literal textualism

<figure><img src="image_10.png" /></figure>
tham thought that the decisions of the agents should be harshly scrutinized by a 'Tri-
bunal of Public Opinion'.

Institutional disciplines, checks and balances mechanisms, hierarchical submis-
sion to executive powers are certainly effective neutralizing devices, but cannot alone
be enough, as the conflict is a conflict of *wills*, between the sovereign will and the
will of the agents (individual will, as subjectivity and arbitrariness, but also collec-
tive will as ideological bias and professional corporative interests). This conflict is
therefore happening both externally (in their life) *and* internally (in their mind) for
these agents, so the control cannot simply be external, it must operate on an internal
register in order to structure the ways that those agents think and argue.

Kant thinks that this problem can be solved by ensuring that legal decisions are
the conclusion of a syllogism, whose major premise is the applicable text and minor
premise is the facts of the case. Where this works, decisions will be only an act of
knowledge, and not an act of will, an objective judgment, not a subjective one. Pos-
terity has called this move 'mechanical jurisprudence' (Pound 1908). Kant himself
speaks of judges as mere 'agile workers' (Kant 1992).

This could, of course, lead us to identify a ‘fifth’ move — that the best way to
ensure ‘objective’ judges is to conceive of the law as a pure form, that is, a form puri-
fied from everything other than the will of the sovereign and legal interpretation as
mere *literal textualism*. Kant — and Bentham in many ways — will go as far as mak-
ing that claim. Formalism means here that any consideration other than the pure will
encoded in the legal rule must not be considered by the judge when adjudicating the
case. So, no equity, natural law, factual circumstances, not even a possible change of
will in contractual relations, no administrability of the case, nor, of course, any politi-
cal considerations are to be considered as ‘law’. Law is only the will as expressed
literally in the applicable text.

A legal historian would recognize here a project of the complete subordination
of the traditional *Ius* to a modern, codified, and republican *Lex*. The triumph of this
*Lex* over the *Ius* would generate something like a ‘law without lawyers’ or at least a
law without the intellectual authority and the political power of the lawyers. A law
entirely politicized at its source, and entirely depoliticizing in its functioning. This
chiasma is both producing and reproducing a political maxim: that the political com-
munity will be autonomous in so far as its legal system is heteronomous. Indeed, the
project of the Radicalized Enlighteners for the law is a project of ‘exiting’ the western
legal tradition — and of course, this project did not please the Jurists.

Toward a Status Quo (circa 1830)

Soon after, by the beginning of the 19th Century, many jurists like Portalis and Savi-
gny explicitly reacted to, but also silently internalized, some key features of this
project. In their reactive mode, they sought to throw away the ideal of political auton-
omy, to reclaim the autonomy of the law (the monopoly of legal science over its
own rationalization) and to advance the restitution of the intellectual authority and
political power of the jurists (although very often masquerading as mere servants of
the legislation, especially in France). In their internalizing mode, they embraced the
preeminence of written texts over other sources, the centrality of literal textualism

<figure><img src="image_9.png" /></figure>
in legal reasoning, and the reconducting of the architecture of private law, based on
the capacity-property-contract triad, which translates as both patriarchy (with few
exceptions, only adult men are fully capable) and capitalism (absolute property and
freedom of contract).

Moreover, these jurists underscored the need for a more sophisticated neutral-
izing device and advocated for more sophisticated modes of reasoning to offer more
sophisticated avenues for the judges applying the laws. The rational exposition of
those rules and protocols is often known under the name ‘legal methodology’. Savi-
gny might be considered the writer of the first canon of this new knowledge (see
1913), which contains all the beauties of syllogistic deduction, but also analogy, rea-
soning by precedent, teleological reasoning, and reasoning by consequences. The
result of the construction of this new intellectual discipline is what one could call
the birth of modern legal technique, understood as the setting of formal structures
which are made to guarantee that the decision of the agents will be, for each case,
strictly determinate. The outcome in each case can only be the unique right answer
(one meaning of the expression ‘legal positivism’ is the belief that there always is a
‘unique right answer’). One could also call this the birth of ‘classical legal thought’
(Kennedy 2006).

From this, one can conclude that what we still call today ‘modern law’ was born
as the precarious status quo achieved in a violent conflict between the project of
political autonomy carried on by the Radicalized Enlighteners and the modernized
version of the western legal tradition — a new epistemic dispositif, articulated to a
new institutional architecture, from which flows a new conception of the legal system
and its functioning.

The Twofold Structure of Modern Law

The structure of the Modern Law, as understood by many theorists at the end of the
18th Century, is twofold. At the first level, the *dispositif* of rationalization articulates
the law and the political by giving a legal form to the originary political community.
At the second, the role of the *dispositif* of rationalization is to ensure that this legal
form will realize itself in actual practice.<fnref n="11" />

This first level articulates the existence and activities of the originary political
subjectivity (the community as subjectivity), understood as a constituent power,
from which is produced a coherent and complete system of general and impersonal
legal principles (the laws). This originary subjectivity is often understood as a ‘gen-
eral will’ (Rousseau), a ‘united will’ (Kant) or the ‘will of the legislator’ (Bentham).
However, in some versions of the project, this subjectivity is a force, or a relation of
forces, or even a spirit, a consciousness. Of course, these different versions lead to
very different regimes of articulation of the legal and the political (expression vs. rep-
resentation) and very different mechanisms by which the legal form of the political
subjectivity is produced. All of modern political philosophy lies somewhere between
these differences. My point here, however, is to underline that this ‘translation’ of the
political into a legal system, is being achieved via the invention of a ‘new knowledge

<footnote n="11">¹¹ The structure of medieval Law was twofold too (See Legendre 1965).</footnote>
in legal reasoning, and the reconducting of the architecture of private law, based on
the capacity-property-contract triad, which translates as both patriarchy (with few
exceptions, only adult men are fully capable) and capitalism (absolute property and
freedom of contract).

Moreover, these jurists underscored the need for a more sophisticated neutral-
izing device and advocated for more sophisticated modes of reasoning to offer more
sophisticated avenues for the judges applying the laws. The rational exposition of
those rules and protocols is often known under the name ‘legal methodology’. Savi-
gny might be considered the writer of the first canon of this new knowledge (see
1913), which contains all the beauties of syllogistic deduction, but also analogy, rea-
soning by precedent, teleological reasoning, and reasoning by consequences. The
result of the construction of this new intellectual discipline is what one could call
the birth of modern legal technique, understood as the setting of formal structures
which are made to guarantee that the decision of the agents will be, for each case,
strictly determinate. The outcome in each case can only be the unique right answer
(one meaning of the expression ‘legal positivism’ is the belief that there always is a
‘unique right answer’). One could also call this the birth of ‘classical legal thought’
(Kennedy 2006).

From this, one can conclude that what we still call today ‘modern law’ was born
as the precarious status quo achieved in a violent conflict between the project of
political autonomy carried on by the Radicalized Enlighteners and the modernized
version of the western legal tradition — a new epistemic dispositif, articulated to a
new institutional architecture, from which flows a new conception of the legal system
and its functioning.

The Twofold Structure of Modern Law

The structure of the Modern Law, as understood by many theorists at the end of the
18th Century, is twofold. At the first level, the *dispositif* of rationalization articulates
the law and the political by giving a legal form to the originary political community.
At the second, the role of the *dispositif* of rationalization is to ensure that this legal
form will realize itself in actual practice.<fnref n="11" />

This first level articulates the existence and activities of the originary political
subjectivity (the community as subjectivity), understood as a constituent power,
from which is produced a coherent and complete system of general and impersonal
legal principles (the laws). This originary subjectivity is often understood as a ‘gen-
eral will’ (Rousseau), a ‘united will’ (Kant) or the ‘will of the legislator’ (Bentham).
However, in some versions of the project, this subjectivity is a force, or a relation of
forces, or even a spirit, a consciousness. Of course, these different versions lead to
very different regimes of articulation of the legal and the political (expression vs. rep-
resentation) and very different mechanisms by which the legal form of the political
subjectivity is produced. All of modern political philosophy lies somewhere between
these differences. My point here, however, is to underline that this ‘translation’ of the
political into a legal system, is being achieved via the invention of a ‘new knowledge

<footnote n="11">¹¹ The structure of medieval Law was twofold too (See Legendre 1965).</footnote>
of government', whose generic term is Philosophy. Sometimes, very different philosophies which conceive the 'nature of the political' in alternate ways will determine divergent ways to conceive the legal system, but sometimes not. Take for example Kant and Savigny: radically different conceptions of the political but very similar conceptions of the legal system, at least as far as private law is concerned.

This question of translating the nature of the political into a legal system raises questions of competencies. Who is the proper translator? What kind of knowledge is competent for this task? Who shall be at the structural position of Counselor to the Prince (be that Prince be an Enlightened King or Public Opinion)? The competition among the many pretenders inaugurates the Conflict of the Faculties — traditionally, the job was given to the old *Scientia Iuris*. However, philosophy appears here as the ‘new kid in town’, with the new ‘Science of Legislation’ (Filangieri) as its weapon to wield against the Jurists.

Soon, this new knowledge will turn the critique against itself, giving rise to a multiplicity of new and contradictory versions. Transcendental philosophy will develop into speculative philosophy, historical materialism and so forth. Some versions are more empirical (Bentham) and they will develop into political economy, social physiology, sociology and more. In fact, neither the old *Scientia iuris* nor the rapidly proliferating ‘new kids’ will win out, each of them will continuously provide different conceptions of what Law is, what it should be and how the question should be asked. Thus, the modern *dispositif* of knowledges about the Law is structurally fragmented and, in an important sense, agonistic. What is at stake here then, is the question of determining which knowledge will best contribute to the production, maintenance, and transformation of the ‘legal system’ as a coherent set of general legal principles. Today, it seems to be the case that neoclassical economics has established a position of dominance in this regard.

This first level of the structure is not self-sufficient, as the goal of the whole enterprise is not simply to express the principles of what a rational law ought to be, but to change the world by applying them. The exposition and promulgation of the legal system must be complemented by the conception, implementation, and development of an apparatus in charge of its application in real life, to guarantee that the applicable law will be, in each concrete case, strictly determined by the legal system itself. This apparatus is the second level of the structure.

At this second level, the question becomes how best to guarantee the proper decoding of the political element which has been encoded in the legal system at the first level. To achieve this outcome, the agents of the apparatus must be politically neutralized, which requires another *dispositif* of rationalization — the invention of another kind of knowledge of government, which aims to produce the rules and protocols of legal practice as a technique. The difference at this level is that competition is much less spectacular, perhaps because critical theorists are less interested in criticizing the technicalities of the Law — their new knowledges of government deals only with the general and impersonal principles of Laws, which is confined to the first level. Indeed, in general, Enlightened philosophers do agree that the mere description and application of the Law remains the competence of the Jurists. As a result, a
of government', whose generic term is Philosophy. Sometimes, very different philosophies which conceive the 'nature of the political' in alternate ways will determine divergent ways to conceive the legal system, but sometimes not. Take for example Kant and Savigny: radically different conceptions of the political but very similar conceptions of the legal system, at least as far as private law is concerned.

This question of translating the nature of the political into a legal system raises questions of competencies. Who is the proper translator? What kind of knowledge is competent for this task? Who shall be at the structural position of Counselor to the Prince (be that Prince be an Enlightened King or Public Opinion)? The competition among the many pretenders inaugurates the Conflict of the Faculties — traditionally, the job was given to the old *Scientia Iuris*. However, philosophy appears here as the ‘new kid in town’, with the new ‘Science of Legislation’ (Filangieri) as its weapon to wield against the Jurists.

Soon, this new knowledge will turn the critique against itself, giving rise to a multiplicity of new and contradictory versions. Transcendental philosophy will develop into speculative philosophy, historical materialism and so forth. Some versions are more empirical (Bentham) and they will develop into political economy, social physiology, sociology and more. In fact, neither the old *Scientia iuris* nor the rapidly proliferating ‘new kids’ will win out, each of them will continuously provide different conceptions of what Law is, what it should be and how the question should be asked. Thus, the modern *dispositif* of knowledges about the Law is structurally fragmented and, in an important sense, agonistic. What is at stake here then, is the question of determining which knowledge will best contribute to the production, maintenance, and transformation of the ‘legal system’ as a coherent set of general legal principles. Today, it seems to be the case that neoclassical economics has established a position of dominance in this regard.

This first level of the structure is not self-sufficient, as the goal of the whole enterprise is not simply to express the principles of what a rational law ought to be, but to change the world by applying them. The exposition and promulgation of the legal system must be complemented by the conception, implementation, and development of an apparatus in charge of its application in real life, to guarantee that the applicable law will be, in each concrete case, strictly determined by the legal system itself. This apparatus is the second level of the structure.

At this second level, the question becomes how best to guarantee the proper decoding of the political element which has been encoded in the legal system at the first level. To achieve this outcome, the agents of the apparatus must be politically neutralized, which requires another *dispositif* of rationalization — the invention of another kind of knowledge of government, which aims to produce the rules and protocols of legal practice as a technique. The difference at this level is that competition is much less spectacular, perhaps because critical theorists are less interested in criticizing the technicalities of the Law — their new knowledges of government deals only with the general and impersonal principles of Laws, which is confined to the first level. Indeed, in general, Enlightened philosophers do agree that the mere description and application of the Law remains the competence of the Jurists. As a result, a
modernized and rationalized version of legal science has gained a quasi-monopoly of
production of this knowledge.<fnref n="12" />

So, we have therefore, a twofold structure, with two different *dispositifs* of ratio-
nalization, one producing, maintaining, and developing the ‘legal form’ of the politi-
cal subjectivity, the other producing, maintaining, and developing the apparatus of its
concrete realization. The first is where Law and Politics are articulated (the substance
is political / the form is legal), the second is where Law and Politics are opposed
(legal practice as a depoliticized technique).

This detour was useful to shed light on the significance of the distinction between
the ‘Law of Jurists’ and the ‘Law of Philosophers’, to which I can now return. The
critique of Law is today often a critique of those political principles which are embed-
ded in the system of general and impersonal legal principles as an ‘abstract represen-
tations of social reality, relatively indifferent to social contents’ (Negri and Hardt
2009, p. 22) — that is to say the legal structure of the dominant political regime. This
critique is aimed at displacing those principles and replacing them with better ones.
For example, according to Negri and Hardt, although the system claims to be the
legal form of freedom and democracy, property is its core operative principle, and
this ought to be changed. The critique is addressed to the Prince, very often the demo-
cratic Prince (generally public opinion, but sometimes also the *popolo in armi*, the
working class or the multitudes). The key element here is that this critique is general,
not dealing with the technicalities of the Law. It implicitly argues that changing the
first level of the structure would be enough to change the whole — as if what happens
at the second level of the structure is not important or strategic enough to warrant
critique. In this, current critical theory is reproducing one of the core ideas of the
“project of the Enlightenment for the Law” which is to believe that, if the legal sys-
tem is well conceived at the level of principle, *l’intendance suivra*. But ‘stewardship’
will only follow if the apparatus in charge of the realization of the Law is actually
neutralized, or, in the anti-juridism version of CT, if the realization of new political
principles will not actually need to be realized through Law (that is, of course, Negri
and Hardt’s position). In relying on the neutrality of the apparatus one must obviously
be overwhelmingly confident in the success of the modernizing project for the Law
and thinking Law will not be needed after the current legal system is replaced gives
rise to other problems that we will discuss in the fifth section.

Thus, the contemporary critique of the Law is very often following the fault lines
of the ‘project of the Enlightenment for the Law’, as an external critique of the Law.
External here is to be understood in at least two senses. Firstly, the critique is exter-
nal because the critical knowledges which produce it originate ‘outside’ of the legal
tradition. Lorenz von Stein was correct to describe these ‘outside knowledges’ as
‘oppositional knowledges’ (see Xifaras 2008), because they contest the competence
of the old *Scientia Iuris* to provide the legitimacy of the existing laws and establish
what the legal system ought to be. Secondly, the critique is external in the sense that

<footnote n="12">¹² This monopoly is ‘quasi’ only, because of a very notable exception in Bentham’s ‘science of utility’, which is not only a ‘legislative knowledge’ but also a critique of internal modes of reasoning and arguing in Law. This may explain why, today, law and economics, once oriented to case law in the second part of the 20th Century, is the only of ‘new kid in town’ to have seriously challenged legal doctrine in knowledge production.</footnote>
modernized and rationalized version of legal science has gained a quasi-monopoly of production of this knowledge.<fnref n="12" />

So, we have therefore, a twofold structure, with two different *dispositifs* of rationalization, one producing, maintaining, and developing the ‘legal form’ of the political subjectivity, the other producing, maintaining, and developing the apparatus of its concrete realization. The first is where Law and Politics are articulated (the substance is political / the form is legal), the second is where Law and Politics are opposed (legal practice as a depoliticized technique).

This detour was useful to shed light on the significance of the distinction between the ‘Law of Jurists’ and the ‘Law of Philosophers’, to which I can now return. The critique of Law is today often a critique of those political principles which are embedded in the system of general and impersonal legal principles as an ‘abstract representations of social reality, relatively indifferent to social contents’ (Negri and Hardt 2009, p. 22) — that is to say the legal structure of the dominant political regime. This critique is aimed at displacing those principles and replacing them with better ones. For example, according to Negri and Hardt, although the system claims to be the legal form of freedom and democracy, property is its core operative principle, and this ought to be changed. The critique is addressed to the Prince, very often the democratic Prince (generally public opinion, but sometimes also the *popolo in armi*, the working class or the multitudes). The key element here is that this critique is general, not dealing with the technicalities of the Law. It implicitly argues that changing the first level of the structure would be enough to change the whole — as if what happens at the second level of the structure is not important or strategic enough to warrant critique. In this, current critical theory is reproducing one of the core ideas of the “project of the Enlightenment for the Law” which is to believe that, if the legal system is well conceived at the level of principle, *l’intendance suivra*. But ‘stewardship’ will only follow if the apparatus in charge of the realization of the Law is actually neutralized, or, in the anti-juridism version of CT, if the realization of new political principles will not actually need to be realized through Law (that is, of course, Negri and Hardt’s position). In relying on the neutrality of the apparatus one must obviously be overwhelmingly confident in the success of the modernizing project for the Law and thinking Law will not be needed after the current legal system is replaced gives rise to other problems that we will discuss in the fifth section.

Thus, the contemporary critique of the Law is very often following the fault lines of the ‘project of the Enlightenment for the Law’, as an external critique of the Law. External here is to be understood in at least two senses. Firstly, the critique is external because the critical knowledges which produce it originate ‘outside’ of the legal tradition. Lorenz von Stein was correct to describe these ‘outside knowledges’ as ‘oppositional knowledges’ (see Xifaras 2008), because they contest the competence of the old *Scientia Iuris* to provide the legitimacy of the existing laws and establish what the legal system ought to be. Secondly, the critique is external in the sense that

<footnote n="12">¹² This monopoly is ‘quasi’ only, because of a very notable exception in Bentham’s ‘science of utility’, which is not only a ‘legislative knowledge’ but also a critique of internal modes of reasoning and arguing in Law. This may explain why, today, law and economics, once oriented to case law in the second part of the 20th Century, is the only of ‘new kid in town’ to have seriously challenged legal doctrine in knowledge production.</footnote>
it deals with the political substance, which is introduced from beyond the bounds of
the legal system, and not at all with the internal operations required for the enforce-
ment of the Law, which is generally understood as mere technicalities. In fact, current
critical theories are very often theories about the first level of the structure, where the
legal and the political are explicitly articulated, and not at all about the second level,
in which political significance has been supposedly neutralized. The critique of Law
is therefore generally a critique of the ‘Law of philosophers” and not a critique of the
“Law of jurists”. It is as if, most of the time, Critique had naively accepted the idea
that political stakes are only to be found at the first level, not at the second, and there-
fore would only focus on the former. Or, Critique seem to have forgotten to criticize
the chiasmatic structure of modern law itself.

Indeed, Negri and Hardt’s theory is a classic example of the merely external cri-
tique of the Law, in both senses of the expression. It is a critique of the Law made
from an epistemic ‘outside’ — namely political philosophy — and whose object is
a system of legal rules, understood as the legal form given to a set of political prin-
ciples which are external to those forms. In this way, the critique aims to ‘unveil’ the
hidden forces at the origin of the legal order (‘bourgeois revolutions’), to demonstrate
that the legal order is not what it appears to be (not a constitutional order, but private
property regimes). The material constitutions founded by bourgeois revolutions are
structured by property rights, and the inevitable result of this foundation is the con-
stitution of plutocratic regimes and capitalist domination, not the democratic liberal
regimes they claim to be through their formal constitutions. The key element here
is that the real legal structure (private property regimes) produced by the real origin
(the material constitution as domination of capital) of the formal legal system is the
*necessary* cause of the bad consequences (oppression and domination).

Clearly, this critique focuses only on the first level of the structure of modern Law:
the articulation of the real constituent power (the bourgeois class) within the legal
system (public law as ideology, private property as the real legal base of the mate-
rial constitution). There is no need to study the second level, that of legal practice, to
arrive at this result.

Moreover, Negri and Hardt espouse a radically anti-juristic version of critical the-
ory. Here, it is not even necessary to study this second level to produce alternatives,
because the alternative can only seek to displace the constituting power (the multi-
tudes instead of the bourgeoisie) and its core political principle (the Common instead
of private ownership). Once this shift is made then, there is no need for a new better
legal system, because the multitudes are self-constituted and not constituted through
Law. Law cannot constitute the multitudes because it cannot be distinguished from
the legalistic vision of the world it ascribes, which conveys an individualistic and
competitive conception of singular subjectivities and a reified and totalizing concep-
tion of the Common. Law, therefore, is the language of *potestas* (power as domina-
tion) not *potentia* (power as empowerment/capability).

This loyally reproduces the conception that the Radical Enlightened founders of
modern law had of its structure. Of course, for Negri and Hardt, the real constituent
power is not the ‘general will of the people’, as it is for Kant or Bentham. It is in fact,
not a will at all, but a relation of force — the domination of the bourgeois class. How-
ever, as far as its articulation in the legal system is concerned, the scheme is the same:

<figure><img src="image_11.png" /></figure>
it deals with the political substance, which is introduced from beyond the bounds of
the legal system, and not at all with the internal operations required for the enforce-
ment of the Law, which is generally understood as mere technicalities. In fact, current
critical theories are very often theories about the first level of the structure, where the
legal and the political are explicitly articulated, and not at all about the second level,
in which political significance has been supposedly neutralized. The critique of Law
is therefore generally a critique of the ‘Law of philosophers” and not a critique of the
“Law of jurists”. It is as if, most of the time, Critique had naively accepted the idea
that political stakes are only to be found at the first level, not at the second, and there-
fore would only focus on the former. Or, Critique seem to have forgotten to criticize
the chiasmatic structure of modern law itself.

Indeed, Negri and Hardt's theory is a classic example of the merely external cri-
tique of the Law, in both senses of the expression. It is a critique of the Law made
from an epistemic 'outside' — namely political philosophy — and whose object is
a system of legal rules, understood as the legal form given to a set of political prin-
ciples which are external to those forms. In this way, the critique aims to 'unveil' the
hidden forces at the origin of the legal order ('bourgeois revolutions'), to demonstrate
that the legal order is not what it appears to be (not a constitutional order, but private
property regimes). The material constitutions founded by bourgeois revolutions are
structured by property rights, and the inevitable result of this foundation is the con-
stitution of plutocratic regimes and capitalist domination, not the democratic liberal
regimes they claim to be through their formal constitutions. The key element here
is that the real legal structure (private property regimes) produced by the real origin
(the material constitution as domination of capital) of the formal legal system is the
necessary cause of the bad consequences (oppression and domination).

Clearly, this critique focuses only on the first level of the structure of modern Law:
the articulation of the real constituent power (the bourgeois class) within the legal
system (public law as ideology, private property as the real legal base of the mate-
rial constitution). There is no need to study the second level, that of legal practice, to
arrive at this result.

Moreover, Negri and Hardt espouse a radically anti-juristic version of critical the-
ory. Here, it is not even necessary to study this second level to produce alternatives,
because the alternative can only seek to displace the constituting power (the multi-
tudes instead of the bourgeoisie) and its core political principle (the Common instead
of private ownership). Once this shift is made then, there is no need for a new better
legal system, because the multitudes are self-constituted and not constituted through
Law. Law cannot constitute the multitudes because it cannot be distinguished from
the legalistic vision of the world it ascribes, which conveys an individualistic and
competitive conception of singular subjectivities and a reified and totalizing concep-
tion of the Common. Law, therefore, is the language of *potestas* (power as domina-
tion) not *potentia* (power as empowerment/capability).

This loyally reproduces the conception that the Radical Enlightened founders of
modern law had of its structure. Of course, for Negri and Hardt, the real constituent
power is not the ‘general will of the people’, as it is for Kant or Bentham. It is in fact,
not a will at all, but a relation of force — the domination of the bourgeois class. How-
ever, as far as its articulation in the legal system is concerned, the scheme is the same:

<figure><img src="image_10.png" /></figure>
a political thing (here a relation of force) is constituted and imposes its hegemony
through the establishment of a coherent system of legal principles (here property
Laws) which is strictly enforced in every aspect of the everyday life (the production
of human life, the subjection of our bodies). The role of the apparatus in charge of the
application of law is similarly *neutral* in the sense that the outcome of the application
flows down from the top (here: from the real, hidden top — private property regimes,
not constitutional orders). The system of plumbing, as it was described earlier, works
fine. Structurally then, the exclusive source of law is a political element (class domi-
nation), and this political element is being translated into a set of legal forms and
principles. The outcome of the prevalence of this legal system is the realization of the
originary political principle in the material world, establishing the reign of private
property on every aspect of our lives. Thus, if you do not support the political element
embedded in the legal system, you simply have to find a better one (the Common)
with which to replace the former — this is what we might call a Revolution. From
this perspective there is no political interest whatsoever in the process of application
of the law, nor in the functioning of the apparatus in charge of it. At the level of legal
practice, there are only technical rules, procedures, protocols, and technical decisions
made by agents which are politically neutralized.<fnref n="13" /> I contend however, that many
politically interesting things do in fact occur at this technical level in the structure of
modern law, where the system is applied by the apparatus in charge of it.

My argument here is that this ‘oversight’ is a serious problem which might be
to the detriment of the whole project, for at least two reasons. Firstly, one must be
overwhelmingly confident in the stewardship of legal actors to think that it is enough
to simply rewrite the Constitution or the Civil Code to actually effect change in the
world.<fnref n="14" /> The fact is, that legal technique might have never been able to success-
fully politically neutralize the apparatus. In this sense, if the apparatus is *not* neutral,
then something might be missing from the critical enterprise. Secondly, because the
articulation of the internal and external critique seems to me to be key for a proper
understanding of the whole structure of the law and its development in the last two
Centuries. However, without criticizing the second level of the structure, CT can-
not grasp a holistic understanding of this structure and cannot therefore provide an
accurate account of its role in constituting our current world. Not to mention that the
articulation of the internal and external critique is also a very promising avenue for
emancipatory projects and the building of concrete political alternatives.

To sum up this section: the project of the Radicalized Enlightenment for the Law
is not only ambivalent, in the way it connects and sometimes confuses the emancipa-
tory promotion of political autonomy with a fetishized conception of the powers of
Reason (a critique one can find in Negri and Hardt’s book, with which I fully agree).
It is also incomplete, because its critique is only a critique of the legal system (the
first level of the structure, that of the general principles) and not a critique of their
application (the second level of the structure, that of the technical operations of the

<footnote n="13">¹³ Of course, I imagine that, for Negri and Hardt, the agents are not ‘neutral’ because applying bad Laws is a highly political activity, but they *are* ‘neutral’ in the sense that they are attempting only to faithfully apply these Laws according to the duty ascribed to their position.</footnote>

<footnote n="14">¹⁴ A position still adopted by the majority of left parties in France.</footnote>
a political thing (here a relation of force) is constituted and imposes its hegemony
through the establishment of a coherent system of legal principles (here property
Laws) which is strictly enforced in every aspect of the everyday life (the production
of human life, the subjection of our bodies). The role of the apparatus in charge of the
application of law is similarly *neutral* in the sense that the outcome of the application
flows down from the top (here: from the real, hidden top — private property regimes,
not constitutional orders). The system of plumbing, as it was described earlier, works
fine. Structurally then, the exclusive source of law is a political element (class domi-
nation), and this political element is being translated into a set of legal forms and
principles. The outcome of the prevalence of this legal system is the realization of the
originary political principle in the material world, establishing the reign of private
property on every aspect of our lives. Thus, if you do not support the political element
embedded in the legal system, you simply have to find a better one (the Common)
with which to replace the former — this is what we might call a Revolution. From
this perspective there is no political interest whatsoever in the process of application
of the law, nor in the functioning of the apparatus in charge of it. At the level of legal
practice, there are only technical rules, procedures, protocols, and technical decisions
made by agents which are politically neutralized.<fnref n="13" /> I contend however, that many
politically interesting things do in fact occur at this technical level in the structure of
modern law, where the system is applied by the apparatus in charge of it.

My argument here is that this ‘oversight’ is a serious problem which might be
to the detriment of the whole project, for at least two reasons. Firstly, one must be
overwhelmingly confident in the stewardship of legal actors to think that it is enough
to simply rewrite the Constitution or the Civil Code to actually effect change in the
world.<fnref n="14" /> The fact is, that legal technique might have never been able to success-
fully politically neutralize the apparatus. In this sense, if the apparatus is *not* neutral,
then something might be missing from the critical enterprise. Secondly, because the
articulation of the internal and external critique seems to me to be key for a proper
understanding of the whole structure of the law and its development in the last two
Centuries. However, without criticizing the second level of the structure, CT can-
not grasp a holistic understanding of this structure and cannot therefore provide an
accurate account of its role in constituting our current world. Not to mention that the
articulation of the internal and external critique is also a very promising avenue for
emancipatory projects and the building of concrete political alternatives.

To sum up this section: the project of the Radicalized Enlightenment for the Law
is not only ambivalent, in the way it connects and sometimes confuses the emancipa-
tory promotion of political autonomy with a fetishized conception of the powers of
Reason (a critique one can find in Negri and Hardt’s book, with which I fully agree).
It is also incomplete, because its critique is only a critique of the legal system (the
first level of the structure, that of the general principles) and not a critique of their
application (the second level of the structure, that of the technical operations of the

<footnote n="13">¹³ Of course, I imagine that, for Negri and Hardt, the agents are not ‘neutral’ because applying bad Laws is a highly political activity, but they *are* ‘neutral’ in the sense that they are attempting only to faithfully apply these Laws according to the duty ascribed to their position.</footnote>

<footnote n="14">¹⁴ A position still adopted by the majority of left parties in France.</footnote>
law). The crux of the problem of this incompleteness is that somewhere between
the 18th Century and now, a change in the functioning of this second-level structure
deeply transformed what happens at the first level. This transformation is such that it
might be that the legal structure of the dominant political regime cannot anymore be
described as the ‘Law of the Philosophers’.

Otherwise said, the emergence of this *dispositif* does not involve one, but two
developments, parallel but deeply intertwined. The better-known one is the story of
the ‘Law of the Philosophers’ or the history of the ‘external critique’ of the law,
which is the story of the endless ‘end of metaphysics’, from Kant to Hegel to Marx
to Nietzsche and so on. The other, no less important one, is the history of the inter-
nal critique of the law, that is the story of the slow but certain disaggregation of the
internal coherence of the technical dimension of the law. Although it appears unin-
telligible, and because it is far less well-known than the first one, I will now briefly
attempt to sketch it in a few paragraphs.

Transformations of the Modern Structure of the Law Through Its
Internal Critique

(Almost) Two Centuries of Internal Critique

What does *not* appear in Negri and Hardt’s analysis, at least in *Commonwealth*,<fnref n="15" /> is the story of the emergence and deployment of an internal critique of property, which has developed into an internal critique of the Law generally. In that regard, this confirms at least the epistemic centrality of the debate over property in legal thought in the 19th and early 20th Centuries. The effect of this critique has been to transform deeply not only the way we think about the Law, but also how we practice it. I will return to this below.

As we saw, in the minds of the founders, particularly Kant, the process of applying
the legal system in the real world ought to be purely mechanical. To achieve political
autonomy, the will encoded in the legal system (for Kant, in the form of codified leg-
islation) must be applied as such. The process of application itself should be objec-
tive, the agents in charge of it should be akin to workers limited to decoding the Law
inscribed in the applicable texts. The idea here is fairly simple: for each concrete case,
there is a relevant ‘jural relation’, every ‘jural relation’ is governed by an ‘institution
of law’ to which corresponds a unique ‘rational concept’. The inner determinations
of this rational concept are a series of ‘attributes’ which are translated into ‘prin-
ciples’ from which it is possible to deduce the rule applicable to the given case. The
logic is as follows: Case → jural relation → institution of law qua concept → inner
attributes of the concept → principle → rule → case. For example, A gives B a sum
of money in deposit for renting a car (case), the jural relations here are ‘deposit’ and
‘rent’, rent belongs to the institution of law ‘property’ and ‘deposit’ to the institution

<figure><img src="image_12.png" /></figure>

<footnote n="15">¹⁵ As Michael Hardt and Toni Negri rightfully point out in their response to this paper, they discuss the internal critique of the law in *Assembly*, the book they published after *Commonwealth*. See below, footnote no. 25.</footnote>
law). The crux of the problem of this incompleteness is that somewhere between
the 18th Century and now, a change in the functioning of this second-level structure
deeply transformed what happens at the first level. This transformation is such that it
might be that the legal structure of the dominant political regime cannot anymore be
described as the ‘Law of the Philosophers’.

Otherwise said, the emergence of this *dispositif* does not involve one, but two
developments, parallel but deeply intertwined. The better-known one is the story of
the ‘Law of the Philosophers’ or the history of the ‘external critique’ of the law,
which is the story of the endless ‘end of metaphysics’, from Kant to Hegel to Marx
to Nietzsche and so on. The other, no less important one, is the history of the inter-
nal critique of the law, that is the story of the slow but certain disaggregation of the
internal coherence of the technical dimension of the law. Although it appears unin-
telligible, and because it is far less well-known than the first one, I will now briefly
attempt to sketch it in a few paragraphs.

Transformations of the Modern Structure of the Law Through Its
Internal Critique

(Almost) Two Centuries of Internal Critique

What does *not* appear in Negri and Hardt’s analysis, at least in *Commonwealth*,<fnref n="15" /> is
the story of the emergence and deployment of an internal critique of property, which
has developed into an internal critique of the Law generally. In that regard, this con-
firms at least the epistemic centrality of the debate over property in legal thought in
the 19th and early 20th Centuries. The effect of this critique has been to transform
deeply not only the way we think about the Law, but also how we practice it. I will
return to this below.

As we saw, in the minds of the founders, particularly Kant, the process of applying
the legal system in the real world ought to be purely mechanical. To achieve political
autonomy, the will encoded in the legal system (for Kant, in the form of codified leg-
islation) must be applied as such. The process of application itself should be objec-
tive, the agents in charge of it should be akin to workers limited to decoding the Law
inscribed in the applicable texts. The idea here is fairly simple: for each concrete case,
there is a relevant ‘jural relation’, every ‘jural relation’ is governed by an ‘institution
of law’ to which corresponds a unique ‘rational concept’. The inner determinations
of this rational concept are a series of ‘attributes’ which are translated into ‘prin-
ciples’ from which it is possible to deduce the rule applicable to the given case. The
logic is as follows: Case → jural relation → institution of law qua concept → inner
attributes of the concept → principle → rule → case. For example, A gives B a sum
of money in deposit for renting a car (case), the jural relations here are ‘deposit’ and
‘rent’, rent belongs to the institution of law ‘property’ and ‘deposit’ to the institution

<figure><img src="image_11.png" /></figure>

<footnote n="15">¹⁵ As Michael Hardt and Toni Negri rightfully point out in their response to this paper, they discuss the internal critique of the law in *Assembly*, the book they published after *Commonwealth*. See below, footnote no. 25.</footnote>
of ‘contract’. The rational concept for the institution of property is that of ‘real right’ as a universally opposable right. The rational concept for the institution of contract is ‘personal right’ — the merging of the wills of the parties which operates to produce a third will opposable to the parties. From the concept of real right, one can deduce the following ‘inner attributes’: the right is subjective (its holder is a person), the owner has exclusive power upon the thing owned (property is absolute), property rights are perpetual and so forth. The inner attributes to the rational concept of the institution of contract are freedom to contract, obligation to subject oneself to the provisions of the contract, impossibility to change these provisions during the execution of the contract etc. From these principles, a judge will be able to deduce that B shall return the deposit to A once A has returned the car to B. This is mechanical, indeed — all that is required here is to identify the jural relation at stake (a task that requires experience), to read the applicable text and perform the syllogism. This has been called the ‘Jurisprudence of Concepts’ because the outcome is presented as a necessary effect of the syllogistic deduction from the inner determinations of the concepts ruling the relevant institutions of Law which regulate the given jural relation.

Nevertheless, it soon appeared that those agents responsible for applying the Law were not only ‘workers’ but were in a position to exercise a much broader and creative power of interpretation.<fnref n="16" /> Savigny, as usual, offered the clearest critique of mechanical jurisprudence along this line. Moreover, it appeared that simply transforming legal agents into civil servants to neutralize them politically was insufficient, as the constraint of hierarchical power was external and the question at stake was the internal submission of their own will to the will encoded in the applicable texts. Indeed, it was necessary to supplement the external constraints (the fear of sanction from hierarchical power) with internal ones, which would ensure that their modes of reasoning were purely ‘legal’, and not the expression of their subjective will, nor (God forbid!) of their ideological preference. In doing this, a *dispositif* of rationalization of the way they reason and argue was also necessary. Portalis advocated for the reintroduction of a professional common sense to judicial decision making (2007). Savigny, as usual, had a far more sophisticated answer, he sought to invent nothing less than a new knowledge — the knowledge of producing objective interpretation within the technical element of the law, which he called ‘legal methodology’. This new knowledge blossomed everywhere, especially in Germany, which was the epicenter of legal science in the 19th Century. This knowledge is akin to the grammar of ‘how lawyers think’. It produces a whole system of methods and protocols (in which analogy, and not mere syllogism now plays the primary role) meant to frame and contain the otherwise recognized and celebrated freedom of interpretation of the judges, which nonetheless ensures that their decisions are objective — not in a mechanical, but in an organic sense. This is still the ‘Jurisprudence of Concepts’ but a much more sophisticated version than the mere ‘Mechanical Jurisprudence’ favored by Kant.

The birth of internal critique then, can be traced to the beginning of the critique of this view. It is not beyond the bounds of possibility here to attribute this development to the second Jhering (see Von Jhering 1999). This revelation occurred to him whilst performing a private consultation on a property case (Basel City v. Basel County).

<footnote n="16">¹⁶ See 3.2.5.</footnote>
of ‘contract’. The rational concept for the institution of property is that of ‘real right’ as a universally opposable right. The rational concept for the institution of contract is ‘personal right’ — the merging of the wills of the parties which operates to produce a third will opposable to the parties. From the concept of real right, one can deduce the following ‘inner attributes’: the right is subjective (its holder is a person), the owner has exclusive power upon the thing owned (property is absolute), property rights are perpetual and so forth. The inner attributes to the rational concept of the institution of contract are freedom to contract, obligation to subject oneself to the provisions of the contract, impossibility to change these provisions during the execution of the contract etc. From these principles, a judge will be able to deduce that B shall return the deposit to A once A has returned the car to B. This is mechanical, indeed — all that is required here is to identify the jural relation at stake (a task that requires experience), to read the applicable text and perform the syllogism. This has been called the ‘Jurisprudence of Concepts’ because the outcome is presented as a necessary effect of the syllogistic deduction from the inner determinations of the concepts ruling the relevant institutions of Law which regulate the given jural relation.

Nevertheless, it soon appeared that those agents responsible for applying the Law were not only ‘workers’ but were in a position to exercise a much broader and creative power of interpretation.<fnref n="16" /> Savigny, as usual, offered the clearest critique of mechanical jurisprudence along this line. Moreover, it appeared that simply transforming legal agents into civil servants to neutralize them politically was insufficient, as the constraint of hierarchical power was external and the question at stake was the internal submission of their own will to the will encoded in the applicable texts. Indeed, it was necessary to supplement the external constraints (the fear of sanction from hierarchical power) with internal ones, which would ensure that their modes of reasoning were purely ‘legal’, and not the expression of their subjective will, nor (God forbid!) of their ideological preference. In doing this, a dispositif of rationalization of the way they reason and argue was also necessary. Portalis advocated for the reintroduction of a professional common sense to judicial decision making (2007). Savigny, as usual, had a far more sophisticated answer, he sought to invent nothing less than a new knowledge — the knowledge of producing objective interpretation within the technical element of the law, which he called ‘legal methodology’. This new knowledge blossomed everywhere, especially in Germany, which was the epicenter of legal science in the 19th Century. This knowledge is akin to the grammar of ‘how lawyers think’. It produces a whole system of methods and protocols (in which analogy, and not mere syllogism now plays the primary role) meant to frame and contain the otherwise recognized and celebrated freedom of interpretation of the judges, which nonetheless ensures that their decisions are objective — not in a mechanical, but in an organic sense. This is still the ‘Jurisprudence of Concepts’ but a much more sophisticated version than the mere ‘Mechanical Jurisprudence’ favored by Kant.

The birth of internal critique then, can be traced to the beginning of the critique of this view. It is not beyond the bounds of possibility here to attribute this development to the second Jhering (see Von Jhering 1999). This revelation occurred to him whilst performing a private consultation on a property case (Basel City v. Basel County).

<footnote n="16">¹⁶ See 3.2.5.</footnote>
Jhering realized that from the same concept (absolute property), he was able to deduce (through attributes → principles → rules) two contradictory rules, one favoring each of the two opposite parties, and this, with the same perfect logical rigor. This experience horrified him — as it meant that the deductive method was too indeterminate to decide the case. Why? Because contrary to the requirement of the method, external elements could always mediate between competing inner determinations of the concept and the outcome of the decision in any case. He later theorized these external elements as necessary and unavoidable expressions of the ‘interest of the society’, an interest that judges could not and should not ignore. Additionally, he theorized that these external elements were too closely related to the factual context of the concrete case to be susceptible to systematization. This conclusion was dire — there was no conceivable ‘right answer’ to the case deducible from the process of ‘application’ of a concept. A further example will illustrate this. Primus built his house with stones taken from Secundus’s garden. The jural relation is theft, the institution is property, the concept is absolute property, one of its inner attributes is the ‘right to follow’ the thing and the principle is that the remedy ought to be the restitution of the thing to its legitimate owner (restitutio in integrum). But, in the given case, this means that Primus must destroy his house to give the stones back to Secundus. If he had built a garden shed, the judge may very well order him to destroy it. However, had he built a palace, ‘the interest of the society’ may not be that people build, destroy, and rebuild palaces, because of the loss of time and money. Therefore, the judge may very well order Primus to compensate Secundus with money and not give the stones back. On occasion then, the ‘interest of the society’ will mediate the deduction and change its outcome, and other times it will not. It will depend entirely on the context of the case, and there can be no way of knowing in advance. The role that the ‘interest of the society’ will play is contingent then. Jhering’s concludes that the Law cannot be solely about ‘applying concepts’ but must be about balancing the various legitimate interests at stake. That is, it must secure a (precarious) equilibrium between the forces at work. He will call it the ‘Jurisprudence of Interest’ — and Nietzsche will love it.

Decades later, the French jurists of the Belle Epoque, namely Saleilles, Gény and others, who were careful readers of Jhering, would realize that when the judges decide a case using the formal legal system (the Code) as the major premise of their syllogism, they are unable to account for the new interests emerging from recent transformations of society. For example, a consequence of the recent development of industrial capitalism was the emergence of the collective interest of factory workers, and their subsequent claim for the right to unionize and strike. Many jurists of the time argued that it was not possible to simply ‘apply the code’ and began to harshly criticize the ‘abuse of deductions’ in legal reasoning as ‘formalist’. Some concluded these attacks by articulating a need to preserve syllogistic reasoning but advocated for the replacing of the major premise with ‘social laws.’ In this vein, Léon Duguit went as far as to claim that property is not a subjective right, but a way for society (not the State) to recognize that each of its members must hold some prerogatives on certain things, distributed according to the ‘Law of Solidarity’ (a concept borrowed from Durkheim (see Duguit 1999)). These insights deeply transformed the ways in which lawyers thought. They brought forth new modes of reasoning, in particular teleological reasoning, and the proportionate balancing of interests. These new

<figure><img src="image_13.png" /></figure>
Jhering realized that from the same concept (absolute property), he was able to deduce (through attributes → principles → rules) two contradictory rules, one favoring each of the two opposite parties, and this, with the same perfect logical rigor. This experience horrified him — as it meant that the deductive method was too indeterminate to decide the case. Why? Because contrary to the requirement of the method, external elements could always mediate between competing inner determinations of the concept and the outcome of the decision in any case. He later theorized these external elements as necessary and unavoidable expressions of the ‘interest of the society’, an interest that judges could not and should not ignore. Additionally, he theorized that these external elements were too closely related to the factual context of the concrete case to be susceptible to systematization. This conclusion was dire — there was no conceivable ‘right answer’ to the case deducible from the process of ‘application’ of a concept. A further example will illustrate this. Primus built his house with stones taken from Secundus’s garden. The jural relation is theft, the institution is property, the concept is absolute property, one of its inner attributes is the ‘right to follow’ the thing and the principle is that the remedy ought to be the restitution of the thing to its legitimate owner (restitutio in integrum). But, in the given case, this means that Primus must destroy his house to give the stones back to Secundus. If he had built a garden shed, the judge may very well order him to destroy it. However, had he built a palace, ‘the interest of the society’ may not be that people build, destroy, and rebuild palaces, because of the loss of time and money. Therefore, the judge may very well order Primus to compensate Secundus with money and not give the stones back. On occasion then, the ‘interest of the society’ will mediate the deduction and change its outcome, and other times it will not. It will depend entirely on the context of the case, and there can be no way of knowing in advance. The role that the ‘interest of the society’ will play is contingent then. Jhering’s concludes that the Law cannot be solely about ‘applying concepts’ but must be about balancing the various legitimate interests at stake. That is, it must secure a (precarious) equilibrium between the forces at work. He will call it the ‘Jurisprudence of Interest’ — and Nietzsche will love it.

Decades later, the French jurists of the Belle Epoque, namely Saleilles, Gény and others, who were careful readers of Jhering, would realize that when the judges decide a case using the formal legal system (the Code) as the major premise of their syllogism, they are unable to account for the new interests emerging from recent transformations of society. For example, a consequence of the recent development of industrial capitalism was the emergence of the collective interest of factory workers, and their subsequent claim for the right to unionize and strike. Many jurists of the time argued that it was not possible to simply ‘apply the code’ and began to harshly criticize the ‘abuse of deductions’ in legal reasoning as ‘formalist’. Some concluded these attacks by articulating a need to preserve syllogistic reasoning but advocated for the replacing of the major premise with ‘social laws.’ In this vein, Léon Duguit went as far as to claim that property is not a subjective right, but a way for society (not the State) to recognize that each of its members must hold some prerogatives on certain things, distributed according to the ‘Law of Solidarity’ (a concept borrowed from Durkheim (see Duguit 1999)). These insights deeply transformed the ways in which lawyers thought. They brought forth new modes of reasoning, in particular teleological reasoning, and the proportionate balancing of interests. These new

<figure><img src="image_12.png" /></figure>
modes of reasoning soon became ordinary ways to reason and argue, broadening greatly the repertoire of arguments available to legal practitioners. They therefore deeply transformed the ways in which we conceive and make law.

The death of metaphysics is endless — because critique is soon followed by the critique of the critique, and the critique of the critique of the critique. It is the same in the story of the internal critique of the law. Soon after, other jurists would claim that Jhering's conception of the 'interest of the society' or Duguit's conception of the 'Law of Solidarity' were equally as dogmatic and as formalistic as the methods they were criticizing. This is because (respectively) society has never had one unique interest, nor is it governed by one unique 'Law of Solidarity' determinate enough to lead to a single right answer to the given case. These new voices would claim that the determination of the interest of society is the object of harsh political conflicts and that societies contain too many conflicting functions for a theorist to usefully remain a functionalist. Think here of the attacks of the American legal realists on sociological jurisprudence. Further, remember the later critique of the US legal realists, and against those who made these attacks. Here, again, we encounter the usual pattern — critique, critique of critique, etc.

To cut this long story short, in the aftermath of 68, under the influence of French theory, many legal theorists came to the conclusion that the role of legal agents was to balance, with arbitrariness and uncertainty, an impossibly wide set of conflicting considerations — not simply legal rules and principles, but a range of political and ideological stakes, including interests, values, good administration and policy making. In a world so fragmented, contradictory, and elusive, agents could hardly pretend to be inherently more rational or determinate than the features of that world. This was a blow, because if the world promised by the law is no more rational than the real world it pretends to rule, then the use of law to regulate that real world is surely futile. To borrow from Duncan Kennedy, this looks like the historical process of the disenchantment of the legal inner rationality (see Kennedy 2004).

Each of these internal critiques had, of course, to face backslashes, generally in the form of a 'reconstructive project', aimed at rebuilding the inner rationality of the Law, and this fight is still ongoing. Generally, the allure of these projects is always the same, oddly enough, that of a three-steps waltz: first, they acknowledge that the last disturbing critical person who spoke has a strong point but then, refuse the generalizing of her point (she's correct but what she describes is marginal), and finally, they go on to restate a lower (but nonetheless satisfactory) standard of inner legal rationality. Thus, the history of modern legal thought looks like this:

*Starting Point:* Law is objective because legal reasoning is mechanical, pure deduction.

*Critique:* Of course not, judges are creative.

*Reconstructing Project:* Certainly, but nonetheless, they are framed by legal methods.
modes of reasoning soon became ordinary ways to reason and argue, broadening greatly the repertoire of arguments available to legal practitioners. They therefore deeply transformed the ways in which we conceive and make law.

The death of metaphysics is endless — because critique is soon followed by the critique of the critique, and the critique of the critique of the critique. It is the same in the story of the internal critique of the law. Soon after, other jurists would claim that Jhering's conception of the 'interest of the society' or Duguit's conception of the 'Law of Solidarity' were equally as dogmatic and as formalistic as the methods they were criticizing. This is because (respectively) society has never had one unique interest, nor is it governed by one unique 'Law of Solidarity' determinate enough to lead to a single right answer to the given case. These new voices would claim that the determination of the interest of society is the object of harsh political conflicts and that societies contain too many conflicting functions for a theorist to usefully remain a functionalist. Think here of the attacks of the American legal realists on sociological jurisprudence. Further, remember the later critique of the US legal realists, and against those who made these attacks. Here, again, we encounter the usual pattern — critique, critique of critique, etc.

To cut this long story short, in the aftermath of 68, under the influence of French theory, many legal theorists came to the conclusion that the role of legal agents was to balance, with arbitrariness and uncertainty, an impossibly wide set of conflicting considerations — not simply legal rules and principles, but a range of political and ideological stakes, including interests, values, good administration and policy making. In a world so fragmented, contradictory, and elusive, agents could hardly pretend to be inherently more rational or determinate than the features of that world. This was a blow, because if the world promised by the law is no more rational than the real world it pretends to rule, then the use of law to regulate that real world is surely futile. To borrow from Duncan Kennedy, this looks like the historical process of the disenchantment of the legal inner rationality (see Kennedy 2004).

Each of these internal critiques had, of course, to face backslashes, generally in the form of a 'reconstructive project', aimed at rebuilding the inner rationality of the Law, and this fight is still ongoing. Generally, the allure of these projects is always the same, oddly enough, that of a three-steps waltz: first, they acknowledge that the last disturbing critical person who spoke has a strong point but then, refuse the generalizing of her point (she's correct but what she describes is marginal), and finally, they go on to restate a lower (but nonetheless satisfactory) standard of inner legal rationality. Thus, the history of modern legal thought looks like this:

*Starting Point:* Law is objective because legal reasoning is mechanical, pure deduction.

*Critique:* Of course not, judges are creative.

*Reconstructing Project:* Certainly, but nonetheless, they are framed by legal methods.
*Critique:* That’s not the point, deducing from concepts is not objective, the interest of the society always mediates between the major premise and the conclusion of the syllogism.

*Reconstructing Project:* Yes, but then you can deduce the right answer from social laws (for example the “Law of Solidarity”).

*Critique:* the interest of the society cannot be deduced from any ‘laws’, it’s a disputed matter.

*Reconstructing Project:* maybe, but then you can balance the interests at stake to reach the right answer.

*Critique:* Sure, but the balancing of interests is discretionary, not objective, and also, there is much more that “interests” at stake.

*Reconstructing Project:* True, but there are objective methods with which to balance proportionally, not only interests but any kind of considerations.

*Critique:* these so-called objective methods are full of gaps and indeterminacies, and some of these considerations are inherently politicizing the process of balancing them.

In any case, at this point, the law does not claim any longer to be rational, but at best it to be reasonable, and it seems that that is sufficient, even for the promoters of fancy reconstructive projects — a slow but inevitable process of disintegration of the inner rationality of the law. This process not only happened in theory, but of course also in practice, because at every step, the task of deconstructing arguments produces novel arguments, which become available to practitioners, who may employ them to a case at hand if it is in their interest.

The European critical schools and movements, Critical Legal Studies, Critical Race Theory, Feminist and Queer Jurisprudence in the US, have all played key roles in this work of deconstruction. It is to their credit that it is now difficult to approach the practice of law as though it was simply about politically neutralized agents applying a system of legal concepts.<fnref n="17" /> A symptom of this difficulty then, is the success of approaches that are completely indifferent to the internal rationality of the law — for example the economic analysis of the Law.

What are we left with then, after two centuries of furious internal critique of the Law? Of course, legal theorists cannot agree when it comes to providing a conception of the Law or a description of how it really works. Some hold fast to the ‘project of the Radicalized Enlightenment for the Law’ — they still imagine the Law, and their own practice, as a modernizing project the point of which is to make, maintain, and develop a system of general principles and rules coherent and determinate enough to be ‘applied’ by a neutral apparatus. The price they pay is to be in denial of the objec-

<figure><img src="image_14.png" /></figure>

<footnote n="17">¹⁷ Although deduction is still present as one of many available tools.</footnote>