*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-

<footnote n="17">¹⁷ Although deduction is still present as one of many available tools.</footnote>
tions made by the whole tradition of internal critique — and yet, those jurists are still modern.<fnref n="18" /> Those jurists are ‘positivists’ in a very particular sense: they believe that for most cases (enough cases to claim that the system as a whole is offering a surplus of rationality to the real world it pretends to regulate) it is possible to deduce the ‘right answer’ from the application of the system.

Other jurists took lessons from the long story of internal critique — they realized that the Law may not be that coherent, nor that determinate. For them, the law is not merely a “technical element”. Indeed, that technical element itself may not be all that technical, because legal technicalities are replete with political and ideological considerations, subjective inclinations, and arbitrariness at every level. Some of them (the promoters of reconstructive projects) acknowledge deconstruction but nonethe- less attempt to rescue the idea that to each case, there is a ‘right answer’, or a limited set of acceptable answers. They could not deny, however, that this mess suggests that the Law is much more pervasive, malleable, and open to various and contradictory enterprises than it appeared to the radicalized enlighteners. They must accept then, that the law could be open to transformative and emancipatory projects, even revo- lutionary ones.

What I wish to emphasize here is that, paradoxically, critical theorists often share with the modernist jurists (conservative or progressive) similar conceptions of the Law. They often believe that the law is deploying a ‘legalistic vision of the world’, embodied in a system of concepts, which are realized as such in real life through a neutral apparatus – ‘The Law of the Philosophers’, or the ‘Jurisprudence of Con- cepts’ at its finest. Indeed, they seem to think that the law is coherent and rational enough for its origins to determine its consequences. Thus, if the origins of the law are indeed, the ‘Idea of Humanity’, then the legal system will properly express the Rights of the Man and the Citizen, and their realization will effectively carry the promise of equal freedom and dignity for all human beings. Or, in a more critical vein, if the origins of law lie in the bourgeois ‘legalistic vision of the world’, because the legal system is a tool for class domination (the Republic of Property), then the consequences of its application will necessarily be the exploitation and alienation of those who have no capital. There is, of course, a significant difference between the orthodox and the critical view, but in both cases, the origins of law objectively deter- mine its consequences — and the legal system is indeed politically ‘neutral’ in the sense that it works fine to deliver the expected outcome, whatever the initial political input is. They are, therefore, both modern.

To put this differently, after two centuries of internal critique, the Law (in both theory and practice) has not been saved from the twilight of modernity. The struc- ture of modern Law imagined by the ‘project of the Enlightenment for the Law’ and enacted by the great bourgeois revolutions has indeed collapsed (or, better said, dis- integrated). The project itself might, at least ideologically, have succeeded — ideals of political autonomy have largely triumphed in the hearts and minds of the citizenry. It has been the victim of its own success though, as the core elements of its structure have been radically transformed. As a result, there is no suitable (rational or coherent)

<footnote n="18">¹⁸ Bruno Latour has wondered if we have ever been modern (see Latour, *1991*), my answer would be that if any of us succeeded, they were certainly jurists....</footnote>
tions made by the whole tradition of internal critique — and yet, those jurists are still modern.<fnref n="18" /> Those jurists are ‘positivists’ in a very particular sense: they believe that for most cases (enough cases to claim that the system as a whole is offering a surplus of rationality to the real world it pretends to regulate) it is possible to deduce the ‘right answer’ from the application of the system.

Other jurists took lessons from the long story of internal critique — they realized that the Law may not be that coherent, nor that determinate. For them, the law is not merely a “technical element”. Indeed, that technical element itself may not be all that technical, because legal technicalities are replete with political and ideological considerations, subjective inclinations, and arbitrariness at every level. Some of them (the promoters of reconstructive projects) acknowledge deconstruction but nonethe- less attempt to rescue the idea that to each case, there is a ‘right answer’, or a limited set of acceptable answers. They could not deny, however, that this mess suggests that the Law is much more pervasive, malleable, and open to various and contradictory enterprises than it appeared to the radicalized enlighteners. They must accept then, that the law could be open to transformative and emancipatory projects, even revo- lutionary ones.

What I wish to emphasize here is that, paradoxically, critical theorists often share with the modernist jurists (conservative or progressive) similar conceptions of the Law. They often believe that the law is deploying a ‘legalistic vision of the world’, embodied in a system of concepts, which are realized as such in real life through a neutral apparatus – ‘The Law of the Philosophers’, or the ‘Jurisprudence of Con- cepts’ at its finest. Indeed, they seem to think that the law is coherent and rational enough for its origins to determine its consequences. Thus, if the origins of the law are indeed, the ‘Idea of Humanity’, then the legal system will properly express the Rights of the Man and the Citizen, and their realization will effectively carry the promise of equal freedom and dignity for all human beings. Or, in a more critical vein, if the origins of law lie in the bourgeois ‘legalistic vision of the world’, because the legal system is a tool for class domination (the Republic of Property), then the consequences of its application will necessarily be the exploitation and alienation of those who have no capital. There is, of course, a significant difference between the orthodox and the critical view, but in both cases, the origins of law objectively deter- mine its consequences — and the legal system is indeed politically ‘neutral’ in the sense that it works fine to deliver the expected outcome, whatever the initial political input is. They are, therefore, both modern.

To put this differently, after two centuries of internal critique, the Law (in both theory and practice) has not been saved from the twilight of modernity. The struc- ture of modern Law imagined by the ‘project of the Enlightenment for the Law’ and enacted by the great bourgeois revolutions has indeed collapsed (or, better said, dis- integrated). The project itself might, at least ideologically, have succeeded — ideals of political autonomy have largely triumphed in the hearts and minds of the citizenry. It has been the victim of its own success though, as the core elements of its structure have been radically transformed. As a result, there is no suitable (rational or coherent)

<footnote n="18">¹⁸ Bruno Latour has wondered if we have ever been modern (see Latour, *1991*), my answer would be that if any of us succeeded, they were certainly jurists....</footnote>
legal system that can realize the triumphant ideals of political autonomy and it can be
no surprise that these ideals do not realize themselves in the real world. At the end of
the day, our political condition is schizophrenic — the ideal of ourselves as polities
is democratic, but our institutions are not. But what are they? What does the law look
like after its many inner transformations? The question remains open and the answers
multitudinous. Of one thing we can be certain: it is not what it was at the dawn of
modernity, because the various dispositifs of rationalization at work in the structure
of modern law have been radically transformed. These transformations can only be
conceived of as inventing new knowledges for the understanding of Law. The divi-
sion of labor, as beautifully elaborated by Kant in the *Doctrine of Right* (1991, p. 55)
under the misleading trichotomy *ius naturae, juriscientia, jurisprudentia*, expressed
here as the division between philosophy, the science of legislation, and legal science
has become obsolete. Why? Because it does not offer a coherent account of how
the legal system encodes principles in laws nor of how legal practice on the ground
articulates, or fails to articulate, those principles. The external critique can only be
incomplete if not carefully addressed to the internal one, because the latter deeply
weakens the causal link between the origins of the legal system and the consequences
of its application, by presenting the whole legal machinery as much more pervasive,
malleable, and open than that. The political principles at the source of the law cannot
therefore predict the outcome found in practice. This does not mean that sometimes
bad origins do not really lead to bad consequences. Rather, it means that in any case,
many things happen between origins and consequences, which are deserving of care-
ful consideration. My conclusion then, is a call for better articulations of the internal
and external critique in CT — a call for the development of new critical knowledges
of the law, made of their encounters, articulations, and the juxtapositions of their
respective divergent inclinations. Philosophy, alone, even *hors les murs*, cannot do
that.

The Law After Modernity

Let us return then to the Law after its deep transformation through internal critique
(among many others factors of transformation). Here, I will borrow from semiot-
ics, and more precisely its post-structuralist fashion, as popularized by Critical
Legal Studies and their aftermath (Kennedy 2008). Law here, cannot be accurately
described as the operation of realizing a system of concepts or principles flowing
from an external political element.<fnref n="19" /> Let us set aside also the fixation on the provision
of a definition of what law is, and rather propose a suitable account of how it works.
We can start then by noting that it has the appearance of a practice, and a specifi-
cally discursive practice at that. This is a discursive practice of a particular kind, in
essence, speech acts here are enunciated in a particular *langue* and vested with vari-
ous levels of authority when they are enunciated in particular situations by particular
specialists. Seen in this way, Law is not merely a system of legal forms (concepts),

<footnote n="19">¹⁹ That said, systems, external concepts or principles, and the work of ‘application’ can indeed be found
‘within’ the Law.</footnote>
legal system that can realize the triumphant ideals of political autonomy and it can be
no surprise that these ideals do not realize themselves in the real world. At the end of
the day, our political condition is schizophrenic — the ideal of ourselves as polities
is democratic, but our institutions are not. But what are they? What does the law look
like after its many inner transformations? The question remains open and the answers
multitudinous. Of one thing we can be certain: it is not what it was at the dawn of
modernity, because the various dispositifs of rationalization at work in the structure
of modern law have been radically transformed. These transformations can only be
conceived of as inventing new knowledges for the understanding of Law. The divi-
sion of labor, as beautifully elaborated by Kant in the *Doctrine of Right* (1991, p. 55)
under the misleading trichotomy *ius naturae, juriscientia, jurisprudentia*, expressed
here as the division between philosophy, the science of legislation, and legal science
has become obsolete. Why? Because it does not offer a coherent account of how
the legal system encodes principles in laws nor of how legal practice on the ground
articulates, or fails to articulate, those principles. The external critique can only be
incomplete if not carefully addressed to the internal one, because the latter deeply
weakens the causal link between the origins of the legal system and the consequences
of its application, by presenting the whole legal machinery as much more pervasive,
malleable, and open than that. The political principles at the source of the law cannot
therefore predict the outcome found in practice. This does not mean that sometimes
bad origins do not really lead to bad consequences. Rather, it means that in any case,
many things happen between origins and consequences, which are deserving of care-
ful consideration. My conclusion then, is a call for better articulations of the internal
and external critique in CT — a call for the development of new critical knowledges
of the law, made of their encounters, articulations, and the juxtapositions of their
respective divergent inclinations. Philosophy, alone, even *hors les murs*, cannot do
that.

The Law After Modernity

Let us return then to the Law after its deep transformation through internal critique
(among many others factors of transformation). Here, I will borrow from semiot-
ics, and more precisely its post-structuralist fashion, as popularized by Critical
Legal Studies and their aftermath (Kennedy 2008). Law here, cannot be accurately
described as the operation of realizing a system of concepts or principles flowing
from an external political element.<fnref n="19" /> Let us set aside also the fixation on the provision
of a definition of what law is, and rather propose a suitable account of how it works.
We can start then by noting that it has the appearance of a practice, and a specifi-
cally discursive practice at that. This is a discursive practice of a particular kind, in
essence, speech acts here are enunciated in a particular *langue* and vested with vari-
ous levels of authority when they are enunciated in particular situations by particular
specialists. Seen in this way, Law is not merely a system of legal forms (concepts),

<figure><img src="image_13.png" /></figure>

<footnote n="19">¹⁹ That said, systems, external concepts or principles, and the work of ‘application’ can indeed be found
‘within’ the Law.</footnote>
but rather something akin to an ocean of *paroles*, enunciated in a specific *langue*, which permeates every possible aspect of human life.

Following this line of reasoning, it is possible to observe that, as in every lan-
guage, the two iron laws which govern the production of legal discourses are: (1)
That everything can be said from within the *langue* and (2) That nothing can be said
outside of it. From this perspective, the Law appears as a self-referential system,
functionally closed but cognitively open, with the ability to learn, evolve, and pro-
duce the knowledge of its own evolution (autopoiesis) — something akin to a natural
language.

However, the analogy with natural languages will only take us so far. Law is not a natural language *à la* Saussure, rather it is closer to a “technical language” or a “secondary language”, something akin to poetry according to Jakobson<fnref n="20" />, or further, something like fashion *à la* Barthes (1967): a semiotic system.<fnref n="21" /> It is, therefore, a ‘code within a code’. The result here is that even if you are not a Derridean, you must acknowledge that the structure of the law cannot be accurately captured by the Saussurian conception of the structure of natural languages. Indeed, for Saussure, this structure is static and rigid — *paroles* cannot in any way transform the *langue* (see De Saussure 1959). In the legal language, however, this structure is in a state of constant motion. A common metaphor is illustrative of this: contrary to popular opinion, law is *not* at all like a chess game, because unlike chess games, players are able, under certain circumstances, to change the rules of the game whilst playing — law then, is akin to *play*, rather than *game*.

A myriad of consequences flow from this. Firstly, if the law appears as a certain type of discourse, spoken in a *langue* in which an infinity of *paroles* can be spoken — then, one must admit that the *langue* of the law may not only express sanctions and interdictions, but may also allocate powers, faculties, freedoms, and immunities. It is the same legal language then that both punishes and authorizes, that both encloses and liberates, that both empowers and disempowers, and that allocates and deprives prerogatives, wealth, bargaining power, reputation, and so much more. It does this at all times, and all at the same time.

In the early 20th Century, Westley Newcomb Hohfeld (see 2001), produced a con-
cise but powerful summary of the grammar of this language. He identified the types
of legal prerogatives distributed by the Law and established their relations of oppo-
sition and correlation. He listed the following: rights, duties, privileges, non-rights,
powers, liabilities, immunities and disabilities. This list is obviously open to contest-
tation, but key here is that the law does much more than just forbid and sanction. The
view according to which the Law is mainly a concealer (ideology) and an apparatus
of repression (violence) is surely too narrow to grasp all of these things that the law
does.

Secondly, using that grammar, American legal realists were able to distinguish
between rules which are directly applicable to a given situation, which they called

<footnote n="20">²⁰ “No doubt, for any speech community, for any speaker, there exists a unity of language, but this over-
all code represents a system of interconnected subcodes: every language encompasses several concurrent
patterns, each characterized by different functions” (See Jakobson 2012, p. 352).</footnote>

<footnote n="21">²¹ On reading Barthes’s *The Fashion System* as a Law book, see Xifaras (2019).</footnote>
but rather something akin to an ocean of *paroles*, enunciated in a specific *langue*, which permeates every possible aspect of human life.

Following this line of reasoning, it is possible to observe that, as in every lan-
guage, the two iron laws which govern the production of legal discourses are: (1)
That everything can be said from within the *langue* and (2) That nothing can be said
outside of it. From this perspective, the Law appears as a self-referential system,
functionally closed but cognitively open, with the ability to learn, evolve, and pro-
duce the knowledge of its own evolution (autopoiesis) — something akin to a natural
language.

However, the analogy with natural languages will only take us so far. Law is not a natural language *à la* Saussure, rather it is closer to a “technical language” or a “secondary language”, something akin to poetry according to Jakobson<fnref n="20" />, or further, something like fashion *à la* Barthes (1967): a semiotic system.<fnref n="21" /> It is, therefore, a ‘code within a code’. The result here is that even if you are not a Derridean, you must acknowledge that the structure of the law cannot be accurately captured by the Saussurian conception of the structure of natural languages. Indeed, for Saussure, this structure is static and rigid — *paroles* cannot in any way transform the *langue* (see De Saussure 1959). In the legal language, however, this structure is in a state of constant motion. A common metaphor is illustrative of this: contrary to popular opinion, law is *not* at all like a chess game, because unlike chess games, players are able, under certain circumstances, to change the rules of the game whilst playing — law then, is akin to *play*, rather than *game*.

A myriad of consequences flow from this. Firstly, if the law appears as a certain type of discourse, spoken in a *langue* in which an infinity of *paroles* can be spoken — then, one must admit that the *langue* of the law may not only express sanctions and interdictions, but may also allocate powers, faculties, freedoms, and immunities. It is the same legal language then that both punishes and authorizes, that both encloses and liberates, that both empowers and disempowers, and that allocates and deprives prerogatives, wealth, bargaining power, reputation, and so much more. It does this at all times, and all at the same time.

In the early 20th Century, Westley Newcomb Hohfeld (see 2001), produced a con-
cise but powerful summary of the grammar of this language. He identified the types
of legal prerogatives distributed by the Law and established their relations of oppo-
sition and correlation. He listed the following: rights, duties, privileges, non-rights,
powers, liabilities, immunities and disabilities. This list is obviously open to contest-
tation, but key here is that the law does much more than just forbid and sanction. The
view according to which the Law is mainly a concealer (ideology) and an apparatus
of repression (violence) is surely too narrow to grasp all of these things that the law
does.

Secondly, using that grammar, American legal realists were able to distinguish
between rules which are directly applicable to a given situation, which they called

<footnote n="20">²⁰ “No doubt, for any speech community, for any speaker, there exists a unity of language, but this over-all code represents a system of interconnected subcodes: every language encompasses several concurrent patterns, each characterized by different functions” (See Jakobson 2012, p. 352).</footnote>

<footnote n="21">²¹ On reading Barthes’s *The Fashion System* as a Law book, see Xifaras (2019).</footnote>
‘foreground rules’, and rules indirectly related to the situation, which nonetheless play an important role in structuring it whilst remaining ‘invisible’. They call these ‘background rules’. For example, under our latitudes, where workers negotiate pay increases, the foreground rules are generally to be found in the collective agreement regulating the workplace. However, whether the employer is entitled or not by the legal system to easily outsource the factory will play a crucial role in this negotiation. This entitlement may flow from another legal regime, not directly applicable to the case, or even from the absence of any specific rule forbidding it, in which case the entitlement would be ‘invisible’. The most important background rules are generally not those which forbid and sanction, but rather those which permit and authorize — and those rules are very often ‘invisible’ because they are implicit. To borrow from Kelsen, the absence of a rule forbidding a practice amounts to the permittance of that practice. In other words, the legal regime which structures any given situation is the entirety of the legal system (including those background rules) and not just the directly applicable rules. Further, the legal system encapsulates all of the rules distributing legal prerogatives to actors, both explicitly and implicitly. That is why it is often difficult to know and predict what the distributive effects of the background rules will be. Not only is the entire system too complex and too messy and not only do given situations bring in too many elements — but additionally, the margin of appreciation in decision making afforded to actors is often given such importance that to even imagine the strict ‘determination’ of a case becomes impossible. By this lack of strict determination, I mean both the unknowability of the causal relation and the absence of a single identifiable ‘right answer’. It also means that, where judges or legislators create new rules, they are completely unable to predict the consequences — a fact which has given birth to a new ‘legal knowledge’, under the name of the ‘impact study’. It goes without saying, of course, that this new knowledge did not restore the lost objectivity of predictions.

Thirdly, this distinction between foreground and background rules affects how we might conceive of an alternative legal regime for the regulation of a given situation. For example, to empower our negotiating workers, it may be useful to forbid outsourcing. Where a given legal regime crystallizes a certain relation of force, alternatives to this crystallized relation of can be provided by the changing of background rules. In some situations, the adoption of a new background rule will have transformative revolutionary potential for the concrete situation at hand.<fnref n="22" /> What this means then, is that conceptual space is required to allow for the conceiving of such ‘revolutionary changes from within the system’. That is why it is crucial to be able to identify where and by whom the background rules are produced in the system. Many Critical Theorists would locate it only at the level of the legal system (Constitution and / or codified legislation); but of course, a whole lot of crucial background rules are also produced in the obscurity of the technical operations of the law, by judges are other practitioners. This makes the struggle to transform the background rules more diffuse.

<figure><img src="image_15.png" /></figure>

<footnote n="22">²² Imagine, for example, what it would concretely mean to adopt the background rule ‘all incomes superior to X are taxed 100%’ or ‘no difference of income can be superior to Y’.</footnote>
‘foreground rules’, and rules indirectly related to the situation, which nonetheless play an important role in structuring it whilst remaining ‘invisible’. They call these ‘background rules’. For example, under our latitudes, where workers negotiate pay increases, the foreground rules are generally to be found in the collective agreement regulating the workplace. However, whether the employer is entitled or not by the legal system to easily outsource the factory will play a crucial role in this negotiation. This entitlement may flow from another legal regime, not directly applicable to the case, or even from the absence of any specific rule forbidding it, in which case the entitlement would be ‘invisible’. The most important background rules are generally not those which forbid and sanction, but rather those which permit and authorize — and those rules are very often ‘invisible’ because they are implicit. To borrow from Kelsen, the absence of a rule forbidding a practice amounts to the permittance of that practice. In other words, the legal regime which structures any given situation is the entirety of the legal system (including those background rules) and not just the directly applicable rules. Further, the legal system encapsulates all of the rules distributing legal prerogatives to actors, both explicitly and implicitly. That is why it is often difficult to know and predict what the distributive effects of the background rules will be. Not only is the entire system too complex and too messy and not only do given situations bring in too many elements — but additionally, the margin of appreciation in decision making afforded to actors is often given such importance that to even imagine the strict ‘determination’ of a case becomes impossible. By this lack of strict determination, I mean both the unknowability of the causal relation and the absence of a single identifiable ‘right answer’. It also means that, where judges or legislators create new rules, they are completely unable to predict the consequences — a fact which has given birth to a new ‘legal knowledge’, under the name of the ‘impact study’. It goes without saying, of course, that this new knowledge did not restore the lost objectivity of predictions.

Thirdly, this distinction between foreground and background rules affects how we might conceive of an alternative legal regime for the regulation of a given situation. For example, to empower our negotiating workers, it may be useful to forbid outsourcing. Where a given legal regime crystallizes a certain relation of force, alternatives to this crystallized relation of can be provided by the changing of background rules. In some situations, the adoption of a new background rule will have transformative revolutionary potential for the concrete situation at hand.<fnref n="22" /> What this means then, is that conceptual space is required to allow for the conceiving of such ‘revolutionary changes from within the system’. That is why it is crucial to be able to identify where and by whom the background rules are produced in the system. Many Critical Theorists would locate it only at the level of the legal system (Constitution and / or codified legislation); but of course, a whole lot of crucial background rules are also produced in the obscurity of the technical operations of the law, by judges are other practitioners. This makes the struggle to transform the background rules more diffuse.

<footnote n="22">²² Imagine, for example, what it would concretely mean to adopt the background rule ‘all incomes superior to X are taxed 100%’ or ‘no difference of income can be superior to Y’.</footnote>
Fourthly, what is true of the rules themselves is also true of the arguments avail-
able for the reasoning of decision-making agents. As we have seen, decisions are
made using rules and principles, but also with reference to whole range of hetero-
geneous ‘conflicting considerations’ (values, interests, policies, standards of good
administration and so on). What is structuring the situation then, is not only a system
of formal rules and legal institutions, but the legal system in its entirety, understood
as the entire repertoire of argumentative tools used to justify the decision, that is the
entire *langue* of the law.

Fifthly, in a natural language, if I describe the weather as beautiful, then I can also describe the weather as not beautiful, provided that the grammar of the language allows for negating. In a similar way, the legal language is made up of couplets of arguments and their possible counterarguments. If it is possible to argue that property is absolute then, it must also be possible to argue that property is not absolute. Similarly, if it is possible to argue that there is no liability without fault, it must also be possible to argue that there is liability even without fault and so on. This is why everything (and its correlate, and its opposite too) can be said in the *langue* of the Law. Put differently, the *langue* of the law conditions *how* to say things, not the content of *what* can be said.

In this way, in any given situation, the legal system, understood as the repertoire of actually available arguments, will often, rather than produce a determinate solution, instead simply condition the contradictory ways of reasoning by which a conclusion might be reached. If it can be said that law structures human activities and social relations, this is not because given legal forms are ‘subsuming’ these activities and relations, rather it is because the repertoire of available arguments in any given situation shape the strategy of actors interacting ‘in the shadow of the Law’. Law is indeed everywhere and indeed structures everything, but at the level of conditioning and orientation, and not at the level of being the necessary cause of every decision. That is the lesson of Foucault’s micro-politics of power relations — that the micro-politics of power relations and disciplinary regimes are nothing else than law in action (see Kennedy 1991).

There are many other consequences (we will encounter a sixth one below).

What we can conclude from this then, is that the law cannot just be understood simply as a ‘concealer’ and a ‘bad guy’, nor can legal practices be its blind spot. Rather, legal practices should be considered as at least its playground, or perhaps its battlefield — the locus in which possible alternatives to domination and exploitation can be given voice. From the point of view of the ‘role of the Law in CT’ then, this changes everything.
Fourthly, what is true of the rules themselves is also true of the arguments avail-
able for the reasoning of decision-making agents. As we have seen, decisions are
made using rules and principles, but also with reference to whole range of hetero-
geneous ‘conflicting considerations’ (values, interests, policies, standards of good
administration and so on). What is structuring the situation then, is not only a system
of formal rules and legal institutions, but the legal system in its entirety, understood
as the entire repertoire of argumentative tools used to justify the decision, that is the
entire *langue* of the law.

Fifthly, in a natural language, if I describe the weather as beautiful, then I can also describe the weather as not beautiful, provided that the grammar of the language allows for negating. In a similar way, the legal language is made up of couplets of arguments and their possible counterarguments. If it is possible to argue that property is absolute then, it must also be possible to argue that property is not absolute. Similarly, if it is possible to argue that there is no liability without fault, it must also be possible to argue that there is liability even without fault and so on. This is why everything (and its correlate, and its opposite too) can be said in the *langue* of the Law. Put differently, the *langue* of the law conditions *how* to say things, not the content of *what* can be said.

In this way, in any given situation, the legal system, understood as the repertoire of
actually available arguments, will often, rather than produce a determinate solution,
instead simply condition the contradictory ways of reasoning by which a conclusion
might be reached. If it can be said that law structures human activities and social
relations, this is not because given legal forms are ‘subsuming’ these activities and
relations, rather it is because the repertoire of available arguments in any given situa-
tion shape the strategy of actors interacting ‘in the shadow of the Law’. Law is indeed
everywhere and indeed structures everything, but at the level of conditioning and
orientation, and not at the level of being the necessary cause of every decision. That
is the lesson of Foucault’s micro-politics of power relations — that the micro-politics
of power relations and disciplinary regimes are nothing else than law in action (see
Kennedy 1991).

There are many other consequences (we will encounter a sixth one below).

What we can conclude from this then, is that the law cannot just be understood
simply as a ‘concealer’ and a ‘bad guy’, nor can legal practices be its blind spot.
Rather, legal practices should be considered as at least its playground, or perhaps its
battlefield — the locus in which possible alternatives to domination and exploitation
can be given voice. From the point of view of the ‘role of the Law in CT’ then, this
changes everything.
## An Example: The Invention of the Copyleft

An example will illustrate these developments. I am particularly fond of this example, because it seems to me to say a great deal, both about the malleability of legal technique and the possibility of building serious political alternatives from within the legal system.<fnref n="23" />

In recent decades, we have seen a massive extension in the field of Intellectual Property, be that copyrights, patents, or trademarks — which has resulted in the private appropriation of a great number of intellectual modes of production and the subsumption of these processes to the logic of enclosure, control, and capital accumulation. A key moment in this sad tale has been the fate of the internet, which has been characterized by the subjection of its incredible potential to the power of a few large firms. A key feature which has turned this story into a sad one, has been the extension of the copyright regime to software. When those firms were just start-ups on their way to establishing hegemony, some communities of computer programmers felt that the *raison d'être* of their jobs was at risk. They understood programming as a free and collective enterprise, based on the sharing of each one's work and animated by the spirit of hacking. They felt that it was necessary to resist this logic and felt compelled to invent something with which to protect themselves. Robert Stallman is perhaps the most famous example here. He, and the lawyers with whom he was associated, pioneered the invention of the free software or copyleft, which then diffused under different labels (open source, creative commons etc.) and spread from software development to the sphere of artistic creation and scientific research.

The idea here is simple: according to copyright law, every author of an original piece of software owns it. Of course, with programming chiefly being about improving each other's work, originality and authorship might not be appropriate concepts here. Hence, by law, each 'author' of a new program (e.g. a modification of existing programs which is significant enough to count as an original creation) enjoys a copyright on this program — she owns it.

The copyleft adopts the same logic. It is often thought that the copyleft is the inverse of the copyright, yet this has never been the case. Rather, in technical terms, the copyleft is simply a good old-fashioned copyright. Thus, by law, the owner of a software is entitled to determine what to do with it — amongst many possibilities, she can license it, meaning that she can require that every third-party user agrees to a unilateral contract to access the software. That's what almost all owners of copyright on software do. However, herein lies the shift: this license is called 'free' where it respects four liberties: to run, to use, to study, and to modify the software. In this way, every person that clicks "I agree" will be free to access the software, to use it,<fnref n="24" /> to study its code and to transform it freely — meaning that she will be free to create derivative software. However, this license also forbids the licensing of new derivative software under a non-free license. Thus, the author of the derivative software (and the derivative of the derivative, and so on) will own it, but that ownership will be subject to the copyright of the original owner of the software used to derive the

<figure><img src="image_16.png" /></figure>

<footnote n="23">²³ For a more in-depth treatment, see my article on this (Xifaras 2010).</footnote>

<footnote n="24">²⁴ Including commercial uses — the license is free akin to free speech, not free beer.</footnote>
## An Example: The Invention of the Copyleft

An example will illustrate these developments. I am particularly fond of this example, because it seems to me to say a great deal, both about the malleability of legal technique and the possibility of building serious political alternatives from within the legal system.<fnref n="23" />

In recent decades, we have seen a massive extension in the field of Intellectual Property, be that copyrights, patents, or trademarks — which has resulted in the private appropriation of a great number of intellectual modes of production and the subsumption of these processes to the logic of enclosure, control, and capital accumulation. A key moment in this sad tale has been the fate of the internet, which has been characterized by the subjection of its incredible potential to the power of a few large firms. A key feature which has turned this story into a sad one, has been the extension of the copyright regime to software. When those firms were just start-ups on their way to establishing hegemony, some communities of computer programmers felt that the *raison d'être* of their jobs was at risk. They understood programming as a free and collective enterprise, based on the sharing of each one's work and animated by the spirit of hacking. They felt that it was necessary to resist this logic and felt compelled to invent something with which to protect themselves. Robert Stallman is perhaps the most famous example here. He, and the lawyers with whom he was associated, pioneered the invention of the free software or copyleft, which then diffused under different labels (open source, creative commons etc.) and spread from software development to the sphere of artistic creation and scientific research.

The idea here is simple: according to copyright law, every author of an original piece of software owns it. Of course, with programming chiefly being about improving each other's work, originality and authorship might not be appropriate concepts here. Hence, by law, each 'author' of a new program (e.g. a modification of existing programs which is significant enough to count as an original creation) enjoys a copyright on this program — she owns it.

The copyleft adopts the same logic. It is often thought that the copyleft is the inverse of the copyright, yet this has never been the case. Rather, in technical terms, the copyleft is simply a good old-fashioned copyright. Thus, by law, the owner of a software is entitled to determine what to do with it — amongst many possibilities, she can license it, meaning that she can require that every third-party user agrees to a unilateral contract to access the software. That's what almost all owners of copyright on software do. However, herein lies the shift: this license is called 'free' where it respects four liberties: to run, to use, to study, and to modify the software. In this way, every person that clicks "I agree" will be free to access the software, to use it,<fnref n="24" /> to study its code and to transform it freely — meaning that she will be free to create derivative software. However, this license also forbids the licensing of new derivative software under a non-free license. Thus, the author of the derivative software (and the derivative of the derivative, and so on) will own it, but that ownership will be subject to the copyright of the original owner of the software used to derive the

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

<footnote n="23">²³ For a more in-depth treatment, see my article on this (Xifaras 2010).</footnote>

<footnote n="24">²⁴ Including commercial uses — the license is free akin to free speech, not free beer.</footnote>
product. Therefore, derivative creators will have the right to do whatever they wish with their creations, *except* to prevent third parties from running, using, studying, and modifying them. Their natural right of property in their creations is therefore limited by the conditions under which they could access the necessary material to make that creation. This mechanism then goes viral — the only prohibition being the licensing of new products under anything other than a free license, it creates an infinite chain of new, free, derivative software. This ‘four freedoms and one prohibition’ structure establishes a free community of programmers where every work is accessible to the whole and protects the community against dispossession, by ‘excluding the exclusion’ on each member’s copyright. The result then, is the proliferation of communities of programmers collaborating in the creation of common goods, that offer a concrete alternative to the commodification of software, the marketization of internet, and the biopolitical nightmare that accompanies it. This concrete alternative keeps alive the idea of an economy of information free from capital accumulation and control. It does this on the back of a basic property right articulated in one of the most controversial contractual forms, the license as a unilateral contract, in which one party imposes its will on the other, without negotiation. In this way, the unity of these two ‘bad legal forms’, the exclusive right and the authoritarian contract, has brought forth an amazingly inclusive mechanism that engenders relations of cooperation. Achieving this required the engagement of activists who were not only politically realistic enough to resist the idea that they could ever spontaneously abandon their right in their work but who were also sufficiently intellectually free from the dominant legal ideology to resist the idea that property rights are necessarily exclusive. Put differently, those activists were great legal hackers — they managed to create an inclusive regime of property rights, through the unity of exclusive copyright and unilateral contract. In doing so, they invented, in both theory and practice, an alternative to market hegemony, from *within* the system of private appropriation of intellectual works — the copyright regime. This concrete alternative is neither beyond nor outside the current legal system, rather, it is a subversion, operated from within, of its most ordinary and alienating uses. Of course, this alternative is also full of limits, contradictions, ambivalences, and problems, but we should not mask our pleasure: it is a concrete, and fairly radical alternative, built from within a borderless world of domination and exploitation. Moreover, it is built with those legal tools of domination and exploitation — absolute property and the worst of all possible unilateral forms of contract.

I am particularly fond of this example because it illustrates how greatly malleable legal technicalities are and it demonstrates clearly how revolutionary alternatives can be built from within. More precisely, it effectively illustrates that property is neither a stable, given legal form, nor a limited number of stable legal forms, but a language made of an infinite number of elements, with which, at least in theory, almost any form can be spoken, including the most inclusive ones. Put differently, it illustrates property, not as a given legal form, but as a myriad of elements available for building almost any legal regime.<fnref n="25" />

<footnote n="25">²⁵ I have already mentioned in above that the initial setting of this paper was to focus on a chapter of an ‘important text’, namely the first chapter of *Commonwealth*. Though, in a more recently published book,</footnote>
product. Therefore, derivative creators will have the right to do whatever they wish with their creations, *except* to prevent third parties from running, using, studying, and modifying them. Their natural right of property in their creations is therefore limited by the conditions under which they could access the necessary material to make that creation. This mechanism then goes viral — the only prohibition being the licensing of new products under anything other than a free license, it creates an infinite chain of new, free, derivative software. This ‘four freedoms and one prohibition’ structure establishes a free community of programmers where every work is accessible to the whole and protects the community against dispossession, by ‘excluding the exclusion’ on each member’s copyright. The result then, is the proliferation of communities of programmers collaborating in the creation of common goods, that offer a concrete alternative to the commodification of software, the marketization of internet, and the biopolitical nightmare that accompanies it. This concrete alternative keeps alive the idea of an economy of information free from capital accumulation and control. It does this on the back of a basic property right articulated in one of the most controversial contractual forms, the license as a unilateral contract, in which one party imposes its will on the other, without negotiation. In this way, the unity of these two ‘bad legal forms’, the exclusive right and the authoritarian contract, has brought forth an amazingly inclusive mechanism that engenders relations of cooperation. Achieving this required the engagement of activists who were not only politically realistic enough to resist the idea that they could ever spontaneously abandon their right in their work but who were also sufficiently intellectually free from the dominant legal ideology to resist the idea that property rights are necessarily exclusive. Put differently, those activists were great legal hackers — they managed to create an inclusive regime of property rights, through the unity of exclusive copyright and unilateral contract. In doing so, they invented, in both theory and practice, an alternative to market hegemony, from *within* the system of private appropriation of intellectual works — the copyright regime. This concrete alternative is neither beyond nor outside the current legal system, rather, it is a subversion, operated from within, of its most ordinary and alienating uses. Of course, this alternative is also full of limits, contradictions, ambivalences, and problems, but we should not mask our pleasure: it is a concrete, and fairly radical alternative, built from within a borderless world of domination and exploitation. Moreover, it is built with those legal tools of domination and exploitation — absolute property and the worst of all possible unilateral forms of contract.

I am particularly fond of this example because it illustrates how greatly malleable legal technicalities are and it demonstrates clearly how revolutionary alternatives can be built from within. More precisely, it effectively illustrates that property is neither a stable, given legal form, nor a limited number of stable legal forms, but a language made of an infinite number of elements, with which, at least in theory, almost any form can be spoken, including the most inclusive ones. Put differently, it illustrates property, not as a given legal form, but as a myriad of elements available for building almost any legal regime.<fnref n="25" />

<footnote n="25">²⁵ I have already mentioned in above that the initial setting of this paper was to focus on a chapter of an ‘important text’, namely the first chapter of *Commonwealth*. Though, in a more recently published book,</footnote>
There are two further reasons for which I am fond of this example.

The first is that it shows us that the productivity of the law is not only negative. Contrary to what Negri and Hardt suggest, the law is not only the language of power as *potestas* (domination), it also expresses and guarantees power as *potentia* (empowerment/capability). The copyleft creates an institutionalized space for sharing, and for collaboration, and for the marginalizing (although not the complete exclusion) of marketization. If these free communities of programmers are not on the side of *potentia* rather than *potestas*, the side of the common rather than capitalist domination, then I simply do not understand the meaning of these divides. That is to say: legal regimes have the potential to constitute and protect the free creativity of communities of productive bodies. Private property does not only produce subjectivities that are at once individual and unified (Negri and Hardt 2009, p. 39) it also produces

*Assembly*, Hardt and Negri did provide an explicit account of the history of internal critique (see below, their response to this paper). For the present conversation I decided to not make any addition to the version of my paper Hardt and Negri read and responded to, except for this footnote, in the hope that it would clarify the disagreement. What Négrí and Hardt take from this history is the critique of absolute property and the opening of new forms of property, including social ones. They also take note of the blurring of the public / private divide by the legal realists, who indeed understood private property as an expression of sovereign power. Moreover, they recognize that for some contemporary legal thinkers, namelyCLS, the law is not autonomous from the economy, rather it should be conceived of as a political weapon, with such views allowing projects of reforming it from within. They also discuss the legal theorists in Italy who are reclaiming a right to the *common goods* against the individualism and absoluteness of neoliberal property rights (Ugo Mattei, Stefano Rodotà). All these things considered however, they conclude that the critical legal tradition fails to properly understand the common, which is to be ‘defined first’ and only ‘then, in contrast to property, both private and public’ because ‘it is not a new form of property, but rather non-property, that is, a fundamentally different means of organizing the use and management of wealth. The common designates an equal and open structure for access to wealth together with democratic mechanisms of decision-making. More colloquially, one might say that the common is what we share or, rather, it is a social structure and a social technology for sharing.’ (Hardt and Negri 2017, p. 97). They also write that ‘The common therefore is not really a tertium genus, beyond private property and public property, if that were to mean it is simply a third form of property (indeed, Ostrom’s formulation of “common-pool resources” and Ugo Mattei’s conception of “common goods” [*beni comuni*] often seem to name merely another form of property). The common stands in contrast to property in a more radical way, by eliminating the character of exclusion from the rights of both use and decision-making, instituting instead schema of open, shared use and democratic governance.’ (Hardt and Negri 2017, p. 90). Very clearly, their understanding of the history of the internal critique of law is that it led to a healthy pluralization of the forms of property. However, they have missed the key point: When they argue that the Common is not a ‘third form of property’, they still endorse a Modernist view of public and private property as ‘legal forms’. The point, though, is the disintegration of all forms of property. After legal realism, Property is just a language (a set of linguistic resources) to express any possible jural relations to goods (rights and things), rather than a specific legal form. This language can be used to express any relation, be they capitalist or non-capitalist. Even the word ‘communist’ is etymologically a legal term developed to designate the members of a joint ownership! Moreover, the disintegration of property is accompanied by the disenchantment of legal rationality, the subsequent discovery of the openness and malleable texture of the law and its potential for revolutionary transformation. This makes less urgent and less necessary the search for a leap ‘beyond’ property. Hardt and Negri think such a leap is still necessary to properly conceive the common and consider it a sign of the radicality of their theory. I concede that the binary within/beyond is sometimes useful, when it allows us to conceive new radical ideas that we could not conceive otherwise, but sometimes it is less so, especially when it is simply a ‘leap’ that allows us to stop thinking concretely what could become our relations to rights and things in a non-capitalist context. Although Hardt and Négrí do agree that some kind of law and institutions of the Common is necessary, by which I assume that they imply some kind of system of allocation of goods, they do not tell us much about it.
There are two further reasons for which I am fond of this example.

The first is that it shows us that the productivity of the law is not only negative. Contrary to what Negri and Hardt suggest, the law is not only the language of power as *potestas* (domination), it also expresses and guarantees power as *potentia* (empowerment/capability). The copyleft creates an institutionalized space for sharing, and for collaboration, and for the marginalizing (although not the complete exclusion) of marketization. If these free communities of programmers are not on the side of *potentia* rather than *potestas*, the side of the common rather than capitalist domination, then I simply do not understand the meaning of these divides. That is to say: legal regimes have the potential to constitute and protect the free creativity of communities of productive bodies. Private property does not only produce subjectivities that are at once individual and unified (Negri and Hardt 2009, p. 39) it also produces

Assembly, Hardt and Negri did provide an explicit account of the history of internal critique (see below, their response to this paper). For the present conversation I decided to not make any addition to the version of my paper Hardt and Negri read and responded to, except for this footnote, in the hope that it would clarify the disagreement. What Négrí and Hardt take from this history is the critique of absolute property and the opening of new forms of property, including social ones. They also take note of the blurring of the public / private divide by the legal realists, who indeed understood private property as an expression of sovereign power. Moreover, they recognize that for some contemporary legal thinkers, namelyCLS, the law is not autonomous from the economy, rather it should be conceived of as a political weapon, with such views allowing projects of reforming it from within. They also discuss the legal theorists in Italy who are reclaiming a right to the *common goods* against the individualism and absoluteness of neoliberal property rights (Ugo Mattei, Stefano Rodotà). All these things considered however, they conclude that the critical legal tradition fails to properly understand the common, which is to be ‘defined first’ and only ‘then, in contrast to property, both private and public’ because ‘it is not a new form of property, but rather non-property, that is, a fundamentally different means of organizing the use and management of wealth. The common designates an equal and open structure for access to wealth together with democratic mechanisms of decision-making. More colloquially, one might say that the common is what we share or, rather, it is a social structure and a social technology for sharing.’ (Hardt and Negri 2017, p. 97). They also write that ‘The common therefore is not really a tertium genus, beyond private property and public property, if that were to mean it is simply a third form of property (indeed, Ostrom’s formulation of “common-pool resources” and Ugo Mattei’s conception of “common goods” [*beni comuni*] often seem to name merely another form of property). The common stands in contrast to property in a more radical way, by eliminating the character of exclusion from the rights of both use and decision-making, instituting instead schema of open, shared use and democratic governance.’ (Hardt and Negri 2017, p. 90). Very clearly, their understanding of the history of the internal critique of law is that it led to a healthy pluralization of the forms of property. However, they have missed the key point: When they argue that the Common is not a ‘third form of property’, they still endorse a Modernist view of public and private property as ‘legal forms’. The point, though, is the disintegration of all forms of property. After legal realism, Property is just a language (a set of linguistic resources) to express any possible jural relations to goods (rights and things), rather than a specific legal form. This language can be used to express any relation, be they capitalist or non-capitalist. Even the word ‘communist’ is etymologically a legal term developed to designate the members of a joint ownership! Moreover, the disintegration of property is accompanied by the disenchantment of legal rationality, the subsequent discovery of the openness and malleable texture of the law and its potential for revolutionary transformation. This makes less urgent and less necessary the search for a leap ‘beyond’ property. Hardt and Negri think such a leap is still necessary to properly conceive the common and consider it a sign of the radicality of their theory. I concede that the binary within/beyond is sometimes useful, when it allows us to conceive new radical ideas that we could not conceive otherwise, but sometimes it is less so, especially when it is simply a ‘leap’ that allows us to stop thinking concretely what could become our relations to rights and things in a non-capitalist context. Although Hardt and Négrí do agree that some kind of law and institutions of the Common is necessary, by which I assume that they imply some kind of system of allocation of goods, they do not tell us much about it.
(far less often, I admit) creative singular subjectivities that collaborate within non-unified open communities.

Of course, in no way am I resisting the idea that law can be, and often is, the language of the most abject subjection, arbitrary power, and absurd violence. Of this, Negri knew much more than most, my comments on his work here are made with all due, and heartfelt, respect.

The second reason for which I am fond of this example, is that it shows that not only are legal forms unstable and inconsistent, but they do not have any intrinsic political signification. Copyright is a property right on intellectual works, but using it does not necessarily mean commodification, marketization, and plutocratic hegemony (of course, often it does). A regime of private property rights can be used to exclude and dispossess for the profit of oligarchic powers, but it can also be used to protect creative and collaborative communities of workers, depending on its design. Unilateral contract can be a tool for removing from consumers any power by which to contest conditions of the sale, but it can also grant openness and inclusivity to a process of production. Law is everywhere — on both the ‘bad’ side, and the ‘good’.

One objection to this might be that in theory, it may be possible to speak any alternative (anything can be spoken in a given *langue*), but in reality, those alternatives are so rarely spoken that their existence is merely abstract. The concrete life of the Law is a life in submission to the hegemony of certain conceptions of the law — those that favor capital domination. It may be true that everything can be said in the *langue* of the law, but this truth is merely theoretical, as in real life, not only is everything *not* said in the *langue* of the law, but certain forces, interests, and values will never actually be expressed. An interesting example of this comes to mind. In 2018, Etienne Balibar wrote an interesting article in *Le Monde* (See Balibar 2018), to plea for the recognition of a right to hospitality for migrants against States, where migrants have risked their lives in arriving. In the discussions which followed the publication of the article, it appeared that such rights were already enshrined in enforceable texts but had been almost forgotten in practice. Not only was the linguistic resource there, but the textual reference was also there, ready for use, but no agents of the law were making use of them. According to this objection, my argument about ‘whatever can be said in the *langue* of the law’ is just abstract.

This objection is strong: not every possible argument available in the *langue* is really spoken, because what can be spoken in the *langue* of the law depends on what's in the mind of the jurists who speak it — it depends therefore on an historically specific legal consciousness (See Kennedy 2006). It seems then, that the recognition of a migrant's a right to hospitality against the state is not central in the consciousness of French judges. In fact, they have in mind the bestowing of a right to *ask* for asylum, which is to be balanced against the State's right to refuse it, with the burden of the proof falling on the shoulders of the asylum seeker. What this means then, is that certain rules, certain considerations, modes of reasoning and arguing are used more often than others. To answer this objection, I must complement the series of consequences flowing from the disintegration of the internal rationality of the law — here then, is the sixth consequence.

Whilst everything can be said in the *langue* of the law in theory, in practice, some paroles are spoken, whilst others are not speakable. Here, the analogy with fashion
(far less often, I admit) creative singular subjectivities that collaborate within non-unified open communities.

Of course, in no way am I resisting the idea that law can be, and often is, the language of the most abject subjection, arbitrary power, and absurd violence. Of this, Negri knew much more than most, my comments on his work here are made with all due, and heartfelt, respect.

The second reason for which I am fond of this example, is that it shows that not only are legal forms unstable and inconsistent, but they do not have any intrinsic political signification. Copyright is a property right on intellectual works, but using it does not necessarily mean commodification, marketization, and plutocratic hegemony (of course, often it does). A regime of private property rights can be used to exclude and dispossess for the profit of oligarchic powers, but it can also be used to protect creative and collaborative communities of workers, depending on its design. Unilateral contract can be a tool for removing from consumers any power by which to contest conditions of the sale, but it can also grant openness and inclusivity to a process of production. Law is everywhere — on both the ‘bad’ side, and the ‘good’.

One objection to this might be that in theory, it may be possible to speak any alternative (anything can be spoken in a given *langue*), but in reality, those alternatives are so rarely spoken that their existence is merely abstract. The concrete life of the Law is a life in submission to the hegemony of certain conceptions of the law — those that favor capital domination. It may be true that everything can be said in the *langue* of the law, but this truth is merely theoretical, as in real life, not only is everything *not* said in the *langue* of the law, but certain forces, interests, and values will never actually be expressed. An interesting example of this comes to mind. In 2018, Etienne Balibar wrote an interesting article in *Le Monde* (See Balibar 2018), to plea for the recognition of a right to hospitality for migrants against States, where migrants have risked their lives in arriving. In the discussions which followed the publication of the article, it appeared that such rights were already enshrined in enforceable texts but had been almost forgotten in practice. Not only was the linguistic resource there, but the textual reference was also there, ready for use, but no agents of the law were making use of them. According to this objection, my argument about ‘whatever can be said in the *langue* of the law’ is just abstract.

This objection is strong: not every possible argument available in the *langue* is really spoken, because what can be spoken in the *langue* of the law depends on what's in the mind of the jurists who speak it — it depends therefore on an historically specific legal consciousness (See Kennedy 2006). It seems then, that the recognition of a migrant's a right to hospitality against the state is not central in the consciousness of French judges. In fact, they have in mind the bestowing of a right to *ask* for asylum, which is to be balanced against the State's right to refuse it, with the burden of the proof falling on the shoulders of the asylum seeker. What this means then, is that certain rules, certain considerations, modes of reasoning and arguing are used more often than others. To answer this objection, I must complement the series of consequences flowing from the disintegration of the internal rationality of the law — here then, is the sixth consequence.

Whilst everything can be said in the *langue* of the law in theory, in practice, some paroles are spoken, whilst others are not speakable. Here, the analogy with fashion
according to Barthes becomes pertinent. For Barthes, the distinction between trou-
sers, skirts, shorts and shoes belongs to what is called ‘Costume’ — the langue of
fashion. According to the grammar of the langue, one cannot, for example, wear two
pairs of trousers. Distinguished from this, there is Dressing (Habillement). Dressing
is the infinite ocean of paroles within the fashion system, in which everything is pos-
sible in theory. In practice, however, this winter, yellow trousers will not work with
green shirts, and long skirts will work with trainers. This is the intermediate level,
which Barthes calls Garment (Confection). This intermediate level belongs to the
structure in a way but is far more open and malleable than the ‘pure structure’ of Cos-
tume. It is made of fixed phrases, (Syntagmes figés, in French) that is — of our habits,
routines, and techniques. Further, it is open to the voluntary transformative action of
groups of decision makers (stylists, fashion journalists etc.). Thus, there are not two,
but three levels — the pure structure (the langue), the intermediate entity (Usage or
also Écriture) and the infinity of uttered paroles. The intermediate entity operates as
a technical element offering resistance and constraint but open to voluntary transfor-
mations prompted by group decisions (Xifaras 2019, pp. 55–59). The analogy here
with the law is striking, The Fashion System is indeed a great law book! It is true
then that, within the langue of the law, everything can be said in theory. In practice,
however, not everything is always said, because in a given time and space, a specific
‘legal consciousness’ dominates the group decision-makers (judges, professors) who
play a direct role in the utterance of legal paroles. As a result, this ‘legal conscious-
ness’ favors certain forms of argument over others, rendering it easier to say certain
things and more difficult to say other things in the langue of the law. Of course,
relations of power, authority, and influence within various groups of decision mak-
ers are all about moving the boundaries of what can be said and what must remain
unspeakable. This then, is what legal theory does, it decides what can and cannot be
concretely spoken in the language of the law — a crucial battlefield.

With this, it is possible to begin to make sense of the ways in which the dominant
usages of the legal langue are associated with the ideological inclinations and profes-
sional routines of jurists, and the political relations of force in wider society. This
‘legal consciousness’ is not, therefore, autonomous of the historically specific general
consciousness. In this way, it is not contentious to posit that, in France, speaking
generally, migration laws tend to favor the State over migrants and labor laws tend
to favor employers over employees. This is precisely because there is nothing more
political than making laws — the Jurists cannot avoid this, despite their commitment
to neutrality. They are, in fact, very often inclined towards oligarchical tendencies
— the inclination to concentrate the power in the hands of experts who are, indeed,
quick to constitute themselves as a Juristocracy. Our actual tendency to fetishize
Supreme Courts contributes to this inclination. This does not mean, however, that a
whole legal regime and moreover that the entire legal system has a fixed and intrinsic
political significance. Contradictory other usages, ideologically inclined in different
directions, could very well be promoted, from within that same legal regime, or from
within the entire legal system. If those alternative usages do not appear, it is simply
that there are not enough jurists to invent and promote them — not enough activists
to push in this direction, from inside and outside the legal system. This is a material
question, of course, rulers generally pay much more than resistors, but at its core it is

<figure><img src="image_17.png" /></figure>
according to Barthes becomes pertinent. For Barthes, the distinction between trou-
sers, skirts, shorts and shoes belongs to what is called ‘Costume’ — the langue of
fashion. According to the grammar of the langue, one cannot, for example, wear two
pairs of trousers. Distinguished from this, there is Dressing (Habillement). Dressing
is the infinite ocean of paroles within the fashion system, in which everything is pos-
sible in theory. In practice, however, this winter, yellow trousers will not work with
green shirts, and long skirts will work with trainers. This is the intermediate level,
which Barthes calls Garment (Confection). This intermediate level belongs to the
structure in a way but is far more open and malleable than the ‘pure structure’ of Cos-
tume. It is made of fixed phrases, (Syntagmes figés, in French) that is — of our habits,
routines, and techniques. Further, it is open to the voluntary transformative action of
groups of decision makers (stylists, fashion journalists etc.). Thus, there are not two,
but three levels — the pure structure (the langue), the intermediate entity (Usage or
also Écriture) and the infinity of uttered paroles. The intermediate entity operates as
a technical element offering resistance and constraint but open to voluntary transfor-
mations prompted by group decisions (Xifaras 2019, pp. 55–59). The analogy here
with the law is striking, The Fashion System is indeed a great law book! It is true
then that, within the langue of the law, everything can be said in theory. In practice,
however, not everything is always said, because in a given time and space, a specific
‘legal consciousness’ dominates the group decision-makers (judges, professors) who
play a direct role in the utterance of legal paroles. As a result, this ‘legal conscious-
ness’ favors certain forms of argument over others, rendering it easier to say certain
things and more difficult to say other things in the langue of the law. Of course,
relations of power, authority, and influence within various groups of decision mak-
ers are all about moving the boundaries of what can be said and what must remain
unspeakable. This then, is what legal theory does, it decides what can and cannot be
concretely spoken in the language of the law — a crucial battlefield.

With this, it is possible to begin to make sense of the ways in which the dominant
usages of the legal langue are associated with the ideological inclinations and profes-
sional routines of jurists, and the political relations of force in wider society. This
‘legal consciousness’ is not, therefore, autonomous of the historically specific general
consciousness. In this way, it is not contentious to posit that, in France, speaking
generally, migration laws tend to favor the State over migrants and labor laws tend
to favor employers over employees. This is precisely because there is nothing more
political than making laws — the Jurists cannot avoid this, despite their commitment
to neutrality. They are, in fact, very often inclined towards oligarchical tendencies
— the inclination to concentrate the power in the hands of experts who are, indeed,
quick to constitute themselves as a Juristocracy. Our actual tendency to fetishize
Supreme Courts contributes to this inclination. This does not mean, however, that a
whole legal regime and moreover that the entire legal system has a fixed and intrinsic
political significance. Contradictory other usages, ideologically inclined in different
directions, could very well be promoted, from within that same legal regime, or from
within the entire legal system. If those alternative usages do not appear, it is simply
that there are not enough jurists to invent and promote them — not enough activists
to push in this direction, from inside and outside the legal system. This is a material
question, of course, rulers generally pay much more than resistors, but at its core it is

<figure><img src="image_15.png" /></figure>
the same question of political and ideological relations of force that runs writ through
every level of our societies.

To conclude here: law is a playground — or a battlefield, wherein the main players are often inclined to promote their own interests and their own ideologies, and yet it is too often forgotten by critical theorists and radical activists. If law is a battlefield, then one of the key sites must be the legal consciousness of the jurists — what it is and what it ought to be in our societies, how these experts should be educated, how broad their legal imaginary should be and how broad the repertoire of available arguments should be. Which also raises of course the question of who these jurists are and how they should be selected. When the legal imaginary of a given society is broad enough to allow the conception of alternatives, those alternatives do materialize concretely. When it is not, those alternatives might exist in theory, but they will remain abstract, unrealistic propositions. I strongly believe that abstract ideas and unrealistic propositions are absolutely necessary to the building of alternatives — they have immense virtue, by the effects of truth ("effets de vérité", in French) that they produce, but they are not in themselves concrete alternatives, available in practice, to be realized here and now.

Final Remarks

I can now close the loop of my argument. If there is truly 'no outside', not only in the
sense that salvation cannot come from outside, but also in the sense that the alterna-
tives to domination and exploitation are to be found within (not beyond) the current
legal system; and if it is true that 'Law is structuring our lives', because the 'material
constitutions' of our societies are structured by legal systems, then concrete political
alternatives are, in this world, the ones that can be spoken in the language of the law.
Put differently, those alternatives become concrete when radical jurists are creative
enough to speak them in the language of the law — something they can only do when
the necessary intellectual resources are present in the historically specific legal con-
sciousness of the age.

I can now return to the distinction between the ‘Law of the philosophers’ and the
‘Law of the Jurists’. The ‘Law of the philosophers’ conceptualizes the law as the legal
form of a political settlement — in general, for CT, the effects of the enforcement of
the law are unjust because the political settlement formalized by the dominant legal
system is unjust. The critical agenda then, is to invent new concepts and principles,
and to either try and find for them an adequate legal form, or to deny the need for
such form, because those principles are located ‘beyond the legal context’ — the
latter is Hardt and Negri’s approach. For them, the former is to be considered insuf-
ficiently radical. The problem with *both* strategies, however, is that the ‘Law of the
philosophers’ is a modernist fantasy. In reality, no legal regime or legal institution is
coherent enough to be the sole and unique form of a single concept or principle — no
legal technique has a unique political significance. It is therefore both abstract and
incorrect to assert, for example, that ‘private property rights constitute the domina-
tion of capital on men and things’. Of course, it is true that private property rights
play a crucial role in the institution of the domination of capital, but they can also
the same question of political and ideological relations of force that runs writ through
every level of our societies.

To conclude here: law is a playground — or a battlefield, wherein the main players are often inclined to promote their own interests and their own ideologies, and yet it is too often forgotten by critical theorists and radical activists. If law is a battlefield, then one of the key sites must be the legal consciousness of the jurists — what it is and what it ought to be in our societies, how these experts should be educated, how broad their legal imaginary should be and how broad the repertoire of available arguments should be. Which also raises of course the question of who these jurists are and how they should be selected. When the legal imaginary of a given society is broad enough to allow the conception of alternatives, those alternatives do materialize concretely. When it is not, those alternatives might exist in theory, but they will remain abstract, unrealistic propositions. I strongly believe that abstract ideas and unrealistic propositions are absolutely necessary to the building of alternatives — they have immense virtue, by the effects of truth ("effets de vérité", in French) that they produce, but they are not in themselves concrete alternatives, available in practice, to be realized here and now.

Final Remarks

I can now close the loop of my argument. If there is truly 'no outside', not only in the
sense that salvation cannot come from outside, but also in the sense that the alterna-
tives to domination and exploitation are to be found within (not beyond) the current
legal system; and if it is true that 'Law is structuring our lives', because the 'material
constitutions' of our societies are structured by legal systems, then concrete political
alternatives are, in this world, the ones that can be spoken in the language of the law.
Put differently, those alternatives become concrete when radical jurists are creative
enough to speak them in the language of the law — something they can only do when
the necessary intellectual resources are present in the historically specific legal con-
sciousness of the age.

I can now return to the distinction between the ‘Law of the philosophers’ and the
‘Law of the Jurists’. The ‘Law of the philosophers’ conceptualizes the law as the legal
form of a political settlement — in general, for CT, the effects of the enforcement of
the law are unjust because the political settlement formalized by the dominant legal
system is unjust. The critical agenda then, is to invent new concepts and principles,
and to either try and find for them an adequate legal form, or to deny the need for
such form, because those principles are located ‘beyond the legal context’ — the
latter is Hardt and Negri’s approach. For them, the former is to be considered insuf-
ficiently radical. The problem with *both* strategies, however, is that the ‘Law of the
philosophers’ is a modernist fantasy. In reality, no legal regime or legal institution is
coherent enough to be the sole and unique form of a single concept or principle — no
legal technique has a unique political significance. It is therefore both abstract and
incorrect to assert, for example, that ‘private property rights constitute the domina-
tion of capital on men and things’. Of course, it is true that private property rights
play a crucial role in the institution of the domination of capital, but they can also
help to protect individuals from the domination of capital and constitute the prolif-
eration of communities of creative workers who wish to collaborate freely. Private
property establishes the reign of exclusion over inclusion, of competition over coop-
eration, the power of those who have over those who have not, but can also operate
inversely, to include as well as to exclude, to cooperate as well as compete and to
distribute wealth in an egalitarian way. A regime of property rights is a machinery to
distribute legal prerogatives in any possible way, a machinery with which to draw the
frontier between what is 'proper' and what is 'common', which means that it both
constitutes and guarantees the 'proper' and the 'common' simultaneously. Simply
put, the 'proper' and the 'common' are two sides of the same coin. For something
to be 'proper' there must also exist a 'common' and vice versa — the two concepts
are mutually constitutive. So, if in our world, exclusivity and competition are domi-
nant, this is not simply because of the 'reign of private property', this is because of
the reign of specific dominant usages and conceptions of property regimes. Other
property regimes would produce different outcomes. I am not saying that there are
no legal regimes that should just be abolished. It is, of course, more emancipatory to
simply abolish slavery, apartheid, or the death penalty rather than trying to subvert
them from within. It is, however, much more difficult to free oneself from the need to
draw distinctions between the 'proper' and the 'common', or from the need to settle
agreements with others, than it is to free oneself from the need to classify human
being under absurd bio-racial categories, or to kill them out of revenge.

I think (but I am not certain) that I rejoin here, in legal theory, a position that has
been well expressed by Etienne Balibar in anthropology (see Balibar 2002). Posses-
sive individualism may be the dominant form of subjectivity in our modern times,
and yet this form cannot be separated from its reversals (Rousseau's separation of
usages and ownership, Marx's trans-individual appropriation, socialization of prop-
erty, Derrida's ex-appropriation). All of these schemes of the reversal of possessive
individualism from within anthropology are drawing on alternative subjectivities,
which are more creative, more emancipatory, and more promising than those domi-
nant ones. It seems to me that these schemes are, in fact, the only thinkable schemes
that we can promote when trying to free ourselves from the 'self-ownership' mode
of subjectification.

The conclusion here is that the ‘proper’ and the ‘common’ can only be thought of
together. This means then, that the liberal dream of a sphere with no common (the
generalizing of juxtaposed spheres of ‘proper’, granted by private property rights)
and the communist dream of a common without an internal distinction of any sin-
gular subjectivity are simply powerful fantasies. This means also that no political
theory can escape the question of how to distribute the ‘proper’ and the ‘common’
and how to operate the modalities of their articulation. This is exactly what property
regimes do. One can attempt to change the name of the machinery, but a machinery is
still necessary, both (and inseparably) on the legal and on the anthropological sides.
Alternatives to capitalism are, therefore, not to be found ‘beyond’ property and are
not to be expressed in ‘other’ regimes of property, rather alternatives exist within that
same property regime, conceived of, and used differently.

Negri and Hardt are saying no more than this, on the anthropological side, when
they define the multitudes as non-totalizing cooperation amongst singular subjectivi-

<figure><img src="image_18.png" /></figure>
help to protect individuals from the domination of capital and constitute the prolif-
eration of communities of creative workers who wish to collaborate freely. Private
property establishes the reign of exclusion over inclusion, of competition over coop-
eration, the power of those who have over those who have not, but can also operate
inversely, to include as well as to exclude, to cooperate as well as compete and to
distribute wealth in an egalitarian way. A regime of property rights is a machinery to
distribute legal prerogatives in any possible way, a machinery with which to draw the
frontier between what is 'proper' and what is 'common', which means that it both
constitutes and guarantees the 'proper' and the 'common' simultaneously. Simply
put, the 'proper' and the 'common' are two sides of the same coin. For something
to be 'proper' there must also exist a 'common' and vice versa — the two concepts
are mutually constitutive. So, if in our world, exclusivity and competition are domi-
nant, this is not simply because of the 'reign of private property', this is because of
the reign of specific dominant usages and conceptions of property regimes. Other
property regimes would produce different outcomes. I am not saying that there are
no legal regimes that should just be abolished. It is, of course, more emancipatory to
simply abolish slavery, apartheid, or the death penalty rather than trying to subvert
them from within. It is, however, much more difficult to free oneself from the need to
draw distinctions between the 'proper' and the 'common', or from the need to settle
agreements with others, than it is to free oneself from the need to classify human
being under absurd bio-racial categories, or to kill them out of revenge.

I think (but I am not certain) that I rejoin here, in legal theory, a position that has
been well expressed by Etienne Balibar in anthropology (see Balibar 2002). Posses-
sive individualism may be the dominant form of subjectivity in our modern times,
and yet this form cannot be separated from its reversals (Rousseau's separation of
usages and ownership, Marx's trans-individual appropriation, socialization of prop-
erty, Derrida's ex-appropriation). All of these schemes of the reversal of possessive
individualism from within anthropology are drawing on alternative subjectivities,
which are more creative, more emancipatory, and more promising than those domi-
nant ones. It seems to me that these schemes are, in fact, the only thinkable schemes
that we can promote when trying to free ourselves from the 'self-ownership' mode
of subjectification.

The conclusion here is that the ‘proper’ and the ‘common’ can only be thought of
together. This means then, that the liberal dream of a sphere with no common (the
generalizing of juxtaposed spheres of ‘proper’, granted by private property rights)
and the communist dream of a common without an internal distinction of any sin-
gular subjectivity are simply powerful fantasies. This means also that no political
theory can escape the question of how to distribute the ‘proper’ and the ‘common’
and how to operate the modalities of their articulation. This is exactly what property
regimes do. One can attempt to change the name of the machinery, but a machinery is
still necessary, both (and inseparably) on the legal and on the anthropological sides.
Alternatives to capitalism are, therefore, not to be found ‘beyond’ property and are
not to be expressed in ‘other’ regimes of property, rather alternatives exist within that
same property regime, conceived of, and used differently.

Negri and Hardt are saying no more than this, on the anthropological side, when
they define the multitudes as non-totalizing cooperation amongst singular subjectivi-

<figure><img src="image_16.png" /></figure>
ties. Their common is full of the 'proper' it seems, and that is, in itself, good news. And yet, Negri and Hardt are opposing the positive productivity of the 'common' to the negative productivity of the 'proper' (and its dominant legal form, private property rights). If these words have meaning, and if the multitudes are made of singular subjectivities, then they must distinguish the 'proper' and the 'common' in the collaborative process of production, and decide on the modalities of their articulation, which necessitates some machinery — that is, some principles, rules, and values to be balanced in concrete situations. Whatever they wish to name it, and whatever it is, they concretely need a theory of property. Therefore, because Hardt and Negri agree that there is 'no outside', there is a good chance that the constitutive elements of this theory are situated in the tradition of the internal critique of the dominant conceptions of modern property in the western tradition of legal thought — where subversive, emancipatory views about property are also to be found.<fnref n="26" />

Negri and Hardt do not think that they need a theory of property for the common how-
ever, they think that legal systems are merely ‘formal’ and that real alternatives are to be
found ‘beyond the legal context’, in the sphere of ‘real practices’ — in social movements.
Now, I am fond of social movements (really), but I also recognize that this line of argu-
ment loyally follows the fault lines of the conflict of the faculties. I see here the typical
blind spot of critical theory, where legal practice is not seen as ‘real’, or at least much less
‘real’ than social movements. What is ‘real’ for Negri and Hardt are social relations of
production, disciplinary regimes, and resistances to them. These processes of production
are structured by law and disciplinary regimes though — which are not some ‘counter-
law’, but rather an example of ‘Law in action’. This point is missed though, which is a bit
sad, because it is only just getting interesting, in a critical sense. It is within the ‘Law of
the Jurists’ that one can analyze the structure of the material constitutions of our societies,
and also explore possible concrete alternative constitutions. The ‘Law of the jurists’ then
is the Law as it is, actually deployed in real life — it is the law which is structuring the
material constitution of our world.

Thus, the critique of Law is only complete when every aspect of the structure of mod-
ern law of is taken in account — which includes the internal critique of the ‘Law of the
jurists’. The level of radicality of a critical theory cannot therefore be measured by the
intensity of its anti-juristic leaps, nor by the degree of its indifference to the language of
the law. Of course, a theory is critical not only when it seeks to emancipate itself from
legal ideologies, the ‘legalistic vision of the world’, but also from various conservative,
naïve, or ad hoc corporative theories about the functioning of the law. The radicality of
a critical theory therefore depends on how deeply the suggested ruptures in the current
dominant system and its hegemonic modes of legitimization run. Further, its radicality

<footnote n="26">²⁶ I can also certainly think of non-western ways with which to produce subjectivities that are fairly unrelated to the ‘self-ownership’ western fairytale. I can also see how these ways might constitute productive and radical alternatives to the model of self-ownership and offer great resources for starting the work of imagining what a post-capitalist subject could be. But even these forms must deal with individualization and therefore must draw lines between the ‘proper’ and the ‘common’ and operate the modalities of their articulation. Also, because no place on earth has been left untouched by the expansion of European legalism, these alternatives are, in one way or in another, in contact with the self-ownership model. From these encounters, new hybrid subjectivities were born, which too may possibly offer interesting alternatives, although not in any sense from the outside.</footnote>
ties. Their common is full of the 'proper' it seems, and that is, in itself, good news. And yet, Negri and Hardt are opposing the positive productivity of the 'common' to the negative productivity of the 'proper' (and its dominant legal form, private property rights). If these words have meaning, and if the multitudes are made of singular subjectivities, then they must distinguish the 'proper' and the 'common' in the collaborative process of production, and decide on the modalities of their articulation, which necessitates some machinery — that is, some principles, rules, and values to be balanced in concrete situations. Whatever they wish to name it, and whatever it is, they concretely need a theory of property. Therefore, because Hardt and Negri agree that there is 'no outside', there is a good chance that the constitutive elements of this theory are situated in the tradition of the internal critique of the dominant conceptions of modern property in the western tradition of legal thought — where subversive, emancipatory views about property are also to be found.<fnref n="26" />

Negri and Hardt do not think that they need a theory of property for the common how-
ever, they think that legal systems are merely ‘formal’ and that real alternatives are to be
found ‘beyond the legal context’, in the sphere of ‘real practices’ — in social movements.
Now, I am fond of social movements (really), but I also recognize that this line of argu-
ment loyally follows the fault lines of the conflict of the faculties. I see here the typical
blind spot of critical theory, where legal practice is not seen as ‘real’, or at least much less
‘real’ than social movements. What is ‘real’ for Negri and Hardt are social relations of
production, disciplinary regimes, and resistances to them. These processes of production
are structured by law and disciplinary regimes though — which are not some ‘counter-
law’, but rather an example of ‘Law in action’. This point is missed though, which is a bit
sad, because it is only just getting interesting, in a critical sense. It is within the ‘Law of
the Jurists’ that one can analyze the structure of the material constitutions of our societies,
and also explore possible concrete alternative constitutions. The ‘Law of the jurists’ then
is the Law as it is, actually deployed in real life — it is the law which is structuring the
material constitution of our world.

Thus, the critique of Law is only complete when every aspect of the structure of mod-
ern law of is taken in account — which includes the internal critique of the ‘Law of the
jurists’. The level of radicality of a critical theory cannot therefore be measured by the
intensity of its anti-juristic leaps, nor by the degree of its indifference to the language of
the law. Of course, a theory is critical not only when it seeks to emancipate itself from
legal ideologies, the ‘legalistic vision of the world’, but also from various conservative,
naïve, or ad hoc corporative theories about the functioning of the law. The radicality of
a critical theory therefore depends on how deeply the suggested ruptures in the current
dominant system and its hegemonic modes of legitimization run. Further, its radicality

<footnote n="26">²⁶ I can also certainly think of non-western ways with which to produce subjectivities that are fairly unrelated to the 'self-ownership' western fairytale. I can also see how these ways might constitute productive and radical alternatives to the model of self-ownership and offer great resources for starting the work of imagining what a post-capitalist subject could be. But even these forms must deal with individualization and therefore must draw lines between the 'proper' and the 'common' and operate the modalities of their articulation. Also, because no place on earth has been left untouched by the expansion of European legalism, these alternatives are, in one way or in another, in contact with the self-ownership model. From these encounters, new hybrid subjectivities were born, which too may possibly offer interesting alternatives, although not in any sense from the outside.</footnote>
depends additionally on its capacity to enlarge our political imaginary and to provide us with possible alternatives. Of course, amongst the ideas, principles, projects, and propositions that a CT is conveying, some are more abstract than others. The ones which cannot be spoken in the language of the law, which cultivate indifference to their eventual translation into this language, are thus more inclined to remain abstract. This does not mean that they are not interesting, or politically productive — sometimes, abstract theories, unrealistic propositions, and utopian visions can be tremendously politically productive. Rather, it suggests that the critical quality of a theory is a pragmatic feature which can only be decided ex post once the critical move has been performed. So, sometimes the call to perform a ‘leap beyond’ actually stretches our imaginations, but other times it does not. In any case, the productivity of such theories remains somehow incomplete, as the alternatives that they draw upon are not intended to work in our current world, in which ‘law is everywhere’. By contrast, critical theories which can be spoken in the language of the law, or at least which can be translated into that language, do provide resources for concrete emancipatory projects, through the enlargement not only of our imaginary, but in a more mundane fashion, of the available repertoire of arguments available to concrete legal practice. Even if they are not really available, because they remain marginal in the legal consciousness of the time, they have the necessary quality to possibly *become* concrete, which makes them suitable candidates for becoming in the near future, suitable alternatives.

My project here then, is to reconcile political radicality with concrete practice, by getting politically radical critical theories to better speak the language of the law — or to put it another way, to better articulate the internal and external critique of the law. This project encounters obstacles in both the conflict of the faculties and the modern division of labor between internal and external critique, and these obstacles are difficult to overcome — but that is no reason not to attempt this.

I would further like to emphasize that, of course, law is not the only language available for structuring human activities and social relations. Many of those languages are in fact completely foreign to it. I doubt, for example, that a theory of love — a central concept in Negri and Hardt’s work — expressed only in legal terms would be satisfactory. My argument is not a plea for the *restitutio in integrum* of classical juridism (God forbid!) — I really hope this paper made this point clear. Juridism is the pretension of the *scientia iuris*, against any other social science, to provide the knowledge of both the legal principles and the legal technique as the constitutive principles of all human relations. In today’s world, this pretension is an attempt to avoid the modern invention of critique. Contemporary legal knowledges are structured by the conflict of the faculties, and as a result, our knowledge of the law is fragmented — this is one of the successes of the critique of the western legal tradition. That said, law remains one of the main languages in which relations of *potestas* (domination) and *potentia* (empowerment/capability) are spoken in our current world. Why? Because law so often prevails over other ways to express and constitute communities.<fnref n="27" /> It structures most human activity and social relations. Thus, deciding not to care about law, in the name of radicality, and seeking alternatives ‘beyond the legal

<footnote n="27">²⁷ ‘The “legal” has to do with ways and standards which will prevail in the pinch of challenge, with rights and the acquisition of rights which have teeth, with liberties and powers whose exercise can be made to stand up under attack’ (Llewellyn 1940, p. 1364).</footnote>
depends additionally on its capacity to enlarge our political imaginary and to provide us with possible alternatives. Of course, amongst the ideas, principles, projects, and propositions that a CT is conveying, some are more abstract than others. The ones which cannot be spoken in the language of the law, which cultivate indifference to their eventual translation into this language, are thus more inclined to remain abstract. This does not mean that they are not interesting, or politically productive — sometimes, abstract theories, unrealistic propositions, and utopian visions can be tremendously politically productive. Rather, it suggests that the critical quality of a theory is a pragmatic feature which can only be decided ex post once the critical move has been performed. So, sometimes the call to perform a ‘leap beyond’ actually stretches our imaginations, but other times it does not. In any case, the productivity of such theories remains somehow incomplete, as the alternatives that they draw upon are not intended to work in our current world, in which ‘law is everywhere’. By contrast, critical theories which can be spoken in the language of the law, or at least which can be translated into that language, do provide resources for concrete emancipatory projects, through the enlargement not only of our imaginary, but in a more mundane fashion, of the available repertoire of arguments available to concrete legal practice. Even if they are not really available, because they remain marginal in the legal consciousness of the time, they have the necessary quality to possibly *become* concrete, which makes them suitable candidates for becoming in the near future, suitable alternatives.

My project here then, is to reconcile political radicality with concrete practice, by getting politically radical critical theories to better speak the language of the law — or to put it another way, to better articulate the internal and external critique of the law. This project encounters obstacles in both the conflict of the faculties and the modern division of labor between internal and external critique, and these obstacles are difficult to overcome — but that is no reason not to attempt this.

I would further like to emphasize that, of course, law is not the only language available for structuring human activities and social relations. Many of those languages are in fact completely foreign to it. I doubt, for example, that a theory of love — a central concept in Negri and Hardt’s work — expressed only in legal terms would be satisfactory. My argument is not a plea for the *restitutio in integrum* of classical juridism (God forbid!) — I really hope this paper made this point clear. Juridism is the pretension of the *scientia iuris*, against any other social science, to provide the knowledge of both the legal principles and the legal technique as the constitutive principles of all human relations. In today’s world, this pretension is an attempt to avoid the modern invention of critique. Contemporary legal knowledges are structured by the conflict of the faculties, and as a result, our knowledge of the law is fragmented — this is one of the successes of the critique of the western legal tradition. That said, law remains one of the main languages in which relations of *potestas* (domination) and *potentia* (empowerment/capability) are spoken in our current world. Why? Because law so often prevails over other ways to express and constitute communities.<fnref n="27" /> It structures most human activity and social relations. Thus, deciding not to care about law, in the name of radicality, and seeking alternatives ‘beyond the legal

<footnote n="27">²⁷ ‘The “legal” has to do with ways and standards which will prevail in the pinch of challenge, with rights and the acquisition of rights which have teeth, with liberties and powers whose exercise can be made to stand up under attack’ (Llewellyn 1940, p. 1364).</footnote>
context', on the assumption that law is a concealer, that is surely one of the ways in which the law deceives. In this sense, to do so is to miss concrete alternatives by not looking where they can be found, it misses a whole part of the real world as it is. Of course, law is never neutral — in its ordinary usages, it is very often the language of power as domination, and even when it is not, it tends toward Juristocracy. And of course, not all forces are equal before the law, it generally serves the interests of the rich and the powerful. However, duly criticized from within, it becomes open enough, malleable, and pervasive enough to offer ways of resisting, protections for *potentia* (empowerment/capability) and to open revolutionary pathways. I can find no reason why radical critique ought to shift away from this resource — especially if such critique claims to be immanent and postmodern. On the contrary, I see every reason to inquire as to the ways in which to deploy the law to its most subversive effects.

*Hâtons-nous de rendre la critique (interne) du droit populaire !*

**Acknowledgements** Publishing this article in English alongside Michael's and Toni's response is a project which emerged one year ago. In the meantime, Toni passed away. The tone of the article is one of dispute, not of eulogy. But disputes can be tributes to works and ideas which are important enough to be disputed. Thank you, Toni.

**Open Access** This article is licensed under a Creative Commons Attribution 4.0 International License, which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence, and indicate if changes were made. The images or other third party material in this article are included in the article's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the article's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder. To view a copy of this licence, visit http://creativecommons.org/licenses/by/4.0/.

## References

- Balibar, Etienne. 2002. Possessive individualism reversed: from Locke to Derrida. *Constellations* 9(3): 299–317.

- Balibar, Etienne. 2018. Pour un droit international de l'hospitalité. In *Le Monde*, 16 août 2018. https://www.lemonde.fr/idees/article/2018/08/16/etienne-balibar-pour-un-droit-international-de-l-hospitalite_5342881_3232.html.

- Baranger, Dennis. 2018. *Penser La Loi, étude sur le législateur des temps modernes*. Paris: Gallimard.

- Barthes, Roland. 1967. *Système de la mode*, Paris: Seuil. [English edition translated by Matthew Ward, Richard Howard. 1990. *The fashion system*, California: University of California Press].

- Berman, Harold. 1985. *Law and revolution, Vol.1: the formation of the western legal tradition*. Cambridge, MA: Harvard University Press.

- Castoriadis, Cornelius. 1990. Pouvoir, Politique, Autonomie. In *Le Monde Morcelé, les Carrefours Du Labyrinthinthe III*, 137–170. Paris: Seuil.

- Deleuze, Gilles. 1982. Préface à Antonio Négri, *L'Anomalie Sauvage*. In *Puissance et Pouvoir Chez Spi-noza*, Paris: PUF.

- Duguit, Léon. 1999 reprint. *Transformations Générales du droit privé depuis le Code Napoléon*. Paris: Félix Alcan, 1912. reprint Paris: La Mémoire du Droit.

- Filangieri Gaetano. 2003. *La Scienza della legislazione*. Napoli: Grimaldi & C (1780–1788).

- Foucault, Michel. 1984. What's enlightenment? In *The Foucault reader*, ed. Rabinow. 32–50. New York: Pantheon Books.

- Foucault, Michel. 1995. *Discipline and punish: The birth of the prison*. New York, NY: Vintage Books.
context', on the assumption that law is a concealer, that is surely one of the ways in which the law deceives. In this sense, to do so is to miss concrete alternatives by not looking where they can be found, it misses a whole part of the real world as it is. Of course, law is never neutral — in its ordinary usages, it is very often the language of power as domination, and even when it is not, it tends toward Juristocracy. And of course, not all forces are equal before the law, it generally serves the interests of the rich and the powerful. However, duly criticized from within, it becomes open enough, malleable, and pervasive enough to offer ways of resisting, protections for *potentia* (empowerment/capability) and to open revolutionary pathways. I can find no reason why radical critique ought to shift away from this resource — especially if such critique claims to be immanent and postmodern. On the contrary, I see every reason to inquire as to the ways in which to deploy the law to its most subversive effects.

*Hâtons-nous de rendre la critique (interne) du droit populaire !*

**Acknowledgements** Publishing this article in English alongside Michael's and Toni's response is a project which emerged one year ago. In the meantime, Toni passed away. The tone of the article is one of dispute, not of eulogy. But disputes can be tributes to works and ideas which are important enough to be disputed. Thank you, Toni.

**Open Access** This article is licensed under a Creative Commons Attribution 4.0 International License, which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence, and indicate if changes were made. The images or other third party material in this article are included in the article's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the article's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder. To view a copy of this licence, visit http://creativecommons.org/licenses/by/4.0/.

## References

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- Balibar, Etienne. 2018. Pour un droit international de l'hospitalité. In *Le Monde*, 16 août 2018. https://www.lemonde.fr/idees/article/2018/08/16/etienne-balibar-pour-un-droit-international-de-l-hospitalite_5342881_3232.html.

- Baranger, Dennis. 2018. *Penser La Loi, étude sur le législateur des temps modernes*. Paris: Gallimard.

- Barthes, Roland. 1967. *Système de la mode*, Paris: Seuil. [English edition translated by Matthew Ward, Richard Howard. 1990. *The fashion system*, California: University of California Press].

- Berman, Harold. 1985. *Law and revolution, Vol.1: the formation of the western legal tradition*. Cambridge, MA: Harvard University Press.

- Castoriadis, Cornelius. 1990. Pouvoir, Politique, Autonomie. In *Le Monde Morcelé, les Carrefours Du Labyrinthinthe III*, 137–170. Paris: Seuil.

- Deleuze, Gilles. 1982. Préface à Antonio Négri, *L'Anomalie Sauvage*. In *Puissance et Pouvoir Chez Spi-noza*, Paris: PUF.

- Duguit, Léon. 1999 reprint. *Transformations Générales du droit privé depuis le Code Napoléon*. Paris: Félix Alcan, 1912. reprint Paris: La Mémoire du Droit.

- Filangieri Gaetano. 2003. *La Scienza della legislazione*. Napoli: Grimaldi & C (1780–1788).

- Foucault, Michel. 1984. What's enlightenment? In *The Foucault reader*, ed. Rabinow. 32–50. New York: Pantheon Books.

- Foucault, Michel. 1995. *Discipline and punish: The birth of the prison*. New York, NY: Vintage Books.
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Rancière, Jacques. 2005. *La Haine de la Démocratie*. Paris: La Fabrique.

Saussure, Ferdinand de. 1995(1916). *Cours de linguistique générale*, Genève: Payot. [English edition translated by Wade Baskin, edited by Meisel and Haun Saussy. 1959. *Course in general linguistics*. New York: Columbia University Press].

Savigny, Friedrich Carl. 1913. (1840–1849) Interpretation of written laws. In *System of the modern roman law*, translated by W. Holloway, 166–194, London: Hyperion Press.

Starobinski, Jean. 1976. *Jean-Jacques Rousseau, La Transparence et l'Obstacle, Suivi de Sept Essais sur Rousseau*. Paris: Gallimard.

von Jhering, Rudolf. 1999 reprint. *Der Zweck im Recht*, Leipzig: Breitkopf & Härtel (1877). English translation by Isaak Husik, *Law as a mean to an end* (1877), New Jersey: The Lawbook Exchange.

Xifaras, Mikhail. 2008. Introduction. In *Généalogie des savoirs juridiques, le carrefour des Lumières*, ed. Mikhail Xifaras. Bruxelles: Bruylant.

Xifaras, Mikhail. 2010. Le Copyleft et la théorie de la propriété. *Multitudes* 41: 50–64. [English translation available at. https://www.eurozine.com/copyleft-and-the-theory-of-property/].

Xifaras, Mikhail. 2019. Analyse structural du droit (avec Barthes). In *Barthes face à la norme, droit, pouvoir autorité, langage(s)*, ed. Guittard and Nicolas, 31–66, Paris: Mare Martin, 2019.

**Publisher's Note** Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.
Hardt, Michael, and Antonio Negri. 2009. *Commonwealth*. Cambridge, MA: Harvard University Press.

Hardt, Michael, and Antonio Negri. 2012. *French translation of commonwealth*. Paris: Stock.

Hohfeld, Wesley Newcomb. 2001. (1917) *Fundamental legal conceptions as applied in judicial reasoning*. Dartmouth Publishing Co.

Israël, Jonathan. 2001. *Radical enlightenment, philosophy and the making of modernity 1650–1750*. Oxford: Oxford University Press.

Jakobson, Roman. 2012. Closing remarks: Linguistics and poetics, In *Style in language*, ed. TA Seabok, 350–377, Literary Licensing.

Kant, Emanuel. 1992 reprint. (1794) *The Conflict of the faculties*. Translated by Mary Gregor, Lincoln, NB: University of Nebraska Press.

Kant, Imanuel. 1991 reprint. (1797) Introduction to the Doctrine of Right. In *The metaphysics of morals*, translated by Mary Gregor, Cambridge: Cambridge University Press.

Kennedy, Duncan. 1991. The stakes of Law, or Hale and Foucault! *Legal Studies Forum* XV(4): 327–368.

Kennedy, Duncan. 2004. The disenchantment of logically formal legal rationality, or Max Weber’s sociology in the genealogy of the Contemporary Mode of Western Legal Thought. *Hastings Law Journal* 4: 1031–1076.

Kennedy, Duncan. 2006. *The rise and fall of classical legal thought*. Beard Books.

Kennedy, Duncan. 2008. A semiotics of legal arguments. In *Legal reasoning: collected essays*, 87–152. Aurora, Colorado: The Davies Group.

Latour, Bruno. 1991. *Nous n'avons jamais été modernes*, Paris: La Découverte. [English edition translated by Catherine Porter. 1993. *We have never been modern*, Cambridge, MA: Harvard University Press.].

Legendre, Pierre. 1965. Le droit romain, modèle et langage. De la signification de l'Utrunque Ius. In *Études d'histoire du droit canonique dédiées à Gabriel Le Bras*, tome 2, 913–930, Paris: Sirey, 1965.

Llewellyn, Karl N. 1940. The normative, the legal and the law-jobs. *Yale Law Journal* 49: 1355–1400.

Mnookin, Robert N, and Kornhauser Lewis. 1979. In the Shadow of the Law: The Case of Divorce, 88 Yale L. J. 950.

Portalis, Jean Etienne. 2007 reprint. Marie. De l'Usage et de l'abus de l'esprit philosophique durant le XVIIIe siècle, précédé d'un essai sur l'origine, l'histoire et les progrès de la littérature française et de la philosophie, par M. le Comte Portalis, 2e Edition, Moutardier et Balland, 1827 (1799). Paris: Dalloz.

Pound, Roscoe. 1908. Mechanical jurisprudence. *Columbia Law Review* 8: 605–623.

Rancière, Jacques. 1995. *La Mésentente, Politique et Philosophie*. Paris: Galilée.

Rancière, Jacques. 2005. *La Haine de la Démocratie*. Paris: La Fabrique.

Saussure, Ferdinand de. 1995(1916). *Cours de linguistique générale*, Genève: Payot. [English edition translated by Wade Baskin, edited by Meisel and Haun Saussy. 1959. *Course in general linguistics*. New York: Columbia University Press].

Savigny, Friedrich Carl. 1913. (1840–1849) Interpretation of written laws. In *System of the modern roman law*, translated by W. Holloway, 166–194, London: Hyperion Press.

Starobinski, Jean. 1976. *Jean-Jacques Rousseau, La Transparence et l'Obstacle, Suivi de Sept Essais sur Rousseau*. Paris: Gallimard.

von Jhering, Rudolf. 1999 reprint. *Der Zweck im Recht*, Leipzig: Breitkopf & Härtel (1877). English translation by Isaak Husik, *Law as a mean to an end* (1877), New Jersey: The Lawbook Exchange.

Xifaras, Mikhail. 2008. Introduction. In *Généalogie des savoirs juridiques, le carrefour des Lumières*, ed. Mikhail Xifaras. Bruxelles: Bruylant.

Xifaras, Mikhail. 2010. Le Copyleft et la théorie de la propriété. *Multitudes* 41: 50–64. [English translation available at. https://www.eurozine.com/copyleft-and-the-theory-of-property/].

Xifaras, Mikhail. 2019. Analyse structural du droit (avec Barthes). In *Barthes face à la norme, droit, pouvoir autorité, langage(s)*, ed. Guittard and Nicolas, 31–66, Paris: Mare Martin, 2019.

**Publisher's Note** Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.