António Manuel Hespanha[1], “Res est misera ubi jus est vagum et incertum”[2]. The legal construction of materiality.
Abstract: Law is one of the most prominent examples of the entangled relations between materiality and ideality. So that modern legal theory often discards the very notion of materiality, approaching law from a radical construtivistic approach. Legal entities (facta iuris) would be “legal” in the most deep and primordial sense of the word: fully created by law. The universe of legal fictions – a classical trope of legal discourse – would not be but the top of the huge mass of legal poiesis. On the other hand, law overcharges material objects with legal values (legalfacts ← artifacts), changing thereby their most inner nature and meaning: from material things they become prolific nests of norms and values. The aim of the paper is to make available in a systematic way some illustrations of the kind of fictional entities that populate the legal world, as well of the normative effects which spring out of concrete objects.
In a book written in during the intellectual turmoil around the concept of modernity[3], Bruno Latour considers the strict division between nature and society (social constructs or social effects) as a central characteristic of modernity.
The vision of the world of modernity is characterized is deemed to be a twofold process of "purification" and "hybridization"[4]. Although both processes are closely linked, their outcome would be a separation of nature (and science) from society (and everyday life), however restricted by the (hidden, repressed, although pervasive and inescapable) construction of all sorts of nature-culture hybrids. Actually, each natural phenomenon becomes the object of several discourses and social practices in order to “explain” or “master” it[5].
This is also the basis for his definition of modern Constitution:
· Nature is beyond humanity, and science only discovers its secrets;
· Human beings alone construct society and form their own destiny (agency, intentionalism, fundamental human freedom, contractual and political voluntarism);
· These two worlds must cognitively and theoretically be kept apart[6];
· God is evacuated from social and political science, although he remained as the immanent source of (scientifically and politically irrelevant) spiritual insight[7].
Because of its fictions or hidden distortions[8], the "constitution of modernity” has never been completely different from the undifferentiated pre-modern constitution, where such divides between nature and society, humans and things, earthly and divine did not exist; so that agency was shared by individuals, groypus, non humans, objects or spirits, and materiality and spirituality formed an undivided continuum[9]. In that sense, the “Great divide” between modern/Western and pre-modern/historical Western-Eastern constitutions is also a product of modernity and a condition of sustainability of its own constitution.
Alternatively, Latour, based in a deemed special ability of anthropologic knowledge[10] to restore the entangled connections of the “world”, conceives it as a collective (p. 4), i.e., as a mingling universe of humans, non humans (things, incorporeal entities, discourses), produced by a continuous and everlasting process of hybridization. This process arises from the fact that in the “world of life” (Lebebenswelt, to borrow a habermasian expression), dealing with[11] an object crosses several approaches to the “world” (scientific, textual-symbolic, social, emotive, supernatural)[12] and convokes a plurality of knowledges (also emotional states and political projects), each on with a specific “quadrillage du réel”.
Although this is not the center of our current point, Bruno Latour has a simultaneously parochial and flattering conception of anthropologic gnoseology: “this [to choose a sole of multiple approaches to the world] would be a hopeless dilemma had anthropology not accustomed us to dealing calmly and straightforwardly with the seamless fabric of what I shall call “nature-culture”, since it is a bit more and a bit less than a culture […] bringing together in a single monograph the myths, ethnosciences, genealogies, political forms, techniques, religions, epics and rites of the people she is studying” (s. 7). Most probably, historians, or even sociologists could claim the same wisdom to the respective knowledge.
However, the central point of this paper is to highlight a region of knowledge which had always an unbound skill to openly unite the most discrete types of entities under the umbrella of an undivided discourse. I’m referring to law.
As Bruno Latour stresses in other book - this one on the practice of legal judging -, lawyers hebe always been very keen in stressing the full autonomy of their world.
For centuries, jurists actually used to claim their poietic abilities, so that solely the entities recognized by the law belonged to the world (quod non est in libris non est in mundo). In fact, even the things law takes for granted, only become material after they pass through by formal procedures established by the law (namely, a process of proofing by legal evidences, like legal notoriousness[13], direct witnesses, documents, etc.). Therefore, in a law suit, everything which is not produced according to the procedural rules, simply does not exist (quod non est in actis non est in mundo). On the other side, things exist under the form and with the attributes law prescribes for them[14].
Law is therefore a pretty neat example of the irrelevance of things which are not produced according to an inner discursive grammar; or of the agencies of whom the same grammar does not recognize as agents.
At this level the great divide is not to be placed between things and spirits, since the ability of act or instead the passive nature of entities whose fate is to be acted can be bestowed to both of them; but between legal agents (or subjects) and legal objects (or things). This was, actually, the partition western jurists have done for a millennium.
The most striking examples of this constructive nature of legal discourse is pre-modern law[15].
The first systematic descriptions of the whole of the law – like that of the Roman jurist Gaius (+ c. 180 a.D.) – divide law in three great branches – law concerning persons (ius personarum), concerning things (ius rerum) and concerning actions (ius actionum).
As actions were the product of the agency of persons, the tri-partition is reduced to a binary division – personae and rei. This means that agency could be granted either to a person or to a thing - the translation of time[16], the material situation of a plot of land regarding another[17], a chemical reaction[18], a color[19], the nature[20], an animal[21], a written piece[22], a spirit – like God (or the gods)[23], a soul[24], a saint[25], a dead person - a collective body (like the State, a municipality, a corporation or a foundation), etc.. Similarly, materiality could be bestowed to invisible or really inexistent things: a social status (nobility, symbolic precedence), services (to the crown), offices, etc…
The impact of this systematization lasted almost untouched until the 19th century, being still adopted by its most important legal document – the French Code civil (1804)[26] -, and some features remain in force still today. And one can easily imagine that new agencies and new materialities are near to arise: environment, outer space, wildlife, endangered species, computers or robots, etc..
Legal fictions can also be considered as mild forms of legal creationism, although older jurists considered fictions as being as real as “real things”, because the fiction was not but a revelation of something already existing hidden in the nature[27].
A lot of examples can be produced to illustrate this poietic aptitude of the legal discourse:
· Fictions: merging two Lebenswelt’s entities in one legal entity.
· Reshaping Lebenswelt, according to a specific discursive cut: creating legal entities - corpora, individuals [the level of constructivism is the same, either for collective bodies or for individuals]; suppressing life entities – persons (naked life people (Agamben, Bauman): imbeciles) - or “existing” things[28].
· Converting Lebenswelt’s proprieties into legal entities (honor, rank, titles, names) and restoring the late medieval debate on universals, echoed by Umberto Eco in the last sentence of his book - "Stat rosa pristina nomine, nomina nuda tenemus", which means : "The ancient Rose remains by its name, naked names (are all that) we have" (U. Eco, Il nome della Rosa, incipit)[29].
· Re-organizing (crucially) Lebenswelt according to a specific Weltanschaung – persons, things; material, immaterial things (anima). This leads to a creation of a novel world, which relation the world of life is not but a feeble and mediate evocation, not even that of a real world but of a world of discourses (namely the religious or common sense discourses), which create entities without any relation with the material world of facts and things (the referens abhorreo of linguists).
· Creating literally things with words[30]: performative acts of speech: "I now pronounce you man and wife.", "You are under arrest."; "I sentence you to death"; "I divorce you, I divorce you, I divorce you" (Islamic: see: Talaq-i-Bid'ah or triple Talaq); "I do" – wedding; "The court is now in session"; “I declare the meeting opened.”
· However, law can also embed itself in things, transform the world of life objects into legal artifacts (legalfacts[31]), which become (although in a normative way) part of the world of life. These are the cases of traffic lights, danger signs, nuclear caution sign. Moreover, “raw objects” (things like a car, an airport, a town’s street) are huge mixtures of rules, some of them enforceable as proper legal norms, some others lighter mandatory, but anyway worth of consideration by actors.
For a constructive approach of knowledge, issues like those of defining “materiality“ or “agency” seem outmoded. Actually, discourse constructivism established long ago the uselessness of the issue of the referent[32], conceiving objects as discursive constructs and agency as discursive competences, both bestowed by a particular narrative about the world.
Within legal world – the sphere of legal discourses -, an existential need of certainty, of social reliability and of objective evidence, traditionally lead jurists to adhere to a “emotional” objectivist conception of reality, often putting the ability to demonstrate objects as a pre-condition to open a legal case[33]. Therefore, jurists are used to carefully separate facts from norms. The proper role of jurists would be to articulate the legal solution only after facts were established (da mihi facta, dabo tibi ius). However, as the demonstration of facts should cope with the rules, facts were actually an construction of lawyers, which was not arbitrary solely by the fact that it should obey to the established structure of legal discourse.
This radical constructivism of law was one of the key cases of the Luhmannian theory of autopoeisis[34]. The legal ability to construct its own word of entities wasn’t bu a consequence of the closure/openness of autopoietic systems towards their environment (Umwelt). Systemic entities wouldn’t relate to any extra-systemic event; but, by opposite were a peculiar transcription of the outer world able to reduce its complexity.
In a recent text, Günther Teubner discusses Bruno Latour’s theses on purification and hybridization , contrasting them with a lightly reworded version of Luhmann’s system theory[35]. For him is more than plausible that the legal model of restraining agency to humans is under a strong revision, lead by movements like Animal Liberation Front or by the environmentalist militancy, who propose a legal or even constitutional protection to great primates, circus non human stars, bulls or, more generally, to any kind of animal subject to serious misbehavior, torture or cruel forms of death[36]. Not all of these legal norms entail a personification of animals – as not all the environmental law entails a personification of trees, water, dunes, landscape, etc.. However, the reduction of complexity, leads legal narratives to apply to these cases a discursive well tested model – the personification, either in a light or in a strong version. Person becomes a dogmatic umbrella, under which several legal effects can be economically expressed – namely, protection, vested in something similar to rights or even fundamental rights. As, for centuries, personification has been used to extend to corporations legal concepts and effects, which had been built for humans – willingness, legal capacity, assumption of obligations, responsibility. Also in this case, the triggering factor was – according to Luhmann’s theory[37] – reduction of complexity, besides the argumentative efficiency of the metaphor. Therefore, “agents do not exist per se, rather social systems build their agents, insofar they ascribe subjectivity to semantic artifacts – the persons. Individual or collective agents are primarily build within the process of social attribution [of personality]”[38]. So that collective persons are as “real” as individual ones.
This process of extending the range of ascription of personality beyond the initial circle of individuals allowed a powerful simplification of legal world, as it expanded the function field of legal dogmatic constructs – legal capacity, power of will [to mold legal deeds], representation, assumption of responsibility, sharing legal effects amidst several individuals, etc.).
Ulterior needs of reshaping legal agency are arising as a consequence of technological innovation, namely in the field of artificial intelligence computing and robotics. More and more, “intelligent computing” replaces humans in social agency. “Unmanned” electronic transactions[39], computer geared fixing of prices[40], artificial intelligence systems of matching and pricing stock exchange orders[41]. Not all this emergent world can be rendered less complex by the personification of technological devices[42]; this would often be an excessively rough solution. However, AI computers are no more mere instruments of human masters. Seemingly, more or less partial extensions of personality to technological paraphernalia could reduce the complexity of legal problems arising from this new stage of technology, where human intentionality is less and less in the core of legal processes. That’s to say, a wise combination of ascription of new stages of (changeable) personality to machines with an enlargement of responsibility based on the risk (not on the intentionality)[43].
Anyway, all these complex and uncertain issues does not change significantly the theoretical outcome we are discussing: agency seems to be a fact of discourse (and correlative social practices) and not a fact of nature. The same can be seemingly said of the twin concept of thingness and, most probably of the rather mysterious notions of materiality and spirituality.