Jurists were once revered as priests, high guardians of the law endowed, in the Roman adage, with ‘knowledge of what is equitable and just’. If such dicta continue to adorn many a courthouse and law-faculty frieze, jurists in growing numbers pray to a new omnipotence: not equity and justice, but economic efficiency. The hegemony of the ‘Law and Economics’ movement now extends far beyond its North American homeland. Its apostles take as their methodological starting point the rational-choice framework of neo-classical economics: all human behaviour can be explained as the product of individual agents making rational, utility-maximizing decisions, based on a stable set of preferences. Legal rules are evaluated—ideally, designed—with reference to a calculation of alternative efficiency outcomes; society comprises the sum of individual utilities. On law-school campuses today, justice has become virtually synonymous with optimal market allocation.
Alain Supiot’s Homo Juridicus is, at one level, an extended and trenchant polemic against this dominant approach; at the same time, his critique of the juri-economists’ discourse of incentives, rational actors and efficient breach is embedded in a larger—historicized and anthropologized—vision of law as a socially constitutive force.footnote1 Professor of Law at Nantes, Supiot is best known for his work on labour rights. His 1994 Critique du droit du travail, on the transformation and regulation of work in a post-industrial society, became a landmark in the field. He subsequently chaired a European Commission inquiry into the conditions of, and outlook for, labour in Europe. Its conclusions, published in 1999 as Au-delà de l’emploi, and two years later in English as Beyond Employment, became known simply as the Supiot Report. Its starting point was the simple, radical postulate that the economy should be adapted to meet the needs of human beings, rather than humans adapted to the needs of markets. The crisis of the Fordist industrial model should be used as an opportunity to improve the lot of the majority, not to intensify a race to the bottom. Writing at the height of capital’s drive for labour-market deregulation and the elimination of workplace protections—‘institutional rigidities’—Supiot offered a searing critique of European labour law in the context of the changing nature of employment itself.
Homo Juridicus extends the scope of Supiot’s thought to the phenomenon of law as a whole. It is a highly ambitious work: a guide to the origins of Western law and an inquiry into its anthropological function, rich in historical and etymological erudition; and an uncompromising critique of contemporary jurisprudential developments. These are not the parochial concerns of the legal adept. Supiot’s starting point is the constitution of the social bond, through language: ‘every human being is born into a world of sense’, which gives meaning to his or her existence; to have access to it, every child must learn to speak, and so to recognize the laws of language. ‘If we are to express ourselves freely in a language, we must first submit to the limits that give words meaning; without this radical heteronomy, we would have no autonomy.’ Humans are not born rational: they become so by gaining access to meaning shared with others; every human society in its own way ‘undertakes the institution of reason’. This, in turn, requires a broadly shared belief system: the acceptance of certain basic axioms—dogma, in the primary sense of the term—that appear to their adherents as ‘self-evident truths’. Supiot cites Tocqueville—‘Dogmatic beliefs can change in form and object, but there will always be opinions that men accept on trust’—and Comte:
Dogmatism is the normal state of the human mind, the state to which by nature it tends. For scepticism is a state of crisis, the inevitable result of the intellectual interregnum which necessarily occurs whenever the human mind is called to change doctrines—an essential means to permit the transition from one dogmatism to another . . . Modern people have obeyed this imperious law of their nature even in their revolutionary periods, since whenever it was necessary to act, if only to destroy, they were inevitably led to give a dogmatic form to ideas which were in essence purely critical.
Supiot contrasts the different approaches to the social ‘institution of reason’ adopted in the Confucian world and in the lands of the Peoples of the Book. In China and Japan, social bonds depend not on ‘verbal pledges’ but on ‘maintaining the harmony that prevailed when the bonds were first formed’, in the context of the changing nature of people and circumstances. In the traditional societies that took Christianity, Judaism or Islam as their foundations, ‘the legislative power of the Word of God’ provided a model that could be appropriated by humans for their own ends. In mediaeval Europe, religion was ‘not a private matter’ but a purely public affair: princely power and the natural world were both ordained by God’s unchanging laws. Supiot traces the differentiation of religious, natural and human laws from this original unity, at the dawn of the early-modern age: scholars ceased to see themselves as guardians of the divine law and instead set about deciphering what Descartes called ‘laws which God has established in Nature’. Not much later, new concepts of civil and political law were established on the dogma—the ‘self-evident truth’—that ‘all men are endowed by their Creator with certain inalienable rights’. Following Panofsky, Homo Juridicus compares the ontological outcome of the systematization of human and scientific law with the ‘discovery’ of the laws of perspective in art, which established the artist’s individual viewpoint as the organizing principle of the image: both ‘a triumph of the distancing and objectifying sense of the real’ and ‘an extension of the domain of the self’.
With the secularization of Western society, the state came to replace the ‘two bodies’ of the King: ministers change, the central-national defender and administrator lives on. It was now law, not religion, which instituted human beings as such. For the great anthropological achievement of law, Supiot underlines, is to link together our biological and symbolic dimensions—to ‘connect our infinite mental universe with our finite physical existence’—through an adaptable social process that allows us to become homo juridicus: ‘neither beasts nor angels’, in Pascal’s phrase, but rational social subjects; people of law. Just as we are freed to communicate through the heteronomy of language, so we are able to pursue a richer social existence through the heteronomy of law, as a field of rules existing independently of us as individuals. The dogma of law provides—and, ideally, the legal system articulates—a vision of systematized justice, offering a common compass to all members of society. People ‘cannot live freely and peaceably without the dogmatic nature of the law’. This humanizing, interdictory power of the law arises not so much from its positive content, ‘the letter of the Text’, but from the resources for interpretation that it harbours. In principle, law is as much a hermeneutic device as a system of norms. It creates a discursive space in which a shared vision of justice can be forged through dialogue; in which questions of value can be posed, the exercise of power challenged and the cold logic of the market subordinated to broader human needs. The promise held out—if never actually delivered—by post-war European social democracy represents, perhaps, the high point of its advance to date: this seems Supiot’s implicit conclusion.
Today, this humanizing, anthropological function risks being buried by ‘scientific’ approaches that ignore the human being as subject—a rational individual under the law—and treat her as mere object: an ‘accounting unit, like cattle’. This reductionism is most evident, Supiot argues, in the subordination of legal dogma to the law of the market. He traces the origins of the Law and Economics paradigm to Gary Becker’s work, although it is another Nobel-anointed Chicago economist, Ronald Coase, who is generally identified as its founding father: his 1960 article, ‘The Problem of Social Cost’, was particularly influential in elevating efficiency as a guiding concern for legal analysis. Another notable figure is the Italian-born Guido Calabresi, erstwhile Dean of Yale Law School (where his students included Supreme Court justices Samuel Alito, Clarence Thomas and Sonia Sotomayor), and Clinton’s nominee to the us Court of Appeals for the Second Circuit, which covers New York, Connecticut and Vermont. Other prominent practitioners are Richard Posner and Frank Easterbrook, also Chicago-affiliated and both Reagan nominees to the Seventh Circuit, serving Illinois, Indiana and Wisconsin; both regularly employ economic analysis in their judicial opinions.