The social state: a dense forest of miscellaneous regulations that grew up with the Industrial Revolution and is now, some claim, inexorably withering.footnote1 Are they wrong? Not if they mean that the social state is simply one moment in the long history of human solidarities which have taken multiple forms, none of them definitive nor guaranteed. But they are certainly wrong if they think that social justice is no lon1ger a relevant question. ‘The only law that is absolutely indispensable is labour law, or social law in the common meaning of the term’, the jurist Jean Carbonnier wrote.footnote2
The Western social state was born at the end of the nineteenth century with the adoption of a new regime of responsibility for industrial accidents. A perspicacious witness of this legal turning-point was Franz Kafka, whose professional career was devoted to applying the law on industrial accidents that Austria–Hungary had adopted in 1887. His legal studies had left him with mixed memories, as he wrote to his father: ‘I was positively living, in an intellectual sense, on sawdust, which had, moreover, already been chewed for me in thousands of other people’s mouths. But in a certain sense this very thing was to my taste.’footnote3 In 1908, two years after completing his degree, Kafka joined the Workers’ Accident Insurance Institute of the Kingdom of Bohemia. Visiting factories, meeting men injured at work, wrestling with a bureaucracy that sought ways to avoid compensating them, he had an everyday experience of injustice. This not only led him to uphold a broad interpretation of the field of application of the 1887 law; it also had a powerful influence on his literary work. His friend Max Brod recalled that Kafka’s ‘social conscience was greatly stirred when he saw workers crippled through neglect of safety precautions’. ‘How modest those men are’, he confided one day to Brod, his ‘eyes wide’. ‘Instead of storming the institute and smashing it to little pieces, they come and beg.’footnote4
This remark says a good deal about Kafka’s lucid awareness of the limitations of the embryonic social-insurance systems. Compensation for accidents at work was the price to pay for the human refuse of the industrial project; a price calculated as narrowly as possible, given the resignation of the weak in the face of the strong, the deep-rooted submission of the villagers to the gentlemen of the Castle. It also says a good deal about the issues at stake in social law: the necessity of the barriers it erects to avoid an excess of injustice opening the way to ‘smashing’ things to pieces. Similarly, the demented massacres of the first half of the twentieth century have shown what happens when mass pauperization is blamed on scapegoats and fuels hatred for the Other. On two occasions, in the wake of the First and Second World Wars, first of all in the Constitution of the International Labour Organization in 1919, then in its Philadelphia Declaration of 1944, nations sought to draw the lessons of this experience by solemnly declaring that ‘lasting peace can be established only if it is based on social justice’.
That injustice foments violence is easy to accept; but this is where the difficulties begin. They are of two kinds—theoretical and practical—which Aristotle carefully distinguished and ranked. ‘Although it may be difficult in theory to know what is just and equal’, he wrote in the Politics, ‘the practical difficulty of inducing those to forbear who can, if they like, encroach, is far greater, for the weaker are always asking for equality and justice, but the stronger care for neither of these things.’footnote5 Even supposing that this political obstacle were removed, mere observation of the facts would not suffice to discover the rules of a just distribution of goods and positions. Contrary to an old and misleading biological metaphor, regulation does not mean the same thing for human societies as it does for living organisms. In medicine, as Georges Canguilhem noted, it is not hard to agree on what is good: health. The problem lies in understanding the bad things, diseases and their causes. In society, on the other hand, it is fairly easy to agree on the evils that should be removed—poverty, lies, violence—but the definition of what an ideal order would be is not so simple.footnote6 For an organism, the norms by which it functions are identical with its existence, whereas a society, in order to exist and maintain itself, must posit these norms outside itself. Kelsen perceived the necessary externality of fundamental norms, but this led him into the impasse of a purely formalist theory of law, blind to the values that inspire it and the reality that it governs. How can we avoid that formalism—without falling into a scientism which claims to find, in the observation of what is, the answer to the question of what should be?
However different they are, these two false solutions arise from the same positivist repression, which Pierre Legendre’s work brought to light very well: the denial by Western modernity of its own dogmatic foundations.footnote7 It will take time for us in the West to admit that here, as elsewhere, the institution of human society rests on non-demonstrable premises, which are a matter of trust and not of calculation. An ancient metaphor represents justice as the mother of laws; this is the origin that our orphaned humanity postulates, without ever being able to return to it. In the terms of Kafka’s Trial and of the Keeper of the first door of the Law: it is not possible to enter the law, to accede to what would be its ultimate reason; even if we could pass through the first door, countless others would remain. In the same way an endless series of axioms, one on top of the other, will not free a formal system from its irreducibly incalculable element. Of course, we have known since Montesquieu that the spirit of a society’s law is bound up with the characteristics of its environment, so that the law necessarily differs from one place and time to another. But this is not a matter of mechanical causality, for the same setting can give rise to different representations of duty. Science does not have the power to ground a legal order. The principles on which law rests may be asserted and celebrated, but are neither demonstrated nor demonstrable.
This allows us to understand why the foundation of law took a religious form for so long in so many countries. It still does in some of them, where the legislator appeals to what the present Iranian constitution calls ‘divine revelation and its fundamental role in setting forth the laws’. Even where the source of laws is no longer imputed to the inscrutable will of God, the great book of nature may be called on in place of sacred texts. The laws of biology, history and economics continue to be invoked not only to explain the operation of human societies but as a supreme prescription, imposing itself on positive law. Before the Second World War, eugenic or racial legislation was adopted in the name of biology in many parts of the world, including the usa and Northern Europe. Today, it is economic science that finds itself elevated as the mother of laws.
Law will be understood here not only as a system of established rules but as a means of analysing different social orders. In the case of the social state, it allows us to see both the framework of solidarities that have deeply transformed our ways of living together over a century, and the play of powerful forces that are shaking this institutional edifice and threatening to bring it down. But before discussing the misery that hobbles the social state today, it is necessary to take the measure of its historical and institutional grandeur.