The Grandeur and Misery of the Social State|
The Grandeur and Misery of the Social State
Inaugural lecture delivered on Thursday 29 November 2012
1Mr Prime Minister,
Ladies and Gentlemen,
2Law was continuously taught at the Collège de France from 1612 to 1919. After a 70-year interruption, this teaching was resumed with the Chair of International Law held by René-Jean Dupuy, followed by Mireille Delmas-Marty’s Chair dedicated to Comparative Legal Studies and the Internationalization of Law. The Assembly of Professors has now entrusted me with perpetuating this long tradition. Words fail me, dear colleagues, to express my gratitude for the trust you have put in me, as well as my gnawing anxiety faced with this heavy responsibility. A line of Khalil Gibran resounds in my ears: “And when you have reached the mountain top, then you shall begin to climb”. I take the poet’s cautionary words particularly seriously, given that the Chair we are inaugurating this evening relates to none of the three major legal subjects that have been taught at the Collège de France since its creation. Although it ties in with these different disciplines, its own subject matter is neither canon law nor international law, nor comparative law, but what is very loosely termed “social law”. Some claim that this dense forest of disparate rules, which grew with the industrial revolution, is inexorably wilting. Are they wrong? Certainly not if they mean that the Social State is just a moment in the long history of human forms of solidarity, and that the diverse forms it has taken on are neither guaranteed nor definitive. But they would surely be wrong to think that the question of social justice has become irrelevant. Dean Carbonnier, who guided me on the start of my journey as a researcher, wrote that “the only law that is absolutely essential is labour law, in other words social law in the broad sense of the term”.
3As François Ewald convincingly showed, the Social State was born at the cusp of the nineteenth and twentieth centuries with the adoption, in all Western countries, of a new regime of responsibility for work accidents. One of the least recognized yet most astute witnesses of this legal turning point was Franz Kafka, who devoted his entire professional life to implementing the law on work accidents adopted by Austria-Hungary as early as 1887. His law studies had left him with mixed feelings. 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 was exactly to my taste”. In 1908, two years after defending his thesis, Kafka entered the service of the “Workers’ Accident Insurance Institute for the Kingdom of Bohemia”. He experienced injustice on a daily basis, as he visited factories, received men who were left disabled by work, and fought with a bureaucracy that contrived not to compensate them. This experience not only led him to advocate a broad interpretation of the area of application of the 1887 law in his legal writings, but also powerfully fuelled his literary work. His friend Max Brod recalled that Kafka “felt deeply moved in his sense of social solidarity when he saw the disabilities that had befallen workers because of shortcomings of the security devices. ‘How humble these men are’, he once confided in me with a distant gaze. ‘Instead of taking the building by storm and ransacking everything, they come to ask for our help’”.
4This comment says a lot about Kafka’s lucidity regarding the limits of the burgeoning social security systems. Compensation for work accidents was the price to pay to process the human waste of the industrial enterprise, a price that was calculated as low as possible, so great is the resignation of the weak towards the strong, so entrenched is the villagers’ submission to the gentlemen of the Castle. His words also say a lot about the issues underpinning social law, about the need for the barriers it erects to prevent excessive injustice from opening the floodgates of the blind desire to “ransack everything”. The unthinkable massacres of the first half of the twentieth century showed what happens when mass pauperization is blamed on scapegoats, and fuels hatred of the other: national or racial hatred, class hatred or religious hatred. Twice, in the wake of the First and then the Second World War, first in the Constitution of the International Labour Organization (ILO) in 1919, then in the 1944 Declaration of Philadelphia, the international community endeavoured to take stock of these experiences, solemnly asserting that “there can be no lasting peace without social justice”.
5It is easy to recognize that injustice breeds violence. But this is where the difficulties start. Difficulties of two types, theoretical and political, which Aristotle had already neatly distinguished and prioritized: “It is extremely difficult”, he wrote in Politics, “to discover the truth about equality and justice. Nonetheless to do so is easier than to dissuade those who are in a position to manipulate it to their own advantage; for it is always the deprived who seek equality and justice, while those in power do not give it a thought”. Even assuming that this political obstacle were lifted, one could not hope to uncover the rules of fair distribution of goods and positions by merely observing the facts. Contrary to the biological metaphor which is as old as it is misleading, regulation does not have the same meaning when applied to a living organism as it does when applied to a human society. In medicine, as Georges Canguilhem pointed out, it is easy to agree on what is good: health; the issue is defining what is bad: diseases and their causes. In society it is, on the contrary, easy to agree on the ills to avert – misery, lying or violence – but defining an ideal order is more complex. While the norm of an organism’s functioning is identifiable in its very existence, to exist and subsist a society must set this norm outside of itself. While Hans Kelsen perfectly grasped this externality of the fundamental norm, this led him to the dead-ends of a purely formalist theory of law, blind to the values that fuel it and the facts it governs. How can we escape this dead-end without falling into that of a scientism claiming that with the observation of the “is”, lies the answer to the question of the “ought”?
6However different they may be, these two dead-ends result from the same positivist repression, which Pierre Legendre’s work brought to light very well: Western modernity’s repression of its own dogmatic foundations. His work marked a turning point in legal thought, of a magnitude that was to become apparent with time. For it will take us time to recognize that in the West, like anywhere else, the institution of people and society is based on indemonstrable premises, which are the product of trust and not calculation. It will also take time to fully exploit the heuristics of the concept of dogmatic industrial spaces, which is fundamental to understanding the institutional underpinnings of globalization. These decisive discoveries, as well as the filial friendship I developed with their author, have profoundly influenced my academic career. While I am far too indebted to you, dear Pierre Legendre, to even hope to settle this debt one day, it is fitting for me to publically acknowledge it here in this forum.
7An old metaphor represents Justice as the mother of laws. It is the origin that our orphan humanity posits, without ever being able to return to it. In the terms of the doorkeeper of the first gate of the Law – in the only passage of The Trial that Kafka published in his lifetime – it is not possible to enter the Law, to access what its ultimate reason would be. Were we to go through this first door, an infinity of other ones would continue to separate us from it, just as an undefined series of axioms, added one after the other, could not save a formal system from that irreducible share of the incomputable. Of course, we know since Montesquieu that the spirit of laws is linked to the characteristics of the environment in which each society is embedded, and that it therefore necessarily differs from one place and from one era to the next. But this is not an automatic causal link, for different representations of duty can emerge in the same environment. Science is powerless when it comes to founding a legal order. The principles on which such an order is based are asserted and celebrated, but neither demonstrated nor demonstrable.
8It then becomes clear why, for so long and in so many countries, this foundation was religious. It still is or is reverting to this in certain countries, where the law claims to stem from what the Iranian Constitution calls “divine Revelation and its fundamental role in setting forth the laws”. And even where laws are no longer claimed to have their source in the inscrutable will of a single God, it is tempting to read in the Great Book of nature what is no longer sought in the sacred Books. The laws of biology, the laws of history, the laws of economics have been and continue to be called upon, both as an ultimate explanation of the functioning of human societies and as a supreme prescription imposed on positive law. In many countries – in America and in Northern Europe – eugenist or racial laws were thus adopted in the name of biology before the Second World War. Today, following the reconciliation of communism and capitalism, the science of economics is threatened with being erected as the mother of laws. But even recently, some believed in good faith that they had found the proof of the principle of equality in the Great Book of the genome, forgetting that the equal dignity of humans proclaimed in the aftermath of the war were not contingent on the successive representations of biological truth.
9In his inaugural lecture, Roger Guesnerie, who was too rigorous in his research work to think about economics in these dogmatic terms, stressed that understanding the social dimension of economic issues required a crosscutting perspective from all the human sciences, as well as avoidance of both “esoteric reflection on imaginary worlds” and “rash data processing”. I cannot thank him enough for the time he unsparingly devoted to the presentation of this new Chair. I am also very grateful to the members of the Collège de France who encouraged me to join their ranks. I would not have considered coming through the doors of this illustrious institution had they not seen talent in me that I still cannot recognize. I must pay tribute in particular to Mireille Delmas-Marty, whose generous personality and tranquil determination I have now had the opportunity of discovering. I am not only grateful for her encouragement and sound advice, I also share an intellectual debt alongside all the readers of her seminal work on the internationalization of law. I would furthermore like to extend my thanks to Roger Chartier and Jean-Noël Robert, whose friendly support was a powerful impetus, and to Anne Cheng, Pierre-Étienne Will, Marc Fontecave and Philippe Kourilsky, for taking a keen interest in the creation of this new Chair.
10The Chair’s title – “The Social State and Globalization: a Legal Analysis of Forms of Solidarity” – refers to both an object and a method. While it is a little long, it is so because this object cannot be confined within the safe and recognized boundaries of a “branch” of law, and because understanding it involves thinking of law as a tool for the analysis of societies, not only as an established system of rules. The Social State shows us both the frame of the forms of solidarity which have profoundly transformed our ways of living together over the last century, and the interplay of powerful forces undermining this institutional structure and threatening to bring it down. These are the forces that will need to be understood, along with their predictable impact. But before we get to the misery currently overwhelming the Social State, let me first take stock of its historical and institutional grandeur.
11Let us therefore start with its grandeur. We could not hope to accurately gauge it by limiting ourselves to “social law”, a branch of law which, in France at least, encompasses labour law, social security law and social welfare law. This technical meaning includes only some of the rules stemming from the comprehensive understanding of social law put forward by Georges Gurvitch in his 1932 thesis. It also excludes numerous systems that are part of the Social State but technically pertain to public law, such as tax law, education law or housing law.
12The notion of a Social State refers to an inherent quality of the contemporary state, and not simply a compartment of positive law. Thus, in the first article of its Constitution, France defines itself as “an indivisible, secular, democratic and social Republic”; the Federal Republic of Germany defines itself as “a democratic and social federal state”; the Russian Federation as “a Social State whose policy is aimed at creating conditions for a worthy life and a free development of man”; the Republic of Turkey as a “democratic, secular and Social State governed by the rule of law”; the Republic of Algeria as a state “based on the principles of democratic organization and of social justice”. Other constitutional texts – for example in India, Brazil or South Africa – make social justice one on the first foundations, if not the first, of the national legal order. Not defining the state as “social” or with reference to the principle of social justice is therefore the exception throughout the world, rather than the rule.
13Where does this Social State sit in the history of the state? The works of Ernst Kantorowicz, Harold Berman and Pierre Legendre in particular have taught us that the state is not a timeless universal institutional form, but an invention of pontifical lawyers between the eleventh and thirteenth centuries. These authors broke away from the still deep-rooted legend that sees modern times as the direct legacy of Greco-Roman Antiquity and overlooks the medieval crucible from which they stem. The idea of an immortal state is rooted in that of a mystical body. This immortal being, invented on the model of angels who have a beginning but no end, has metamorphosed three times since its creation. The first dates back to the protestant Reform, which gave birth to sovereign powers that were emancipated from the Pope but not free of any spiritual reference. The second, inaugurated in France by the 1789 Revolution, saw this balance between worldly power and spiritual authority disappear, conferring an omnipotence to the state that the separation of its powers has endeavoured to contain. The third metamorphosis was a response to the legitimacy crisis which struck this omnipotent being, when the rise of industrial capitalism and scientific positivism made it appear as a mere tool of administration or domination. This is the crisis from which the Social State emerged.
14Understanding this founding period requires a detour via physical anthropology. As André Leroi-Gourhan has shown, the use of tools and access to language precipitated the primates that we are into a symbolic world, which needs to be tailored to our physical conditions of existence. But while language is a stable feature of the human condition, the same cannot be said of tools, which have constantly extended what Augustin Berque calls our “medial body”: the body that is externalized through techniques and transforms our living conditions. Humans must thus deal with the growing separation between the biological stability of their bodies, which undergo transformation over geological timescales, and the evolution of their tools, linked to the rhythm of the successive generations. According to Leroi-Gourhan: “Accommodation was crucial to the survival of the species, not only with regard to technical habits but also leading with every change to an overhaul of the laws of grouping of individuals [...]. Humanity”, he concluded, “undergoes a slight species change every time it changes both its tools and its institutions.”
15The Social State was born of a change of this kind. In one century the industrial revolution had subjected human labour to transformations of unprecedented scope on the scale of historical times. These were firstly technical transformations, with the multiplied power of steam engines, which exposed the army of workers required to run them to new physical risks. They were also legal transformations, with the growing prevalence of work contracts, which treated work as something freely negotiable, separate from the human person. Combined, these two factors proved deadly for the new working classes, to the point of jeopardizing the reproduction of industrial countries’ working population. Social law emerged to avert this danger, as a technique to humanize technology. By protecting the long-term health and physical and economic security of human life, it served to domesticate machines so they may improve human welfare rather than jeopardizing lives. In so doing, it made the exploitation of work as a commodity economically and politically sustainable.
16Alongside the rise of social law came a broader challenge to the understanding of the state. Totalitarian regimes cast the model of the machine onto the state, making it a mere tool in the hands of a single party acting in the name of allegedly scientific laws of life in society. Democratic countries’ response consisted, on the contrary, in restoring the state’s legitimacy on new grounds. Instead of only being in charge of governing humans, of embodying the power dominating them, the state began to cater to their wellbeing, in the form of what in different contexts has been called État providence, Welfare State, Sozialstaat or République sociale – all terms which fit the generic notion of the Social State. Its status as the great institutional invention of the twentieth century is owed to the two crucial ways in which it modified the liberal legal order.
17The first way consisted in bringing the physical and generational dimensions of human lives into consideration in the highly precise mechanics of contract law. Work is inseparable from the worker, which is why until the rise of capitalism, its legal regime had always depended on the worker’s personal status. For work rather than its product to be treated as the object of a contract, in other words to institute a labour market, the psyche/soma pair had to be separated so as to introduce the relationship of an individual’s ownership of their own body. John Locke saw this ownership of the self as the natural, biological foundation of chattel ownership law. This separation in the legal order corresponds to that which is articulated in the scientific order when the scientific mind looks at the human body as a pure object. Maurice Merleau-Ponty showed the limits of this objectification, which annihilates a person’s experience of their own body. This is the experience of the relationship with the self, which is a matter of being rather than having. Hence Ludwig Wittgenstein’s wise advice: “If someone says ‘I have a body’, he can be asked ‘Who is speaking here with this mouth?’”.
18In the reality of work, the separation of the subject from the object is therefore materially unfeasible. Work can become the object of a contract only through a legal fiction. Slavery is one such fiction, which consists in proceeding as though the worker were not a subject, but an object to rent or sell. Work contracts are another, which consist in proceeding as though the worker were both the subject and the object of the contract. The user of the work is then relieved of the maintenance of the worker throughout his/her life. That is why this fiction is necessary to capitalism which, as Karl Polanyi showed, has the particularity of treating work, land and money as commodities. To make this fiction tenable, it was necessary to insert into the contractual package of the hire of services a clause protecting the physical and economic survival of the worker, which subsequently gave rise to the contract of employment. The growing prevalence of this employment status led to the legal resurgence of non-contractual forms of exchange, such as the intergenerational forms of solidarity established by pay-as-you-go state pension schemes (retraite par répartition) which institute a life debt to the previous generation. More generally speaking, in the wake of the Second World War, social law underpinned the establishment of the principle of human dignity, the purpose of which was precisely to reintegrate our physical needs into the orbit of human rights.
19The Social State’s second crucial contribution was to add a new dimension to the legal order – collective self-determination – which is not the same as the horizontal dimension of private law relationships, or as the vertical dimension of public law relationships. Recognition of this collective dimension makes it possible for law to proceed from individuals’ right of free association, the clash of their opposing interests, and of the compromises they reach. Instead of simply setting the rules of the social game itself, the state thus allows players to change some of these rules, during a round where the challenge is to get as close as possible to a fair distribution of wealth. Justice is thus no longer an ideal suspended in the sky of ideas, justifying a stable distribution of goods and positions, but a horizon for action. This is what a famous phrase in the Digest called the “constant and perpetual desire to give to each one that to which he is entitled”, and what the Declaration of Philadelphia defined as the “central aim of national and international policy”. To maintain this perpetual movement, the Social State grants citizens the right to challenge the law and allows for mechanisms of representation and collective negotiation which convert the energy at play in conflicts into new rules. The place thereby granted to collective freedoms in law making is the most distinctive feature of the Social State, whereas on the contrary the common feature of liberal police states and communist, fascist or corporatist dictatorial states is the refusal of these freedoms.
20The invention of the Social State was not the preserve of jurists only: it drew significantly on the burgeoning social sciences, which were thought to provide a sound foundation for the fair organization of society. The Collège de France contributed to this enterprise in the first half of the twentieth century, by creating several Chairs devoted to the history of labour, social welfare and services, or to teaching cooperation. From a legal perspective, the construction of the Social State drew from both common law traditions and continental law. Each country made its own contribution, and drew inspiration from the others’ experiences to shape its own national model.
21Germany played a pioneering role, due more to its legal culture than to its level of industrial development. As early as the Reform, the Calvinist jurist Althusius (1557-1638) advocated a social understanding of the subject of law, as belonging to various communities – professional, family, territorial – that are themselves encompassed in the political community embodied by the state. These theories, developed by Otto von Gierke in the nineteenth century, inspired the German social model, which oscillated between a paternalist and authoritarian interpretation, and a democratic one. Paternalism prevailed in Bismarck’s policy, which established the first social insurances to cement German unity. But their democratic interpretation is the one which led Hugo Sinzheimer to lay down the foundations of modern labour law in 1910 in an article that is still renowned. This great jurist, who lived in the Netherlands from 1933 until the time of his death, to escape the Nazis, was the first theoretician of collective self-determination. Under the Weimar Republic, he elaborated the conceptual foundations of a state responsible for social democracy, a state which only truly materialized after the Second World War and which still today remains the primary factor of German economic prosperity.
22While the doctrinal roots of labour law lie in Germany, the second pillar of the modern Social State is grounded in the United Kingdom: the establishment of a universal social security system. However little concern the British had for conceptualizing their labour law (the first to tackle this task was a student of Sinzheimer – Otte Kahn-Freund – who immigrated to Great Britain, also to flee Nazism), they remained pioneers in social security. This is not paradoxical in any way: it was because they thought that “industrial relations” stemmed from a labour market self-regulated by employers and trade unions that the British always distrusted state intervention in that domain. And it was for the same reason that they designed a universal social security system, slid like floorboards under the market economy to facilitate its harmonious functioning.
23The third pillar of the Social State, public service theory, was developed in France. One of its main architects was Léon Duguit. Duguit was strongly influenced by Émile Durkheim, and saw social solidarity as a subjective norm, imposed on rulers, for which the state was but a means of implementation. This understanding of the state saw public service as both the foundation of its legitimacy and the limit of its prerogatives. Such an understanding was rooted in the French tradition of the great servants of the state, of the “nobility of state” that Pierre Legendre highlighted over 40 years ago in Histoire de l’administration. One of the features of the French social model has been its capacity to put private law techniques at the service of public interest missions. This hybridization of public and private not only led to the establishment of industrial and commercial public services; it can also be seen in the organization of social security, which associates employers’, employees’ and doctors’ unions. It is found in labour law, with the concepts of social public order and negotiated law. This fruitful hybridization is also reversible, as it can allow for public resources to be steered towards private interests.
24Any serious study of the Social State therefore necessarily transgresses the academic boundaries between private law, public law and the humanities, which was the transgression aspired to by the founders of the journal Droit Social: Pierre-Henri Teitgen, François de Menthon and Paul Durand. My work on positive law is rooted in this intellectual current, as well as in that of the following generation of masters. I am particularly indebted to two of them: Gérard Lyon-Caen, a great labourite who supported me without fail and to whom I would like to pay tribute here, and Jean-Jacques Dupeyroux, who sensed the revolutionary character of social security law and powerfully contributed to the theoretical foundation it lacked.
25This short legal history of the construction of the Social State gives an idea of its grandeur: the grandeur of its responsibilities, of the considerable resources that it redistributes, and of the transformations it has implemented in our ways of living together. But this easy-going sovereign, that tolerates challenge and is answerable for its subjects’ wellbeing, now seems to be afflicted with misery. With the opening of its commercial borders exposing it to competition from countries with minimalist approaches to welfare and taxation, as well as to systemic financial risks, the welfare state’s resources are dwindling while its expenditures are rising. It has become a universal debtor, the begetter of a nation of creditors who no longer feel mutual solidarity but expect it to remedy all their woes. Fearful doctors rush to its bedside. Some prescribe one bleeding after another, while others – sometimes the same ones – are already drawing up its death certificate.
- 1 Translator’s note: droit in French means “law”, “right” (in the sense of something one is entitled (...)
26What we need is not this lethal medicine, but a precise diagnosis of the Social State. Legal analysis can contribute to producing it, provided that its contents and expectations of it are defined precisely. As the etymology of the word droit1 indicates, law signals the direction a society assigns to itself. And as suggested by the medieval metaphor of the Sachsenspiegel – of law as a mirror –, it is also the ideal image in which that society would like to see itself. But neither this direction, nor the image is independent of the realities of the world. The long-term survival of a legal system is contingent on its capacity to articulate the concrete conditions of existence of the society it governs to the normative imaginaire that defines that society. That is, on its capacity to link its is with its ought, and to channel the dynamics they mutually maintain. The texture of law reveals the imprint of what societies face, of their dreams and their fears. In other words, of what drives them.
27In order to be fruitful, legal analysis must therefore not close itself off from the world of facts, or from the sky of values, or from the world of forms. In other words, it must not mistake objectivity and self-sufficiency. “Everything can be found in the corpus of law”, wrote Accursius back in the thirteenth century. This disciplinary confinement, which jurists championed, gained currency in certain social sciences, which in turn claimed to be all- encompassing. All, including the law. This attributes the sociological reduction of law to an instrument of power, or its economic reduction to an instrument of efficient resource allocation. There are of course currents within all of these branches of knowledge which resist this hegemonic temptation, and instead prefer to work towards humans’ and society’s greater intelligence, each with its own methods. Legal analysis should be performed in this epistemological perspective of partial contribution to the intelligibility of phenomena to which no science can claim to hold all the keys, but to which all have something to contribute. Performed in this way, it sheds light not only on the normativity of law, but also on the normativity at play in the thought categories it produces and which inform all sciences, oft unbeknown to them.
28With regard to the Social State, such analysis should also adopt quite a broad focus to situate this institutional construction in the history and geography of human forms of solidarity. The use of the concept of solidarity in the title of the Chair could seem intriguing here, given how closely intertwined it is with the French history of the Social State. In 1927 already, in his lecture on the topic at the Collège de France, Charles Gide wondered whether the concept had not become worn-out from overuse. It certainly owes part of its success to its heretical capacity to transgress the boundary separating facts from law. The notion of solidarity, which stems from Roman law and emerged in civil law, acquired a central role in sociology, before making a comeback, filled with new meanings, first in social law and most recently in the European Charter of Fundamental Rights. When it first appeared in legal vocabulary at the end of the seventeenth century, for a time solidarity was a synonym of the world solidity, still used by Pothier in his Treatise on Obligations in 1761. The broader meaning of solidarity in fact refers to that which solidifies a human group, without making any assumptions as to the nature and composition of the glue binding the members of this group together. It therefore possesses a generality and neutrality which is found neither in the notion of charity (and even less in its contemporary avatar: care), nor in that of fraternity (which posits a mythical ancestor). That is why the concept of solidarity, though tricky to articulate, retains great heuristic value for the study of the fate of the Social State in the context of what, to use an equally imprecise and ubiquitous term, is called globalization.
29This new international context is evidently the most obvious cause of the destabilization of the Social State, albeit not the only one. The term globalization nevertheless breeds confusion between two types of phenomena which combine in practice but are different in nature. The first are structural phenomena, such as the abolition of physical distances in the circulation of signs between people, or their shared exposure to the health or environmental risks spawned by technological development. These phenomena are irreversible and their impact on the transformations of work and social ties must be envisaged as such. The second is the free movement of capital and goods, which is a contextual phenomenon, the result of reversible political choices that goes hand in hand with the temporary over-exploitation of non-renewable physical resources. The confusion between two phenomena is what causes some to see globalization as the manifestation of an immanent law, thought to escape all political or legal control.
30With the distinction it allows between globalisation and mondialisation, the French language affords the means to bring a little rigour into this debate. In the primary meaning of the word (where monde is opposed to immonde, just as cosmos is opposed to chaos), mondialiser (to globalize) consists in making a physical realm inhabitable by humans: in making our planet a place that can be inhabited. In other words, globalizing consists in mastering the different dimensions of the globalization process. The command of its technological dimension implies adapting the legacy of legal forms of organization of labour from the industrial world to the risks and opportunities brought about by the digital revolution. The command of its commercial dimension implies designing an international legal order which prohibits taking advantage of the opening of commercial borders to escape the duties of solidarity inherent to the recognition of economic and social rights.
31Is the Social State still in a position to master this dimension or is it doomed to give way to other institutional montages? That is the crucial question which we will examine, with two methodological imperatives in mind. The first is that such a question forces us to move out of the Western legal matrix which spawned the Social State, and open up to other ways of instituting human forms of solidarity. On this point, we will simply need to follow the way so brilliantly paved by the work of Mireille Delmas-Marty and Pierre-Étienne Will at the Collège de France, on the Chinese view of the institution, while endeavouring to extend it towards other horizons, particularly those of India, Africa and the Arab world. This openness is crucial in order for us to lose our naive belief that our thought categories are ratio scripta and bound to prevail everywhere. It is also necessary to see this other facet of the Social State: not a jeopardized European monument, but a project for the future pursued in various forms by all the major emerging countries.
32The second methodological imperative consists in not neglecting the internal factors of destabilization of the Social State. This institution is a child of industrial society; it has grown up to serve it and has inherited two of its features which are currently severely hampering it.
33The first impediment is the fact of having reduced the perimeter of social justice to quantitative measures, with the time or financial compensation of a reification of work deemed necessary on principle. To understand what awaits work, we must take stock of what Cornelius Castoriadis called “the imaginary institution of society”. Law, science and art move in step in any given civilization, for humans march in pursuit of the images that haunt them, and the meaning of those images – including the scientific image of the world – is inseparable from the meaning of their march. With its representation of the universe as a clockwork entirely subject to the laws of classical physics, the industrial imaginaire morphed workers into cogs of a vast productive machine. Following Taylor’s precepts, they were subjected, both in capitalist and communist land, to the so-called “scientific” organization of their work, the main principle of which was to forbid them from thinking. The industrial world thus instituted a division of labour between those who are paid to think and those who are forbidden from doing so. Philosophers like Simone Weil or artists like Charlie Chaplin and Fritz Lang, who had experienced factory work and denounced this fundamental injustice, did so in vain. With the dehumanization of work considered to be the price of progress, employment law instituted employees’ abdication of their freedom in exchange for minimum physical and economic security. Having thus become blind to the realities of work, the Social State is incapable of facing their transformations.
34The second hindrance is the fact of having modelled solidarity itself on a vast anonymous machine to redistribute wealth on a national scale. This is what made its strength. By freeing individuals from their ties of personal allegiance and allowing for the mobilization of considerable resources and a large aggregation of risks, national solidarity was able to compensate for the disintegration of neighbourhood or affinity-based forms of solidarity, caused by urbanization and industrialization. But it is now also part of its weakness, for this anonymity fuels individualism by replacing direct ties between individuals sharing solidarity, by an impersonal relationship with a bureaucratic machine. Depending on whether one looks at its services or at its levies, one sees either a sort of heavenly manna (a debt with no real debtor), or a sort of racket (a debt without a real creditor). By maintaining the individual’s illusion of self-sufficiency, the Social State undermines the different forms of civil solidarity on which its own solidity nevertheless depends, and thus seems doomed to conceding the services it is no longer capable of providing to the market.
35The future is a blank page. No one knows whether the Social State will manage to overcome its pitfalls, and what metamorphoses it will have to undergo. Rigorous legal analysis can however help to identify and shed light on the unresolved questions facing it. I will briefly mention three, which I will examine over the next few years.
36The first concerns the crisis of governance through law. With the digital revolution, a new imaginaire prevails in our societies. The fetish object, which serves as a model for the way the world is understood, is no longer the clock and its interplay of mechanical forces, but the computer and its computational power. This world is not populated with beings subordinated to forces dictating their movements, but with programmed beings, capable of reacting to the signals they receive. The desire to extend the “scientific” organization of work to society as a whole was already present with Lenin, but it is now based on the model of computing algorithms and not on the laws of classical physics. And it is no longer confined to underlings, but extends to leaders and even researchers, whose working conditions have not been affected by Taylorism.
37The digital revolution therefore goes hand in hand with the one at play in the legal sphere, where the ideal of governance by numbers tends to supplant that of governance by law. This cybernetic dream of putting human affairs on autopilot was most recently expressed in the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union currently being ratified in the Euro zone. Article 3 of this treaty establishes a “correction mechanism [...] triggered automatically” if significant deviations are observed from a quantified objective for budgetary balance recovery. Governments are therefore no longer expected to act in accordance with European laws, but to react in real time to quantified signals. This raises the question, on all the scales of the organization of labour – the individual, the company and the nation –, of the human domestication of new immaterial techniques that can contribute to freeing their creative capacities as much as to suppressing them. Employees, companies and states are wrestling with the same humanly untenable reification process that will thus necessarily produce new legal answers.
38The second unresolved question concerns the growth of civil forms of solidarity. This is encouraged by the deficiency or exhaustion of the Social State. History shows that periods of economic and political crisis see the resurgence of pacts of friendship inspired by the family model, like the frérèches observed in fifteenth century Languedoc by Emmanuel Le Roy Ladurie, who attributed their development to public institutions’ incapacity to provide individuals with the material and moral protection they are entitled to expect from those institutions. The loss of faith in the state’s tutelary authority and in its protective capacity is conducive to the emergence of a greater diversity of forms of solidarity, especially family or territorial forms, which economic analysis shows continue to play a crucial role. This emergence is fostered by the state itself when it outsources its social functions to religious or charity organizations, following a model currently theorized and practiced in the United States. It can also be seen in all the countries where religious forms of solidarity are drawn upon to make up for the inadequacies and social negligence of the state. But community affinities are not the only factors of civil solidarity; it can also be the fruit of free association in the face of risk or to support individual or collective projects. That is particularly the case of the mutualist tradition, which was so important in the genesis of the French social model. Its very existence is threatened by European law, which extends the notion of economic activity to non-profit institutions and struggles to recognize that forms of association may exist between the state and the market, which are likely to escape competition law. The question of the impact of this growth of civil forms of solidarity on the Social State remains unresolved. It may relieve national solidarity and contribute to restoring its strength and legitimacy, but it may also undermine its foundations and precipitate a general movement of community withdrawal.
39I will end with the third question, which concerns the transformations of the idea of social justice. In the wake of both world wars, the prevailing idea was that of a fair redistribution of wealth. Since the 1970s, the objective has come under fierce criticism by the advocates of a spontaneous market order. Thus, according to Friedrich Hayek, social justice is a “mirage”, for “the only ties which hold together the whole of a Great Society are purely economic [...], networks of money are what bind the Great Society”. Redistributive justice has also been criticized by those who have accused it of ignoring discrimination based on people’s identity. This identity is constructed through a play of mirrors with the other and implies being recognized to fully exist. As Paul Ricœur has shown, it is therefore not enough to cater to the material needs of human beings to respect their dignity; the need for recognition must also be met. But what exactly does this fair recognition imply? For some, like Charles Taylor or Axel Honneth, it entails a right to be different, as in the case of cultural “minorities” in a given society. Others, like Nancy Fraser, see it on the contrary as involving the destabilization of all instituted identities, a destabilization that is meant to make individuals free to define themselves on their own at any moment. Rooted in the postmodern critique of identity, the latter interpretation seeks to purge the civil state of any trace of heteronomy, so as to bring about “a field of multiple, depolarized, fluid and moving differences”. This destabilization of people’s civil status is articulated with that of their professional status, as promoted for the last 30 years in labour law. The law, which is struggling to ensure the fair distribution of wealth, is especially receptive to this de-institutionalization enterprise, which takes human reason as a given rather than as a perpetually fragile construction. Yet it can only breed violence, for it is so true that, as Castoriadis observed, “the institution of society, which is indissociable from the institution of the social individual, is the imposition on the psyche of an organization which is essentially heterogeneous with it”.
40Confining social justice to ideas of redistribution of goods or of recognition of people is therefore a trap from which we need to escape. While the legal scene cannot be reduced to this dichotomy between people and chattel, it also leaves room for action, and therefore for work, which imbeds people in the world of chattel. Provided it is not reduced to that of animals or machines, work is not only the means to create wealth, but also the place where human beings learn reason by being confronted to the realities of the world. Social justice involves giving each and every one the possibility of achieving what they are in what they do, of building their own identity through the trial of work. One of the characteristics of the modern Social State is that it has excluded the division of labour from the domain of justice, and its future will depend on its capacity to reintegrate it.
41Mr Prime Minister,
My dear colleagues,
Ladies and Gentlemen,
42The state, in the most primitive sense of the word status, is what holds together and holds up a human society. That is why we ended up thinking it was immortal. In other civilizations, and in some institutions including ours, rites are what never die and what support the succession of generations. Since humans’ need to give common meaning to their life and death cannot be fulfilled by studying the facts, these questions are bound to remain unanswered by science. Our institutions are therefore like the bridge depicted by Kafka: a construction rooted in the ground of facts but hanging above this void of meaning. This bridge is the foundation of the human journey. Institutions, which carry meaning, are not reflexive. By turning on itself, the bridge drives the humans it was responsible for into the abyss. This could explain why, in Ancient Rome, the name of pontifes – bridge engineers we would call them today – was given to the guardians of the sacred temple of laws. It could also explain jurists’ irritating tendency to pontificate. Hugues Guijon, who exactly 400 years ago inaugurated the first Chair of Law of the Collège de France, was thus criticized for “over-extending the Popes’ authority, without providing any proof of his claims”. The study of the Social State is fortunately less exposed to that fault than others, given the obvious fragility of this construction today.
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1 Translator’s note: droit in French means “law”, “right” (in the sense of something one is entitled to), and “straight” (in the sense of a direction). Etymologically the word derives from the Latin directus, meaning “a straight line” and, by extension, “a direction”. In the legal sense it has two complementary but distinct meanings: Droit (formerly distinguished by a capital D) in the sense of a legal framework, corresponding more or less to Law in English, and droit individuel, corresponding to an individual right.
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