The Lost Temporality of Law : an Interview with Pierre Legendre
Before we start the interview proper, as it were, would you summarise for us the main issues which have informed your work, and perhaps indicate briefly the main influences on it ? This will help readers to situate the discussion* .
The questions which have guided me will become apparent only when my work has reached its conclusion. I am still finding my way, allowing myself to be carried along the particular course which my studies are taking. In considering the great problems of our time, I have never separated learned research (particularly the history of texts) from direct experience. If one seeks to understand the Western form of normativity, one must lose sight neither of the scope of these problems nor of their tragic quality. Given a recognition of the tragic, it is possible to see that fate – social fate and subjective fate – is linked to institutional constructions. If I were to summarise my basic approach without caricaturing it, I would say that the most fascinating problem of our time is to understand how societies and their cargoes of individuals shoulder the dreadful burden of the human condition. This uncertain and sometimes terrifying condition is not an invention of the twentieth century. To recognise this is to engage in a general reflection on the question which all human societies at all times have had to address in order to live and to reproduce ; the question why have laws ?
At the time when I worked as an expert with international organisations, I witnessed the collapse of millenary institutional structures, and the conversion of their subjects to industriality. I now see the spread of Management. I note that, contrary to the predictions heralded by the large management firms with which I was involved throughout the Sixties, the classical religions have been neither destroyed nor consigned to folklore. How should all of this be understood ? In the most difficult periods of my work, I consult those ancient texts which nurtured our Western forebears : I read Ovid as he unfolds for us, through the fable of Narcissus, the obscure notion, which is so difficult to put into words, of the love of the image ; I read Augustine, such an important author in the political construction of the West, explaining to us on what terms power is to be distinguished from piracy ; above all, I read the Roman jurists and the mediaeval canon lawyers, to whom we owe the more imposing of our juridical concepts. But also, I meditate upon Mozart’s Magic Flute, an opera whose discourse is so simple and which brings home to us, by means of an aesthetic which is within reach of all, what is for us Westerners that which I call the totemic principle, the genealogical foundations of the idea of power and its normative effect. These, to begin with, are my influences.
Can we first ask you some questions about the genealogy of your general project, and in particular the development of reason ? You have studied the role of reason in relation to classical dogmatics and the development into what you call industrial reason. Would you tell us something about the relation between these two traditions and the role of reason in post-industrial society ?
From an academic point of view, I must make it clear that my work does not in the first instance present itself as a theory, although it quite clearly involves theoretical reflection. Originally, I sought to align myself with the interpreters, in the lineage of those who nourished Western juridicism; from this perspective, I belong amid the ranks of the dogmaticists, whose interpretations (for example, concerning the function of the judge in criminal trials, which are dealt with in my Leçons VIII) hold for their time. But given the complexity of the questions which I raise, I am also working to establish a new field of study, to reconsider the place of law in the division of existing bodies of knowledge, and from this there will certainly follow, sooner or later, an enriching of the critical approach to studies of normativity. I think that, on this most difficult terrain, which is, both in social and subjective terms, so vital, my work will contribute to the maintenance and expansion of the modern idea of scientificity. Of course, it must be said that my work comes at a certain point in Western history and that it has been rendered possible by that which we have acquired, thanks in particular to psychoanalysis and anthropology.
When I refer to Reason, I refer to the principle of Reason as societies within the West European tradition (those societies which I study) conceive of it – as, that is, they operationalise it institutionally so as to produce particular juridical effects. I must emphasise that ultra-modern industriality, with the universal polish that is Management, is based on a specific anthropological and historical construction, in which we recognise the hallmarks of the Western tradition. To the question, “What sort of construction?”, my reply would be “The construction of the structural principle of Reason.”
I shall develop this crucial point. I use the word structure in the Latin sense of the word construction. In using this term, I mean to say that the whole of humanity has to construct Reason, so that in each society life can live and reproduce on viable bases. I call viable bases that ordering of representations and normative translations which ensures that society is not deranged and that each individual is introduced to life in conditions which are not deranged. In other words, we are dealing with the problem of Reason as the problem of the humanisation of the individual. Here, we are back with the human phenomenon to the extent that it consists in being dependent on the hidden side of life, the side of unconscious representations which Freud termed the other scene.
Gradually, we encounter the drama which the principle of Reason confronts and of which both the ancient normative systems and those systems which are the province of ethnographic observation each have their own version. It was through Freud that the rationalist West discovered this drama, which is the Oedipal drama, and whose stakes we know: murder and incest.
Let us return to the idea of structure: any society constructs – hence I speak of assemblies – the principle of Reason, that is to say that each must provide for itself the means to be able to offer each subject an escape from unreason, which in practice means constructing the subject in his own identity so that he can lead a human life. This is the aim of the genealogical manoeuvre, which is only possible on the basis of the legal categories defined by what we have historically called civil law. In other words, the stakes of murder and incest – elements which determine the identity of the human parents – are at the heart of the juridical system. I would go further: Civilian dogmatics are an essential part of the discourse of Reason in Western societies.
History can be of great interest here, in examining how things evolve within the particular structure of the West. Classical dogmas must be examined in the light of the evolution of moments within this structure. Now, what are these moments? If we have properly understood the human significance of institutional assemblies, the normative fonction must be linked to both phylogenesis (the history of the species) and ontogenesis (the history of the individual within the species); these two distinct and complementary registers must be taken into account. Thus, juridical assemblies must be considered as dependent on two moments in history, one of which refers us to the species (the species of the speaking animal, Aristotle’s political animal), whereas the other concerns the individual, the subject of lineage [la filiation] as such. From this viewpoint, the notion of lineage is divided between these two registers and the principal aim of history is to discover how they fit together in one society. My answer would be that they link up in order to form the discourse which institutes Reason – a discourse which confronts us with considerable problems: the foundations of speech and representation, or of the word and the play of images in humanity. What is the extent of these problems in the West today?
We would be much closer to tackling them if we were to renounce our rather simplistic views of historicity. For example, we generally fail to recognise that political revolutions do not necessarily coincide with revolutions of dogma. In the West, save for a few specialists, we remain unaware of the revolution of the interpreter (between the 11th and the 12th centuries), which was marked by the triumphal accession of Roman law and the advent of the principle of the sovereign Interpreter (after Gregory the Seventh, there evolved the notion of the Roman Pontiff as the living Text, the model of the legislator State). One can assess such an institutional phenomenon only in the light of assemblies of the lineage of these texts, if, that is, one accords to the overall genealogical system its full political, religious and subjective significance. I do not refer in these terms to post-industrial society, for the sharp end of industriality has not so far affected the Western idea of lineage and the revolution of the Interpreter has not yet exhausted its effects.
We could follow this question of genealogy and the influence of Roman law by turning to your work on the role of reason and law in the Middle Ages. Would you explain to us the importance of your work on the canon law of the early Middle Ages, and its reception into the modem world? Could you also explain how you see the importance of symbols within the legal tradition, symbols whose overt importance is no longer appreciated?
The Middle Ages must be seen, not as the Middle Ages of a linear history, but as the period of the revolution of the Interpreter, whose role as the founding moment of modem normative culture we have forgotten, but whose effects are still felt today. Why is this period - between the late 11th century and the middle of the 13th - of such great importance from my point of view? I would reply quite simply that it is because Western Europe then laid the foundations of its institutional and industrial habitat. This particularly concerns the interpretation of texts, with all that this implies in terms of incompatibility with other, non-European, regimes of textual interpretation. I shall try to answer your question on the basis of this general observation.
One benefit of the mediaeval system of texts is that it offers those of us who reflect upon the question “why have laws”? an opportunity to observe the naive style of European modernity. I speak of naive style, as though we were dealing with naive painting, which presents things in a style which is apparently simple and realistic, but which, in fact, is a transformation, or, dare I say it, a mythologising of things. The mediaeval way of presenting textual systems shows us in a naive way the ternary logic of the human phenomenon, a logic of which institutional constructions are an application. Today, having fallen into the habit of binary reasoning, we have lost sight of that essential point which might, so to speak, be called the imperative structure of triangulation. What does this mean?
My answer would be that fondamental juridical categories, which computer science shows us to be perfectly compatible with the binary logic of the computer, do not conceal within themselves their own justification; they are juridical categories only because they are founded in, that is to say they refer to, the principle of division from which they spring. The Tiers** of juridical categories I have termed the founding Reference. Now, the necessity for such a Tiers is to be found everywhere, as soon as the human phenomenon is considered as a specific one, linked to the phenomenon of speech. As I think I have shown, the juridical arrangement of the genealogical order, so essential to reproduction, constitutes the anthropological kernel of civil law, precisely because it brings into play the lineage in relation to the notion of the Tiers, a notion which has now become rather difficult to apprehend, due to the discoveries of biology. I emphasise the Reference because we are dealing with the theatrical character of institutions. In every society, the basic founding discourse is a celebration, a ritualisation, because it is a matter of bringing alive, on a social scale, the representation of the foundations, the representation of that which renders the functioning of the categories conceivable. This often leads me to emphasise that no society yet has been governed without song, without music, without a political dramatisation which has as its aim the enactment of totemic truth. To quote from Rimbaud, I would say that human beings, whether primitive or ultra-modern, wish to see the truth. It is in these terms that a society organises its normative system, on the basis of representation.
Let us return to the naive period, during the classical Middle Ages, when the Corpus Juris Civilis became established in a Europe Romanised by Latin Christianity, which was in its turn led to affirm itself as the medium of political and juridical concepts spread by the Justinian compilation. What is the meaning of the imperial Roman notion of the Law which breathes (Lex animata) which was applied by canon lawyers to the Roman Pontiff? It means, in terms of the poetic formula of a living Word incarnated by the Pope (in the words of the maxim: he has all rights in the archive of his heart), that the Tiers of juridical categories, the founding Tiers, is at once the theatrical representation of the absolute Reference and the political principle from which is derived canon law, that considerable part of the Jus Commune, the Common Law of Europe, with which was gradually associated with the idea of the State. I am not going to deal with this issue here; it is one that has been badly assimilated by contemporary political science, which has a poor understanding of the structural place and the social function of the symbolic Tiers. The naive period nevertheless quite clearly shows us this place and this function, for, if we think about the assembly which is specific to West, we can see that the living Pontiff-Word occupies the space of the universal Tiers, of the definitive Interpreter, as though the unique enactment of the Reference was the only normative system known to a mankind unified by Christianity. You refer to the reception of the symbols of legal tradition in the modem world. I would say to you that, in my view, it matters little whether contemporary culture (I am thinking of those post-Weberian or post-Marxist intellectuals who manufacture what I have called “immediate access” thought, bodies of thought which are very comfortably settled in the media) is or is not aware of this history of the foundations of modernity; what is important is the significance of such a mechanism. Christianity has been more or Jess stripped of its social attributes, but the large secular states have functioned, as conquering institutional systems, by re-enacting this mechanism of the universal lnterpreter and the earthly Reference. The secularisation carried out by these states was a sort of attack against the mediaeval Latin church, an attack which was continued throughout following centuries by what, in the 17th century, Grotius (yet another of my advisors!) called the impious postulate. Let us take a further step and consider contemporary international society, in which reigns the economic ideology of the conquest of markets. My question is, what form does the universal Tiers take? Management operations, the doctrines of Mutual Adjustment, in a word, the promotion of universal life under the aegis of Management, are in the process of transforming the discourse of normativity. Does Management occupy, structurally, the place of the Tiers? What, in our time, is becoming of the very idea of law? Can the market become an equivalent to the notion of Law, as it is understood (in the sense of founding Law) by the classical institutional systems (particularly the Western one which we are discussing)? These are a number of problems which, if they were considered seriously, would force us to rethink the understanding which we have of traditions, or of the future which we claim, so frivolously, to programme.
Should I add a word about the naive period? The mediaeval economy of texts is of great interest: it demonstrates the normative means by which modern rationality became established in the West. I often refer to the Romano-canonic relation between commentator and text, and to the Talmudic relation, for in these we have an opposition between two regimes of the Interpreter: one has been called somatic (the Jewish regime of interpretation), in opposition to the other (Christian interpretation). We know to what extent this dispute - which, save for its political consequences, has been neglected - is fundamental to the classical West, notably because of the link between these arguments and genealogical representation. I shall not stress this, for I deal with it in my Leçons VIII. I shall simply emphasise the fact that the mythology of the living Word (from which derives, I repeat, the idea of the legislator State) allowed the decorporalisation of the relation between commentator and text; it is by means of this mechanism that that there gradually took hold in the West the institutional doctrine that a text is nothing more than a documentary bearer of information. The question of the body was, if I may say so, excluded. I shall have the opportunity to return to this problem in a special work devoted to political love.
Your work on the relations between legal and religious dogmatics clearly attaches much importance to the problem of the origins of law. How does your work on this help our understanding of the modern world?
The explanations which I have just set out lead naturally to this issue. The problem of the origin of laws raises the issue of the mythological in all societies, and therefore for us today. But we must be clear what we are talking about. If I reflect upon the origin of laws as a scholar, or a theoretician, I attempt to grasp all that such a formulation implies; I can therefore look at it from the perspective of history, anthropology, political science, or psychoanalysis. In other words, if I reflect as a scholar, I do not legislate, I study, because I have none of the attributes of the legislator, only those of the scholar. In any society, the origin of laws is not a theoretical problem, it is a problem which is experienced as a resolved problem. A society knows the origin of its laws. This it knows by the relay of structural intermediaries which, in terms of my formulation, make the Reference speak, and which are authorised to say what it is. Every society knows the origin of its laws genealogically; to take an expression from the Digest, it knows how to answer the question Unde?; literally, from where do they come? Borrowing a term from the vocabulary of early anthropology, I would say that society knows its totemic history.
What should our assessment of this be? This is the central issue, which might in the past have been displaced by reflection on institutions, but which must now, following the biological revolution, be tackled head on. Within modern States, it is thought a reply may quite simply be given on the basis of political and constitutional notions; thus, it might be said that the origin of laws is democratic suffrage, judicial precedent, or the shared opinion of commentators, and so on. In reality, the ultra-modern problems brought to light by biology do not allow us to be satisfied with these notions, but compel us to approach the question quite differently. Paradoxically, we have to do the work of the Gods. The ultra-industrial West must rethink the ancient question of the will of the Gods, so as to reappropriate for itself the discourse of the Fata, so as to reflect upon tragic Fate - in short, this is to say that it must try to imagine what lay behind the will of the Gods, the discourse of the Fata, or tragic Fate. My work aims to analyse this problem, which opens into the notion of the limit in the institutional sphere. The religious question of the origin of laws comes within the problem of representing the limit. In what respect are we limited? The answers to this question are always dramatic ones, because they reach the very core of the human subject, the subject struggling with the absolute and the unconditionedness of desire. The representation of the origin of laws is everywhere accompanied by an enactment of the limit. We may rid ourselves of obsolete mythologies, of religions which have had their day, but we shall never rid ourselves of the structural imperative to which the survival of our species is tied – that of bringing the limit into play. Henceforth, the question for us is, what is the limit?
I have brought to light other problems in this area. Today, in a period when science and technology have triumphed, society lives the problem of the origin of laws as a problem which has been solved, as do all human societies. There is, however, one noteworthy difference: we believe that science holds the key. The key to what? The key to Fate. In other words, Science being set in the structural place of the Totem, we believe that it knows as did the Gods or the Totem. In reality, Science knows nothing of Fate, it serves only the modern cause of Fate, whatever it be. One part of the modern form of the tragic lies in the demand for a knowledge addressed exclusively to scientific matters, and it seems to me that the function of this illusion of a science which assumes the divine role is not to dispense us from the task of thinking, but rather to cast out modern fear, which in my view consists essentially of the fear of conceiving ultra-modem innovations in terms of humanity – in classical terms, that is. Note the contemporary race towards non thought: it is constantly said that science is monstrously totalitarian while at the same time it is claimed that the experience which humanity has accumulated has been negated by technical progress, that the new human subject knows what he wants, etc. In truth, we must confront the universal question of what constitutes the human in the times in which we live. That is why I have set out a formula which aims to reopen this question in a truly modern way. To reflect on the origin of laws is to analyse the normative function, which consists for each society in the knitting of the social, the biological and the unconscious. On the basis of this, we may proceed.
Can we turn from the general questions of the importance of the historical element in your work, and move on to your place in the academy and the reception of your work by your colleagues? Could you tell us a little about your position in the academy and difficulties you have encountered in getting your work accepted?
At this stage of my work, I have noticed the infiltration of my ideas here and there in the academy and even in the discourse of the media. In a case such as mine, one can expect neither an immediate nor an enthusiastic reception. It is true that, as is often the case, there have been serious attempts to toss my works, however leamed they might be, into the Hell of those bad books which the younger generation should not approach without risking, if not their souls, then their careers! However, I do not attach too much importance to these inevitable disturbances, which many scholars before me have known, and which have contributed to my education. In a country such as France, which has a great Catholic tradition and which, moreover, is highly centralised, the academy is above all a conservative institution. Here, there is a fondness for codified thought, which is in some ways a very French kind of thought. Given that I have such a good knowledge of administrative mechanisms and traditions in France, I also leamed a lot from this. I should add that juridical culture is not too highly thought of in France, which under lines the fact that critics of my work lacked historical information. You may also have noticed my tendency to contrast institutional systems, which often leads me to refer to juridical traditions other than the French, the Common law in particular, as well as the German, even Soviet, development. In other words, in France there is a particular difficulty in promoting juridical comparativism: here, there persists the idea that France is the universal Great Nation.
So much for the difficulties. They should not be exaggerated. Although a minority has protested about my work, from the time of my first publications I have received a lot of encouragement from a range of scholars.
Whatever difficulties you have experienced in getting your work considered in France, it is very noticeable that none of your work has been translated into English and that people in England are only just beginning to take an interest in your work. Why do you think this is so? Do you think it is particularly strange, since you spent some time actually working in the U.K.?
Given existing attitudes, the dissemination of a body of work largely depends on the place which it is accorded by the media in its country of origin. It must be said that all that is concerned, directly or indirectly, with juridical culture is not very highly valued in France, where there still remains a long established unease about dogmatic techniques; the latter are suspected of propagating scholastic thought, something which is much detested in a country which invented the codification of laws. In these circumstances, it is understandable that the media should not be ready to welcome this work. This raises the question of what place a society such as French society can find for a body of thought such as mine. I strongly believe in the test of time. As regards translations, they have already begun, in Italian, Spanish, Portuguese, and German. As for English-speaking countries, as you say, the question of translation has now been raised.
Is there anything in the argument that the lack of translation, and indeed your own reception by the French academy, are not unrelated? You have talked of law as a silencing rather than an empowering discourse. You have also, at times, been rather dismissive of the university, or at least played down the relevance of your own work to the university. You have offended both the strict lawyers, and the academy. Is it possible that your reception by the university and other colleagues is thus a replay of what you yourself argue, and in a sense that this is unsurprising?
I must say that I have never felt that I was some sort of an immigrant in French academia. A high-ranking official recently declared my work to be one of its jewels, and I leave him to answer for such a compliment. On the other hand, I know that there is a minority which makes no attempt to conceal its hostility to my thought, a hostility which no doubt disguises a hostility to all thought. There is nothing surprising about these contradictory attitudes. I have been fortunate in being able to carry out experiments, in being able simultaneously to pursue a number of varied projects, and in encountering, just when I could scarcely progress with my own work, independent minds, scholars from a range of disciplines who knew a great deal about mankind, and thanks to whom I leamed to work rigorously and without constraints. I also consider that I am fortunate in being able to contribute to the training of jurists at the University, and to address an audience of researchers in the religious science section of the Ecole Pratique des Hautes Etudes at the Sorbonne, who constitute the leamed environment in which my publications take shape. Besides this, I have been able to establish a European Laboratory for the study of lineage, an institution which will certainly be of use, in terms of international research, in dealing with a number of the problems upon which my studies are focused.
Generally, it must be recognised that, as regards academic jurists, the time has gone when one could be content to set out positive law without questioning further, delegating the problem of the foundations of normativity to a few specialists. Henceforth, it will be necessary, in the present historical context, for jurists to confront the central question which supports the normative structure of a society: the question of the genealogical foundations of law, and to follow the direction which my studies are taking. There is no way around the path which I have marked. lt may be that Common Law jurists will appreciate this more readily than do their French counter parts.
Some of your critics have called you an immoralist. What did they mean by this, and how do you respond ?
As many people have accused me of immoralism as have accused me of moralism. That, undoubtedly, is a sign of misunderstanding. My studies do not aim to promote militant action and I do not claim to teach other disciplines. I simply occupy a given position as an interpreter. Therein lies the explanation, perhaps.
What would you say is the relation between your own work and the traditions of law teaching and training in France?
I must say that my university teaching, among jurists, is not much concerned with the question whether it conforms to traditional juridical teaching or not. On occasion, I have told students that they are not dealing with a pedagogue! I teach a luxury, a luxury of thought, which consists in reflecting on the juridical fonction. It must be said that my studies help to put into perspective the traditional techniques of juridical teaching which I have deplored for some time, and which, in a country which is as conservative as France when it comes to teaching law (conservative in the sense of respecting the centralist approach to methods), there is no questioning of that which is specifically French. These techniques should be studied with the rigour and in the detail which is applied with regard to the mediaevals, who practised textual reading. I think that French codification has had a great influence on the deployment of methods and the approach taken in commentaries. I would have hoped that the teaching of the history of law might introduce students to an understanding of the range of techniques for juridical teaching, all of which are nevertheless branches of the same scholastic tree. However, the mediaeval glossators are still an accursed lot, for the French do not like to discover that they did not invent their civil law!
Can we now ask you how you would situate your work in relation to current philosophical movements, in France and abroad?
The problem of situating my work in relation to some sort of movement, whether philosophical or otherwise, whether French or foreign, is not one which arises for me. I can only say this: my under taking is such that my studies swim against the tide, as do all those studies which go back to the roots of the human, or which aim to bring ultra-industrialism within the normative structure and the lineage of texts which in the West support the institution of Reason.
You have written of the importance of texts. How do you situate your own work in relation to those attempts to break with tradition which now challenge the relation between writing and speech? In particular, what is the situation of your ideas within the movement towards the redefinition of the logocentric nature of all writing and speech, and especially legal writing and speech as emanating from a unitary, knowing subject?
The problems of writing and discourse are at the heart of my work. Nevertheless, I am not within the contemporary field which you describe: my way of approaching these questions is completely different. The core of these questions seems to me to remain the question of speech in humanity, speech in its institutional dimension and its subjective dimension. When I refer to subjectivity, the body is obviously involved, for the typically Western psyche/soma division derives above all from institutional assemblies of culture. Henceforth, it is no longer possible to reason about the written and about discourse, on speech and the subject of speech, in the usual way. Discourse and the word have to do with the unsayable, the background of the unsayable upon which speech takes hold. This leads gradually to a reopening of the question of rituality, or the reopening, in acceptable theoretical terms, of the question of human communication. I learned a lot about this by studying the problems of dance, which I dealt with as institutional problems, having been strongly encouraged by the anthropologist Leroi-Gourhan. Is dance a written form? This is a very sensitive issue for us Westerners, who do not belong to the category of the dancing peoples, since for us dance was won from the prohibition of sorcery (a problem of the history of legality which is still neglected today) and promoted as an entertainment, a relaxation, as they say. As you can see, I have great difficulty in following your question, in the terms in which it is expressed.
Could you say something about your notions of the importance of recovering the myth-making and the poetic in law? Could your critics say, in the end, that you substitute a new form of essentialism in legal thought (the poetic, mythic) which somehow expresses the true nature of legal meaning? Why should law recover or write itself as the poetic? Does not the writing of the poetic within law, if we have understood your analysis, merely reinscribe within legal discourse the very factors that would repress the poetic?
To avoid any misunderstanding, I must be quite clear about this difficult problem. When I refer to poetic works, I have in mind the theatre of the founding Reference, the rituality which necessarily accompanies its enactment in any society. I have already alluded to this, in saying that no society has yet been governed without song, without music, without the discourses of the celebrational. During the naive period of which we have spoken, celebrations of the Reference were mixed with Christian ritual, with the liturgies which formed an integral part of the juridical system of the scholastics. In our time, when secularised and management-orientated States take the place formerly occupied by two powers(the local monarchies and the Roman Pontiff) which expressed themselves according to the unitary logic of Christianity, ritual and ceremony are in some sense diluted within society, with the exception of official occasions when States take on the image of the divine or the totemic. There is much work to be done in this area, for the social sciences have relegatcd celebrations to the level of a subsidiary problem. We must deal with the question of rites and ceremonies as a vital question, even though these are hidden behind the current of commercial rationality, for it is through this that takes shape the truth of the hold of power and its normative effect. Hence, I would summarise my position by saying that if poetry has a place in institutionality, it is alongside the Reference, and its social, political and religious enactment, which renders the whole institutional system plausible and conceivable in human terms. To grasp this latter dimension, we in the West must reflect upon those classic texts of ritual, and think about the performance of ceremonies such as opera. Indeed, when I travel outside France to explain the logic of institutions, I sometimes ask my listeners to watch Bergman’s adaptation of the Magic Flute; having seen this film, they understand what I say, and I myself, with the help of Mozart, express myself with greater facility, because one can better grasp the logic upon which the normative function is based by looking at celebrations of the Reference. Mozart is but one example; I also make a lot of use of a few classics of ethnographic cinema.
Talk of the poetic might lead us finally to your work on the psychoanalytic. The poetic and myth-making aspects of law are repressed, but then much else is repressed too in our lives. Why is psychoanalytic work so important to you and what specifically is the importance of psychoanalytic work to the study of law?
Your observation is very accurate. It is indeed through psychoanalysis that I discovered the poetic dimension of institutionality. This is essentially because institutional systems are human works and, therefore, they deal with the unsayable, pure representation and that which it necessarily conveys, desperate human desires, blind and absolute desire, in other words the elementary human stakes of incest and murder which symbolic life leads each of us to transpose. Psychoanalysis provides no explanation, in the scientific sense, of institutional systems and I suggest that my readers should be cautious about psychoanalytic theories of social and political – essentially juridical – life, or those which daim to be such. Quite simply, psychoanalysis, if one has an inside knowledge of it and if one’s personal experience of it has enabled one to draw benefit from Freud’s theories, requires one to take note of the mythical side of the subjective order and carefully to consider the fact that structural constructions of normativity, which are concerned with the human subject who is endowed with an unconscious, necessarily deal with unconscious representations. In other words, Civilian dogma, in so far as it directly concerns the genealogical manoeuvre, is ultimately addressed to the unconscious. this should be underlined, for it this that lends weight to juridical elaborations of the principle of Reason. If one can grasp this, one can at the same time understand that the problem of the limit in institutions consists now, when the great mythologies have disappeared, of reasoning on the basis of the subjective concerns of those to whom the juridical message is directed. The principle of Reason, which is juridically ordered through the genealogical categories of lineage, is a social production which has as its object the reproduction of mankind and of individuais according to the law of the species. The principle of Reason is that which makes law for the subject within the species. The principle of Reason, if one relates it to the stakes, of murder, and incest, is nothing other than the normative construction which we call the great taboo – the taboos of murder and incest. If we re-read the great tragedies of Antiquity, those autors from whom Freud drew the inspiration to undertake his discovery of unconscious phenomena, we find that the taboo functions as a dramatic enactment and is only conceivable through a metaphorical representation. What sort of metaphor? The Metaphor of Reference, which is the principle of the division of the categories, in other words, the absolute. It is the identificaiton of oneself with the absolute that is madness. Henceforth, one can grasp the sense in which the role of the father or the Freudian notion of father-killer can teach us that a real-life father is a relay, a symbolic intermediary, between the position of the son (the child, or as the early jurists put it, the son of one and the other sex) and the political and religious position of the Reference. Within the institutional assembly of the West a father is not a father by virtue of biological paternity, but because he incarnates the founding Reference of which he is necessarily the intermediary. In other words, psychoanalysis, once its essence has been understood, allows the link to be made between the principle of paternity and the principle of Reason.
How will the reappropriation of the poetic possibilities within legal thought help us to understand the law better, and make better law? If such a thing could make sense?
I think that an understanding of the genealogical foundations of law, on the basis of the complex mechanism of the two logical moments of the lineage (the political or religious moment of the Reference, then the moment of familial genealogies), carries with it a number consequences. The importance of my work – which internests people (in France or elsewhere) who are concerned with so called ethical questions, ones which, despite being fashionable, are couched in a discourse which is hazy and which lacks rigour – is attributable to the fact that it renders accessible, in the scientific period in which we live, the study of institutional logic. On the basis of my hypotheses it is, it seems to me, possible calmly to face the developments of Science, by means of a rigorous and well-focused examination of the foundations of institutional continuity, the great normative constructions developed by humanity. There will never be a fresh start for any Society, nor will there be a new man, unless one has in mind a world of madmen, something which (as the experience of Nazi legislation shows us) is not impossible. It is, in my opinion, quite possible to deal with the mechanism of lineage in a way which is not destructive for future generations, so long as it is analysed appropriately.
SELECTED WORKS BY PIERRE LEGENDRE
La pénétration du droit romain dans le droit canonique classique (doctoral thesis) (Paris: Imprimerie Jouve, 1964)
Histoire de l’administration de 1750 à nos jours (Paris: P.U.F., 1968)
L’amour du censeur. Essai sur l’ordre dogmatique (Paris: Editions du Seuil, 1974)
Jouir du pouvoir. Traité de la bureaucratie patriote (Paris: Editions de Minuit, 1976)
La passion d’être un autre. Etude pour la danse (Paris: Editions du Seuil, 1978)
Paroles poétiques échappées du texte. Leçons sur la communication industrielle (Paris: Editions du Seuil, 1982)
Leçons II. L’empire de la vérité. Introduction aux espaces dogmatiques industriels (Paris: Fayard, 1983)
Leçons IV. L’inestima·ble objet de la transmission. Etude sur le principe genealogique en Occident (Paris: Fayard, 1985)
Leçons IV, suite. Le dossier occidental de la parenté. Textes juridiques indésirables sur la généalogie (with Anton Schutz, Marc Smith, Yan Thomas) (Paris: Fayard, 1988)
Leçons VII. Le désir politique de Dieu. Etude sur les montages de l’Etat et du Droit (Paris: Fayard, 1988)
Leçons VIII. Le crime du caporal Lortie. Traité sur le Père (Paris: Fayard, 1989)