Analysis of global law

A « scientific board », or rather a « board of analysis », is constitued of the « coordinator », « correspondents » and personalities from the world of research. The « board » , once per year, will analyze and better distinguish the emerging themes, as well as research sites in this globalization of law. By providing this work of analysis, it will facilitate linked and joint research projects that may be foreign projects with the mere participation of French researchers. It will produce a « map » of the émergent global legal theory. An « Annual Report on Global Law » is edited by the Board of Analysis.

But, is there such thing as a “GLOBAL LEGAL THEORY”?

Contemporary legal thought is undergoing a profound mutation qualified as “a passage from law as an institution to law as an enunciation” (Latour, 2002). Legal thought is actually facing a total transformation, as it appears particularly in the works of the International Association for Philosophy of Law and Social Philosophy (IVR) founded in Berlin in 1909. It is characterized by the end of the notion of “purity” of the law, as defined by legal positivism.

From now on, a very strong “coherentist” stream founds legal thought on a unique theoretical pattern, with a semiologist origin, in spite of extremely diverse sources, comparisons and mounted theoretical systems. This new idea shows an evident opening to social sciences (“Law and…”). Concepts are therefore deeply renewed and, above all, legal thought field is widened, no more limiting itself to formulating questions about legal rules, but including their relations to culture or cultures, individual or collective identities.

This slow but now irrevocable epistemological break, from a pattern inspired by sciences of nature to one which is close to sciences of language, is linked to the present globalisation of the legal thought. This latter, for the past thirty years, has been marked by an increased circulation of these new wide-opened components of the legal thought, issued by interdisciplinary theories travelling from continents to continents, and enabling -at last- a really worldwide and no more solely western look. The emergency of a world legal thought is linked to new intellectual switches –and journeys.

A switch in the legal thought

The question whether a global legal theory is emerging is based on an evidence: A legal theory as an “enunciation” is now mainstreaming the legal and political thoughts, leaving away legal positivism (Lhuillier, 2008).

Such switch in the theory was particularly evident in the thirteen documents presented at the plenary sessions of the 23rd World Congress on Legal Theory and in the following debates during which concepts such as “endless agony of positivism” or “post-post positivism” were used. When organizers had requested Eugenio Bulygin (University of Buenos Aires, Argentina) and Manuel Atienza (University of Alicante, Spain) to moderate a debate on the controversy between legal positivism and jusnaturalism, these latter decided to convert the theme of the confrontation to a comparison between positivism and legal theory as argumentation. As Bulygin noted: “these two conceptions may be regarded as a new version of he old controversy between legal positivism and natural law” (Bulygin, 2007; 22).

This switch from positivism versus jusnaturalism to positivism versus argumentation/hermeneutics leads to a double breach epistemological and ideological.

Epistemology

Legal positivism, which sometimes is a little abusively named logical positivism, the champion of which was Eugenio Bulygin, is a theory which aims at describing law, as a singular object, along the science of nature pattern. Great tenants of positivism are numerous, from David Hume in the 18th to Hans Kelsen in the 20th century, passing by German Logician Fredge (1848-1925), British Mathematician Bertrand Russel (1872-1970), or Austrian Philosopher Ludwig Wittgenstein (1889-1951), as well as all the authors of the Vienna Club logical positivism, Oxford School ordinary language, North-American pragmatism and the Swedish philosophy of law. It could be necessary at least to distinguish between a continental “hard” positivism, as inspired by Kelsen, and an Anglo-Saxon “soft” one which follows Hart and the South-American position, called “inclusive legal positivism” since it tries to include moral criteria into positive conditions of validity of the rules of law (Carrio, 1996).

Notwithstanding this, positivism lies upon certain common principles: “scientificity” implies a distinction between law (as a research object) and legal science (as observed by the scientist); jurists are meant to limit themselves to research on the object without adding any value judgment about it; the legal science object cannot be but positive law alone, i.e. law as worded by political authorities, excluding any value or moral judgments; legal science is based on proposals which can be verified or refuted according to procedures similar to those prevailing in sciences of nature.

These common epistemological principles have political consequences: Law is considered as a whole of prescriptions which indeed express values (motivations), but these values do not enable any objective pertinent description, therefore they belong to politics and not legal science; aiming at a description implies a definition of law being a structured whole of norms, the strength of which relies on other norms, thus defining a legal order or system.

As opposed to positivism, theory of law as an argumentation or more precisely the hermeneutical theory of law, sometimes also called “critical theory” -of which Manuel Atienza is an excellent supporter (Atienza, 2006)- or rather hermeneutic legal theory takes into account a linguistic change in social science and introduces a legal theory along the language science epistemological pattern. This theory is originated from a triple approach: linguistic (F. de Saussure, L. Hjelmslev, E, Benveniste), anthropological (C. Levis-Strauss), philosophical (from H. Gadamer to P. Ricoeur); however It emanates from other current trends of legal thought, which might look foreign at first sight, from Habermas’ communicational acting to Derrida’s and Agamben’s deconstructions. These latter theories examine very different productions of senses (and no more positive texts as set by political authorities only), they give priority to the “dialoguing” qualities of the texts, i.e. rather than a univocal truth as implied in the formulating, the multiple senses effects which can emanate according to the context in which their enunciation-reception takes place. These theories commonly reject all presupposed aspects of positivism: it is impossible to separate the observer from the observed object; observation and “scientific” discourse are necessarily involved in value judgments because they are impure; legal science object is not only the law as voted by political authorities but also the study of positive law concrete conditions of enunciation-reception; and therefore –far beyond positive law only- the whole of actors’ discourses, practices and values to which the very act of enunciation-reception “give sense”, henceforth enters within he field of legal thought. This epistemology renews all presupposed political ideas about the legal theory, such as for example the traditional distinction between authorities creating norms and subjects submitted to the rules being replaced by a community of actors involved in law signification; or else the very idea related to juridical order: law recognised as impure and its corollary, the interconnection between law and subjects of law, legal and other discourses which contribute to the construction of individual and collective identities.

Ideology

On the opposite side, conservatism versus liberalism gives place to a new opposition: liberalism versus social criticism.
Indeed, while jusnaturalism has always been linked to conservative political positions (Atienza, 2007: 237), positivism has been attached in history to liberal, democratic ideology which has high respect for the individual whom it protects against violence of the law. This is what is implied in the fine expression: “morality of positivism”, by Frederik Schauer (Harvard University, USA): “I see positivism as a claim, perhaps first made by Hart in the debate with Lon Fuller, of the value that may at times come from understanding the lack of intrinsic moral status for any legal system just by virtue of its being a legal system, and in this sense I unashamedly confess to positivist sympathies”(Schauer, 2007: 34).

Susan Haack (University of Miami, USA) share the same idea: positivism may be “an engine of moral progress” because of its very neutrality: “Holmes stresses the differences between law and morality, but at the same time he suggests that the evolution of legal systems reflects the moral life of the race. Indeed law is not ethics: some laws are morally neutral, and some morally deplorable. Nevertheless the gradual evolution of legal systems reflects an ongoing effort to resolve dispute among competing social interests without resort to violence” (Haack, 2007: 104).

Contrarily to positivism, hermeneutics is a critical, impure approach which refuses neutrality to law and recognizes more to the subject than simple “subjective rights” to be called for against authority because the subject is another author of the norm: “the most valuable aspects of critical theories of law centre on the necessity to insert law (and the theory of law) in society and to consider its potential for transforming society. This conception (or a certain way of understanding it) thus shows the need for theory of law to incorporate certain categories that are generally left out of the analysis (conflict, work, power, social necessity) to accept the historical nature of law and that of legal categories, and to pay attention to in-egalitarian and ideological elements of law” (Atienza, 2007: 244). Precisely, individualism and “purity” of positivism are the most ideological and in-egalitarian “elements”.

This epistemological and ideological redefinition leads to understanding this “impurity” as claimed in this new theory of law more and more frequently mentioned in the World Organization of Legal Theory.

This is illustrated for example by the notion “ethics of the limits” or “ethical life of institutions” developed by Zenon Bankowski (Edinburg University, UK) from Fuller’s thesis about law as interaction and communication, in order to open the rule of law to non positive discourses (Bankowski, 2007). Francisco Viola (University of Palermo, Italy) shares ideas rather close to this ethics of the limits when he reads differently the notion “rule of law” as a means to opening the legal system to plural meanings that any interpretative community may give to a rule. As for the argument about opening, Viola underlines again the value of “the traditional formula of the rule of law as the virtue of a legal system” (Viola, 2007). Seyla Banhabib (Yale University, USA) is more explicit with her notion of “jurisgenerative politics” and applying it to fundamental rights as particular objects. Assuming that a legal system exists as a social organization of power, a definition close to positivism, Banhabib simultaneously states that a legal system exists as a signification, where legal as well as linguistic, cultural and political words are to be understood, transformed, redefined according to the community’s (democratic or polemical) use. This dichotomy creates a space of liberty where no legal system may impose a certain meaning disconnected from social activity. This is what the author means by “(we) want to suggest that we think of ‘jusgenerative politics’ as being exemplified in iterative destabilizing acts through which a democratic people, who considers itself bound by certain guiding norms and principles, reappropriates and reinterprets them, thus showing itself to be not only subject but also the author of the law” (Banhabib, 2007: 79).

Another example of “impurity” is to be found in the notion of “legal culture” developed by Mark Van Hoecke (Catholic University of Brussels, Belgium) which, as he reminds, is incompatible with positivism because “legal culture refers to a combination of positive law and attitudes towards it within the legal profession of the society (or societies) to which that law applies. It refers in other words, both to ‘law in the books’ and ‘law in action’. Those who have been educated within some legal culture have been ‘socialised’ into that culture and will, when forming a legal profession, largely follow it, and this will partly happen unconsciously” (Van Hoecke, 2007: 79).

Here, “legal culture” clearly opens to the notion of “legal identity” developed by Aulis Aarnio (University of Helsinki, Finland), both given by history and acquired through “the search for identity”(Aarnio, 2007: 79). The immense importance of this new approach is particularly evident in Takao Katsugari’s work on multiculturalism and cohesion of various cultures (Gakushuin University, Japan). The latter calls this “impurity” or argumentative opening of the law, “the reasonable flexibility of law”; this “means to admit diversity within the bound of some sort of unity” (Katsugari, 2007: 190-191). This author proposes as an example the possibility to enrich western thought about the market with the Japanese neo-confucianist notion of moderation and symbiosis in a mutual co-existence. This enriches the western concept of ‘homo economicus’ thanks to the traditional Japanese thought/culture about dynamical moderation…

Such a preoccupation in making rules to co-exist with culture/identities through language mechanisms and social practices shows less the sign of a return to a social philosophy than the emergency of a third road between positivism and jusnaturalism, between Hart and Fuller, a road of, let us say “anthropological consistency” (Lhuilier, 2008: 175-179).

Therefore, historically, the time of positivism seems to be over. The switch may be exactly dated August 3, 2007. It is on that day that jurists coming from all over the world to the 23rd World Congress on Legal Theory- after having heard Larry May attempting to imagine the ultimate legal violence not through illegality or injustice, but “the crimes against humaneness” (May, 2007)- wandered together and silent around the Auschwitz-Birkenau camp.

The journey of the legal thought

The 44 Special Workshops (SW) of the 23rd World Congress have issued around 400 contributions under specific themes proposed by the IVR National Sections. Eight Working Groups gathered under neighbouring themes proposed 200 more background papers presented by individual researchers of different nationalities. All these particularly rich studies contributed to determining the common “theoretical spaces”, objects of the legal thought, helped outlining the new trends and even geographical –for example by continents- specificities of a world legal thought.

Continents

Each legal, either national or continental, culture gives a specific place to characteristics of the contemporary legal thought and can be stimulating pointing out differences, common ground and mutual influences between cultures.

As to the North-America, legal thought is “imperialistic”; most of the debates in the World Congress have followed its problematic, whether the traditional opposition Hart/Dworkin, legal liberalism (SW n°34 Natural Law and the foundation of liberalism 222-229), or else, henceforth more often, a critical thought mixing Crits, gender and French theory (WS n°44 Women, Human Rights and the 21st century 292-295). As Manuel Atienza noted “…it is by no means that the standard legal theory, the dominant Anglo-American paradigm (whether positivist or not) is truly general. Thus, since there is a real risk that the globalisation in theory of law is rather what has been called ‘the globalisation of localism’, it might be interesting to develop, let us say, ‘regional’ theories of law, in accordance with the diverse cultural circles existing to day. Multilateralism seems to be a desirable strategy, and not only in the scope of international strategy” (Atienza, 2007: 242).

Actually, an important South-American continent legal theory was clearly identifiable from its critic and social tradition (SW n°20 Latin American legal thought and legal philosophy: 29-132). Several researchers from Brazil were interested in the empirical law research, theorizing for example the “Aporia of the favela in and out the concept of humanity” (SW n°3, Between law and its other: theorising rights, dignity and democracy: 19-23).

Researchers from China had been elaborating some very pragmatic legal thoughts, when working on the “protection of citizens rights in the development of the rules of law in China” (Ge Hongyi, South China University of Technology), the “Unban house demolition and relocation in China” (Feng Yujun, Renmin University of China), the professionalization of legal staff in China as a condition of the application of law (Jinwen Zhu, The People’s University of China School of Law, Beijing, China).

And other Chinese authors also welcomed the Anglo-Saxon thought “Law and Economics”. This dual approach was also present among representatives of the Japanese thought. Certain researchers referred to the traditional neo-confucianist, moderating Japanese thought, while others co-ordinated and moderated a Special Workshop dealing with “Libertarianism” (SW n°32).

While several attempts to figure out an African legal theory underline the necessity to abandon western categories and refer to tradition (SW n°40, The possibility of African legal theory).

As to the European continent, the thought appears in crisis. We found kelsenien continental positivism almost forgotten, while totally absent was the French neo-kelsenien one hold by present supporters of the “realistic theory of interpretation” (Troper, 1980, 1994, 2001), although being very active in France and having tried to conciliate normativism with the hermeneutic switch in the legal thought (Pfersmann, 2007). However, this very hermeneutic switch is mainly of European origin, Habermas, Gadamer and Ricoeur being the most frequent continental references.

Theoretical spaces

So now, a certain number of themes are shared within different geographical spaces, thus outlining borders of spaces of thoughts. Common theoretical spaces are thus emerging, around narrative or anthropologic coherence of law, notion of identity, analysis of discourses rather than researching the foundation of the law, transformation of traditional notions such as for example body, person, goods… and also a re-praise of the actors of law who are involved in enunciating law, therefore receiving more and various discourses about law - in short a re-definition of the elaboration process of law which outlines new democratic spaces too.

The “Law and…” space: When moral philosophy is present, “Law and economics” have often been used, particularly by Chinese researchers (such as Yjun Feng from Renmin University of China (Crime and modernisation: economics analysis of law with macro perspectives) and by Chien Tze-Siou, from Academy Sinic, National Taïwan University. A growing number of researchers use the Habermas’ communication model or the procedural positions of Dworkin and Alexis, the so called “post positivist theories”. Muntada José Maria Carabante, from Universidad Completense in Spain, studies the hermeneutic openness in the late conception of Habermas’ “constitutional patriotism”. Habermas has recently come to understand that religious belief is a factor of solidarity between citizens. He now promotes an enriching dialogue between law and theology (SW 22, Law, religion and politics: philosophical and theological perspectives in critical comparison 139-150).

The main topics seem to be law and literature, law and aesthetics, law and music, together with post-post positivism of Giorgio Agemben and Jacques Derrida (SW 23, Law and literature, 150-160). Even Fernanda Bitencour’s lectures on Pierce’s pragmatic philosophy emphasised the imagination and creativity in legal reasoning. In the style of the so called “French theory” and “deconstruction”, we heard Stovba Oleksiy, from the National law Academy of Ukraine, questioning: “Do we still need the concept of law?”

Ion Craiova, from George Baritiu University, resumed the current interdisciplinary approach in legal methodology through this statement: “it has become clearer that law is a ‘closed’ system through its juridical feature (according to H. L. Hart) but I fact juridicalness is ‘porous’; law is ‘cognitively open’ (from the methodological viewpoint as well)… It is closed (through juridicalness) but also open (due to its given and other subsystem); autonomous (self regulating) but also compelled (from the outside); organized and organizing; coherent (hic et nunc) and self- contradictory (among subsystems), homogeneous (through its specificity) and discontinuous (porous and permeable), informed and also informing, material and also ideal (as value), etc…”

The “Social critic” space: the current critical thought is also a “social criticism”. It contributes to the debate on fundamental rights (SW n°16, Humanitarian interventions: 103-107) and their practical impact (SW n°18, International judicial review of human rights: effective, legitimate –or both?, 118-121). Suehisha Toshihiko’s “Human dignity and the legal and bioethical discourse” (while at Tohoko Gakuin University); Lelli Fabio’s “health as a political concept” (University of Bologna) and Bruce Landesman’s “Humanitarian intervention and medical emergency” (University of Utah) are three good examples of the new practical spirit of the emerging global theory. Subjects such as the stoning of women convicted of adultery, multiculturalism, freedom of association, social experience of local democracy instigated by the greater London Council (as given autonomy to different groups such as women, homosexual and ethnic groups (so that they could participate in decision making), all these subjects are very far from the traditional leading questions of the so called philosophy of law, like the concept of representation or State theory…

The “Global law” space: This space is particularly large. It obviously covers all questions linked to globalization of law such as construction of an international public order through international penal justice. Henceforth, this public order, nowadays no more national but international, outlines the limits of the possible, last -and ultimate- figure of the interdict. Formulations under that title are numerous: global democracy and exclusion (SW n°13, 88-92), global justice (SW n°14, 93-99), global exploitations (SW n°15, 100-103). But “Global law” is also the space of constitutionalisation of the international society (SW n°5, Comparative constitutionalism, 27-37) or of European Union (SW n° 6, Constitutionalism between economics and legal theory: factual and theoretical complexity in the process of globalization and European integration, 38-47), or else of the re-definition of the very notion of juridical order (SW n°33, Multicentrism as an emerging paradigm in legal theory, 218-222).

The “Legal culture and identity” space: is very diversified: sometime the idea of an identity proper to a particular geographical legal space is considered (SW n°26, Legal culture of North-East Asia, 176-179), another time it is the problem of subjects identities built by the rules of law which appear, for example when African legal institutions are elaborated. Far from the Romanist concept of property right as a power (henceforth absolute) on an object, common land law in fact considers the property bond both as akin, belonging to a lineage is materialized by a right over a land, and ontologic… The subject is then irreducible to the legal person only, and includes lineage, community or even land itself.

Mapping

The preparation of the 24rd Worl congress who will take place in Beijin, septembre 2009, had been an important moment in the construction of theses theoretical spaces. The world congress theme, chosen by the China Law Society (CLS) in cooperation with the International Association for Philosophy of Law and Social Philosophy (IVR), is « Global Harmony and Rule of Law ». In order to help researchers and academics, the China Law Society established in advance a list –in english, the language of the world congress- of 54 « suggested topics », the China Law society namme for what wee call « theoretical space » :

1). diverse legal culture and world harmony ;
2). jurisprudence and world harmony ;
3). international rule of law and world harmony ;
4). anti-terrorism, human rights protection and rule of law ;
5). global environment, energy resources and rule of law ;
6). global governance and harmonious development ;
7). conflict and harmony between globalization and localization ;
8). new perspectives on human rights and development ;
9). legal and philosophical studies of mediation ;
10). conflict and harmony between democracy and constitutionalism ;
11). universalism and cultural relativism ;
12). Chinese legal thought and legal philosophy ;
13). Latin American legal thought and legal philosophy ;
14). African legal thought and legal philosophy ;
15). legal thought and legal philosophy in Islamic world ;
16). legal thought and legal philosophy in West European countries ;
17). legal thought and legal philosophy in Scandinavian countries ;
18). Russian legal thought and legal philosophy ;
19). natural law theories ;
20). legal positivism ;
21). historical jurisprudence ;
22). legal pragmatism ;
23). Marxist jurisprudence ;
24). critical legal studies ;
25). virtue jurisprudence ;
26). gender and law ;
27). law and language(linguistics) ;
28). law and literature ;
29). law and natural science ;
30). law and music ;
31). law and psychology ;
32). law and social science ;
33). Legisprudence ;
34). law and economy ;
35). law, religion and culture ;
36). political law ;
37). East Asian legal culture ;
38). legal transplantation and local resources ;
39). legal thinking and legal method ;
40). legal interpretation ;
41). legal reasoning ;
42). legal ethics ;
43). value pluralism and legal communication ;
44). law and culture in digital society ;
45). possibility of innovation of models of rule of law ;
46). models of law and development ;
47). law, plural values and methodology ;
48). Topics, rhetoric and jurisprudence ;
49). contemporary legal argumentation theories ;
50). logic, language and law ;
51). communication through methods: jurisprudence in search of inter-cultural value i)dentity ;
52). deliberative democracy in legislative process ;
53). argumentation on legitimacy of law and legal validity ;
54). practical jurisprudence.


The China Law Society doesnt want to restrain the « topics », the themes of the word congress. Researchers were free to propose any suject for the « special workshops ». And the theme proposed – and accepted by the world congress organisators, reenforce the main « continents » of the current glogal legal theory as they were already emerging in Poland two years ago :

1). Alliance or Clash of Civilizations?
2). A Legal and Political Analysis ;
3). Secularism and Rule of Law ;
4). Efficiency, Sustainability, and Justice to Future Generations ;
5). Formal and Substantial Reasoning in Legal Interpretation and Adjudication ;
6). Pedagogy of Emancipation for Law Schools ;
7). How General is General Jurisprudence ;
8). Human Dignity and the Foundation of the Rule of Law ;
9). Corporate Governance in China ;
10). Human Rights and International Law ;
12). Law and Global Humanitarian Aid ;
13). Virtues in Law ;
14). Law, Liberty and Rule of Law ;
15). Justice and Governance in the International Community ;
16). Aristotle and Philosophy of Law ;
17). Orthos logos, Recta ratio, or Right Reason in the Philosophy of Law from Aristotle to Dworkin ;
18). The Right of Data Protection in Digital Society ;
19). Law and Business Ethics ;
20). The Many Fates of Legal Positivism ;
21). Law and Mathematics ;
22). Defensens and Punishment in International Criminal Law ;
23) The Philosophy of Precedent ;
24) Legal Thought and Legal Philosophy in Latin America ;
25) Medicine and the Rule of Law ;
26) Universalism and Cultural Relativism ;
27) Inner peace and Indigenous Practice in Conflict Resolution ;
28) Law and Literature ;
29). Global Legal Studies ;
30). Libertarianism ;
31). Legal Thought and the Oretical Foundations of Brazilian Law ;
32). Artificial Intelligence and Law ;
33). Biopolitics ;
34). Legal Reasoning: The Methods of Balancing ;
35). Models of Law and Development ;
36). Deliberative Democracy, , in Legislative Process/Law and Natural Science ;
37). Political Law ;
38). Law and Economy/East Asian Legal Culture ;
39). Conflict and Harmony between Globalization and Localization/Conflict and Harmony between Democracy and Constitutionalism ;
40). Human Right and Development ;
41). International Rule of Law and World Harmony ;
42). Legal and Philosophical Studies of Mediatio ;
43). Universalism and Cultural Relativism ;
44). Law and Literature ;
45). Contemporary Legal Argumentation Theorie ;
46). Practical Jurisprudence ;
47). The Methods of Precedent Systems in Different Legal Tradition;
48). Gender and Law and Rule of Law ;
50). Coercion, Law, and State ;
51). Political Obligation ;
52). Phenomenology and Hermeneutics of Law ;
53). A Lawyer in the international context - Operative or Philosopher? ;
54). African Legal Thought and Legal Philosophy ;
55). Difference in the Conceptions of Self as subject of human rights between the West and the East Asi ;
56). Animal Rights Debate: The Legal Philosophical Question ;
57). The Public Responsibility of the Judge in a Liberal System of Justice ;
58). Law and Language: Explorations on Judicial Discourse ;
59). Law and Language – Making Laws Work in a Globalised Worl ;
60). Russian Legal Philosophy in Cultural Dialogue ;
61). Multiple Legal Culture in East Asia.

These chinese map shows the importance of some main « theoretical spaces », common to almost all the « geographical spaces ».

Mainstream

To make understandable the constitution of this “spaces theory”, one can give an example of what may be called the journey of the legal theory.

There is to day a growing French school of thought, called the anthropological dimension of law. It began in the seventies with the “French theory” (Foucault, Derrida, Deleuze, Lacan et al.). This French theory, travelling across the sea contributed to the American critical theory, such as gender studies, and law and literature. We witnessed then, in the eighties, a kind of reception, a kind of translation of French theory by the American criticism movement, called post (or post-post) positivism. This French philosophy is nowadays at home in the American universities literature departments where is studied the constitution of the subject through normative discourses over identity, i.e. cultural, sexual or “ethnical” genders. Discourses over identity are indeed considered as “coercitive subjectivations” (Butler, 1990, 1999). These gender studies, more than Crits (Critical legal studies), where literature, philosophy, law and politico-institutional studies are joining, have had a very important effect on the American legal thought.

Twenty years later, this movement travels again across the sea to France and contributes to a new theory: the anthropological dimension of law (Legendre 2002, Supiot 2005, Lhuilier 2008). This theory focuses on how individual identity and communal identity are built by social and especially legal discourses.

These authors refuse to reduce law to “illusory real” and outline the “function” or the “anthropological dimension” of law. These jurists think that law has not only one explicit and positive sense, but also a symbolic dimension which founds our humaneness. Therefore, among other examples, to understand what links parents and children, it is important to study French Civil Code provisions on filiation and draw conclusion that they organize the paternity bond on an engagement level. This father’s contract can be either verbal (marriage, adoption, recognition) or based on de facto possession so that discourses and behaviours make paternity a cultural fact and not a biological bond. Symbolically, the parent-children link recognized by law is more a word than a blood one.

These authors who study the “anthropological function of law” are jurists who have explicitly concluded “new alliances”, to cite the terms used in La revue des Annales, with anthropology and history, as well as, though less openly recognized, with linguistics, philosophy, literature. They are therefore obliged to philosophers such as Foucault, Derrida, Deleuze, Agemben… who have deeply renewed the legal thought for the past thirty years.

Elaborate such “cartographies” of the contemporary legal thought, in order to outline trends, continental spaces, themes, enables us to know better where we are. The prevalent French positivist legal thought looks to be out of this map when it claims to be the model of a “theological” concept of law, whose cult is classical reason (Jamin, 2004), qualified as the “contemporary American thought anti-model” (Jestaz, Jamin, 2004). This French criticism of the “American anti-model” is actually the criticism of the French studies which renewed the American legal though.

Although this American legal thought, which is unbearable to French jurists while it simply “covers all what has been more or less thought and applied for a quarter of a century in the rest of the world intellectual field” (Cusset, 205: 341), has a certain French philosophy as its intellectual and geographic origin. After having ignored the firth French studies (Foucault, Deleuze, Derrida, et al.) who are the post-modernity thinking, the French positivist jurists are to day denying the importance of the current second French studies, disregarding the importance of Legendre, Badiou et al. who are attempting to get out of the post-modern thought (Badiou, 2008). On the opposite, on the above cartographies, the French anthropologic dimension of law school of thought share the very same track that the world legal theory in the process of being built.

Gilles Lhuilier

Professor, Fellow of the Institute of Advanced Studies, Nantes, France.

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