The A Priori Method in the Social Sciences: A Multidisciplinary Approach [1st ed. 2023] 3031382595, 9783031382598

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Jean-Sylvestre Bergé   Editor

The A Priori Method in the Social Sciences A Multidisciplinary Approach

The A Priori Method in the Social Sciences

Jean-Sylvestre Bergé Editor

The A Priori Method in the Social Sciences A Multidisciplinary Approach

Editor Jean-Sylvestre Bergé GREDEG Université Côte d'Azur Sophia-Antipolis Cedex, France

ISBN 978-3-031-38259-8    ISBN 978-3-031-38260-4 (eBook) https://doi.org/10.1007/978-3-031-38260-4 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland Paper in this product is recyclable.

Introduction

A priori is an ambivalent concept in the philosophy of science. It has two main meanings: the transcendental meaning and the usual meaning of “prejudice.” Both senses deserve to be studied jointly, in order to explain their respective meanings but also to remove confusions in their use. In the first sense, a priori has a transcendental Kantian dimension. “A priori” designates a category of knowledge considered independent of experience. As such, an a priori is a transcendental justification of knowledge. If knowledge can be justified without experience, then knowledge is incorruptible, because it does not depend on our perceptions. In its usual meaning, the notion of a priori refers to prejudices, and more particularly to paradigms, beliefs, commonplaces, biases, and emotions. These prejudices are the result of individual or collective perceptions. They belong to cognitive, political, sociological, or historical fields. These different understandings of a priori have been the subject of many studies combining the theory of knowledge, the philosophy of science, and epistemology. The theory of knowledge was developed at the end of the Renaissance in the seventeenth century. The philosophers of that time sought to examine the ancient doctrines of human knowledge, by focusing on its limits. The philosophy of science emerged in the nineteenth century. By combining philosophy and science, it was responding to the need to meet the scientific and societal challenges raised by new discoveries. Epistemology appeared in the twentieth century. It is generally defined as the study of science. It takes a critical stance on the conditions of knowledge and seeks to find new perspectives in knowledge theory. Even if the term “a priori” is not always used as such, questions about a priori in the transcendental sense or in the usual sense remain prevalent in the contemporary intellectual environment. The theory of knowledge continues to evolve, whether in metaphysics or in a practical dimension, such as in ethics. Research on a priori has opened up in other disciplines such as cognitive sciences, which study the mechanisms of human thought and cognitive biases, in both human and animal neurobiological functioning, as well as in artificial intelligence.

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The challenging point that arises today is how it is possible to revisit these questions, not only in philosophy, but also in law, economics, management, anthropology, and sociology. To address this challenge, the book proposes to lay the foundations of a new antecedent approach that revisits the classical approach to a priori and their relationships with law and philosophy (Part I). The analysis of a priori is then extended to economics and management, on such key topics as labor, blockchain technology, and innovation (Part II). Finally, the focus turns to anthropology and sociology, to reconsider the core methods of these different disciplines (Part III). This book is the result of research conducted within the framework of the UCAJEDI IdEx program of excellence at Université Côte d’Azur funded by the French Government.1 The research was hosted by the Research Group in Law, Economics and Management based in Sophia Antipolis (CNRS, GREDEG). It benefited from the support of the Université Côte d’Azur Office of International Scientific Visibility. Nice-Sophia Antipolis, France Jean-Sylvestre Bergé

 Managed by the National Research Agency (ANR), reference number: ANR-15-IDEX-01.

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Contents

Part I Law, Philosophy  Toward a New Antecedent Legal Method������������������������������������������������������    3 Jean-Sylvestre Bergé  The Cultural Dimension of Law ��������������������������������������������������������������������   17 Frédéric Zenati-Castaing  Legal Knowledge a Knowledge of Object?������������������������������������������������   27 Is Michel Boudot  Antecedent and Ontology: In Search of the Smallest Possible A Priori ����   45 Frédéric Rouvière The Private/Public Divide Among the Principles of World-Building: Insights from Godelier, Fortes, and Arendt��������������������������������������������������   55 Lior Barshack  The A Priori: A Structure of an Ascendant Imaginary��������������������������������   77 Hania Kassoul  Are Numbers A Priori Like any Other?��������������������������������������������������������  101 Mathieu Corteel Part II Economics, Management  Antecedents in Labor Economics ������������������������������������������������������������������  117 Jean-Luc Gaffard  Blockchain: Antecedents and Future Challenges������������������������������������������  131 Martin Cimiterra and Jackie Krafft  Priori to Investigate Innovation in Management Science������������������������  143 A Cécile Ayerbe

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Part III Anthropology, Sociology Not Having an A Priori Has Become the Anthropological A Priori: Multiple Forms of Knowledge Are Produced in Ethnographic Experiments������������������������������������������������������������������������������������������������������  157 Ana Lúcia Pastore Schritzmeyer  The Investigation as an Antecedent in Sociology and Other A Priori��������  179 Gérald Gaglio Index������������������������������������������������������������������������������������������������������������������  189

About the Contributors

Cécile  Ayerbe  is a full professor of Management Science at Université Côte d’Azur CNRS GREDEG. Her research interests deal with the management of innovation. More precisely, she is interested in the interactions between technological and organizational innovation, open innovation, and the management of intellectual property rights. She has conducted qualitative field work on these topics in both large industrial companies and SMEs. She is the codirector of the Master of Research in Management and Innovation, a program created by Université Côte d’Azur, Skema Business School and GREDEG. Lior  Barshack  is a full professor of Law at the Radzyner School of Law, Reichman University, Herzliya, Israel. He’s a specialist in legal theory. His research interests include constitutional theory, theory of family law, and law and culture. Jean-Sylvestre Bergé  is a full professor of Law at Université Côte d’Azur CNRS GREDEG, honorary member of the Institut Universitaire de France, and director of the Séquences series at Dalloz. Since the beginning of his career, he has developed the following research themes: international and European intellectual property law, the Europeanization of law, interactions between international and European law, methods of application of law in a global context, and an epistemological approach to circulation phenomena. His new research theme focuses on the antecedent approach to law. Michel  Boudot  is a full professor of Private Law at University of Poitiers. He teaches comparative law and legal theory. His research focuses on forms of legal meta-discourse, and in particular on how private jurists understand aspects of property. He is involved in several research groups in Europe and Canada and has contributed to numerous books and conferences, mainly in French and Italian, but also, less frequently, in English.

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Martin  Cimiterra  is a PhD candidate at Université Côte d’Azur CNRS GREDEG.  He is coauthor of an article published in a top academic journal, Industrial and Corporate Change, and also coauthored a book chapter in an economics encyclopedia published by Edward Elgar Publishing. His research interests are knowledge and innovation and industrial dynamics with a focus on digital technology. Mathieu Corteel  is Arthur Sachs Fellow at Harvard University, Teaching Fellow at Harvard College, and postdoctoral researcher at Sciences Po Paris. He has recently published his first book based on his doctoral thesis, Le Hasard et le Pathologique (2020). The book traces the history of statistics and probability in medicine from the seventeenth century to the end of the nineteenth century. To further develop his research, Dr. Corteel is at Harvard examining the extensive archival collections of American physicians who traveled to Paris in the early nineteenth century to learn numerical methods. Jean-Luc Gaffard  is Professor Emeritus of Economics at Université Côte d’Azur CNRS GREDEG and Honorary Member of the Institut Universitaire de France. He is the author or coauthor of numerous articles in scientific journals, including the Journal of Evolutionary Economics, and of several books, including The Innovative Choice, Out of Equilibrium, and The Market Way to Riches, as well as Macroéconomie, faits, théories et politiques. Gérald Gaglio, a sociologist specialized in the topic of innovation, Gérald Gaglio has been particularly interested for several years in the implications of the proliferation of digital devices in the world of health. He has studied the diffusion and adoption of telemedicine, and is currently examining the implementation of artificial intelligence in radiology. He is a full professor of Sociology at Université Côte d’Azur CNRS GREDEG.  He recently published The Handbook on Alternative Theories of Innovation (coedited with B. Godin and D. Vinck, 2021, Edward Elgar Publishing) Hania  Kassoul, since 2021, Hania Kassoul has been an associate professor of Private Law at Université Côte d’Azur, after 3 years at University of Poitiers. She holds a doctorate in law (thesis entitled “The post-contract”: 2018 French Court of Cassation Thesis Prize special mention; 2018 Henri Texier I Prize from the French Academy of Moral and Political Sciences; and the Université Côte d’Azur Doctoral School of Law, and Political, Economic and Management Science Thesis Prize). She is a teacher-researcher at the Center for Studies and Research in Procedural Law (CERDP), in the research theme “Juridical Thinking.” She founded, created, and presides over the French network of law and philosophy degrees (RDDPhi). Jackie Krafft  is a French economist working as a CNRS Research Professor at Université Côte d’Azur, where she heads a multidisciplinary research institute that brings together economics, law, management, and sociology (CNRS GREDEG).

About the Contributors

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She has published articles in a wide range of top academic journals, including Research Policy, Industrial and Corporate Change, Economics of Innovation and New Technology, Small Business Economics Journal, Energy Policy, Journal of Evolutionary Economics, and Structural Change and Economic Dynamics. Her main research topics are knowledge and innovation (patents and intellectual property rights, research and development, university-industry relationships, organizational and environmental innovations), firms and markets (industrial organization, competition and regulation, corporate governance), industrial dynamics (complex networks of innovation, industrial demography, growth and localization of firms, business history), and European political economy (innovation, competition, globalization, growth). Frédéric Rouvière  is a full professor of Law at Aix-Marseille University (France), director of the Laboratory of Legal Theory, and director of the Master’s degree in legal theory. He teaches civil law and civil procedure and legal theory in all its forms (ontology, epistemology, methodology). His research focuses on the interaction of law with other fields of knowledge, especially the social sciences. He is a specialist in argumentation and interpretation (Argumentation juridique, Presses Universitaires de France, 2023) as well as in artificial intelligence applied to the legal domain (cocreator of the search engine “juripredis.com”). Ana Lúcia Pastore Schritzmeyer  is an anthropologist, lawyer, and professor in the Department of Anthropology at University of São Paulo (USP), Brazil. She coordinates the Anthropology of Law Center (NADIR – Núcleo de Antropologia do Direito – USP) and the Ethics Committee for Research with Human Beings in the Faculty of Philosophy, Arts, and Human Sciences at USP. She works in the field of anthropology of law in the areas of jury trials, jurisprudence and narratives of violence, human rights, demands for recognition of rights, access to justice, law professionals and professions, criminal justice systems, and criminology. Frédéric Zenati-Castaing  is a full professor of Law. He started at the University of Grenoble in 1985 and, since 1989, has been teaching at the Université de Lyon. During his PhD, he wrote his dissertation on the legal nature of property and, from then on, became a leading figure in property law in France and abroad. His teaching in civil law has been published in eight volumes. He is also a specialist in sources of law, philosophy of law, and comparative law.

Part I

Law, Philosophy

Toward a New Antecedent Legal Method Jean-Sylvestre Bergé

Abstract  The law is a matter of choice. To choose the law is to privilege one set of rules over another and to make one decision rather than another. These choices are dominated by an a priori understanding we have of the subjects to which we apply the law. These a priori can be assumptions, presuppositions, prejudices, paradigms, beliefs, commonplaces, biases, or emotions. The crucial question is how we can address this initial understanding in a way that fuels an original critical reconsideration of the law. An answer may be found in the philosophy of science. Two accepted definitions of the a priori coexist. In the first, an a priori is understood as a transcendental justification of knowledge. In its second and most usual meaning, it is a prejudice. The perspective of a new method to be constructed seeks to demonstrate that these two perspectives lead to an epistemological impasse when applied to the law. There is considerable debate as to whether the law is a science, whether there is a specifically legal knowledge, and whether it is possible to use experiments in this field. These endless controversies are sterile. We need a wide-ranging and inclusive research of a priori, here renamed as “antecedents,” to provide a true epistemological opportunity for the field of law.

Introduction The law creates its own world. No objective reality or scientific truth imposes itself mechanically in law. The law is always a matter of choice. To set the law about one or another social or natural phenomenon is to choose one rule over

J.-S. Bergé (*) Université Côte d’Azur, Nice, France e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 J.-S. Bergé (ed.), The A Priori Method in the Social Sciences, https://doi.org/10.1007/978-3-031-38260-4_1

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another and make one decision rather than another. For example, for a long time under French civil law, animals were not given a particular legal treatment. Not considered persons, they were not distinguished from other movable property. The law was recently amended (2015). Animals are now considered living beings endowed with sentience. But their legal status remains that of things! The law thus distinguishes animals from things, but it does not endow them with their own legal regime. We can say, as others have done, that “the law is another world” (Hermitte, 1999). Choices of law are rarely completely free. They are subject to a whole series of internal (Troper et  al., 2005) or external (highlighted, e.g., by American and Scandinavian realist approaches, in particular Millard, 2014) constraints on the law. Among these constraints are what may be called the “a priori” of law, that is to say all the assumptions, presuppositions, prejudices, paradigms, beliefs, commonplaces, biases, and emotions that exist prior to the legal intervention. In fact, the initial comprehension that the different stakeholders in a legal situation  – whether they are legal professionals or not – may have of the situations that they encounter or in which they participate has a potentially decisive impact on the choices of law. By keeping them at a distance from the legal field (external constraints), fighting them (biases, prejudices, commonplaces), or largely ignoring them (assumptions, paradigms, beliefs, emotions), we fail to make these choices intelligible, which ultimately means that we fail to develop a critical perspective on the law. One or another isolated a priori has of course been studied by legal doctrine (see, for a simple illustration, regarding postulates: Pinard, 2014; presuppositions: Höfler, 2014; prejudices: Antonmattei et al., 2016; paradigms: Atias, 2002; beliefs: Noonan, 1976; commonplaces: Adam et  al., 2014; biases: Persad, 2014; and emotions: Strickler et al., 2021). However, it cannot be said that there is today an overarching approach capable of occupying a significant place in legal thought. Legal studies focus most often only on the legal subjects, willingly neglecting discussion of anything that may have existed before the rules of law. Although a few rare legal theories have been put forward on the specific subject of a priori (Reinach, 1913; Gardies, 1972), they never had a sufficiently strong impact to leave an impression and influence legal practices. Finally, while the a priori argument does exist in law, especially in the practice of issuing sentences and in questions of evidence (Gorphe, 1947), it has never been based on a method capable of grasping all the a priori at once. Unlike the law, the philosophy of science offers particularly rich frameworks for interpreting a priori. But for reasons that are specific to law, these frameworks constitute an epistemological impasse. It is necessary to turn the tables and make the “antecedent” method an epistemological opportunity for the law. A new working methodology can thus be proposed in different steps. It can be tested on subjects related to major societal challenges.

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 he Theorization of A Priori in the Philosophy of Science: T An Epistemological Impasse for the Law We must first turn toward the philosophy of science1 when trying to approach the notion of a priori (Kant, 1787), because the most significant work has been done on the subject in that discipline. A priori is an ambiguous concept in the philosophy of science. It has two main meanings: the transcendental sense and the usual meaning of “prejudice.” Both meanings deserve to be studied jointly, in order to explain their respective meanings and also to remove confusions in their use. In the first sense, a priori has a transcendental Kantian dimension. A priori designates a category of knowledge considered independent of experience. As such, a priori is a transcendental justification of knowledge. If it is possible to justify knowledge without experience, then knowledge is incorruptible, since it does not depend on our perceptions. In its usual meaning, the notion of a priori refers to prejudices and in particular to paradigms (Kuhn, 1962), beliefs, commonplaces, biases (Fiedler & Krueger, 2011), and emotions (Bergé, 2021d). These prejudices are the result of individual or collective perceptions and interpretations (Gadamer, 1960; Heidegger, 1927; Ricoeur, 1994). They may be cognitive, political, sociological, or historical (Foucault, 1966; Kuhn, 1962). These different understandings of a priori have been the subject of many studies spanning the theory of knowledge, the philosophy of science, and epistemology (notably Gödel, 1931; Quine, 1963; Fred-Riviera, 2022). Although we consider that the philosophy of science, understood in the broadest sense, makes a major contribution to the theoretical study of the different types of a priori, transcendental or ordinary, we must nevertheless recognize that it constitutes an epistemological impasse for the law. It is no coincidence that a priori has never been the basis of theories of great scope and influence in law, equivalent to those we know in the field of philosophy. Moreover, although an authority like Kant (Kant, 1787) occupies a significant place in postmodern legal thought (Ward, 1997), it is not his work on transcendental a priori that shapes legal minds today. When it comes to the scientific nature of the law, its relationship to knowledge and experience, everything seems to be antecedent. Indeed, there is considerable debate as to whether or not law is a science, whether or not there is legal knowledge, and whether or not it is possible to use experiments in this field.

 I would like to thank Mrs. Anne-Laure Thessard, project engineer involved in the preparation of the “Antecedent” research project (https://docs.google.com/document/d/1kmDjBprx1yOcv3pnAExFYUqkRZifXZW/edit), for her contribution in philosophy of science, of which we will give here only a very brief overview. 1

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First of all, on the aspect of “science,” it is possible, on the basis of the known distinction between the actions of “explaining” and “understanding” (Dilthey, 1900), to be tempted to oppose two realities – nature and mind – and to recognize the existence of a strictly “scientific” approach only for the sciences that explain nature. This analysis would be tantamount to excluding law from the field of science. Thus, according to a widely held view, the law does not explain the nature of things, as it merely offers a representation (Ost, 2009) that is potentially unique to it. This representation would place the law in the sphere of understanding the phenomena that surround it and not simply explaining them. One can, however, object to this analysis, for example, that the essence of law is profoundly anthropological, so that any legal knowledge necessarily requires knowledge of humanity (Mcllroy, 2019). The nature of human beings would then constitute an explanation of the law. Faced with these divergent analyses, we can also, in a completely different direction, challenge the very existence of a dichotomy between the actions of explaining and understanding. One author has thus demonstrated that explanation enables the development of understanding, so that the former does not exclude the latter but rather is enveloped by it (Ricœur, 1994). This reading is particularly convincing in law. It makes it possible to integrate the work of interpreting laws into a field of explanation that is able to provide a better understanding of the situations apprehended by the law. It is therefore not possible to separate the two operations and dichotomously oppose analyses on nature and analyses on the mind. Secondly, in the field of “knowledge,” one can debate at will on the appropriateness of the term to the law or whether other terms, such as “scientific knowledge,” would not correspond better to it. It may also be pointed out, as others have done, that the two expressions are similar (science comes from the Latin scientia which is the translation of the Greek word épistémê which means knowledge) and that they do not in any case make it possible to decide the really formidable question of the existence (Atias, 2002; Zenati-Castaing, 2021) or not (Troper et al., 2005) of a sufficiently generalized and organized legal knowledge. Finally, with regard to “experience,” while there is little doubt that the arsenal of the jurist is very far removed from that developed by the various experimental sciences, it sometimes happens that the law is nourished by experience. This is the case, for example, with the adoption of laws on an “experimental” basis. But this does not mean that these laws seek to establish a “truth.” At most, they make it possible to construct a discourse oriented toward legal know-how (Amselek et  al., 1994) that one will decide, at the end of the legislative experiment, to prolong or discontinue. This general state of discussions on the law, of which we give only an overview here, demonstrates that philosophical theories on a priori do not offer a perspective suitable for the law. If a priori in the scientific sense implies a balancing of a precondition for knowledge and the competing merits of experience, it is clear that these considerations have no bearing on the law. We have to find a new point of departure.

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 urn the Tables and Make the “Antecedent” Method T an Epistemological Opportunity for the Law Faced with this epistemological impasse, should we nevertheless continue the investigation of the pre-understandings of the law and, with it, the hope that it can fuel and renew the epistemological analyses, that is to say the critical readings of legal knowledge? To this major question, the antecedent method intends to explore the possibilities of an affirmative answer. The antecedent method proposes to go beyond the dual state of the art described above, to change the vocabulary and the grammar of “a priori.” Regarding the vocabulary, the expression “a priori” is closely tied to its philosophical meaning. While reverting to such a conception is not ruled out, quite the contrary, it is essential to name a new anchor point that is compatible with the legal approach. Regarding grammar, a priori is too often presented as a tool that separates the before from the after. We distinguish a priori from a posteriori, so as not to risk mixing what preexists – precedents – and what exists subsequently, i.e., actuality. This separating function of the a priori seduces legal scholars who are attached, sometimes jealously, to the independence of their constructions from other branches of knowledge. It readily accompanies a search for coherence in the law which does not know what to do with the links that can be established between the law and its pre-­ understandings. This appeal to coherence allows legal scholars to keep the specter of disorder at bay by assuming there is more order and resemblance in any case than they in fact find (Bacon, 1620). This type of analysis has a high price for pre-­ understandings, since it organizes what could be called in number theory, fundamentally incomplete systems of thought, in the sense that all the perturbing elements are sacrificed on the altar of this so-called search for coherence (Gödel, 1931). We must move away from these divisive analyses focused on a priori and propose a new antecedent approach. The expression “antecedent” signifies a new method of conducting large-scale, highly international and multidisciplinary research, capable of establishing a whole series of links between the “antecedents” of law and the subsequent legal constructions. These links between the “antecedents” of law and legal constructions can thus be made explicit by pointing out and analyzing our pre-understandings of the subjects of law. Antecedents should be seen as an antecedent key to critique the meaning of legal pronouncements. They make it possible to bring to life in law the major distinction between the interest of knowledge and the interest for knowledge (Habermas, 1973). Because antecedents are, at first glance, external to legal knowledge, they are not immediately equated with this knowledge (“of knowledge”) but constitute a unique tool for understanding this knowledge (“for knowledge”). Such a theoretical research ambition does not start from nothing and does not go nowhere.

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Generally, research into the antecedent approach can begin with a comprehensive study deciphering the works that deal to a greater or lesser extent with different forms of pre-understanding of the law. The history of legal thought shows that leading authors have focused on what might be considered antecedent in legal approaches, even if they have not sought, as we intend, to place them in a fully global and inclusive method of analysis. These works deal with the assumed norm, the social antecedent, or the a priori basis. It has thus been possible, in the manner of Hans Kelsen (1967), to postulate the existence in law of hypothetical fundamental norms (Gundnorm), essentially antecedent, that are capable of legitimizing other norms. The antecedent here takes the form of a postulate, that is, a theoretical a priori, which makes it possible to consolidate the normative structure that, to put it simply, rests on the validation of each norm by reference to another norm. If we take the highest norm – the constitutional norm – we must refer to another norm to validate it. It is here that the fundamental a priori imagined by the famous Austrian theoretician comes into play, and thus he claimed that legal scholars had long believed in its existence without being able to expressly formulate its outline. In another approach, authors such as Santi Romano (1918; Bergé, 2015) considered that social organization existed prior to the birth of a legal order (ordinamento giuridico). This author has made it possible to bring into the law the fact that the social order is generally held to be “antecedent” (the author uses the expression antecedente several times and it is from him that we borrow it) to the law. This may, of course, refer to the social order of the state. But the author, condemning any form of legal exclusiveness, includes other types of social organization: the international community, the church, the company, the family, the mafia, and so on. Finally, there are the works of Adolf Reinach (1913) on the a priori foundations of civil law and Jean-Louis Gardies (1972) on the a priori foundations of moral and legal rationality. These writings, which are difficult to access and which are not widely known, unlike the two previous ones, borrowed from the phenomenology and modal logic of the avenues of research on a priori. These analyses could prove very useful to fuel a completely renewed reflection on the antecedent approach. Research on “antecedents” can draw on pragmatic epistemological work conducted on phenomena of movement (Bergé, 2021a, b, c). Reflecting on the way in which the movements of goods or persons are likely to challenge the construction of the law, especially in the event of total loss of control, we have effectively been led to propose a method of understanding the antecedents to the construction of the law in this field. This research has led to diverse discourses on situations in movement. Some are specific to lawyers while others come from other disciplines. In any case, these discussions reveal a number of antecedents in movement that may potentially be relevant to the work of lawyers. Six antecedents have thus been identified: 1. The magical antecedent (the metaphors of movement flows in law, such as the reference to the needs of international trade to justify overriding legal solutions).

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2. The liberal antecedent (movement as a political, philosophical, and economic vision for the law that is generally seen in the law of free trade). 3. The social antecedent (the reality of the movement in society in the law, e.g., flight crews and their specific categorization in law). 4. The ontological antecedent (movement as the essence of the law, as is the case in matters of people, data, capital, and waste). 5. The fundamental antecedent (movement as the basis of a legal system, e.g., the legal system of the European Union and its different movement spaces). 6. The modal antecedent (the different modes of movement that shape the law, including the prospect of the emergence of normative spaces of flow). We have thus observed that these six different aspects play a decisive role in the critical approach to the constructions of law in how they deal with situations of movement. It is now possible to address these preliminary issues in a broader perspective with the aim of establishing in legal thought and practice a new epistemological method of critical analysis of legal knowledge that is inclusive and large scale. The method underlying the antecedent method has a rare characteristic in the field of legal research: it can be widely deployed. From the outset, it does not favor any topic of law, any geography of law, or any theoretical approach to law. This is an essential asset. Regarding topic, the antecedent approach can embrace a wide variety of diverse subjects. It is not confined to a particular theme or specialty of law. This transversal dimension allows the research to open up to fields of human activity that are very different from one another. Naturally, it is not possible to envisage all of them, but the choice remains completely open. Thus, there is nothing surprising about working, in the same overall study, on the antecedents to legal decision-making with recourse to artificial intelligence, antecedents to the public assessment of the law, antecedents to professional practices of the law, and antecedents to the academic transmission of legal knowledge. All these areas, however different from one another, raise the same question of the approach to pre-understandings of the law. If the analysis yields methodological lessons that are common to them, then the research will have achieved its objective of developing a new, comprehensive working method. Regarding geography, the antecedent approach can be considered both in continental written law and in common law, in developed as well as in developing countries, and in local, national, international, European, and transnational environments. The acceptance of the method may of course vary greatly from one cultural context to another or from one legal system to another, and attention will have to be paid to this point in the various deliverables. But the method remains sufficiently general that it does not favor or neglect any geography of law. The reason for this is straightforward. The pre-understandings of the law know no borders. They are inherent in all knowledge, all understanding, and the law, even if it unfolds differently from one region to another, does not escape this.

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Regarding theory, the antecedent approach does not intend to give preference to any one of the different great schools of law that exist or that may have existed in the history of legal thought. For example, to put it simply, the antecedent approach does not favor a historical, sociological, philosophical, positivist, naturalistic, political, or logical reading of the law. It does not need to make a distinction between a descriptive analysis or a prescriptive reading of the law or between a purely postulated vision of the law or one that is essentially practice oriented. Here again, the acceptance of the method can vary greatly from one theoretical approach to another, and care must be taken to specify the theoretical framework of each of the studies actually carried out. But no approach is excluded at first glance. Any legal construction or theory can be questioned from an epistemological point of view, beginning with its antecedents. Ultimately, the research has a high potential impact due to the ubiquitous, permanent, if not existential, nature of examining antecedents. There is not one person connected with the law who has not questioned, at one point or another, what might predate the law, that is, what might have existed before the legal intervention. The fact that such a person is unable to answer, that there is not an appropriate methodological tool to examine the question, is exactly what the antecedent method seeks to rectify. But in the meantime, the question remains, always present, and it is essential to find a way to answer it. The antecedent method has three objectives: –– To raise questions in legal thinking about the existence and the fine details of an antecedent method. –– To test the value of such as method in the fields of artificial intelligence, public assessment, the evolution of practices, and the transmission of acquired knowledge. –– To renew philosophical reflections on a priori.

Methodology: Inventing a Three-Step Antecedent Approach Methodology is at the heart of the antecedent approach. The maxim of this new approach could be: “Leave behind the law only better to return to it!” The law deals with all kinds of subjects. These can be essentially factual realities (a person or property in a given situation, a specific event) or more intellectual constructions (e.g., legal personality, good faith, economic matter, social organization, scientific progress). Rather than beginning by “delimiting” legal constructs, whenever they are faced with a given subject, legal stakeholders could open themselves up to other perspectives. This would involve inviting them to question their pre-understandings of the subject (step 1), to compare them with those of other disciplines (step 2), and only then, finally, to return to the law, but in full understanding of the subject to be addressed (step 3).

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The hypothesis of an antecedent approach must be posed and verified from a theoretical point of view. It must be confronted with diverse subjects and major societal challenges. It is also called upon to renew philosophical reflections on a priori. The antecedent approach does not exist in methodology statements in law. It is necessary to invent it and make it accessible to as many people as possible. Therefore, we propose a scenario with three steps. In the first step, individual legal scholars question their primary understanding of the subject they seek to apprehend. They consider, alone or as part of the community to which they belong, or on behalf of another individual or community, in the past, present, or future, what are the potential assumptions, presuppositions, prejudices, paradigms, beliefs, commonplaces, biases, and emotions that are likely to provide information about the existence of antecedents to legal constructions. This type of inquiry is necessarily embedded in space and time. It therefore requires a major effort of contextualization. This effort is often neglected by legal scholars, who are naturally immersed in the context given to them from the beginning of their training. They do not necessarily question the scope of this context and the way in which it could permeate the pre-understandings of the subjects addressed by the law. To pre-understand the law is, on the contrary, to provoke a systematic consideration of the context(s) of the subjects of the law. This first step of pre-understanding also requires that legal scholars be prepared to use tools that enable them to enrich their vocabulary on multiple forms of antecedents. While they are not obliged to consider all possible antecedents, it is essential that they determine whether the antecedent to which they refer can be straightforwardly formulated or is a deep or sensitive thought. In short, in the first stage, legal scholars open the way to examining the primary understandings of the subjects of law. Even though, at this stage of the analysis, they do not have the answers to all the questions they ask themselves, the fact they are asking the questions is already a mark of the implementation of the antecedent approach. In a second step, legal scholars confront their analysis of the subject to be apprehended with that potentially put forward by other disciplines. It is a question here of considering how other branches of knowledge apprehend the postulates, presuppositions, prejudices, paradigms, beliefs, commonplaces, biases, and emotions which surround this or that object of study. This question requires a multidisciplinary work of comparison. It aims to make explicit potentially all the preconceptions which can exist on a given subject from different disciplines. As with any multidisciplinary venture, the work is complex and demanding (Abbott, 2001; Barry & Born, 2013; Commaille & Thibault, 2014; Jacobs, 2013; Testart, 2021). It is necessary to know how to determine in several disciplines exactly what we are talking about and in what order we should talk about it. Our experience in this field for more than 25 years with economists, managers, politicians, sociologists, anthropologists, philosophers, digital scientists, and biologists has shown us that multidisciplinary work necessarily remains limited. It is only possible to work for a time on several disciplines and on defined subjects, since participants must then be able to return to their own discipline or work if necessary on the emergence of new disciplines. But this

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communal workspace is essential. This is particularly true for the antecedent method. In terms of pre-understanding, all disciplines need each other, since it is for each of them to leave their comfort zone and to question what may exist upstream of the construction of subjects. This uncovering of knowledge may be unsettling. It does not place any of the stakeholders in a position of authority relative to the others. It is therefore an ideal space for exchanging views on the pre-understandings of the subject studied. This leaves the last step, the return to law in its own field and, in absolute terms, the return of each of the disciplines mobilized at the second step to their respective fields. We know that, in the law, it is essentially a matter of choice. The law is not obliged to take into account all the antecedents that were identified in step 2 of the method. But the antecedent method allows it to make the choices that seem useful or necessary for the full understanding of the subjects to be apprehended. In this respect, the antecedent method has an appeal that is unparalleled in legal science. If the law creates its own world, do we still need to know the “other worlds” to determine with a minimum of precision which legal world we are talking about? For this, it is necessary to make a comparison between different disciplines. This is precisely what the antecedent approach makes it possible to do. This approach also has another advantage. It may prove to be the Trojan horse of any advanced research that endeavors, as is most often the case today in this field, to build or reconstruct itself around unidentified subjects. These subjects, whether they are really new or have only been neglected until now, most often go beyond traditional disciplines. Even if they can aspire to find new disciplines, they require, as a prerequisite to any research, an approach that allows them to be addressed. The antecedent method, by questioning the pre-understandings of subjects, by making them dialog with each other, and by organizing a return to existing knowledge, makes it possible to achieve a research ambition of this scale. It may therefore have an impact far beyond the law. The prospect of such an antecedent method is groundbreaking in many respects. It provides a valuable framework for all initiatives – and there are many of them – that seek to integrate the law into a multidisciplinary approach, but without necessarily having identified the possibilities offered by the antecedent approach. It makes it possible to support the development of critical analysis of the law from its subjects. Each choice of law must be discussed in the light of the options chosen and those rejected. This is enabled by the antecedent approach, which puts into perspective a resolutely pluralistic approach to the subjects of the law. It aims, ultimately, to clarify the inherent part of the law, that is – no more and no less than – the existence of the famous and all too often mysterious “strictly legal knowledge.” This is an absolutely essential goal of the antecedent method. To be open to these different perspectives, it is necessary first to sift the antecedent approach through existing theories of law. Even though, as noted above, the antecedent approach is not intended to be divisive, in the sense that it does not favor one conception of law over another, it should be possible to find in existing theories possible paths of the antecedent approach.

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We have had the opportunity to sketch out such a study regarding the presupposed norm (Kelsen, 1967), the social antecedent (Romano, 1918), and the a priori foundation (Reinach, 1913; Gardies, 1972). The aim is to deepen this research and to open it up to other approaches. Certainly, many questions on the historical, sociological, philosophical, positivist, jusnaturalist, political, or logical dimensions of law can be reread through the antecedent approach. The same applies to purely descriptive analyses of the law or readings which are intended to be prescriptive in law. The same can also be said of purely postulated visions of the law and those which are essentially oriented toward legal practices. Construction has begun. It now deserves to be completed on subjects related to major societal challenges.

 esting the Method on Subjects Related to Major T Societal Challenges The hypothesis of an antecedent approach could be tested on subjects that involve issues with high societal stakes. The analysis of subjects is the bottom-up counterpart of the theoretical, top-­ down approach proposed above. These two types of analyses are independent of each other in the sense that they do not share the same starting or ending point. Subject analysis is not simply an implementation of the theoretical analysis. It constitutes its own research stream that makes it possible to verify in specific fields the merits and limits of the theoretical basis of the antecedent approach. Ultimately, we expect that the subject analysis will enrich the theoretical analysis and provide feedback for refinements and, conversely, the analysis of subjects will benefit from adjustments associated with the theoretical investigations. The subjects have been carefully chosen to consider the societal issues that they likely address. These subjects are (1) legal decision-making through the use of artificial intelligence, especially in crisis situations; (2) citizen assessment of the law, especially in environmental matters; (3) the evolution of professional practices of the law, especially with regard to the mistrust of the public toward the justice system; and (4) the academic transmission of legal knowledge, especially in initial training in law. The first subject is part of the powerful movement brought about by the meeting of artificial intelligence and law. Necessarily multidisciplinary, this meeting gives rise to a field particularly rich in antecedents that are likely to predate the different branches of knowledge involved. At the first stage, we consider the digital sciences and legal sciences. The computer scientist and the lawyer do not approach the challenges of legal decision-making in the same way, especially, as is most often the case, in a crisis or emergency situation: for example, what a legal decision is, who makes it and to whom it is directed, its forms, its purposes, how effective it

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is – especially in different places and times – what a crisis and/or emergency situation is and how it should be understood, etc. On all these points, an examination of pre-­understandings can occupy a crucial place in the collaborative work between the computer scientist and the lawyer. It is necessary to be able to develop a pedagogical scenario for this work, that is, to organize it before, during, and after the decision-­ making, depending on the IT solutions and the decisions being considered. The second subject investigates the way in which citizens participate in and directly contribute to the construction of legal pronouncements in areas that directly affect them. One area which is particularly relevant for this type of approach is environmental protection. There have long been international, European, national, and local legal instruments that allow citizens to participate in actions likely to have an impact on the environment. This participation has taken on a new dimension relatively recently with the development of citizens’ climate conventions, which are responsible for making proposals to governments to combat and adapt to change. These could provide an excellent forum for discussions about antecedents. It is vital to ask what pre-understandings the various actors have of climate change and how these pre-understandings are or are not understood at the various stages of the discussion and deliberation. It is likely that these questions are currently only rarely addressed in this type of forum, even though they play a potentially decisive role in the entire citizen process. Dialog must therefore be encouraged, in particular between political science and the law, on how to frame the antecedent approach in this very particular context. The third subject concerns the evolution of professional practices in the law, especially with regard to the mistrust citizens have of the justice system. It is fair to say that justice is in a state of crisis in many legal systems. The expectations of the citizens remain largely unfulfilled, so that the gap widens between those who work for justice (judges and lawyers in particular) and those who are the recipients (natural and legal persons, in both private and public law). Faced with this observation, the role of antecedents in this widespread misunderstanding should be explored, as well as how it can be reduced, by the professional training given to the main stakeholders in the justice system, especially judges and lawyers. For this, strategic planning is also required. Stakeholders must be able to express and debate their understanding of justice, and they must be able to compare their point of view with that of the citizens. The most suitable place for this type of exchange is vocational training schools. The lawyers’ reflections must be based on field surveys conducted jointly with sociologists, which presuppose that, in turn, the latter inform the antecedent approach with their conception of justice in a context of mistrust. The fourth and final subject relates to the academic transmission of legal knowledge, especially in initial legal training. Our law schools and faculties transmit a large body of legal knowledge. This knowledge is, like any other subject, susceptible to pre-understandings. However, they are rarely discussed. The emphasis placed on “precedents,” understood in their various forms (jurisprudence, legislative texts, doctrinal writings), obscures, more often than not, the undeniable fact that these precedents are also the subject of “antecedents.” It is therefore essential for

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educators and particularly law professors to be able to explore these antecedents in the courses they teach in law school. In this regard, a pedagogical strategy for the antecedent approach is also required. This would provide an opportunity to compare widely the work of legal educators with specialists in the history of thought. This historical perspective of legal knowledge could be a powerful lever for reflection on the existence, substance, and strength of some of the antecedents in this field.

References Abbott, A. (2001). Chaos of disciplines. University of Chicago Press. Adam, C., Cauchie, J.-F., Devresse, M.-A., et al. (2014). Crime, justice et lieux communs. Larcier. Amselek, P., et al. (1994). Théorie du droit et science. Presse Universitaire de France. Antonmattei, P.-H., Durand, B., Mausen, Y., et al. (Eds.). (2016). Juger et préjugés. Presses de la Faculté de Montpellier. Atias, C. (2002). Épistémologie juridique. Dalloz. Bacon, F. (1620). Novum Organum. Translate by Jardine, L. & Silverthorne, M. (Eds.) (2000) The new Organon. Cambridge University Press. Barry, A., & Born, G. (Eds.). (2013). Interdisciplinarity, reconfigurations of social and natural sciences. Routledge. Bergé, J.-S. (2015). L’ordre juridique – Commentaire de l’œuvre de S. Romano (L’ordinamento giuridico – 1945). Dalloz. Bergé, J.-S. (2021a). Comment penser en droit nos a priori ? L’exemple des situations en mouvement – Mélanges en l’honneur de P. Ancel. Larcier, pp. 15–29. Bergé, J.-S. (2021b). Les situations en mouvement et le droit - Essai d’une épistémologie pragmatique. Dalloz. Bergé, J. -S. (2021c). Rethinking flow beyond control – An outreach legal essay. DICE Editions, Confluence des droits. Available at SSRN: https://dice.univ-­amu.fr/sites/dice.univ-­amu.fr/files/ public/cdd16_-­_rethinking_flow_beyond_control.pdf Bergé, J.-S. (2021d). Pour une approche antécédente en droit des émotions politiques – L’exemple de la construction européenne in Strickler, Y., Bergé, J. -S., & Ortolani, M. (Eds.) Emotions et sciences: interactions. L’Harmattan, pp. 181–191. Commaille, J., & Thibault, F. (2014). Des sciences dans la Science. Alliance Athéna. Dilthey, W. (1900). Die antecedent der Hermeneutik. Translate by Makkreel, R.  A. and Rodi, F. (1999) the rise of hermeneutic. In Hermeneutics and the study of history (Vol. IV, pp. 235–261). Princeton University Press. Fiedler, K., & Krueger, J. I. (2011). More than an artifact: Regression as a theoretical construct. Psychology Press. Foucault, M. (1966). Les Mots et les Choses: Une archéologie des sciences humaines. Gallimard. Fred-Riviera, I. (2022). A historical and systematic perspective on A priori knowledge and justification. Springer. Gadamer, H. -G. (1960). Wahrheit und Methode. Translated by Weinsheimer, J. and Mars, D. G. (2004) Truth and method. Continuum. Gardies, J.-L. (1972). Essai sur les fondements a priori de la rationalité morale et juridique. LGDJ. Gödel, K. (1931). Über formal unentscheidbare Sätze der Principia Mathematica und verwandter Systeme I. Translated by Hirzel, M. (2000) On formally antecedent propositions of Principia Mathematica and related systems I. Dover Publications, pp. 38–38, 173. Gorphe, F. (1947). L’appréciation des preuves en justice. Essai d’une méthode technique. Sirey. Habermas, J. (1973). Erkenntnis und Interesse. Translated by Educational, H. (1987) Knowledge and human interests. Polity Press.

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Heidegger, M. (1927). Sein und Zeit. Translated by Macquarrie, J. and Robinson, E. (1962) Being and time. SCM Press. Hermitte, M.-A. (1999). Le droit est un autre monde. Enquête, 7, 17–37. Höfler, S. (2014). Between conciseness and transparency: Presuppositions in legislative texts. International Journal for the Semiotics of Law, 27(4), 627–644. Jacobs, J. (2013). In defense of disciplines. Interdisciplinarity and specialization in the research university. University of Chicago Press. Kant, I. (1787). Kritik der reinen Vernunft. Translate by Norman Kemp Smith (1965) Critique of pure reason. : St. Martin’s Press. Kelsen, H. (1967). Reine Rechtslehre. Translated by Knight, M. (2009) Pure theory of law. Lawbook Exchange. Kuhn, T. S. (1962). The structure of scientific revolutions. University of Chicago Press. Mcllroy, D. (2019). The end of law – How Law’s claims relate to Law’s aims. Edward Elgar. Millard, E. (2014). Réalisme scandinave, réalisme américain. Revus, 24, 81–97. Noonan, J.  T. (1976). Belief in law and belief in religion. Journal of Legal Education, 27(4), 386–389. Ost, F. (2009). Le droit comme traduction. Presses de l’Université Laval. Persad, G. (2014). When, and how, should cognitive bias matter to law. Law & Inequality, 32(1), 31–67. Pinard, D. (2014). Au-delà de la distinction du fait et du droit en matière constitutionnelle: les postulats nécessaires. Revue juridique Thémis, 48(1). Quine, W. V. O. (1963). From A logical point of view. Harper Torchbook. Reinach, A. (1913). Die apriorischen Grundlagen des bürgerlichen Rechts. Translated by Crosby, J. F. (2012) The Apriori foundations of the civil law. Antecedent Verlag. Ricœur, R. (1994). L’herméneutique et la méthode des sciences sociales. In P.  Amselek et  al. (Eds.), Théorie du droit et science (pp. 15–25). Presse Universitaire de France. Romano, S. (1918–1945). L’ordinamento giuridico. Translated by Mariano Croce (2018) The legal order. Routledge. Strickler, Y., Bergé, J. -S., & Ortolani, M. (Eds.) (2021). Emotions et sciences: Interactions. L’Harmattan, pp. 181–191. Testart, A. (2021). Essai d'épistémologie pour les sciences sociales. CNRS Éditions. Troper, M., Champeil-Desplats, V., & Grzegorczyk, C. (Eds.). (2005). Théorie des contraintes juridiques. LGDJ. Ward, I. (1997). Kantianism, postmodernism and critical legal thought. Springer. Zenati-Castaing, F. (2021). Le savoir des lois. Essai sur les droits romanistes. Dalloz.

The Cultural Dimension of Law Frédéric Zenati-Castaing

Abstract   Reflecting on prejudices in law is difficult because all in law is prejudice. This is due to the ubiquitous place of culture in law. Another obstacle is that, although uncovering common sense and prejudices make particular sense in science, in the field of law, science is challenged, and it exists only in certain legal systems, so it could be considered in itself as a prejudice. This chapter outlines the different aspects of the role played by culture in the field of law. It also tries to chart the basic idiosyncrasies in law.

Introduction Nothing rests on preconceived ideas as much as law. Legal practice and legal knowledge are based upon habits of mind and systems of representation, reasoning, and concepts without which they would be impossible. This is due to the role of culture in law. The law is not the same in different places and at different times, because cultures are different and because they evolve. It is difficult to be aware of this because, in addition, law is autopoietic and endogenous. It reproduces itself in an independent way, so it is not eager to look outward. The forerunners of this awareness were Montesquieu, with his multiplicity of spirits of law, and, in the following century, the Historical school, with its discovery that law stems from the spirit of each people (Dufour, 1991). This realization came about only with the birth of the human sciences. Thanks to them, from then on, the law was looked at from the outside and, therefore, objectively. It became possible to put laws in perspective and to realize their links with cultures. The first of these sciences was legal ethnology. The discovery of other civilizations proved to be the means to become mindful of the multiplicity and the specificity of laws. Knowledge of otherness and exoticism revealed thought patterns and beliefs underpinning foreign laws, which remedied the prejudices of one’s own law. F. Zenati-Castaing (*) Université de Lyon, Lyon, France © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 J.-S. Bergé (ed.), The A Priori Method in the Social Sciences, https://doi.org/10.1007/978-3-031-38260-4_2

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However, this new science did not manage to escape completely from prejudice. It was built upon the notion of the similar evolution of all the laws and the conviction that laws differ from one another depending on the progress of their history, so that Western law, thanks to its stage of evolution, appeared to be the most advanced law (Rouland, 1988). This prejudice disappeared in the next century, when anthropologists took the opposite path, that of legal pluralism  (Laboratoire d’anthropologie juridique de Paris, 2003; Vanderlinden, 2013), which is the ultimate awareness of the impossibility of objectivity in law. Comparative law was the next step in the relativization of legal approach. Initially, that was not its aim. Its birth was mainly due to codification, a process which fostered the knowledge of foreign law, but only in a technical way. The twentieth century marked a turning point. Influenced by sociology, comparatists set out to represent law as a system (Zenati-Castaing, 2016), which was likely to bring out the multiplicity and the originality of laws. They became aware that laws are connected to societies. The encounter between law and culture occurred in this context  (Riles,  2001), mainly thanks to Weber’s sociology and anthropology (1996, 2017). But this encounter remained generally implicit until the end of the twentieth century. Since then, comparative legal scholarship in North America has emphasized culture’s role in law. Its comparative approach breaks away from the mainstream approach of the discipline, which seeks similarities between laws and strives to promote unification  (see Cotterrell, 2008). It guarded  comparatists against the prejudices of their own laws. They realize that it is impossible to study foreign laws in an objective way without first eliminating the patterns and reasoning of one’s own legal system.

Culture’s Dominion Over Law The differences between laws amount to the differences between the cultures of which they are a part. In a social sciences-oriented approach of comparative law, Lawrence Friedman (1975) showed that culture acts upon law in two ways, from the outside, and by transforming it into an original legal culture. Since cultures are different, laws are inevitably different. Here lies the temptation of unification. It aims to generate a sort of law without prejudice, offering an objective model to all societies. But universalism, we will see later on, is also a bias of certain cultures, so seeing it as the key to objectivity is an illusion. The consciousness of diversity in law suggests, conversely, to bring out the differences rather than the similarities and to protect the individuality of legal cultures (Legrand, 1999). In order to account for the relationship between law and culture, an anthropologist has asserted the idea of an “impossible insularity of law” (see p. 13 in Rouland, 1988). The fact that culture influences law explains its uniqueness. One cannot figure out and correctly interpret law without knowing its prejudices and the common sense on which it rests. Law is deeply rooted in a population’s history, in the social, economic, and politic order to which it pertains, and in the ideologies which cement the human groups, whether religious or political.

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Religions play a key role in the making of legal culture (Berman, 1983, 2002, 2010; Zenati-Castaing, 2021, chap. 2). In antiquity, they tended to appropriate law, which they used to reveal through oracles. This was especially the case for Roman law, in its early stages. When, later, the revealed religions emerged, the empire of sacredness was strengthened, thanks to the revelation replacing the consultation with the oracle. Because of this new phenomenon, the law was codified in the text of revelation and became legislative, to the detriment of other sources of law, the judge and the customs. This transformation increased the differences between the laws of different peoples, each of them being shaped by the theology on which it lays. At the same time, such religions eroded the differences between laws by offering the different peoples of worshipers a common one. That is the way the notion of common law came about. God’s law was meant to apply to all the faithful, whatever their particular law. Beliefs has been the first factor of law unification. Whenever religion is not in a position to be a basis for law and to shape it, secular thinking plays this role. At the stage where  it was secular, Roman law was influenced by Greek philosophy, especially Stoicism and Aristotelianism. Chinese law has been thoroughly and perpetually marked by Confucianism and its ethical philosophy. Western law has built itself upon jusnaturalist philosophy. The Russian revolution of 1917 generated a new law rooted in Marxist-Leninist political philosophy. All these philosophies have a very entrenched vision of law, in which they either emphasize or downplay law and impart their values to the legal traditions they inspire. People’s history is a major factor of its law’s genesis. Each society has a vision of law of its own, which has been built up over time and established through tradition. Sometimes it is influenced by a foreign legal culture, but, nevertheless, it remains stubbornly specific. The Historical school has explained this in an organicist way: the society is a living body which spontaneously produces its laws as it does the rest of its culture (Dufour, 1991). In this approach, law is more than the result of culture, it is an aspect of the culture itself; it is one of its expressions. The Historical school discovered that language plays a leading role in the making of legal cultures. Even when two laws share the same tradition, the fact they do not express it with the same words changes everything. Language is in itself a prejudice; it contains a vision of the world. In translating, one risks misrepresenting it. The translation of legal terms is necessarily approximate, so much so that juridical institutions produced by a certain language are unavoidably different from those designated by the language into which one purports to translate them. For example, the English word “trust” resembles very much the French word fiducie but cannot be translated by it without distortion.

Law as Specific Culture The law is marked by cultures and produces in each of them an original legal culture. Human groups generate legal practices and build a legal culture upon them. It is throughout these practices, namely, throughout the living law, that one can identify a legal culture.

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So law is more than a prejudice, it is a way of being, a style (Zweigert & Kötz, 2011). Style is the manifestation, the visible shape of a homogenous reality and especially of a culture. The method of legally reasoning of an Anglo-Saxon lawyer or a German jurist and the attitude toward law of an Asian or a Westerner are not fortuitous facts, rather they reflect the specificity of experiences of different human groups, both in the field of law and in other domains of culture. An attempt to classify legal cultures was made in the middle of the twentieth century by a Swiss comparatist, Adolf Schnitzer (1961). He identified five large basic groups, primitive people’s law, Mediterranean people’s law, Western law, religious laws (Jewish, Christian, and Islamic), and Asian-African law. This approach to cultures in law was rough, but its merit was to introduce culture in comparative law. Another thinker, Sawer, took up the notion of conceptions of law. He distinguished Western, socialist, Islamic, Hindu, Far Eastern, and African conceptions of law (David, 1975). He characterized the Western conception of law by the importance granted to law, the tradition of Roman law, the existence of legal experts (jurists), and the leading role of legal scholarship. This latter typology shows that homogenization has made legal cultures into laws of civilizations, a concept that has not yet been exploited, but which deserves to be (Zenati-Castaing, 2016). To understand the originality of legal culture, the starting point is the idea that peoples’ conceptions of law are the product of time. Legal cultures are the result of legal history, as they are a heritage. They are built with the accumulation of experiences and passed down to the generations, each adapting them to their time. In other words, law is the reproduction of practices and representations stemming from tradition, as it is a tradition. Peoples draw their law from practices and representations based on their history and reproduce them endlessly from generation to generation. Discovered by the Historical school, this process has been elucidated by North American legal scholars in comparative law. According to Merryman (2007), the American civil law specialist, legal tradition is a set of culturally bound, historically determined, and deeply rooted behaviors in law, concerning how to think about, do, apply, study, and improve the law. An inventory of different legal traditions has been made by Glenn (2010), who identified Talmudic, civil law, Islamic, common law, Confucian, and chthonic traditions. The merit of the notion of legal tradition is to account for the dynamic and evolutionary nature of legal cultures. Indeed, despite their structural stability, legal traditions shift under the influence of other cultures (Watson, 1974), which confirms that law is a part of culture. Acculturation consists of imposing or suffering prejudices that come from elsewhere. It occurs when one society imposes its domination over another, whether economic, political, religious, or philosophical. One society then adopts the prejudices of the other, and, in that way, acculturation takes place. This transmission erases the law or, more frequently, modifies and reshapes it. For instance, Western law comes from a huge acculturation of Roman law and, in its turn, has acculturated most of the other laws. The jurisdiction which imposes its law on others is often not aware that its vision of law is made of prejudices; in the minds of its people, this vision is natural.

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Conversely, the population undergoing acculturation discovers that there are many conceptions of law, all with their prejudices, but forgets this rapidly in the rapture of submission and makes the prejudices of the other its own. At the same time, because of its original prejudices, this population warps the law it adopts, causing further distortion and a reverse acculturation to it.

Major Idiosyncrasies of Law As long as law is, on the whole, a set of prejudices, it is, of course, impossible to study them all. But one can get an idea of them by setting out the main idiosyncrasies of law. Some of them are essential, mainly located outside legal technique.

The Importance and Value of Law Although law is integrated in the structure of every society, the same value is not allocated to it in all cases. Revealed religions have played a big role in the promotion of law, because they ascribe to it a divine essence. In contrast, there are cultures in which the role of law is less central, even marginalized. In Chinese culture, where ethics is at the forefront, the law is perceived negatively as a source of disharmony between men. Conversely, the law plays a major role in Western culture, in which it took over from the role of religion, especially to legitimize the state. Asserting the importance and the value of law is not, therefore, objective, it is instead a belief.

Relationships Between Law and Morality Culture shapes relationships between law and morality. The multiplicity of cultures and of their individual approaches makes the question complex. In customary laws, the role of law is not to guide conduct, but only to solve conflicts and disputes. It thus constitutes a contentious phenomenon and concerns litigation. Nevertheless, it does not ignore morality in so far as customs are made of morals. In religious laws, these links are far more important; law and morality are, there, indistinguishable. Whether it is all about regulating behaviors or settling disputes, the problem is solved in the same manner, in terms of conduct, and it results in a norm of conduct. The problem becomes complicated with the emergence of state culture and legal positivism. Because they originate in a theological law, modern laws lean toward a confusion between law and morality. Yet positivism cannot tolerate this because it

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has been built against natural law: it is a necessity for it to expel morals from law. Hence, the big efforts it has made since its origins in the nineteenth century to distinguish law and morality. Since then, this distinction has became  a part of the vulgate of essentials in law. The diversity of approaches to the question of morality by different laws shows that this question is a prejudice.

Legal Science and Legal Teaching As far as it deals with knowledge, searching for prejudices in law is in itself a prejudice, because science does not necessarily exist in law. It is a peculiarity of certain legal traditions. Therefore, it is, per se, a prejudice. The major part of humanity’s history of law developed without legal science (Zenati-Castaing, 2021). This phenomenon appeared only with revealed religions when it came to interpreting, teaching, and explaining the legal part of the revelation. A guild of experts was needed; it built a knowledge which prompted the birth of a new sort of legal system. When there is no legal science, the problem of prejudice in knowledge does not exist. The notion of legal teaching is linked to legal science, in so far as it concerns the same thing: law contained in a text. It even precedes it because doctrine is the result of teaching. Teaching law became necessary when it came to explaining the revealed law to the believers. Prior this stage, law needed no learning, as it was not knowledge but only a skill to acquire in order to become a judge or a practitioner. That is still the case in the customary legal systems. Propagation of the teaching of law in the world is due to the influence of the Western model, especially the civil law one, which has built itself upon an academic conception of law. It is a form of acculturation.

Legal Reasoning One of the main prejudices in law is the conviction that law is a norm which one applies to facts. This method consists not of appreciating the value of the facts in order to decide a case, but of subsuming them to a rule after having searched and found it. This method is taken for universal in civil law countries but it is actually contingent: in customary legal systems, legal reasoning is completely different, as it rests on arguing and searching for solutions in former cases. Law is not out of and upon fact, it is a part of it. Application of rules is a method generated by legal systems based upon law as knowledge; it is a scientific way to practice law. This relativization was made by Weber (2017), who saw it as an important means of rationalization of the law, brought about by modern times. Weber also underlined the role religions played in the same way before this process began.

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Legal syllogism provides substantial benefits. It makes the law more rational and more secure. It reduces the discretion of the judge and, in doing so, makes justice more foreseeable. On top of that, the parties are more protected against the arbitrary power of the judiciary. In that respect, this way of legally reasoning can be seen as progress and less as a feature specific to certain legal systems. But it has its shortcomings which make it today more and more questionable and reveals that it is nothing but one idiosyncratic method among the others. It requires a tremendous expansion of legislation to give the judiciary a ubiquitous framework. In doing so, the law becomes less clear and therefore less secure. Moreover, according to American legal realism, solving cases with abstract rules entails improper rulings that are disconnected from reality. In civil law countries, where legal syllogism is the baseline of law, it is today disparaged and new forms of legal reasoning are looming, especially the proportionality method in which, instead of applying a rule, the judge balances two rules with the aim of dismissing one of them if it proves unsuitable.

Jurists and Professors Part of comparative literature brings out a feature of certain legal systems, the existence of legal experts. In fact, one can find experts in every legal system: pontiffs in ancient times, jurisconsults in Roman law, jugeurs of barbaric law, lawyers of England’s common law, and jurists in civil law legal systems. Each of them is, in its own way, an idiosyncrasy. The main difference that distinguishes these experts is between the jurists and the consultative experts. All the types of experts, with the exception of jurists, are advisers; their job is to help the judge and the parties to find the law. Conversely, jurists find the solution all by themselves, with the help of legal texts and doctrine. No advice is needed; legal syllogism suffices to bring out the solution. This method comes from the medieval universities in which it was invented by the teachers of Roman laws. The jurists reproduce the method of their professors seeking law in abstract law. That is the reason why the Historical school named civil law “a law of jurists and professors”: it is plain to see that the concept of jurist is idiosyncratic. Even the judge is, in this tradition, a jurist. The syllogism the judge implements has broken away from the judicial tradition of prudential ruling, which consists of balancing and weighing the arguments to discover the law.

The Connection Between Law and State The mainstream idea that law proceeds from the state is an idiosyncrasy characteristic of modern law. This belief can be broken down in two propositions: there is no law without a state, and the state is the source of law.

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The idiosyncrasy is easy to highlight in the latter proposition. Actually, the making of law by the state is recent; it took place at the beginning of modern times and increased dramatically toward the end, during the twentieth century. It rests on famous philosophies, namely, the social contract, the utilitarian thought, and, finally, the ultimate philosophy of state, legal positivism. The former proposition – there is no law without a state – is no less a belief, equally inspired by the vision of modern law. Before modern times, law was state-­ free, as it was contained in the customs or proceeded from the willingness of god. Thanks to legal anthropology and sociology, we know at the present time that every society produces law naturally by itself, not only primitive societies, but those which are politically organized as well. We have seen above the important role played by religion in the production of law, in ancient times through the oracles, later through the books of revelation, and subsequently in natural law. We also know today, thanks to legal pluralism studies, that, besides state law, there are a lot of laws generated by different social groups, which coexist with state law and even challenge it. Every human group has legal practices which give birth to a legal order, not only nations.

Entitlement and Rights The notion of being entitled to and having rights is considered inherent to law, but it does not exist in legal traditions other than Western law. It is a very characteristic idiosyncratic concept, obviously linked to the individualist conception of law. Even in the West, it was not part of the tradition before the Renaissance. Villey’s (2003) works have shown that rights were absent from Roman law and medieval law, appeared only in humanist literature, and grew, thanks to the modern natural law school. Before modern times, law was the contrary of rights; it was objective, often linked to reality, and even quite deontic when it was merged with morality. Purporting to have an individual norm in one’s favor, against another or against the state, was nonsensical because law was all but individual. Of course, rights play a major role today in international law with regard to human rights, but this does not prove that they exist naturally everywhere. This situation is the consequence of universalism in law, which is another idiosyncrasy.

The Universalism of Law Universalism is the most formidable modern legal concept because it constitutes the denial of legal culture. If law is universal, legal cultures are abnormal and must be reduced to only one law common to all the peoples. They are an imperfect stage of evolution toward uniformity in law.

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This way of thinking (Gordley, 2011) did not actually appear in modern times. It was initiated by the revealed religions, which tended to extend a single law to all the faithful regardless of their specific laws. Modern universalism is an extension of Christian medieval natural law which was initially conceived only for Christians but which, from the sixteenth century onward, included all humans. That was the starting point of the notion of natural rights and its great success. Despite this consecration, however, we should not forget that universalism is a legal theory and that it is attached to certain legal traditions. The disappearance of plurality does not mean the end of prejudices in law, but only the generalization of one of them.

References Berman, H. J. (2010). Law and Revolution: The formation of legal western tradition, 1983. Droit et révolution. La formation de la tradition juridique occidentale. Trad. R. Audouin, Librairie de l’université d’Aix-en-Provence, 2002. Droit et Révolution. L’impact des réformes protestantes sur la tradition juridique occidentale, trad. A. Wijffels, note marginale P. Legendre, Fayard. Cotterrell, R. (2008). Chapter 21: Comparative law and legal culture. In M.  Reimann & R. Zimmermann (Eds.), The Oxford handbook of comparative law. Oxford University Press. David, R. (Ed.) (1975). International encyclopedia of comparative law. Dufour, A. (1991). Droits de l’homme, droit naturel et histoire. PUF. Friedman, L. M., The Legal System, A Social Science Perspective (1975). Some thoughts on comparative legal culture, in Comparative and private international law. In D. S. Clark (Ed.), Essays in honor of. J. H. Merryman on his seventieth birthday (p. 49), 1990. Glenn, H. P. (2010). Legal traditions of the world (4th ed.). Oxford University Press. Legal culture and legal tradition. In M. Van Hoecke (Ed.), Epistemology and methodology of comparative law (2004, p. 7). Hart Publishing. Gordley, J. (2011). The universalist heritage. In P.  Legrand & R.  Munday (Eds.), Comparative legal studies: Tradition and transitions (p. 31). Cambridge University Press. Laboratoire d’anthropologie juridique de Paris (2003). Les pluralismes juridiques, ed. Karthala, Paris. Legrand, P. (1999). Le droit comparé, PUF.  The impossibility of legal transplants. Maastricht journal of European and comparative law, 1997, 7, p. 111. Merryman, J. H., & Perez-Perdomo, R. (2007). The civil law tradition. Stanford University Press. Riles, A. (2001). Rethinking the masters of comparative law. Hart Publishing. Rouland, N. (1988). Anthropologie juridique. PUF. Schnitzer, A. (1961). Vergleichende RechtslehreI (2nd ed., 1945). Basel Recht und Gesellschaft. Vanderlinden, J. (2013). Anthropologie juridique, Dalloz. Les pluralismes juridiques, Bruylant, 1996. Villey, M. (2003). La formation de la pensée juridique moderne. PUF. Watson, A. (1974). Legal transplants, an approach of comparative law. Legal culture v. legal tradition. In M. Van Hoecke (Ed.), Epistemology and methodology of comparative law (p. 1). Hart Publishing, 2004. Weber, M. (2017). Sociologie du droit (J.  Grosclaude, Trans.). PUF. Sociologie des religions, J.-P. Grossein, Gallimard, 1996. Zenati-Castaing, F. (2021). Repenser le système juridique. In B.  Bonnet (Ed.), Traité des rapports entre ordres juridiques, LGDJ (p. 1549). Le savoir des lois. Essai sur le droit romaniste. Dalloz, 2016. Zweigert, K., & Kötz, H. (2011). An introduction to comparative law (3rd ed., T. Weir, Trans.). Clarendon Press Oxford.

Is Legal Knowledge a Knowledge of Object? Michel Boudot

Abstract  Dogmatic discourse is not, strictly speaking, a scientific discourse, since it is essentially articulated by means of ideological notions, vehicles for the political ideas contained in the norms held to be applicable. This does not mean that dogmatic discourse cannot be rigorous, but it does entail an effort to distance oneself from the propositions under study and to analyze the a priori conditions of these propositions. First of all, this effort of conceptualization requires a clear distinction between citation, description, and explanation, and, secondly, there are two key points to be settled: one, the academic discourse of legal science does not create law – only “jurislators” (jurislateurs) create law, whether it is the constituent legislator who amends the constitution or the individual who incurs a restitutionary obligation by taking out a bank loan – and two, the discourse of legal science consists in a work of description whose purpose is to analyze and determine, in terms of existence, validity, or conformity, whether a statement can be given the meaning of a norm – for to say whether a proposition is legally valid or whether it exists is an act of scientific knowledge, while to say whether a proposition is legally good, fair, or useful is a political prescription.

Introduction What is the object of legal knowledge? Is legal knowledge a knowledge of object? These are two different questions. Legal knowledge has legal reality as an object in a broad sense, but can legal reality be constituted as an object of science? We therefore ask whether legal disciplines can stipulate objects in the precise sense adopted by the empirical or human sciences. However, in order to frame the debate, it seems useful to recall that science embraces objects by constructing formal systems

M. Boudot (*) Université de Poitiers, Poitiers, France e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 J.-S. Bergé (ed.), The A Priori Method in the Social Sciences, https://doi.org/10.1007/978-3-031-38260-4_3

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through language, and not directly on the basis of observable data. What would be the aim of legal knowledge shaped on the model of the sciences? What would be its purpose? It is conceivable to link the legal disciplines with the social sciences in order to answer the questions: what kinds of “laws” in the sense of the human sciences can be mobilized to organize “laws” in the legal sense? Or which methods from the human sciences can be mobilized to describe and explain the conditions under which legal norms are enforced and obeyed? Branches of sociology, economics, ethnology, anthropology, psychology, and linguistics may be called “of law” or “legal” to express the narrowing of their general disciplinary field to the making of law or the observance of its provisions. But they do not conceptualize law as an object of science, they sketch out points of view offering us more or less rigorous representations of the activities of legal actors. The interest of interdisciplinarity lies there, at the crossroads of knowledge, in the use of explanatory concepts and schemes of understanding that not only focus on disciplinary propositions but also raise questions about the a priori conditions of those propositions. What are the a priori conditions of my conditions is not only an introspective question, but a polycentric and epistemological exploration of rationality. This being said, there is also something to be learned by approaching the problem of legal reality through the work of jurists themselves (Samuel, 2019). Before examining what constitutes for the jurist the outline of an objective knowledge, stripped of the affects and feelings of those who work to create it, some conceptual precautions must be taken. A definition of science is necessary precisely in order to be able to delimit the role of our a priori in the examination of the questions we are confronted with, that is, when jurists aim to apply their knowledge to specific actual situations. Of course, it is the task of epistemology to question, by regression, the a priori that constitute the meta-discourses of science, namely, those which give the precise definition of science. Following G. G. Granger: Scientific knowledge must be able to be accurately and completely transmitted through discourse. It is obviously exactitude and integrality that are at stake here provided that we recognize that language can suggest anything, as long as we are satisfied with the approximation. But only an exact and complete transmission can give meaning to the notion of progress, accumulation and recasting of knowledge. While it is true that in its beginnings, or rather in its prehistory, science may have presented itself as esoteric knowledge sacralized by practices of initiation and secrecy, it was only by changing this social status that it could take off. And it is not going too far to point out as infantile masquerades of a pseudo-­ science such verbal prowess, such oracular message deliveries that we sometimes see – and not without success  – presented as scientific knowledge of human facts. (Granger, 1994, p. 244)

Science is a particular kind of knowledge that aims at the determination of an object and its transmissibility through discourse. Scientific knowledge is not transmitted by gesture or imitation, but by precise and fully articulated speech. This leads to an observation specific to legal knowledge. If we consider law as an extralinguistic social phenomenon, it can be the object in the strict sense of a science of human facts (or at least a proto-science, if its formalization is not yet sufficiently developed), and much remains to be done by ethnologists and anthropologists who

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study legal phenomena  – judicial rituals or practices related to notarial acts and judicial decisions – to understand what distinguishes the object of science from the objectivity of jurists. In short, these social sciences are interested in instruments and signs, where instruments are achievements and signs are the symbols that represent them. The former can be counted, classified, recorded, and preserved for statistical and historical purposes. The latter are forms, clothes, or gestures, that is, extralinguistic symbols, which are taken up by sociology and semiotics/semiology. If we look at the content of the instruments, what do we find? Narratives, arguments, formulae, stipulations, provisions, claims, promises, declarations – in other words, linguistic propositions. Obviously, law as discourse is an object of linguistics, since linguistics can deal with any statement. What is so special about it that it could constitute a knowledge distinct from other discourses of science? The project of constituting law as an object of science is therefore an effort to identify and describe what in discourse is likely to constitute a specific system of legal concepts. In order to go further and decide whether jurists do science, we need criteria to distinguish between discourses that are science and those that are not. At the very least, we can use the typology of the social sciences proposed by Jean Piaget in a summary chapter of his famous book Logique et connaissance scientifique, where he takes a brief look at the legal disciplines, which, incidentally, are not treated in any substantive chapter (Piaget, 1967, pp.1116–1117). He writes: The legal disciplines are a world apart, dominated by problems of norms and not by problems of facts or causal explanations, so that a ‘law’ in the legal sense is a system of obligations and attributions, not a functional relationship in the category of ‘truth.’ (…) Nevertheless, rights have two important connections with the Group 1 sciences, both of which are interesting to analyze epistemologically from the point of view of norms and facts.

In his quadripartite classification of disciplines concerned with human activities, group 1 is composed of human sciences in the narrow sense: a group of disciplines whose object is human activities and whose aim is the search for ‘laws,’ as functional relations that are capable of truth or falsity as to their adequacy to reality. Their methods consist either of systematic observations or experiments, both of which can be expressed in statistical terms, or of deductions that are regulated or regulatable by rigorous algorithms (mathematical or logical), or of combinations of deduction and empirical process. This includes, or tends to include, sociology, cultural anthropology, psychology, experimental aesthetics, linguistics, political economy and econometrics, demography, etc.

Piaget identifies a second group made up of disciplines that do not seek to define laws or even methods of experimentation or deduction: these are the historical disciplines in the broad sense whose object is the reconstruction and interpretation of the past (history, philology, literary criticism, etc.). The fourth and last group consists of the philosophical disciplines: morals, metaphysics, and theory of knowledge in general. The third group is therefore legal knowledge: Two points of view are considered. One is the ‘normative’ one, the other is the one ‘of the facts.’ From the normative point of view, the interpretation and application of law naturally involves a set of logical procedures that are studied (…) by Chaïm Perelman (…). But the

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M. Boudot law itself constitutes a system of norms whose interlockings and constructiveness have been brought to light in great depth by Hans Kelsen. Now this system is very close to logical constructivism, from a formal point of view, but without any internal necessity regarding the content.

It should be emphasized that such a formal system does not constitute a science in the sense of the group 1 disciplines, because the norms at stake are not those of truth and falsity but of certain values (economic, moral, etc.): codified in the form of obligations and attributions. From the factual point of view, the relations between the legal norms ‘recognized’ in a social group and the way that society functions are naturally fundamental to the study of that society. But it is legal sociology that must be used to understand these relations, not the so-called science of law, which is capable of understanding the law as such, but not society in its complex totality. Legal sociology, which is an essential branch of sociology, is not itself concerned with the ‘validity’ of norms that are the sole concern of the jurist: it considers norms only insofar as they are ‘recognized’ by society and thus transforms them into ‘normative facts’ whose nature is not epistemologically mixed, but simply imposes a distinction between the point of view of the subject, who recognizes the norms and is thus determined by this recognition, and the point of view of the observer, who observes and seeks to explain these facts of recognition and the causal consequences that they entail.

This summary presentation echoes the debate in the twentieth century between the two perspectives occupying the terrain of science in legal theory: normativist positivism versus positivist empiricism. It’s not useful to summarize here the confrontation between these different and often explained positions, but it is essential to ask whether Kelsen’s Pure Theory of Law on the one hand and Ross’ On Law and Justice on the other, each in its own way, constitute epistemological facts. If one were to admit that there is a science of law, would it be possible to write a history of the science of law? A history that would be sufficiently elaborate for us to expect the historian of legal science (or even the comparative epistemologist of the human sciences) to describe the states of scientific knowledge as conceptual systems? Is it too early? When we read the works of the promoters of the analytical method like Kelsen, Hart, Hagerström, Ross, Raz, Bobbio, Guastini, Troper, and Pfersmann – all authors who are convinced that legal knowledge can be constituted as scientific knowledge  – can we say that their profound divergences are merely the incidental stages of a history of thought in which an idea of the science of law that transcends them dominates? Or, on the contrary, are these the clear evidence that legal knowledge can never be transformed into objective knowledge, that it will never emerge from its proto-scientific nature, or even its pseudoscientific nature, to use a pejorative term?

The Effort of Conceptualization The effort to objectify therefore presupposes a work of conceptualization by means of a theory, which in turn presupposes that two issues are fixed:

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First, the discourse of legal science does not create law. Only “jurislators” create law, whether it is the constituent legislator who amends the constitution or the individual who incurs a restitutionary obligation by taking out a bank loan. Second, the discourse of legal science consists in an effort of description whose purpose is to analyze and determine, in terms of validity or conformity, whether a statement can be given the meaning of a norm. For to say whether a statement is legally valid or exists is an act of scientific knowledge, while to say whether a statement is legally good or just is a political prescription. But whatever the perspective, normativist or empiricist, the answer to the question what do jurists do is clear. If lawyers are not trying to do science, they are doing politics, and it is not legitimate to do so in the garb of science. The Pure Theory of Law began with an observation and announced a program. The observation was that the jurists of the early twentieth century, including law professors, were not doing science, but essentially politics. Since his ambition was to do science, Kelsen needed an epistemology to define the object of this science of law, but his epoch did not offer him a ready-made theory of science capable of providing him with concepts and their conditions. This is why his program consisted in establishing the conditions for determining the object of the science of law. In other words, the construction elaborated by Kelsen had the ambition to structure as an object in the strict sense, the object in the broad sense of the work of jurists: a science of the mind certainly, but a science formalizing concepts, operating on linguistic propositions, a science whose object is determined by reduction. Normativist theorists stipulate with Hans Kelsen that law, which forms the object of legal knowledge, is a normative order or regulation of human action, that is, a system of norms that regulate the conduct of human beings. The object of the science of law is therefore not an empirical one, and the science of law is not a discourse describing human actions perceptible by the senses: What turns these event into a legal or illegal act is not its physical existence, determined by the laws of causality prevailing in nature, but the objective meaning resulting from its interpretation. (Kelsen, 1967, pp. 3–4)

In fact, it involves a doubly pure conception of the object of law: pure of sociological considerations and pure of moral considerations. The Pure Theory of Law is based on four theses, summarized by Joseph Raz: 1°) normative jurisprudence is the study of legal norms, i.e. the study of how people ought behave according to law 2°) it is no less empirical than sociological jurisprudence since it is exclusively interested in positive law, i.e. law as a product of social custom and of the activity of legislative and adjudicative institutions; 3°) normative jurisprudence has a logical priority over the sociology of law. Indeed, the very definition of the object of sociology of law presupposes an understanding of law as provided by its normative study, since sociology of law is the study of those aspects of human behaviour that are related to the law; 4°) normative jurisprudence is presupposed by sociology in another important way as well. (Raz, 1981, p. 442)

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The explanation of human behavior in relation to obedience or disobedience to the law must take into account the way people’s beliefs about law affect their behavior: The ‘description of a norm’ is thus the result of an operation of thought by which a statement is given the meaning of a norm. This description may be true or false in the sense that the Proposition exists as a norm or does not exist as a norm. If this is admitted, commentators who describe norms in the world of norms do not formulate new norms, but ‘speak of’ certain pre-existing norms, or at least treat them as pre-existing. (Guastini, 1997)

Finally, what needs to be discussed in terms of whether jurists are doing science is the idea that the deontic statements of jurists can be used in a descriptive sense and thus can be judged as true or false. In contrast to the normativist project, the realist perspective diverges profoundly as to the object of scientific discourse. For Ross and the realist approach, to describe a norm is merely to state that it exists, which means that the science of law must be thought of as an empirical social science, that is, a discourse on social facts; in other words, it must find its place in the first group of social sciences, according Piaget’s classification. The description and prediction of behavior are the result of predictive models verified by the decisions of judges, and then the validity of a norm is a concept considered equipollent to its existence, which is verified by the fact that the norm is in force or that it is effectively applied. This fact is not inherent to the norm and is therefore verifiable (it is true or false). Ross underlines the superfluousness of the concept of validity to describe the law: the existence of a norm refers to a social state of affairs which has nothing to do with its validity understood as a binding force, which would be inherent. The common ambition of both normativists and realists is to think about law without the myths and ideologies that interfere with its understanding and application. With Kelsen, Axel Hägerström and Alf Ross seek to eradicate all metaphysics. But this time, against Kelsen, they describe law as a set of observable facts: a true science of law can only be a group 1 science, that is, objective knowledge based on the observation of causally explained facts. The object of the science of law is reduced to only facts which in turn are reduced to phenomena, the description of which consists in showing how the discourse of the “sources” effectively modifies social reality. This version of the so-called Scandinavian realism thus proposes that legal dogmatics and its notions (such as the existence of contracts and their binding force, property and real rights, or even the validity of acts) are pure products of metaphysics or more or less elaborate and dated ideological constructs (Bernitz, 2010). Statistical studies make it possible to model the conditions of the performance of obligations and thus the conditions for obedience to norms (smart contract). If we think of the science of law as knowledge of the effectuation of norms, algorithms can be seen as discourses of justification for the reasons for obedience or disobedience. An American variant of realism can be found in the law and economics movement which takes advantage of the social mathematics, imagined to objectify the economy. It is easy to understand the interest in predictive systems in insurance law,

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tax matters, or mass damages and torts, which model problems and answers upstream and downstream, based on statistical facts interpreted by means of economic theories: Even if the efficiency norm is controversial, this standard defense goes, economic analysis is still valid as a descriptive theory of human behavior. Hence, it will still help to predict what will happen if the policies under consideration are adopted. (Katz, 1996)

However, one of the main difficulties in linking legal disciplines with economic theories lies in the uncertainty of economics itself to define its own object, to rid itself of its a priori and free itself from its ideological presuppositions.

The Effort of Comprehension If we are ready to acknowledge that describing is more than citing, paraphrasing, or rephrasing, we will also agree that explaining is more than describing. Each description produces different meanings, and each explanation corresponds to different understandings. In a chapter of Formes, opérations, objets (Forms, Operations, Objects), Gilles G.  Granger gives us some keys to understand what explaining means: What should be accepted as an explanation in the social sciences? The question is certainly normative in its outlook, and the simple philosopher can be criticized for intending to rule and regulate. But he aims and should aim only at understanding, i.e. at constituting and formulating a meaning for the notion ‘explain’, by comparing and analyzing pieces of science as he can actually seize them, and not as he wishes or imagines them (Granger, 1994, p. 243) […] To explain scientifically a phenomenon means to establish a conceptual scheme, or abstract model, and to show that this scheme fits into a more comprehensive scheme, either as one of its parts (partial model), or as one of its particular instances (submodel). Explanation appears necessarily to us to include this integration; establishing a schema of the phenomenon is undoubtedly better than simply describing it, since it highlights elements and their mutual relations; it is not yet an explanation. On the contrary, we consider that (scientific) explanation means relating this scheme to a broader scheme. (Granger, 1994, p. 245)

But how can explanatory schemes be established in the human sciences? Gilles G. Granger stresses that the plurality of approaches, the dogmatic conflicts, and the lack of coherence of the knowledge currently proposed lead us to question both the absence of a certain normative regulation of the objects (what exactly are we talking about?) and the prescriptive claims (Granger, 1999, p. 1). It is therefore a crucial question to ask what explanation means in the legal disciplines. Prosaically, it is not the law that makes the doctrine; nor is it the content of the laws that makes the dogmatics as a system. The passage from the notion to be explained to the explanation by the concept occurs only in the discourse that seeks to comprehend the analyzed proposition in a scheme or in a broader system that is conceptual and therefore more abstract. If we agree to distinguish between the levels of discourse, then doctrine or

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doctrinal discourse refers to the discourse on law, that is, meta-legal discourse (Boudot, 2007). Dogmatics refers to the set of notions present both in legal provisions and in meta-legal formants or doctrinal propositions that reformulate, describe, or explain these same legal provisions. The descriptions of these provisions, and their organization into an explanatory system, are not part of the legal discourse itself, but of the only meta-legal discourse. The discourse of legal science is a descriptive discourse of the current state of the law with the aim of analyzing and determining, in terms of validity or conformity, whether a legal statement can formally be given the meaning of a legal norm (Kelsenian perspective) or stating its existence as effectively applied (realistic perspective). In any case, to say that a provision is legally valid or legally existing expresses at least in part an act of scientific knowledge; to say that a statement is legally good, right, fair, or desirable involves a moral or political prescription or directive. But a doctrinal proposition by itself rarely reveals the analytical or rhetorical aspect of an author’s reasoning. Authors may pragmatically try to convince their readers by dressing up their scientific analysis in a rhetorical prescriptive style, simply because they themselves are convinced that their analysis is better than that of competing authors. Dogmatic discourse is not strictly speaking a scientific discourse, since it is essentially articulated by means of ideological notions, vehicles for the political ideas contained in the norms held to be applicable. This does not mean that dogmatic discourse cannot be rigorous, especially since it draws its rhetorical strength from its coupling with scientific discourse. Nevertheless, I would like to point out some characteristic features of each of these legal meta-discourses in terms of the descriptions and explanations they offer us. However, in order not to confuse paraphrases and reformulations with descriptions, a clarification should be made at the outset: doctrinal discourse makes use of propositions that have a communicative or informational function as much as is pragmatically necessary. These propositions represent (re-present) or reproduce the propositions under examination and discussion. They do not describe anything as such but sometimes indicate the intentions of their author. These re-presentations are common in today’s journals, as a kind of introductory stylistic exercise, in doctrinal comments on judgments or on statutes.

Scientific Description The scientific description of positive law logically precedes its dogmatic description. The former describes what is (the validity/existence of a norm), the latter describes what ought to be (the content of the norm), or if one prefers, the latter describes what lies within legal reality, understood as a normed virtual reality. The precedence of the former over the latter is due to the fact that, from whatever perspective one adopts, one must know beforehand whether one is dealing with a legal rule or whether one is talking about something else in human reality, such as the tale of a dream or an old adage.

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In human reality, I uttered the following sentence: S = “I am responsible for the damage caused to my neighbor.” A scientific description of this proposition, not of the fact of its utterance, will be to determine formally whether it is true or false. From a scientific point of view, S is legally true if it validly actualizes a norm in the scientific theory under consideration, or it is false if it represents something else such as the expression of a feeling (or an annulled prescription or an amnestied conviction). The verification is carried out by answering questions about the conditions of the creation of the obligation and by questioning the a priori conditions of the source of the obligation. Who stated the proposition that was subsequently reformulated by the subject of the obligation? By what authority was the original proposition stated? What procedural requirements were observed? etc. The presupposition of the existence of norms must be guarded against and used with caution. In meta-legal discourse, dogmatics makes it possible to describe the content of norms (which is a political content) from a notional system, but this can only occur logically in a second step. Or, at least, it is by presupposition that the proposition stated in human reality actualizes a provision of positive law (i.e., of legal reality). In fact, to describe a legal reality is to use a grammar belonging to the register of being in order to signify a ought. “X is responsible.” But this presupposes that the conditions are met to affirm that it is indeed a dogmatic description (and not a political prescription uttered by the one who claims to describe or the expression of a desire or fantasy on his part). If the scientific description is passed over in silence, it is presupposed that the meaning of the statement being analyzed is that of a norm. This presupposition is difficult because it is not itself based on unambiguous a priori conditions. These presuppositions are the subject of debate, especially – but not only – when examining an old decision, since the decisions commented on are necessarily past decisions. While it would be necessary to pronounce on the validity of the provision commented on, it is rare for the conditions of entry into force and exit from force of a judicial decision to be described. This is a considerable and significant gap in the legal reasoning that gives rise to a twofold question: on the one hand, the decision as an individual juridical act is supposed to contain a valid norm between the parties (T/F); on the other hand, the decision may contain a juridical act of general scope – a ruling of principle – the date of entry into force and, if applicable, the date of exit from force of which is unknown. This general rule is, moreover, independent of the actualization of the decision between the parties. This indeterminacy of the date of entry into force affects the scientific description, which cannot draw a clear consequence and conclusion, unless all the judgments rendered are considered to be perpetual. [The same problem also exists in common law.] For example, is it true that the Caquelard decision of February 3, 1834, and the Synd. Vollot of March 6, 1861, are norms (of positive law)1? Do they have to be reiterated to be considered norms? If so, how are the conditions for

 See Grand arrêts de la jurisprudence civile, Dalloz, Tome 1er, 12e éd., 2007, n°65 Caquelard; Tome 2, 13e éd., 2015, tome 2, n°271 Synd. Vollot. 1

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reiteration determined? Is it sufficient for them to be cited in reference networks to remain in force? What is the legal value of doctrinal reference networks? (Boudot, 2022) What is the value of the references now found in the body of the texts of the judgments of the Court of Cassation? Consequently, this indeterminacy also affects dogmatic description, which cannot describe precisely normed notions and perpetuates contradictory representations by superimposition. Unless the legal order delegates to doctrine the power to establish “jurisprudential” rules, in which case doctrinal discourse is no longer meta-legal and no longer describes anything.

Dogmatic Description There is a need for a distinction between the operation of legal qualification and dogmatic description. In a basic way, the operation of qualification is described as a translation or labeling in legal language of facts and things: it consists in making a fact or a set of facts fit into a pre-existing legal category in order to trigger the application of the appropriate legal regime. (…) To qualify is first to give a name to a situation or a thing. In this sense, legal qualification is the jurist‘s basic operation: it consists of translating into the words of the law the reality of the world that is to be treated legally. (Fabre-Magnan & Brunet, 2017)

Rafael Encinas de Munagorri introduces a relevant distinction: [It is] the process by which jurists attribute a name (legal category) to a thing or situation (a fact). Its purpose is not so much to describe things in legal terms as to justify the regime applicable to a legal category (…). Depending on the case, the legal qualification is made by the law, the judge or private or public persons; when the outcome of a dispute depends on a qualification, the judge chooses one to the detriment of the others. This is why jurists speak of exact qualification, correct qualification or true qualification. It should be noted here that the problem is not whether a certain fact or act actually occurred, but what name should be given to it in law. (Encinas de Munagorri, 2011, p.330)

Véronique Champeil-Desplats says much the same: Qualification is indeed a complex process by which jurists decide whether or not to attribute such a ‘name (legal category) to a thing or situation (a fact)’ in order to associate them with legal effects or consequences. This operation requires nothing less than, on the one hand, identifying the relevant facts, restating and reformulating them, proving them and, on the other hand, relating these facts to legal statements, i.e. determining, in a legal order, the category with which the facts are to be apprehended. However, the determination of this category, like the facts, is not self-evident. It must be identified as being the most relevant, in the absence of any other, in order to draw the legal consequences and thus resolve the case. (Champeil-Desplats, 2014, n°595)

The operation of qualification will designate a normed reasoning by which the perception of the human reality is associated with (categorial) entities or virtual facts of the legal reality (Samuel, 2003). These entities are normed notions or qualified relations; the virtual facts are abstract models or cases, constructed from known

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normed notions, which norm/constrain reasoning aimed at actualization in human reality. It should be noted that virtual facts are not necessarily assigned to a single positive legal order, unlike normed notions. For example, sale means a positively normed notion = relationship defined and normed by Article 1582 et  seq. of the Civil Code (in France) or = relationship defined by the Sale of Goods Act 1979, s. 2 (England and Wales for the sale of goods) and by the Law of Property (Miscellaneous Provisions) Act 1989, s.2 (England and Wales for the sale of Land). A sale is a virtual fact = an event in legal reality by which a relationship (a contract named sale, vente, verkauf) is established between a seller and a buyer; in comparative law, sale is no longer a normed notion, but a concept which not only allows for a broader dogmatic category than in national law but also a virtual fact affected by norms which vary in time or space and according to the nature of the sold object. In this sense, dogmatic description differs from the operation of qualification in that it does not aim at an actualization or concretization in human experience, like it, however, aims at determining what is to be. Dogmatic description is an act of knowledge of legal reality (= in Kantian terms, an act that describes the conditions of possibility of being in legal reality), whereas legal qualification is a reasoning held by an actor in human reality, stating a proposition addressed to another actor (judge, lawyer, subject creating a juridical act, addressee of a decision). The operation of legal qualification is a reasoning with a practical aim; the legal qualifications (results of the operation) are normed entities of the legal reality. The operation of qualification is subject to internal processing: appeal and value judgment by the competent authorities, e.g., the Court of Cassation is said to control legal qualifications to mean that it operates a qualification at a higher level. The dogmatic description, for its part, aims to describe the qualifications and the reasoning used to reach them.

Described Reality What kind of description does dogmatics provide? First of all, we need to know the possible meanings of the proposition in issue (pragmatically). S = “I am responsible for the damage caused to my neighbor.” Successively, four interpretations I(S) n. I(S) 1 I am the cause of the damage caused to my neighbor (= means that there is a verifiable extralinguistic factual cause, e.g., I trampled on the flowers in my neighbor’s garden). I(S) 2 I confess that I am responsible for the damage caused to my neighbor (= means that the proposition is an avowal, e.g., “I did not trample his flowers on purpose,” or, e.g., “I am convinced that I trampled his flowers”). The avowal can be taken as proof in legal reality.

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I(S) 3 I am obliged to repair my neighbor’s damage (= means that there is a speech act uttered by a third party which places the burden of repair on me) = e.g., X has uttered words which oblige me to compensate my neighbor for the damage he has suffered. I(S) 4 I am guaranteeing the damage to my neighbor (= means that the damage has not necessarily occurred). Let us concentrate on the third. If I(S)3 is true in the theoretical context adopted, its meaning is to be a norm, and the proposition “I am responsible for the damage caused to my neighbor” uttered in human reality, then, actualizes and represents a legal reality where “I” is a capable subject of law, “responsible” refers to the imputation of a debt of reparation, “damage” refers to the object of reparation (loss or lack), and “my neighbor” is that other who is the creditor necessary for the existence of the obligation, which may have a normed quality when it is a matter of neighborhood nuisance or trespass to property. The syntagm “one is responsible for damage” is interpreted in legal reality as “one is under an obligation to compensate damage” = “one owes an obligation” = “one ought to pay.” Descriptive dogmatic propositions describe things or facts of legal reality, which amounts to the establishment of relations between notions. They are not justiciable propositions in terms of truth or falsity, because they are not scientific propositions in the strict sense. They situate the statement or provision under discussion in a notional context, not in an experimental context. These dogmatic propositions can nevertheless be judged as correct or incorrect in terms of an ideological position (ambiguously named theories) which would describe the conditions of evaluation and the values of correctness or incorrectness. Broadly, dogmatic explanation is called theory. And because dogmatic discourse uses the term theory, we may question what it means. Is it an explanation? Is it a description?

Theories The appearance of the term is quite recent, fashionable since the end of the nineteenth century, when theories attempting to explain notions abounded. It is a critical doctrinal moment that should be noted here, the invention of the theories of (n), where (n) is a notion under consideration: the theory of possession, the theory of proof, the theory of nullities, the theory of the reality of legal persons, the theory of accession, and so on (Jamin, 2006a, b). How to evaluate dogmatic theories, which are more comprehensive and broader schemes? Are they really explanations or mere reformulations of dogmatic descriptions? I would say at the outset that I doubt that they constitute explanations in the sense taken by Gilles G. Granger, because they are not refutable (although they are sometimes overturned or buried and forgotten):

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That an explanation worthy of the name should be open to refutation is a truistic statement. However, it should be stated very explicitly. Many so-called sociological or economic ‘explanations’ are unfortunately formulated in such a way that no observation of the phenomena can be conceived that obliges or at least inclines one to reject them. It is clear that in such cases the information conveyed by the ‘explanation’ is null. (Granger, 1994, p.246)

Let’s look at an example. How to describe the institution of usufruct in French legal reality? It is not enough to simply cite and repeat the content of Article 578 of the Civil Code,2 which is precisely part of the object to be described since it norms the institution and cannot itself constitute the description. Let’s use the descriptions proposed by Jean-Louis Bergel and Gérard Cornu. The first says: Usufruct is a real right of enjoyment of another person’s property and is the result of a dismemberment of full ownership. The usufructuary is invested with usus and fructus for a period that cannot exceed the life of the usufructuary, while the owner retains only bare ownership, which is not completely reduced to abusus. (Bergel et al., 2019, n°257)

The second states: Usufruct is a real right, essentially temporary; life in most cases, which confers on its holder the use and enjoyment of all kinds of property belonging to others, but with the obligation to preserve its substance; presented as a dismemberment of property insofar as it combines two dismembered attributes of the right of ownership. (Cornu et al., 2014)

These doctrinal definitions link usufruct and real right: they mean that, in legal reality, usufruct is one of the real rights, or in other words, the meaning of usufruct is to be a real right. It should be noted that in the above descriptions, real right is seen both as a category to express elements of legal reality among which usufructs are singularly considered and as a concept intended to decompose the notion of usufruct, that is, allowing the description of the conditions of usufruct. Furthermore, these dogmatic descriptions use various terms and notions to establish a legal ontology of (virtual) usufruct: dismemberment or fragmentation of ownership, right on the thing of another; one can also find personal servitude or real charge. Two elements must be taken into account: 1) in the category of real rights in the plural, we will find positively normed categorical entities (usufruct, servitude, right of use and habitation, sui generis real rights, hypothecs, etc.), and 2) real right is not univocal and has different extensions, each of which refers to different theories (ius in rem, dismemberment, universal passive obligation, etc.). The methodological determination of regulated situations or operations results from these descriptions: distinctions to be made between the different species of usufruct, analogies to be drawn with similar entities, with the aim to qualify anomalous usufructs or to identify possible applicable regimes.

 Art. 578 du Code civil – L’usufruit est le droit de jouir des choses dont un autre a la propriété, comme le propriétaire lui-même, mais à la charge d’en conserver la substance. Scientific description: the article 578 of the French Civil Code is a norm under French Law 2

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Finally, it should be pointed out that, unlike usufruct, which is a notion immediately normed by its positive regime, droit réel in the singular does not belong to a descriptive scheme of an ought to be but to a more comprehensive (proto-­explicative) scheme = for example, a dismemberment theory of ownership. In our case, the dismemberment theory would be explanatory if it made it possible to understand the notion of real right by means of a concept integrating relations between fractions of the ownership. Thus conceived, each dismemberment of the ownership would represent an economic or political utility of the property that the holder of the dismembered real right could obtain. If dismemberment were properly conceived as abstract and atemporal, it would be capable of describing any real right in all the successive states of positive law and possibly in the civil law systems (assuming that real right means something at least comparable from one system to another); it could be regarded as a concept or even a meta-concept of comparative law (Troper, 2011, p.255), that is, as a figure aiming at objectifying knowledge that will be validly used in explanatory propositions, e.g., to compare French usufruct or Quebec usufruct with Roman usufruct or causal usufruct. It is interesting to note, however, that the dismemberment theory, born at the beginning of the nineteenth century, was quickly challenged on the grounds of its inability to describe servitudes and emphyteusis, on the one hand, and security interests, on the other. It was abandoned in Italy in favor of a broader theory of subjective rights. Originally, however, it reflects an aim or an intuition to decompose ownership in the French Civil Code into elementary concepts (Boudot, 2010), a perspective that breaks with the dual domain theory and provides a description of the notion of property right as a full and complete whole. It is then as if the dismemberment functions as an instrument to objectify the eminently ideological content of ownership. The dismemberment theory has been upheld  – not without controversy  – in France as a means of explaining the conditions of usufruct and rights of use and enjoyment. William Dross is one of the few authors who consider the dismemberment theory unsuitable for explaining usufruct. His argument is based on the calculation of what is left to owners after they have granted usufruct. What benefits do they still receive from a property of which they no longer have a real right of enjoyment? The proposed answer is ∅ (Dross, 2012, p.153), notwithstanding the authorizations that the usufructuary must obtain from the bare owner for a full exercise of enjoyment. This means that in the legal reality, as described by William Dross, the bare owner who has granted the usufruct no longer has any fraction of ownership [and has only a virtual action for restitution of the property after the extinction of the usufruct]. According to the author, however, this refutation requires a paradigm shift in the conception of the ownership. This proposal is itself part of a broader scheme (Dross, 2012, p.150); it is not a question of treating usufruct as a right over another’s thing, but as a full-fledged ownership with a limited duration, which clashes with the dogmatic scheme of ownership in the Civil Code and of real rights as described by the dismemberment theory. This imposes new dogmatic constructions.

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This analysis necessarily questions a number of assertions, foremost among which is the idea that the bare owner is the true owner of the thing. In fact, it is the usufructuary, but he is only a temporary owner. As for the bare owner, if he is not currently the owner of the property, he will necessarily become so later and then without limit of time. (Dross, 2012, p. 154)

The fact that the dismemberment theory has been in the past, or is being contested today, does not imply ipso iure that it cannot constitute a valid and refutable explanation. But one of the fundamental difficulties in conceiving a dogmatic theory that deserves the name of explanation whether classical theory or recent is the issue of time. As much as one can think of the temporality of the legal system from a normativist or empiricist point of view, in the dynamics of its structure, it is equally uncertain to think of the temporality of the elements of dogmatics without falling into a naturalistic conservatism or an opportunistic nominalism. This brings us back to the Gilles G. Granger’s condition of objectivity: how can a dogmatic theory be refuted? If no refutation is ever possible, no resituation is ever necessary: the dogmatic theory is always true, and it is at best only a metaphorical description of what it purports to explain and at worst the expression of an ideological repositioning detached from legal reality, so as to be only the expression of a desire for change (a prescription for changing reality). For its opponents, this is what the dismemberment theory consists of today, a comfortable metaphor, not an “image” of knowledge at a given moment (its rhetorical objective is to limit the creation of new real rights while displaying the principle of free creation). For this theory to be refutable, it should be possible to provide descriptions of legal reality that are incompatible with it, so that the contested theory can itself be resituated by integrating these new “observations” into developments that resist it. If the theory of dismemberment has ceased to serve as an explanation in Italy or Spain, is it because it has been integrated by a more comprehensive theoretical scheme, or has it been overturned by a more powerful ideology? Moreover, the French Civil Code, timidly, and the Quebec Civil Code now include in the letter of their provisions a recourse to the expression dismemberment of ownership. Is this a “legislative consecration” or is it the proof of the nonexplanatory nature of this now pseudo-theory? Furthermore, the question arises as to whether a new statute or a decision of a high court is an event capable of refuting a dogmatic theory? It is quite clear that a new norm affirming that “usufruct is a temporary property” would modify the normed notion of ownership, the legal reality, and therefore its description. But how could the theory of dismemberment not withstand it, since, if it is indeed a concept, dismemberment is supposed to be abstract and atemporal? In the same way, a legislative consecration would not validate the theory, as it would make no sense. The introduction of the words “dismemberment of ownership” to designate real rights, as is the case in Article 815–9 of the French Civil Code or in a whole title of the Quebec Civil Code, does not prove that the promoters of the dismemberment theory have verified their explanatory scheme, except from a pragmatic standpoint. The theoretical effect would even be the opposite: once the law takes hold of a concept with an explanatory purpose, it will be necessary to seek out another

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concept to embrace the one that has been diluted into the content of norms. It is rather paradoxical, but in a certain way, the legislative consecration has the effect of degrading of the proto-concept to a simple notion; it is then necessary to recompose the consecrated theory (e.g., the theory of nullities adopted by the ordinance of February 10 2016) which can no longer serve as the beginning of an explanation.3 At the very least, I propose to consider this analytical tool called “dismemberment” as a proto-concept in order to underline both its inability to achieve a complete explanation and the effort of abstraction which it nevertheless demonstrates. But let’s go further in its criticism. If we focus this time on the dogmatic theory presented by William Dross, we will certainly have to wonder whether it can describe past states of positive law. The reforms that have affected real rights of use and enjoyment over the last two centuries have not prevented authors from describing positive law, in its successive states, by means of the same notions. But the fact that the same wording has been used for a long time does not mean that it expresses the same abstract idea. Can the succession of states of positive law be described by concepts that are not subject to variations in the content of norms? This is the challenge that a theory of legal dogmatics would attempt to take up in order to objectivize the explanation of the descriptions provided. To do this, it would be appropriate to rely on a formalization of dogmatics (Hohfeld, 1913; Von Wright, 1963; Bailhache, 1991), an ambitious but as yet unfinished approach. We can also change the level of discourse, moving to a meta-doctrinal level that would be that of the history of ideas (history of dogmatics, history of legal thought). However, in this last case, it is no longer a question of verifying or refuting, but only of situating a theory in a diachrony, as a dogmatic fact.

Explanations The content of norms is political; it expresses moral or ethical values, and these values do not represent knowable objects of human reality. They are not observable elsewhere than in the construction of a virtual reality which holds them as things (ideological system); what is on the other hand observable, probable, and quantifiable, in the human reality, is the adhesion to these values by the addressees of the value judgments or of the prescriptions containing them. At this point, it seems to me that a dogmatic theory does no more than describe positive law; when it does not faithfully represent legal reality, this description is contested. But a dogmatic theory is unable to explain because, in the same movement, it contributes to the description itself. It adds to it and perhaps perfects an existing description but also obscures or destroys it. If, therefore, dogmatic theories do not explain anything, they nevertheless serve as descriptions of positive law

 See Art. 1178 et sq. of the French Civil Code.

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(describing what ought to be), but they are not refutable by broader theories that would integrate them but are contested by other descriptive discourses of the same level; but, the fact that there are contradictory descriptions, oppositions of authors, and dogmatic controversies reveals divergent ideological positions. On the one hand, these ideological positions are objects of knowledge of a history of political ideas or of a sociology of doctrinal production; on the other hand, the controversies and the questions they raise can be studied for themselves. The analysis of dogmatic controversies concerns observable literary facts, or, in other words, the knowledge of dogmatics is a knowledge of the controversies that each epoch holds, that each epoch passes on to the next with its modes of analysis and its rhetorical resources (didascalies of the reference networks). I emphasize the fact that the theories of (something) do not explain anything but limit themselves to describing and constructing an image of legal reality. This is in no way pejorative as long as the descriptive discourse does not intentionally usurp the term theory in order to do something other than describe positive law. Is the theory of dismemberment merely descriptive or does it express the desires of its proponents to see positive law as it is not? For its part, does the theory of temporary ownership, in turn, construct a legal reality that can be actualized in human reality (but which is contested), or does it merely reflect the ideology of its own promoters? I am not sure that the answers to these questions are necessary, because it is always easier to denounce the lack of axiological neutrality of an author, than to construct an ideologically neutral point of view (unless the intention is to hide a truly political objective behind a pseudoscientific rhetoric). On the other hand, it seems clear to me that the confrontation of the dismemberment theory with those who have contested it constitutes a dogmatic fact or, in other words, participates in a controversial dogmatic reality = it is therefore a dialogical virtual fact. It is a doctrinal reality in which the dogmatic facts analyzed are controversies. This indicates the direction to be followed, that is, a historical-comparativist perspective appears compatible with an epistemology that invites us to comprehend legal reality as a system of dogmatic constructions, endowed with remote models of human reality. In terms of method, it necessarily involves an epistemological investigation of our preconceptions and a priori conditions. The knowledge of the historical facts turns out to be essential to give this objectivist perspective a formalization in ordinary language aimed at interpreting human reality. But this formalization differs from the description of positive law in that it constructs the very framework of this description. Legal reality appears as a sort of modeled reality, dehistoricized, devoid of its affective variables, where the actors only feel normed feelings and emotions. A fact of legal reality is a virtual fact. A dogmatic fact is a controversial description of virtual facts. An epistemological fact is an explanatory theory of dogmatics.

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References Bailhache, P. (1991). Essai de logique déontique. Vrin. Bergel J.-L., et al. (2019). Traité de droit civil, Les biens (3e éd). LGDJ. Bernitz U. (2010). What is scandinavian law? Concept, characteristics, future. ICT Legal Issues (56), Scandinavian studies in law (pp. 14–29). Institute for Scandianvian Law. Boudot, M. (2007). La doctrine de la doctrine de la doctrine … : une réflexion sur la suite des points de vue méta – … – juridiques. Revue Interdisciplinaire d’Etudes Juridiques, 59, 35–47. Boudot. (2010). L’image du « démembrement » dans la doctrine française. Jurisprudence, revue critique, 1, 33–45. Boudot, M. (2022). Réseaux de références et appareil scientifique (ce que nous apprend l’examen d’une question de droit des biens). Revue de droit de l’Université de Sherbrooke, 51(2–3), 311–357. Champeil-Desplats, V. (2014). Méthodologies du droit et des sciences du droit. Dalloz. Cornu, G., et al. (2014). Dictionary of the civil code. LexisNexis. Dross, W. (2012). Droit civil – Les choses. LGDJ. Encinas de Munagorri, R. (2011). Introduction générale au droit. Champs Université. Fabre-Magnan, M., & Brunet, F. (2017). Introduction générale au droit. PUF, Thémis. Granger, G. G. (1994). Formes, opérations, objets. Vrin. Granger, G. G. (1999). Sciences et réalité. O. Jacob. Guastini, R. (1997). Problèmes épistémologiques du normativisme en tant que théorie de la science juridique. Revue de Métaphysique et de Morale (4) Philosophies et droit, 552. Hohfeld, W. N. (1913). Fundamental legal conceptions as applied in judicial reasoning. The Yale Law Journal, 23(1), 16–59. Jamin, C. (2006a). La construction de la pensée juridique française. In Mélanges Michel Troper, L’architecture du droit (pp. 501–517), Economica. Jamin, C. (2006b). La doctrine : explication de texte. In Mélanges Philippe Jestaz, Libres propos sur les sources de droit (pp. 225–233). Dalloz. Katz, A. W. (1996). Positivism and the separation of law and economics. Michigan Law Review, 94(7), 2230. Kelsen, H. (1967). Pure theory of law, Traduction anglaise Max Knight. University of California Press. Piaget, J. (1967). Logique et connaissance scientifique. Gallimard, Pléiade. Raz, J. (1981). The purity of the pure theory. Revue Internationale de Philosophie, 35(138(4)), 441–459. Samuel, G. (2003). Epistemology and method in law. Routledge. Samuel, G. (2019). Can social science theory aid the comparative lawyer in understanding legal knowledge? The Journal of Comparative Law, 14(2), 311–330 Terré, F. et al. (2007). Grand arrêts de la jurisprudence civile, Tome 1er. Dalloz, 12e éd. Terré, F. et al. (2015). Grand arrêts de la jurisprudence civile, Tome 2. Dalloz, 13e éd. Troper, M. (2011). Le droit et la nécessité. PUF, coll. Léviathan. Von Wright, G. (1963). Norm and action. Humanities Press.

Antecedent and Ontology: In Search of the Smallest Possible A Priori Frédéric Rouvière

Abstract   The objective of this chapter is to reflect on the possibility of a minimal ontology of law, in other words the lowest common denominator between all possible ontologies. The main idea is to reject the conscious or unconscious adherence to a prior theory of law. To this end, it is proposed to analyze the law from the perspective of its practice. It thus appears as a discourse consisting of a set of statements structured by concepts. Without these minimal elements, no practice of law is conceivable. The challenge is to avoid complex and interminable philosophical debates while theorizing the daily practice of law.

For a Minimal Ontology of Law The objective of this chapter is to reflect on the possibility of a minimal ontology of law, in other words the lowest common denominator between all possible ontologies. The main idea is to reject the conscious or unconscious adherence to a prior theory of law. The search for the smallest possible ontology is the opposite of the usual approach. Indeed, lawyers generally start from an ontological definition that depends on a more general theory of law or even on a metaphysics. Their ontology is then dictated by a prior framework (or antecedent) with a highly pronounced philosophical influence. Thus, the twentieth century saw the emergence of different trends: normative positivism (Hans Kelsen, Herbert Hart), American (Jerome Frank, Karl Llewellyn, Felix Cohen) and Scandinavian (Alf Ross, Axel Hägerström, Karl Olivercrona) legal realism, and neo-iusnaturalism (Ronald Dworkin).

F. Rouvière (*) Laboratoire de Théorie du Droit, Aix-Marseille Université, Aix-en-Provence, France e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 J.-S. Bergé (ed.), The A Priori Method in the Social Sciences, https://doi.org/10.1007/978-3-031-38260-4_4

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These trends can be roughly divided into two categories: those that use a metaphysical definition of law as their starting point and those that are based on an empirical sociological approach. The metaphysical definition of law consists in understanding it based on an idea that is essentially theoretical. The philosophical history of the definition of law is mostly confined to this approach. Law is defined on the basis of an abstraction, understood as a primary idea from which it will be deduced: justice, will, norm, command, etc. Whatever the initial idea or concept, it will be derived from the world of thought and abstraction, as it will be derived from pure reflection. For example, Hans Kelsen posits that law is a set of norms (2019, p. 25). Herbert Hart posits that law is a set of rules (2012, p. 79 sq). Ronald Dworkin adds that law is not only a set of rules but also a set of principles (1962, p. 82 s.). Past centuries did not advance differently. In Plato or Aristotle, there is no distinction between law and the idea of justice. Similarly, Hobbes makes no distinction between law and command. The empirical definition of law consists in thinking that law is above all a factual phenomenon that most often takes the form of social normativity. This is the path opened up by contemporary legal realism. For Jérôme Frank, what matters is what judges in fact do (1932). In the same vein, Karl Llewellyn distinguishes between “paper rules” and “real rules” (1930, p. 38). For Felix Cohen, legal concepts are transcendental nonsense (1935, p. 809). In short, there are only facts. This tendency is even more pronounced among Scandinavian authors. For Alf Ross, law can only exist as a fact, and the same is true for Karl Olivecrona (1971) and Axel Hägerström (1953). For the latter, it is the essence of law that is important and this is revealed in its factual nature, beyond rights and duties.

Limitations of the Definitions of Law Both these metaphysical and empirical approaches seem to us to be problematic for claiming the title of a minimal ontology: they start from too general an analysis. Firstly, metaphysical definitions are ontologies that go beyond what can be perceived and are based on prior ideas that must be accepted without demonstration. As such, they form a purely philosophical debate, which has a counterproductive effect because it becomes a prerequisite for reflection on practice and therefore a substitute for its analysis. The price to pay is so high that theory takes the place of practice. This distinction leads to a sterilization of our understanding of legal practice, or even to its being given an exclusively philosophical meaning. If all metaphysics are ontologies, the reverse is not true: an ontology without metaphysics is possible. But does it not then necessarily tend toward empiricism? This leads us, secondly, to consider the empirical ontologies that postulate in an obvious way that law is a fact. However, this is still a philosophical stance. It is

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inherited from logical empiricism and inspired by the Vienna Circle. This postulate is highly problematic because it is dubious. It has been said since Roman law that “wherever there is society, there is law” (ubi societas, ibi ius). But in many respects, the formula is a trap. It confuses law and custom, as it acts as if law were the same thing as politeness or morality, as if law were already inscribed implicitly in all social relationships. But this is obvious only to those who have already accepted to reduce law to factual elements. On the contrary, the Roman invention of law (Schiavone, 2005) must convince us that law is not a natural object. The contemplation of Roman law must further convince us that law was practiced before it was thought about. It arose from a practical need (to resolve conflicts apolitically) and not from theoretical speculation. Thus, neither metaphysical nor empirical ontology can claim to be a minimal ontology. Rather, we have to look for what makes law possible as practice. In order to do this, we will first identify the material conditions of possibility for the existence of law as a practice and then go back, according to an analytical method, to the logical conditions of possibility for this existence. By this inversion, we avoid metaphysics (the idea is not postulated) and we do not carry out an empirical reduction (the fact is at the origin of the law but it is not the whole of law).

Ontology and Definition of Law In accordance with Greek etymology (from the Greek onto, from ὤν, ὄντος “being,” present participle of the verb εἰμί “to be”), ontology is understood as any discourse that concerns the being of things. As such, minimal ontology differs from essence, which involves defining what makes a thing what it is, independently of its incidental elements. Minimal ontology is not essentialism. On the contrary, it is part of the previous approach, which involves questioning the a priori. It is a matter then, according to a Kantian critical approach, of questioning the ontological conditions for the practice of law to be possible (Rouvière, 2016). In this way, the interest of the question is to know if there can be a minimal agreement between jurists on what law is or if the disagreement is irreducible and persistent. Ontology raises the question of a minimal essence of law. It seems paradoxical that jurists can practice together one and the same discipline without a minimal agreement on its objects, methods, and scope. To put it another way, it should be possible to make the minimal a priori necessary for the practice of law explicit. The challenge is to reconcile the practical and theoretical visions of law but also to show how the legal discipline is structured intellectually. Indeed, without a minimal ontology, one cannot conceive of the existence of a legal community in which experts can take a stance and open up debates of a cognitive nature.

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Method Our method is inspired by Occam’s razor, which postulates that one should not multiply entities without necessity. In other words, it is a question of posing ontologically the smallest possible entities to account for the practice of law. The question of law as law is a question of a kind of “maximal” ontology, that is, one that is able to state all the characteristics of law or its ultimate nature. We are also inspired by the axiomatic approach in geometry. The axiom is not understood here as an unprovable proposition whose truth is self-evident, but rather as a proposition intended to serve as a basis for knowledge or practice. Nevertheless, we will not adopt an approach that consists in positing postulates in the sense of propositions that are required to be accepted without demonstration. On the contrary, the approach will be regressive: starting from legal practice, we will go back to its minimal ontological conditions of possibility. The approach is therefore by degrees, starting from the minimal ontological core in order to enrich it progressively. The aim is to have the most economical antecedent approach possible in the sense of Occam’s razor.

Conditions for Law to Be Possible Indeed, two types of conditions of possibility must be distinguished: material and logical. The material conditions of possibility are often banal or obvious: human beings and a minimal social organization are needed for law, or any other intellectual activity, to exist. The question then is whether the institution of the judge is necessary to talk about law: must such bodies at least exist and be instituted? From our point of view, this would be to shift the question by presupposing that law is reducible to political categories, especially that of power. We do not deny that law materially needs a political organization to come into being. But this does not prove that law must be analyzed and understood from this perspective. Just because oxygen is a material condition of human breathing does not mean that man must define himself by it. The same applies to the material conditions of possibility of law. It is then a question of designating the one condition that gives law an object that is neither metaphysical nor reducible to an empirical fact already known, such as social organization, conflict, or the psychology of judges, for example. In this respect, the material condition of possibility for making law is reduced to a form of tautology (Latour, 2009): one must practice law in order for law to appear. However, this tautology loses its paradoxical character if we understand law as a discursive phenomenon. Indeed, law appears to us above all in the form of a discourse, whether oral or written. Without such discourse, even the institutions of the judge, parliament, and power have no meaning. One must speak in order to practice law. This condition of material possibility, which could appear to be stating the

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obvious, is fundamental. It shows us that the theorization of the practice of law requires an explanation of the specific modalities of this discourse, independently of its institutional or even historical context. The legal object is not created by a prior reality like norms or values. The legal object is a self-contained artifact created by the discourse. The minimal material ontology is therefore that of discourse, and therefore this is an a priori necessary condition for the appearance of law. This reality loses its triviality if we note that this is not necessarily the case in all disciplines: social facts exist beforehand as an object for the sociologist, just as matter does for the physicist or disease for the doctor. But law only appears as law because of the discourse that gives rise to it. If law is to be understood from the point of view of fact, it is first and foremost as a discourse rather than as morals or behavior, unless one presupposes the identity of social behavior and law or even the identity of law with normativity. The conditions of logical possibilities can then be elaborated on the basis of this factual reality. How can we theoretically characterize the elements that can define a discourse as “legal”? To conduct such an investigation, we will draw heavily on Michel Foucault. In L’archéologie du savoir (translated as “The Archeology of Knowledge”), he theorized discourse as a set of statements (énoncés in French: 1969, p. 116 sq.).

The Legal Statement Firstly, the statement is a segment of language. It is materialized either by a word (the lawyer pleading, the prosecutor making an indictment, the judge deciding a question on the bench) or, more often, by a written document (a court decision, a law, the conclusions of a lawyer, etc.). In this respect, the statement refers to an individual act by which language is “put into operation” (Benveniste, 1966, p. 80: mise en fonctionnement). However, unlike linguistics, it is not the act of producing the utterance that is the object of analysis but the text of the utterance itself or the words of the utterance. What matters is not “who says it” but “what is said.” Statements are cut off from their psychosocial origin and treated as objects. This refocusing on the statement itself, and thus on the words themselves, allows the jurist to focus on the content of the statement emerging from its materiality rather than on the psychological aims and the social and historical context of its production. This is not to say that the jurist denies social or historical reality, but these do not determine the meaning of statements. Although law is formulated in language, its meaning is not reduced to it. In other words, to a certain extent, the meaning of legal statements is independent of the actual context, since it is the concepts implied by usage that decide the meaning. For example, the term “contract” depends in law on the concept of contract, not on the meaning given to it by those entering into an agreement or even on the meaning the concept may have in politics, ethics, or economics. Thus, lawyers

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can just as easily deny the character of a contract to what is named as such or conversely recognize a contract where the parties had wanted to exclude it. It could not be better demonstrated that the meaning of terms does not depend on the context in which they are used or on the meaning attributed to them by the speakers, but on objective conditions, independent of linguistic or psychological conditions. Secondly, the statement is singular. This means that it has a date and a place because it is spoken by real people. It is therefore always possible to date utterances, for example, to know when a law was passed, when a lawyer filed his or her pleadings, when a judge handed down his or her judgment, when the parties concluded their contract, and so on. A statement is therefore an event that has occurred in the real world. It happened at a specific moment. In this respect, all statements are singular, that is, unique. Indeed, they all have, so to speak, a different date of birth. From this point of view, they are irreducible to any other statement. Of course, it will be objected that a statement with the same content and the same form may be made by different persons: the French legislator has said that “a contract is an agreement of wills between two or more persons intended to create, modify, transmit or extinguish obligations” (French Civil Code Art. 1101), and the judge may use this statement to justify a decision, just as a lawyer may use it to justify a position or a professor may use it to teach a course on the law of obligations. Is it not then the same statement? The answer is yes in terms of form and substance: it is the same formal expression and in principle has the same meaning. However, in the same way that two people can have the same first name, and even be twins, they can always be distinguished by the time of their birth, which is an element of the date of birth. Similarly, legal statements are all unique as events. It is their totality that forms the reality of law. Law appears as reality to the observer only through the sum of the statements that are made. This immense mass of statements is the direct correlate of law as discourse. Law is thus inscribed in reality as a succession of singular events materialized by statements. These statements may be written or oral. Their medium is only a question of proof, trace, and conservation. The most important thing is that it exists as a positive reality. Its analysis then depends on its intellectual conditions of production and not on its material conditions. Finally, the legal statement is connected to a system of knowledge that can be defined as a system of concepts. This last condition explains why some statements are repeatable. Indeed, if the same statement can be repeated over and over again by different people, it is because it is reproduced to express an underlying concept. The statement in French law that “a contract is an agreement of wills between two or more persons intended to create, modify, transmit, or extinguish obligations” expresses the concept of contract. The understanding of this concept implies the mobilization of other concepts which thus form a system of knowledge. To produce this statement, it is not enough to know it and repeat it, as one must understand its meaning, but also its applications, scope, and nuances. It is necessary to be able to indicate the extent to which a contract differs from an agreement, the extent to

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which the creation of real rights escapes this definition, or why unilateral acts are not contracts even though they may have some of the same effects as contracts.

Repeatability of Statements Yet, it will be said, there are non-repeatable and purely factual statements, such as the description of the facts of a case, the explanations given when drawing up a deed of sale, or the descriptions in an expert’s report. The reality is more subtle. Firstly, it should be noted that some factual statements are nevertheless repeatable: this is a simple case-by-case argument. It occurs when it is said that the fact that one vehicle hit another implicates it in the accident, that the impossibility of taking an exam is a loss of opportunity, or that the fact of letting an overdraft run is in reality a credit granted by the banker. All these cases can, to a certain degree of generality, be repeated for the purposes of an argument. Secondly, we must also deal with statements that are so specific that they can never be reiterated, for example, the fact that John Doe, at 3:14 p.m., crossed Fifth Avenue and was hit by a black car, that Jane Doe waited in vain for her taxi in the rain for 15 min, or that it was Jane Doe’s account number 926535897 that had an overdraft of $93,238 for 46 days. Although not repeatable for the purposes of making an argument, these statements were only produced to be connected to a system of knowledge. Better still, they only make sense in relation to this system. What the jurist describes in a unique way will then be linked to precise categories – causality, damage, and loan – which are sets of elements from which precise consequences can be deduced: the driver’s responsibility, the repair of damage, or the existence of a contract obliging the banker to respect a precise series of rules for denouncing it. Incidentally, in practice, the details that are of no value to the system of knowledge are usually left out of the description, and only the significant facts are retained. By this, we mean those which, in terms of legal concepts, will have an argumentative value. The time, the day, and the circumstances will be specified if the concepts require it. They will only be stated insofar as they serve a rhetorical purpose, such as explaining the importance of the shock, emphasizing the moral suffering, or better highlighting the negligence of a particular person. Thus, factual statements are produced to be linked to conceptual statements. This distinction is fundamental. It allows us to understand the difference between the field of law, which consists of all the statements produced and to be produced, and the object of law, which is the set of legal concepts associated with its use of the language. Concepts are the sources and matrices of many legal statements, and they guide the production of factual statements. If a document shared between John Doe and Jane Johnson can be said to be a contract by virtue of the received definition of contract, it is because the singular and unique are reduced from general and invariant concepts. Concepts thus provide rules for linking statements. Concepts further define the connections between statements.

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Minimum Ontology: Statements and Concepts Let us summarize the elements of a minimum ontology. Law appears to us as a discourse. This discourse consists in a series of statements connected according to a system of knowledge. This system of knowledge is itself composed of concepts. To practice law, we only need two types of logical entities, i.e., statements and concepts, statements because law is a discourse and concepts because law is knowledge. Of course, these two entities call for a deeper theory: the statement must be distinguished from the sentence and the proposition (grammatical entities) and from the assertion (logical entity). Similarly, a theory of the concept is needed: it is not reduced to a definition, a notion, or a set. It appears rather as an inferential structure (Srator, 2008; Brandom, 1998).

Scope of the Minimal Ontology This minimal ontology opens up a new way of thinking about and analyzing law: by classifying statements and deepening the concept of language. First, the primary task of the theory is to classify statements, to distinguish between singular and repeatable statements. In short, it is a matter of distinguishing between the contingent and the necessary, between what belongs to the event and what belongs to knowledge. There are thus statements derived from concepts, others derived from facts, statements with an argumentative function, others purely symbolic (e.g., the recognition of the Armenian genocide by French law), and some that are normative (i.e., binding because of their origin: a judge, parliament, etc.). In this classification, the medium of the statements (oral, written), the way in which they are preserved, and, of course, their source (jurisdiction, parliament, lawyer, bailiff, professor, etc.) would still have to be characterized. With such a classification perspective, certain concepts take a back seat in the analysis: juridicity is not necessarily defined by the normativity of the statements or the factuality of their referents. Legal practice does not necessarily need such concepts, contrary to what legal theorists claim. Normativity is not necessary as an a priori to grasp the practice of law. Second, as statements are elements of discourse, the concept of language seemingly needs to be deepened and mobilized before that of empirical validation. In other words, the epistemological model of law seems to be more in line with mathematics than with the natural sciences. This leads us to question the truth value of statements in a different way. However, realism has followed the opposite path in seeking to understand law as facts or as a set of facts (Ross, 1957). This is also, to a lesser extent, the bias of the positivism of Hart, Kelsen, and even Dworkin’s neo-­ iusnaturalism, namely, that law should be about a proper object. However, the analysis in terms of minimal ontology leads us to consider that statements are not legal because they relate to an object previously defined as “the law” but because of their

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insertion in a scholarly system. Juridicity would thus reside less in the object than in the point of view taken on things. In other words, it is the structuring and articulation of statements in a language that matters. Thus, the research path to be favored would be of the Foucauldian type. It would be a matter of investigating the rules of formation of legal discourse and the rules of linking and articulating the different statements. The approach would then be structuralist and functional, like the linguistics of the same name. Again, the theory of law could be characterized as meta-discourse, that is, a language that takes a certain body of statements as its object. Finally, this path has a major link with artificial intelligence. Conceiving law as a logical language means making it suitable for programming by using word embedding and data mining.

Conclusion Our common assumptions about law can ultimately be reduced to little more than the recognition of law as a set of statements and a set of concepts. In other words, in contrast to the twentieth century approach, this minimal ontology directs us toward the theorization of learned law, which is necessary for the existence of a legal practice and a community of lawyers (Fish, 1982). The interesting point of our approach is to reverse the usual order of analysis by finding an argument analogous to that which exists in the natural sciences, where it is the epistemology that determines the ontology and gives rise to dialogs of this nature. Similarly, the minimal ontology paves the way for an agreement on the minimal entities from which epistemological and ontological debates can arise. The theory of law is then no longer the necessary and unavoidable antecedent or a priori for thinking about the practice of law. On the contrary, it is the theory of law that supports the understanding and deployment of practice from its minimal ontology.

References Benveniste, E. (1966). Problèmes de linguistique générale 2. Gallimard, Tel. Brandom, R. (1998). Making it explicit  – Reasoning, representing & discursive commitment. Harvard University Press. Cohen, F. S. (1935). Transcendental nonsense and the functional approach. Colombia Law Review, 35(6), 809. Dworkin, R. (1962). Taking rights seriously. Harvard University Press. Fish, S. (1982). Is there a text in this class?: The authority of interpretive communities (Vol. 3, p. 196). Harvard University Press. Foucault, M. (1969). L’archéologie du savoir. Gallimard. Franck, J. (1932). What courts do in fact. Illinois Law Review, 24, 645–666. Hägerstrom, A. (1953). Inquiries into the nature of law and morals. Almquist & Wikselle, Ed. Karl Olivercrona.

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Hart, H. L. A. (2012). The concept of law. Oxford University Press (3rd ed., 1961). Kelsen, H. (2019). Reine Rechtlehre. Mit einem Anhang: Das Problem der Gerechtigkeit, Mohr Siebeck Verlag Österreich, 1960. Latour, B. (2009) The Making of Law : An ethnography of the Conseil d’État. Polity Press, 2004. Llewellyn, K.  N. (1930). The bramble bush: Some lectures on law and its study. Columbia University of Law School. Olivecrona, K. (1971). Law as fact (2nd ed.). Styevens and Son. Ross, A. (1957). Tû-Tû. Harvard Law Review, 70(5), 812. Rouvière, F. (2016). Le fondement du savoir juridique. Revue Trimestrielle de Droit civil, 279. Sartor, G. (2008). Legal concepts: An inferential approach. EUI Working Papers LAW 2008/3. www.eui.eu. Schiavone, A. (2005). IUS. L’invenzione del diritto in Occidente. Piccola biblioteca Einaudi.

The Private/Public Divide Among the Principles of World-Building: Insights from Godelier, Fortes, and Arendt Lior Barshack

Abstract  According to Lévi-Strauss, incest prohibitions and the ensuing divide between family and society allow for the emergence of human culture. They are at once the a-priori of culture and a part of it. The essay follows the development of this idea in Maurice Godelier’s account of the obligations on the basis of which human societies “produce themselves”: obligations of descent and exchange, and sexual prohibitions. Godelier rejects the view of the family/society divide as a principle of culture as opposed to nature. However, Godelier’s own accounts of descent and sexual prohibitions establish the cultural character of the family/society divide. Important aspects of the family/society divide, such as the enclosure of the family as a mix of imaginary “substances” and “components” (Godelier) and as a publicly represented corporate body (Fortes), are clearly cultural. These aspects of the family/society divide seem to be constitutive of the realm of culture because they impede social merger and “excess of identity.” Moreover, principles of culture such as descent and sexual prohibitions are, according to  Godelier’s own account, so intertwined with the family/society divide that the latter must also belong in the realm of culture.  The essay concludes with an improbable reference to Hannah Arendt’s work. Arendt’s thought revolves around the contrast between the care for life and the distinctly human concern for culture and world. It is suggested that Arendt’s account of world-building offers a theoretical prism through which different anthropological accounts of the underlying principles and obligations of culture can be considered.

L. Barshack (*) Radzyner School of Law, Reichman University, Herzliya, Israel e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 J.-S. Bergé (ed.), The A Priori Method in the Social Sciences, https://doi.org/10.1007/978-3-031-38260-4_5

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Introduction The question of the conditions for the transition from nature to culture was addressed in the last century by authors in different branches of social thought. The following discussion looks at the place of the private/public divide in the construction of culture. This is a vast topic that must be narrowed at the outset. I focus on the place of the family/society, or private/public,1 divide in Maurice Godelier’s account of the “principles” or “obligations” by which human societies “produce themselves”  – these are, according to Godelier, the principles of descent and exchange, and sexual prohibitions. Godelier’s account, as developed in The Metamorphoses of Kinship, is one of the most illuminating and fruitful recent contributions to social theory. Godelier, in contrast to Lévi-Strauss  (1969), does not count the family/society divide as a principle of culture. However, the imaginary enclosure (described by Godelier) of each family as a set of distinct “substances” and “components”, and the public representation of the family as a semi-sovereign legal body (Fortes), count among different cultural aspects of the family/society divide. Arguably, they constitute indispensable building blocks of culture because they thwart social “excess of identity” and merger by severing family and society from each other.  Godelier’s own discussion reveals that certain aspects of the family/society divide are inseparable from the basic principles and obligations that he postulates, and are therefore equally foundational of culture as his principles. Essential features of descent that were highlighted by Godelier, such as inalienability and transmission of substance, are so integral to the family/society divide that the latter must be considered as “cultural” as descent is. It can be added that the family/society divide emerges as radically “cultural” – more so than what Godelier's discussion suggests (contrary to his own theoretical statement) – if it is taken  to be thoroughly constituted by sexual prohibitions, such as the prohibitions  that  relegate reproductive sexuality to the realm of the family. In addition to Godelier, I refer to the work of Fortes, who proposed an account of the contrast between public and domestic realms of kinship and who is one of Godelier’s main interlocutors in The Metamorphoses of Kinship alongside Lévi-­ Strauss and Mauss. I conclude by briefly invoking some of Hannah Arendt’s ideas on the private/public divide and its role in the human enterprise of world-building. While Lévi-Strauss, Fortes, and Godelier belong to an intellectual tradition radically different from, and sometimes hostile to, Arendt’s, I argue that Arendt’s account of world-building provides a theoretical framework within which anthropological accounts of the underlying obligations of culture can be evaluated. Arendt identified building blocks of human worlds and cultures, principles of world-­ building such as appearance, plurality, objectivity, and permanence, that make sense of the social obligations described by Lévi-Strauss and Godelier and expose their  In the following discussion, the “family/society” and “domestic/public” divides are gradually subdivided into a set of oppositions. This allows to use the terms interchangeably despite existing distinctions between them. 1

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rationales, notwithstanding the gulf between Arendt’s approach to world-building as a free ethical activity and the traditional concerns of anthropological theory. My discussion will be purely interpretive. I look at internal relations between the different principles postulated by the social theorists I have mentioned. I believe that students of law can benefit greatly from consulting these authors. Their accounts of status, corporateness, publicness, inalienability, giving, exchange, sovereignty, and many other concepts remain indispensable for our grasp of the law in contemporary societies.

Background: Fortes on Descent and Godelier’s Two Principles The concept of descent has been traditionally associated with the British school in social anthropology, represented by Radcliffe-Brown, Evans-Pritchard, and Fortes. Fortes’ Kinship and the Social Order (1969) epitomizes this approach to kinship. Fascinated by Henry Maine’s work, Fortes emphasized the legal structure of the family as a multigenerational corporate body and the “jural dimension” of kinship relations. The obligations of kinship, as conceived by Fortes, bind individuals as organs of corporate bodies and as occupants of “offices” within corporate bodies. Godelier paid tribute to Fortes in his own seminal study, The Metamorphoses of Kinship, and on other occasions. He offered an account of kinship that reconciles much of Fortes’ work with the theoretical approaches of Mauss and Lévi-Strauss. In my view, Godelier could have borrowed some of Fortes' ideas about the legal – in particular, corporate and objective/public – aspects of the family and their contribution to the construction of culture. Fortes and Godelier share some basic ideas about descent as a multigenerational relation that confers social identity, status, and personhood and imposes moral and legal obligations, embodying a sense of intergenerational continuity and even perpetuity. Individuals, Fortes and Godelier observe, are made of material and nonmaterial components furnished by past generations. Descent involves the transmission of life-giving “substances” and “components” (Godelier) and of legal status. Both authors privilege the transmission of imaginary or symbolic goods over material wealth. While Fortes’ work lays emphasis on succession to status, “office,” and personhood, and Godelier’s on transmission of identity through substance (terms such as “substances” and “components” are used much more frequently by Godelier), both take into account the transmission of status as well as “substance” (Godelier, 2012, pp. 220–222). In The Metamorphoses of Kinship, Godelier affirms the place of descent in contemporary society. His arguments for the persistent centrality of descent culminate in the observation that “…in Europe the institution of marriage is crumbling while descent stands fast” (Godelier, 2012, p.  127). While Godelier endorses certain insights of the British school, he places descent within the universe of the gift. Godelier’s affirmation of descent partly stems from his elaboration, in The Enigma of the Gift, of the differences between exchange of gifts among the living and

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intergenerational, vertical transmission. In The Enigma of the Gift, and later in The Metamorphoses of Kinship, Godelier identifies two fundamental “principles” or “obligations” governing all realms of social life: the intergenerational obligation to keep and transmit and the horizontal obligation to exchange (Godelier, 2012, pp. 469–471).2 Horizontal exchange among the living consists of a set of obligations described by Mauss: the obligations to give, accept, and reciprocate. Influenced by Annette Weiner’s Inalienable Possessions, Godelier directed his attention to goods that cannot be exchanged and must be kept for transmission to future generations. None of the obligations that make up horizontal exchange can be transplanted without modification into vertical, intergenerational giving. There is no giving between the generations because in intergenerational transmission, goods are not alienated. The temporal distance between givers and recipients does not allow for reciprocity. Furthermore, the newborn cannot accept or decline gifts that were given to it before birth. These are just some of the difficulties in treating vertical giving as a mirror of horizontal giving. The obligations of intergenerational giving differ from those of giving among the living. The newborn incur debts already before birth by being made of substances that were given as gifts by their parents as well as distant ancestors.3 Humans are already bound at birth by obligations to keep and transmit certain goods and substances to future generations  – an approach to natality that is radically different from Arendt’s. Transmission is an obligation that we owe not only to our parents. According to Godelier, all societies recognize the indispensable role of ancestors in the production of a new generation of humans.4 A man and a woman cannot assemble on their own the components of a new human being. Individuals in all societies,  Godelier writes in The Enigma of the Gift: “Human society drew on two sources for its emergence: contractual exchange on the one hand, and non-contractual transmission on the other. And it continues to advance on these two legs, to rest on these two bases, both of which are equally necessary and exist only by means of one another. Thus there are always things in the human social domain which are not governed by contract, which are not negotiable, which are located outside or beyond the domain of reciprocity. Whether in the sphere of kinship or of politics, there is always, in every human activity if it is to become constituted, something that precedes exchange and in which exchange takes root, something that exchange both alters and preserves, extends and renews at the same time. This chronological precedence and this logical priority exist only as moments in a continues movement, which flows from man’s original mode of existence as a being that not only lives in society (like other social animals), but which produces society in order to live” (Godelier, 1999, p. 36). 3  Godelier writes: “…as soon as adults have taught the child that he owes his existence and the elements of his being to a certain number of visible or invisible human and non-human donors who have made him what he is, the child will find himself indebted to them for his life and therefore under obligation” (Godelier, 2012, p. 106; see also Godelier, 1999, p. 210). 4  As Godelier writes, “…nowhere, in any society, do a man and woman alone suffice to make a child. What they make together, in proportions that vary from one society to the next and with a diversity of substances (sperm, menstrual blood, fat, breath, etc.), is a foetus, but never a complete, viable human child. For this, other agents are needed, who are more powerful than humans, present in the vicinity but normally invisible, and who add what is lacking for the foetus to become a child… the agents cooperating with humans to make a child are of several kinds: deceased persons, ancestors, spirits, deities…” (Godelier, 2012, p. 299; see also Godelier, 2012, pp. 105–106). 2

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ancient, modern, and postmodern, conceive of their forebears as participants in the efforts of their production and regard themselves as obligated to their ancestors. An exposition of the concept of descent should refer, however briefly, to the criticisms it attracted. The notion of descent is employed in a variety of ways, some stricter and more technical than others. Fortes favored a strict notion of descent that applies where “descent credentials” determine the recruitment of individuals to mutually exclusive corporate descent groups (Fortes, 1953, 1969, p. 287). In such societies, descent regulated the division of society into subgroups and the concomitant allocation of rights, roles, and resources. Some of Fortes’ critics doubted the existence of corporate descent groups demarcated by strict genealogical reckoning even in some of the societies he cited as exemplifying the model of corporate descent groups. According to looser notions of descent, which may be applicable to modern Western societies, members of descent groups “conceive of themselves as sharing common ancestry and as being variously obligated to one another by virtue of that fact” (Scheffler, 1966, p. 546; see also Scheffler, 2001, for a narrower definition of descent). Godelier’s account of the obligation to keep and transmit as it operates in contemporary society develops this looser notion of descent. While favoring a strict concept of descent, Fortes recognized the presence of more flexible notions of descent and corporateness in societies where descent groups in the strict sense do not exist. However, the relevance and fruitfulness of all notions of descent for the study of contemporary society remain disputed. In the present discussion, I follow Godelier’s position on the place of descent in contemporary society.

Godelier on the Family/Society Divide and Sexual Prohibitions In his recent book on Lévi-Strauss, Godelier (2013, pp. 59, 264) presents exchange, descent, and incest prohibitions as tightly linked, as if they formed a single principle. Elsewhere, Godelier counts incest prohibitions as a separate principle. In any case, his account of incest, for example, in The Metamorphoses of Kinship, is tied to the twin principles of exchange and transmission. My comment on Godelier follows closely the chapters on incest in The Metamorphoses of Kinship. Godelier rejects Lévi-Strauss’s view that the incest taboo was preceded by isolated and promiscuous biological families and that the taboo brings about the emergence of society and of the family/society divide.5 Godelier endorses, however, Lévi-Strauss’ claim that incest prohibitions mark the threshold between nature and culture. Godelier’s own starting point is a natural society that is already composed of natural families (Godelier, 2012, pp.  432, 467–8, 2021, p.  28). Such a society precedes culture, as it is part of humanity’s biological heritage. Natural families and societies do not depend on the two forms of giving and on sexual prohibitions. The transition to culture involves the crystallization of these principles.

 Godelier (2012, p. 443) rejects big bang theories of the passage from nature to culture.

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Because social life is natural, the purpose of incest prohibitions, according to Godelier, is not to incentivize families to form a society. Godelier’s account of incest taboos is somewhat elusive. It revolves around two concepts that are often invoked in discussions of incest – cooperation and identity – but the relation between them is not clarified by Godelier. The first focal point is cooperation. Sexuality threatens cooperation within the family and must be regimented in order to facilitate cooperation in the upbringing of children. Without denying the uniqueness of the family context, this rationale for the regimentation of sexuality must apply, at least to a certain extent, also outside the family. If sexuality threatens cooperation, then it should be regulated also outside the parenting unit. Godelier indeed argues that incest has to be placed in the wide context of “misuses of sex,” of which some are to be found outside the family. Godelier does not elaborate on how sexuality undermines cooperation. He suggests here and there, plausibly enough, that sexuality brings about merger and that merger only disconnects people, because it replaces relations by oneness.6 This account of the harms of sexuality seems to reduce problems of cooperation to problems of identity, but Godelier does not go as far as unifying these two explanations of sexual prohibitions. Sexuality, fortunately, is malleable and can be reshaped in ways that serve social needs. The challenge for sexual morality is to transform sexuality and recruit it to the goal of producing society (Godelier, 2012, pp. 317, 322). Civilized sexuality should probably allow for the stabilization of social relations, economic coordination, and collaboration in world-building – to borrow Arendt’s concept. The second focal point of Godelier’s discussion of incest is identity. Incest brings about excess of identity (Godelier, 2012, pp. 328, 360, 363, 380, 474, 2021, pp. 17, 32). The separate substance of each family is an inalienable source of identity from which nonmembers are excluded.7 But identity can be suffocating and must be restrained by sexual prohibitions. A significant point about considerations of identity – which applies, to a lesser extent, also to considerations of cooperation – is that they presume an artificial family/society or private/public divide, tighter than the natural divide. They assume that each family has been set apart, as a sort of enclosure of unique substance, from the rest of society by practices and ideologies of exclusion, transmission, and inalienability. The setting apart of the family as an  Godelier writes, for example: “Sexual desire isolates people more than it brings them together” (Godelier, 2012, p. 458). “Sexual permissiveness stops, in all societies, either there where the alliance formula would be jeopardized or there where the relations of cooperation and authority between consanguines would be at risk of collapsing and, in merging with each other, of disappearing” (Godelier, 2012, p. 474). 7  Godelier characterizes gifts as “the material support for identities” (Godelier, 2009, p. 20). As he illustrates in The Metamorphoses of Kinship: “Blood is not merely a concept that makes it possible to determine the internal composition of a lineage and its boundaries, it is also a criterion that legitimizes this exclusion by referring to the presence of a vital component of a person’s identity, which some possess and others do not” (Godelier, 2012, p. 113). “The child will be led to conceive of himself (or herself) (and even to feel) as being identical to or resembling all those of whom he (or she) will learn that he shares some component of his being, by virtue of which he is ‘the same’ as they” (Godelier, 2012, p. 106). On consubstantiality, see Pitt-Rivers (1974), Carsten (2001). 6

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enclosure of substance is not part of the natural family/society divide. It is a cultural, normative, imaginary divide inscribed, as Godelier observes, in the fabric of the real.8 The natural divide between family and society precedes the divide that structures culture. In other words, Godelier’s account of sexual prohibitions and descent refers in fact to an artificial layer of the family/society divide that possibly builds on the natural family/society divide. Godelier is not sufficiently clear on this point, even though his arguments indicate that the “identity” of the family as an enclosure of “components” and “substances” is intertwined with the “artificial” obligations of descent, exchange, and sexual prohibitions. In other words, it forms part of the underlying principles of culture. The family seizes the components and substances that flow from generation to generation in accordance with the obligation to keep and transmit. Transmission allows families to keep for themselves part of their inalienable tangible and intangible treasures, their creativity, regenerative potential, and the texture of their everyday life. While families-within-societies may have antedated the crystallization of sexual prohibitions, the boundary-line between society and the family is reshaped by the obligations of descent and the regulation of sexuality. The cultural character of the family/society divide seems even more predominant and decisive if, contrary to Godelier’s position, family and society are taken on theoretical grounds to be thoroughly constituted by sexual prohibitions, such as those prohibitions that relegate reproductive sexuality to the realm of the family and representation to the realm of society. (Descent too is arguably constituted by sexual prohibitions, in particular intergenerational prohibitions that set apart the generations and transform their outlawed communion into an idealized, immortal corporate body; Barshack, 2009, 2011). 

Merger and Counter-membership While the separation between family and society is, according to Godelier, part of our natural heritage, the imaginary enclosure of the family, as a mix of substances and components, conditions and belongs in the realm of culture alongside the obligations of descent and exchange and sexual prohibitions. Life-giving components that are preserved and transmitted within the family endow family members with social identity. Alongside material components, there are nonmaterial elements – a soul, a name  – that are inherited from ancestors and establish the individual’s

 “All of these representations belong to the universe of thought, to the realm of mind-products (l’idéel), which is part of reality (le réel). No scientific experiment can disprove or prove these views. They are ‘givens’, as beliefs are givens, even if they are sometimes contested – for example by women who are not convinced that their milk is their husband’s sperm, or by male commoners who are not convinced that they are mere insects that will not have a life after death and that they owe the birth of their children to the fecundation of a man-god” (Godelier, 2012, p. 312). 8

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separateness and indivisibility.9 For Godelier, however, identity is strongly associated with substance and with the exclusion of those who do not partake in the family’s substances. Tocqueville described the contribution of descent to individuation in the social sphere: “As long as the spirit of the family lasted, the man who struggled against tyranny was never alone; he found clients around him, hereditary friends, relations. And if he lacked this support he still felt sustained by his ancestors and animated by his descendants” (Tocqueville, 2000, p. 560). While Tocqueville invokes the tension between the individual and the social group, Godelier focuses on the dangers of merger within the family and hardly takes notice of the danger of “excess of identity” in the social or political realm. Merger in the political realm implies the engulfment of all families by the body politic, a process that destroys the public realm itself inasmuch as the two spheres are interdependent. Similarly, total merger within the family engulfs the entire existence of individual family members, dissolving both the public world and family life. Perhaps Godelier is less concerned about merger in the public realm because descent, as he argues, endows family members with individuating social identities that separate them from the rest of the group. Godelier’s emphasis on the importance of sexual prohibitions outside the family suggests a certain symmetry between family and society, which he does not explore.10 The symmetry has two consequences. First, in the same way that sexual prohibitions prevent “excess of identity” in the family, they ensure distance and difference within the social realm. Second, in the same way that participation of family members in the texture of domestic life moderates their identification with the body politic, the immersion of individuals in the family is checked by their simultaneous participation in the social body, their counter-membership. The danger of excess of identity within either sphere and, ultimately, the risk of collapse of boundaries between the spheres seem to be somewhat mitigated by the combination of sexual prohibitions with the simultaneous embeddedness of individuals in different domains. The taming of merger calls, in  Godelier explains how the imaginary constitution of the body establishes relatedness and individuation: “A person is never simply the sum of the substances that make him or her. All the components of a person’s being, as they are listed and articulated in the thinking of the members of this society, must be taken into account; in other words, not only the body substances, but also the breath, the life force, one of several souls, and so on. Indeed, it is usually via the non-corporal components of a person’s being – their soul, their name, etc., that they present themselves as a specific, particular and indivisible being… In short, the world over, the individual exists as a whole, both divisible, partible, in virtue of the substances and other components they share with others, and indivisible due to their acting from a place that is not that of others and, given this place, being responsible for their actions and the social and moral consequences they have for others or for the person doing the acting. In reality, the representations of the diverse components of a person, of their appearance and combination at different stages in the process of conception, are the vectors of several different kinds of social relationships, which are stamped into the child’s sexed body and embed it in the overall social and cultural fabric of the society in which it has just been born” (Godelier, 2012, p. 306). 10  Godelier writes: “Extreme permissiveness in matters of sex seems to be incompatible with the workings of institutions such as marriage” (Godelier, 2012, p. 459). 9

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addition to sexual prohibitions, for a division of social life into impermeable enclosures, each with substances and components of its own, in which individuals are simultaneously embedded.  Both sexual prohibitions and these  impermeable substances are of course “cultural” ingredients of the family/society divide. Godelier rejects traditional symmetries between the family and the political group but does not exclude certain metaphorical analogies.11 It is difficult to say whether he would endorse the notion of a body politic as an enclosure of “substances” and “components” shared by citizens and whether he would admit the danger of excess of political identity or the role of the body politic in tempering the identification of individuals with their families.12 Despite Godelier’s objections to the modeling of different realms of social relations  – in particular, the political realm  – on kinship, it should be admitted that the state seems particularly fit to occupy the place of the Third that Godelier considers necessary for the production of humans. Furthermore, the idea of a shared social or political body is implied by some of the means for the creation of kinship, such as commensality and a shared relation to a particular land and to its products (Godelier, 2012, pp. 106–107, 310).13

A Digression on New Families The use of reproductive technologies seems to challenge the integrity of the family as an enclosure of components and substances. Godelier welcomes the use of sperm and egg donations because, as he demonstrates, the parenthood of the so-called “social” parents can be established through transmission and sharing after birth. Godelier’s discussions of spiritual parenthood, food and milk kinship, fosterage, adoption, and social parenthood in postdivorce “recomposed families” illustrate forms of transmission after birth. However, the flow of substances and components through reproductive technologies, such as egg and sperm donations, blurs boundaries between society and the family’s domestic domain. The blurring of boundaries is experienced by donors and recipients alike and by society at large. As Godelier explains, the fact that donors have their own identities and genealogies cannot be  Godelier concedes that the political-religious realm borrows notions and images from the realm of kinship, as it does from other realms, but insists that the use of these notions and images is metaphorical (Godelier, 2012, pp. 246, 278). On different occasions, Godelier affirms the primacy and autonomy of the political-religious realm. He writes, for example: “Those social bonds that make a set of human groups and individuals into a ‘society’ are based neither on kinship nor economics, but on what we in the West refer to as ‘political-religious’ relations” (Godelier, 2009, pp. 19–20). 12  While Godelier traces the unity of public space to a “political-religious” realm that unites society around the territorial interests it defends and the territorial claims it makes, it is arguable that the image of a collective body made up of shared “substances” and “components” is an equally important source of unity. 13  Godelier refers to the body politic in his discussion of constituent power (Godelier, 1999, pp. 206–207). Arendt regards collective drinking and eating, which she associates with labor but are in fact so central to our public culture, as instances of social merger (Arendt, 1958, p. 213). 11

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denied. He insists, on the basis of the work of Mauss, that reproductive substances given as gifts cannot be entirely severed from their human sources. Not only reproductive substance but also reproductive sexuality flows between donors and recipients. It has been observed that absence of sexual intercourse does not deprive the donor-recipient relation of a sexual dimension (Collard & Zonabend, 2013; Fortier, 2020).14 One response to the blurring of boundaries between family and society is to look for donors from distant societies. This, in fact, has been the recommendation of certain religious authorities seeking to avoid the adulterous implications of sperm donation (Fortier, 2020). The sperm or egg is imagined as arriving from nowhere. The idea of an international community as the source of reproductive substance is deemed insufficiently real to unsettle the enclosure of families. Insofar as donor and recipient belong to barely connected societies, international donation seems somewhat similar to cloning. The donation may carry with it very little human identity, as it is largely commodified and alienable. Godelier describes reproductive cloning as an antisocial act in a world devoid of sexuality (Godelier, 2012, p. 541). It can be added that cloning illustrates the ultimate failure of the private/public divide and of world-building in general. It bypasses the public sphere of exchange and the private sphere of sexuality. The self-identity of the ensuing child does not permit division into private and public bodies and into private and public domains. Like the mythical hero, the saint, the divine king, or the charismatic leader, a child produced by cloning is its own origin.15 Cloning destroys social space, that is, the sphere of exchange, and social time, i.e., the sphere of intergenerational continuity through change. While cloning constitutes an extreme violation of Godelier’s two obligations, the appeal of international donations derives from their limited resemblance to cloning. The traditional family, in contrast to cloning, is not self-sufficient and antisocial, yet it draws boundaries between itself and the social body. The closure of the family as a separate body is a perennial theme of public representations. Affirmations of the independence of the family reflect the structural advantages of the traditional marriage and its contribution to world-building. Traditional marriage marks with relative clarity the boundary between the family and society. It prevents dissolution of boundaries and “excess of identity” within society at large, by preserving “social structure” (Radcliffe-Brown, 1950, pp. 43, 71), and within the family. It is first and  Godelier writes: “Making ordinary humans therefore in all societies normally supposes sexual relations, whatever role the society attributes to given male or female substances in this process” (Godelier, 2012, p. 304). 15  As Luc de Heusch observes, the divine king leaves his family far behind. He is self-identical and self-sufficient. “Les Kuba du Zaïre soulignent que le roi est hors clan. Il est projeté au sommet de la société dans une solitude qui évoque celle des sorciers. Dans plusiers Etats africains le Roi est censé réaliser au moment de son intronisation un acte sacré qui, dans la perspective clanique, est un acte de sorcellerie maléfique, un acte monstrueux: un inceste. Cet acte rituel est manifestement, au niveau de l’Etat, un acte magique de fondation, l’affirmation d’un ordre nouveau fondé sur la négation (partielle) de l’ordre familial ancien avec lequel il faut composer” (de Heusch, 1987, p. 223). 14

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foremost a marriage of status and substance. Formal statuses of marriage and family membership reinforce the separateness and integrity of the family as an enclosure of substances and components.16 Status is resistant to change at least in the sense that its beginning and end are determined by procedure. Armed with the marital presumption of paternity and with procedural fortifications, marriage circumscribes the parenting unit effectively vis-à-vis society and checks expansionist aspirations of the communal body. My purpose is not to doubt the importance and desirability of new family forms, but to shed light on the enduring charisma of the traditional institution of marriage, which explains why it continues to serve as an ideal to which new family forms curiously strive to approximate.

 he Public Aspect of the Family: Fortes on the Domestic T and “Politico-Jural” Domains Fortes and Arendt offer accounts of the family as a collective body. While Arendt portrays the family as a communion of real bodies, Fortes envisages a legal, artificial collective body. Both authors refer to structures of authority (even “sovereignty”) within this collective body, such as parental authority, that are outwardly represented in the public realm. Arendt speaks of the public world and Fortes of the politico-jural domain as the opposites of “worldless” (Arendt) domesticity. While family life unfolds in the domestic realm, family membership  – the boundary between the family as a collective body and society  – is publicly represented as legal status. In both Arendt and Fortes, we find a view of personhood as a set of publicly represented statuses that include one’s membership in a family. Thus, family membership and relations of authority among family members are publicly represented as a matter of law and status. Following in the footsteps of other authors on the anthropology of law, Fortes speaks not of a legal dimension but a jural dimension of kinship, which exists also in societies that lack a modern legal system. In any case, the jural dimension of the family, as described by Fortes, exhibits the characteristic public objectivity of legal norms.

Fortes on the Family as a Corporate Body Fortes developed an account of families and their members as publicly represented collective and individual jural persons. His thinking on the family as a corporate body was inspired by the work of Sir Henry Maine and by subsequent legal historians. The corporate body is an artificial, legal construct. It assembles multiple individuals and multiple generations and represents them in the public realm. The 16

 On marriage as generative of consanguinity, see Radcliffe-Brown (1950, p. 54).

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corporate body consists of “offices” that derive their powers and obligations from it and which can publicly represent it. The corporate body and its organs are interdependent. Individual status amounts to a publicly recognized position within a corporate body, while corporate bodies depend on the availability of individuals who can occupy positions in them. The continuity of the corporate body in time largely consists in the transmission of positions and inalienable obligations of office. The fictional perpetuity of corporate bodies allows them – here I go beyond Fortes – to operate as guarantors of objectivity and enunciators of public representations. Inasmuch as Godelier conceives of the family in terms of imaginary substances, and Arendt as a communion of real bodies, Fortes emphasizes its juridical, artificial aspects. It is as a publicly represented legal person that the family assembles its members, represents them, and separates them from the rest of society. In Fortes’ thinking, processes of individuation and identity formation acquire a predominantly jural dimension. Fortes has often described the oneness of all generations with founding ancestors in statements such as the following: The notion of a descent group as constituting ‘one person’ takes many forms. The essential idea is that the living plurality of persons constitutes a single body by reason of being the current representation and continuation of a single founder. Whether this is conceptualized and expressed in beliefs about being ‘the children of so and so,’ or ‘of one womb,’ or ‘of one blood,’ or ‘of one penis,’ or – more metaphysically – of one spiritual essence or totemic origin, or of common ritual allegiance to ancestors or other supernatural agencies, the implications are the same. The group is one by physical perpetuation and moral identity… (Fortes, 1969, p. 304).17

In speaking of the “living plurality of persons,” Fortes excessively narrows the boundaries of the corporate body – the corporate body assembles multiple generations, not only the living. The crucial point, however, is that the “group is one by physical perpetuation and moral identity.” Corporate bodies exercise over their members an authority that is traditionally associated with past generations and which Fortes regards as jural rather than merely moral. Ancestors are perceived, according to Fortes, as ultimate and infallible judicial authorities that wield a sovereign power over life and death (Fortes, 1961, 1965, 1976; Calhoun, 1980). Individuals are seen as owned by the corporate group into which they were born (Fortes, 1969, p. 164). These and other corporate ideas and “symptoms” (Kantorowicz) are not limited to societies such as the matrilineal Ashanti and patrilineal Tallensi studied by Fortes. Fortes himself noted the existence of multigenerational corporate groups, however loosely organized, in societies where descent seems to play a marginal role, such as the Australian societies in which one can nevertheless recognize “inchoately corporate institutions” that serve as “media of intergenerational continuity” (Fortes, 1969, p. 120).

 Earlier in the book Fortes states: “…when the Ashanti define the lineage as being ‘one person’ they are thinking of it as if the founding ancestress were eternally present in her descendants, multiplied and replicated but still one and the same, much as a tree (to which a lineage is often compared) is the same tree however many branches it proliferates” (Fortes, 1969, p. 172). 17

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Godelier sometimes refers to groups that own inalienable possessions as moral persons (Godelier, 1999, p. 45, 2012, p. 114), the French term for collective bodies. Interestingly, Godelier adopts the language of corporateness more readily when he describes the body politic rather than the family (Godelier, 1999, pp. 206–207). On the whole, Godelier did not contest Fortes’ account of corporateness but largely refrained from addressing it, and did not integrate it into his own thinking on descent (Godelier, 2012, p. 119). In my view, corporate bodies play important roles in the construction of culture, because they allow human society to articulate itself by means of division into objective groups, within which intergenerational oneness and divergence are reconciled.

 ortes on Personhood as Transmitted Position (“Office”) F in a Corporate Body Membership in a family is represented in the politico-jural domain in the form of legal status. The public representation of position within the family confers personhood upon family members. Personhood is transmitted from generation to generation.18 In his discussion of Tallensi notions of personhood, Fortes affirms that for Tallensi, the difference between humans and animals “lies in the facts epitomized by the observation that animals have no genealogies. Though animal species have continuity by reproductive succession, animals do not have descent and kinship credentials.” Among the Tallensi, a human being “cannot be authentically a person without the basic jural credentials that are conferred only by right of birth as a member of a lineage and clan” (Fortes, 1987, pp. 255, 274).

Fortes on the Politico-Jural and Domestic Domains In relation to his account of corporate bodies and the place of individuals in them, Fortes elaborated a distinction between the “domestic” (or “familial”) and the “politico-jural” domains of kinship. The former is an “internal” domain and the latter “external” (Fortes, 1969, p. 100). The quality of the jural, as opposed to moral and ethical norms, is loosely characterized by Fortes in terms of the positivity or objectivity of norms and the related sense of being superimposed from above. Jural norms are positive social rules that are publicly affirmed in the name of the entire

 For a definition of the person in terms of jural status, or rather a bundle of several statuses, see Fortes (1969, p. 95). On universal succession as transmission of “total politico-jural status” within the corporation, see Fortes (1969, p. 292). 18

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community.19 In the politico-jural realm, the family is represented as a corporate unity and individual family members as occupants of positions in it. Fortes describes the place of the corporate body of the family in the politico-jural domain: It is because the lineage, its continuity guaranteed from within by exclusive descent recruitment, is a ‘juristic person’ in its external transactions and status in the politico-jural domain that it has a name, can own property, and must and can act as a unit – to endow with citizenship, or to avenge a wrong done against, any of its members; or to perform the rituals and sacrifices of ancestral and similar cults; or to carry out mortuary and funeral ceremonies for its members or its allies; or to hold and ensure succession to office vested in it. (Fortes, 1969, p. 304)

Fortes highlights the contrast between the domestic enclosure, where everyday relations between family members unfold, and the outward representation of the family’s corporate body in the broad daylight of the politico-jural domain. He illustrates the division of labor between the domains: Every member of a society is simultaneously a person in the domestic domain and in the politico-jural domain. His status in the former receives definition and sanction from the latter. Jural infancy is structurally located in the domestic domain, but its character is defined by norms validated in the politico-jural domain. (Fortes, 1958, p. 12)

The domestic domain has “rules and norms” of its own (Fortes, 1969, p.  100). Sometimes, it is thoroughly governed by publicly represented jural norms, but often it is not (Fortes, 1969, pp. 89, 95, 100, 292). Reading Fortes in the light of Arendt, it seems that individual family members find themselves split between estranged realms of existence, torn between the shadowy hiddenness of the domestic domain and the objectivity of the public world. Godelier criticized, unconvincingly in my view, Fortes’ distinction between the politico-jural and domestic domains. Godelier (2012, pp.  115–116) notes that Fortes’ distinction is biased in favor of men, because the family is in most societies outwardly represented by men. Godelier does not show that “male domination” (his term) is built into the very distinction between the domains. His critique is inconclusive if patterns of representation prove changeable. Godelier also seems to suggest that the divide between the domains is not strict, because in practice legal affairs of the family are often handled by multiple agents and not only by its official representatives. This attests to the fact that authority relations are more flexible than we often assume. It does not collapse the distinction between official and unofficial  Fortes defines the jural as follows: “I define ‘jural’ as denoting certain aspects or elements of right and duty, privilege and responsibility, laid down in the rules that govern social relations. They enter, I suggest, into all social relations and not only into those that are conventionally described as legal, however wide a meaning may be given to this term. If they are not actually contained in the relationship, they come into it as constraints from the outside, so to speak. It is, furthermore, distinctive of these features of right and duty, privilege and responsibility that, in Tait’s words, they have the backing of the whole society. That is to say, they derive their sanction from the political framework of society. They thus have ‘public’ legitimacy in contrast to the ‘private’ legitimacy of rights and capacities based solely on moral norms or metaphysical beliefs… Characteristically, then, breach of jural norms disrupts a person’s relations with society rather than with individuals only and is, by this token, dereliction of civic obligation” (Fortes, 1969, p. 89). 19

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distributions of roles. Finally, Godelier argues against Fortes that the public dimension of kinship, the public representation of membership and positions in the family, does not determine the political organization of society. Fortes, however, nowhere argues that it does. Fortes’ account of the politico-jural domain of kinship does not entail that kinship exhausts politics and does not accord kinship primacy over other domains of social life.

 rendt on Principles of World-Building and the Domestic/ A Public Divide In The Human Condition and other writings, Arendt shows how the domestic domain is publicly represented as a realm that lies beyond the reach of the public world. The external walls of the household constitute such a representation.20 The public world is constructed around representations of its spatial, legal, and epistemic boundaries and of the limits of representability. The status of individuals as family members is represented in the public domain by the persona (Arendt, 1965, pp. 107–108), the legal mask that embodies one’s “right to have rights” (Arendt, 1951, pp. 296–298). Originating in the ancient world as an ancestral mask, the persona indicates among other statuses one’s family membership and civic membership. Both civic and domestic memberships are thereby publicly represented. Family membership combines the objectivity that characterizes status as an enduring human artifact with the objectivity, emphasized by Arendt  (for example, in her Lessing Prize address), of facts about our personal  – biological, ethnic, and communal – origins. The right to have rights provides individuals with a rightful place in the public world, in which they appear and act, as well as a rightful place in a hidden domestic shelter, from which others are excluded. Arendt’s right to have rights demands a clear spatial demarcation of the different domains. Notwithstanding Arendt’s warnings against reification of her ideas into schematic theories, and at the inevitable cost of simplification, it is worthwhile to recall, however briefly, some of her views on the domestic and public domains. (Arendt’s ideas were more systematic and universalizable than she was willing to admit, but this is an argument that I cannot develop in the present context.) Relations in the domestic sphere are characterized, according to Arendt, by interpersonal intimacy and merger and by strict,

 “Not the interior of this realm, which remains hidden and of no public significance, but its exterior appearance is important for the city as well, and it appears in the realm of the city through the boundaries between one household and the other” (Arendt, 1958, p. 63). Also membership in a religious community, an otherworldly sphere like the family, is publicly represented: “…privacy in religion comes about when a tyrannical regime prohibits the public functioning of churches, denying the believer the public space in which he can appear with others and be seen by them. The public-secular domain, or the political sphere, properly speaking, comprehends and has room for the public-religious sphere” (Arendt, 1968, p. 70). 20

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often  coercive authority. The domestic sphere is entrusted with the care for the necessities of life. The body occupies a central place in it. Within the domestic realm, interpersonal relations are not mediated by legal and other masks. The interpersonal communion characteristic of the family leaves no room for plurality. This deprives the domestic sphere of objectivity because objectivity depends on confrontation between rival perspectives on reality. Another quality of the domestic domain is sovereignty. Arendt repudiated notions of sovereignty in the public world, because sovereignty in her view is incompatible with plurality. But the domestic sphere forms a collective body with a single prevailing will (Arendt, 1958, p. 53). Therefore, the domestic realm can claim the sovereignty of which the political realm is denied. Arendt’s rich account of the domestic domain, its hiddenness, otherworldliness, and the relaxation of plurality and objectivity in it, can be largely read into Fortes’ account of the political/domestic divide. Arendt contrasts the naturalness of the domestic sphere with the artificiality of the public world, which she largely associates with the realm of culture (Arendt, 1968, p.  197). The public sphere is the world itself. It is an artificial world that humans construct and inhabit, defined by plurality, objectivity, and permanence.21 While plurality, objectivity, and permanence may seem natural, they are artifacts and belong in the realm of culture. The core of worldly existence, and the origin of its principles, is the “space of appearance” (Arendt, 1958). In the space of appearance, individuals vouch for the reality of the world and of each other and already engage in performative disclosure of their uniqueness before each other. The space of appearance is the paradigmatic setting of worldly sociality. It establishes the objectivity of objects and the public spectacle of staged individual personalities. As a space in which we vouch for each other for the reality of the world and for each other’s visibility, the space of appearance presumes plurality and at the same time discovers, confirms, and performs plurality. Contrary to Arendt’s view, plurality in the space of appearance is not incompatible with the existence of a collective body, though the latter has to be instituted as an absent, abstract corporate body (rather than an immanent communal body) in order to make room for plurality (Barshack, 2009, 2011). For Arendt, the separation between the public world and otherworldly spheres of communal oneness (the family, the religious community) is a guarantee of plurality, because the uniqueness individuals disclose in the public space of appearance is anchored in the hidden areas of their existence. The domestic realm also allows the public realm to be largely desexualized, a point that recalls Godelier’s remarks on sexual prohibitions outside the family. The distance and difference between individual perspectives in the public world allows individuals to perceive objects differently and to correct each other in a way that endows the world of objects with objectivity. The objectivity of the public world is produced also by the endurance of

 Long (1998) proposed a threefold characterization of Arendt’s “public world” in terms of betweenness, permanence, and plurality. My discussion of Arendt’s ideas has nothing to do with her own remarks on the worldlessness of “tribes” (Arendt, 1951, p. 300; Gomez, 2016). 21

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cultural objects in time and by intergenerational continuity, which Arendt placed in the public world and contrasted with the repetitiveness of labor and domestic life.22 Once the demands of bodily life are satisfied in the domestic realm, individuals can engage in collaborative world-building. The construction of a public world is premised on the shared ethical commitment of its dwellers to world-building and on their recognition of each other as free and equal co-builders of the world. The political contract, according to Arendt, does not concern the protection of life and the provision for its necessities but the collaborative construction of a common world.

Conclusion 1. The foregoing comments on Godelier’s account of descent and sexual prohibitions, and on his engagement with the work of his predecessors (Mauss, Lévi-­ Strauss, Fortes), focused on the place of the family/society divide among the constitutive obligations of culture. While the family/society divide may have antedated human culture, as Godelier informs us, the natural divide between family and society does not fully coincide with the family/society divide that structures human culture. Godelier is not sufficiently clear on this point. 2. The family in which parents do not suffice to make children is a product of culture. It appears at the same time as an imaginary unit of shared substances and components (Godelier) and as a jural, perhaps symbolic, corporate body (Fortes). Alongside its natural aspect, the family/society divide consists then of cultural oppositions and distinctions, which include the enclosure of the family in the face of the social body as a separate mix of inalienable imaginary “substances” and “components” (Godelier), the contrast between the hiddenness of the domestic realm and the objectivity of the public realm (Arendt), and the autonomy of the domestic realm vis-à-vis the political (Arendt). (a) The imaginary family. Godelier’s accounts of descent and “excess of identity” are premised on the image of the family as an enclosure of substance that endows family members with identity and separates them from the rest of society. As Godelier explains, the sharing of substances and components extends to participants in the domestic sphere that are not family members in the strict sense, such as foster siblings. (b) Public objectivity and domestic hiddenness. We find in Fortes and Arendt the idea that the public world differs from the domestic realm by the objectivity of status and positive norms (Fortes’ “jural dimension of kinship”). This  Arendt writes: “It is in this primarily political context that the past was sanctified through tradition. Tradition preserved the past by handing down from one generation to the next the testimony of the ancestors, who first had witnessed and created the sacred founding and then augmented it by their authority throughout the centuries” (Arendt, 1968, p.  124). Annette Weiner (1992, p.  4) observes, in a somewhat Arendtian vein, that permanence endows human affairs with enhanced realness and even “cosmological authentication.” 22

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objectivity is manifested first and foremost by the boundaries of the family itself: the objectivity of family membership and family boundaries, represented in the politico-jural realm by the legal statuses/masks of individual and collective bodies, contrasts with the shadowy nature of the domestic realm. The public, objective representation of family membership marks the boundaries of the family in a way that, in Radcliffe-Brown’s terms, stabilizes social structure. The hiddenness of the domestic realm is according to Arendt associated with the central place of the body in it. Its lack of objectivity has to do with its fusional nature. But as Long (1998) has argued with regard to the contrasts Arendt drew between the domestic and the public, they are best understood as differences of degree. Arguably, the hiddenness of the domestic realm ultimately expresses the secrecy of the Thing – Arendt used the term treasure to designate cherished and hidden immaterial possessions – transmitted within the family from generation to generation. Insofar as the interior of the domestic realm is hidden and unrepresentable, it may constitute the real of the family. (c) The sovereignty of the domestic domain. Theories of descent, such as Godelier’s, view the family as sovereign or autonomous insofar as it has the right (but also the duty) to transmit its own heritage uninterruptedly from generation to generation. This is a solid ground for family sovereignty, which covers many if not all aspects of daily life. Fortes, also a theorist of descent, goes beyond the idea of transmission. He suggests a more formal and abstract and perhaps broader notion of the sovereignty of the family, having to do with the nature of the corporate body as a jurally demarcated domain. Fortes also speaks of the “sovereignty” of ancestors and of the ownership of family members by the family as a corporate body. While Arendt opposed the idea of sovereignty in the political realm, she acknowledges the sovereignty of the family as a fusional union devoid of plurality where a single will prevails. The image of the family as a collective body suggests a lawless dimension of the family. In fact, models of family sovereignty blend two alternative images of the family (and of sovereignty) as a collective body: on the one hand, the family as an inherently lawless merger and, on the other hand, the family as a corporate body with a small legal system of its own (Barshack, 2004). 3. These contrasts and oppositions between the domestic and public domains are not only set up by culture rather than nature. They seem to allow for the formation of culture by taming social “excess of identity” and merger. Furthermore, each of these oppositions between domestic and public realms coincides with aspects of descent – such as, transmission of “substances” and “components,” the internal authority and public objectivity of corporate bodies, and inalienability – and is therefore as foundational of culture as descent, according to Godelier, is. The family/society divide and descent may seem even more radically “cultural” if they are taken, contrary to Godelier’s position, to be thoroughly constituted by  sexual prohibitions, considered (by Godelier  among others) as the

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a-priori of culture. Sexual prohibitions arguably fashion family and society by confining reproductive sexuality to the former and objectivity to the latter. They arguably allow for the institution of descent by setting apart the generations and projecting the dispersed communion of the generations onto an external domain of idealized corporate unity and perpetuity (Barshack, 2009, 2011).  4. Arendt invites us to look at the building blocks of human worlds and cultures – plurality, appearance, objectivity, permanence – not as necessities of life but as freely chosen pursuits that form part of an ethics of worldliness. But the contrast she draws between free world-building and provision for the necessities of life is overstated. It is difficult to envisage an affirmation of life outside the worldly setting of culture, defined by plurality, objectivity, and permanence. (It is tempting to regard plurality as primary among these principles, as readers of Arendt sometimes do.) Social reproduction largely coincides with activities of world-building. 5. Arendt’s portrayal of culture and the public world in terms of appearance, plurality, objectivity, and permanence provides a useful theoretical framework in the light of which anthropological accounts of the underlying principles of culture can be considered. Neither Arendt’s hostility to the social sciences and to universalizing theories,23 nor the apparent incongruity between a set of ethical ends and a system of needs and necessities, should divert us from this intellectual endeavor. 6. In line with such an approach, sexual prohibitions, the domestic/public divide, and descent, among other obligations, can be understood in the light of principles of plurality, permanence, and objectivity. Godelier emphasizes that sexual prohibitions operate in society at large. They sustain plurality since, as Godelier argues, they check merger and “excess of identity.” In Arendt’s terms, sexual prohibitions safeguard objectivity and permanence in the face of the “worldlessness” of sexuality. Descent sustains plurality by separating individuals from the social body (Tocqueville) and from other generations (Barshack, 2009, 2011). Descent secures permanence by imposing an obligation to reproduce (Godelier, 2012, p. 224), distributing ownership over children, and embodying a sense of intergenerational transmission (Godelier), worldly immortality (Arendt), corporate perpetuity (Fortes), and cosmological authentication (Weiner)  in both domestic and public realms. The domestic/public divide safeguards plurality and public objectivity. Private and public corporate bodies play important roles in the institution of plurality, permanence and objectivity. They draw the respective boundaries of family and society and project the unity of these groups onto an external (extra-social) domain of idealized representations of corporate identity and perpetuity. 7. Godelier’s account of descent, exchange, and sexual prohibitions offers a compelling synthesis. As suggested at the beginning, the set of constituent obligations of culture postulated by Godelier comprises an imaginary divide between domestic and public realms, centered around the unique substances and

23

 On Arendt and the social science, see, for example, Baehr (2010) and Walsh (2015).

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c­ omponents that differentiate each family from the rest of society. This divide can be complemented by the insights of Arendt and Fortes on the indispensability of the objective, public representation of the domain of the family, that is, of the family’s boundaries and autonomy. The enlarged set of obligations, bringing together Godelier’s principles and Fortes’ and Arendt’s observations on domesticity and publicness, secures the plurality, permanence, and objectivity that define human worlds and cultures.

References Arendt, H. (1951). The origins of totalitarianism. Harcourt, Brace and Co. Arendt, H. (1958). The human condition. University of Chicago Press. Arendt, H. (1965). On revolution. Viking. Arendt, H. (1968). Between past and future. Viking. Baehr, P. (2010). Hannah Arendt, totalitarianism, and the social sciences. Stanford University Press. Barshack, L. (2004). The holy family and the law. International Journal of Law, Policy and the Family, 18(2), 214–234. Barshack, L. (2009). Time and the constitution. International Journal of Constitutional Law, 7(4), 553–576. Barshack, L. (2011). The constituent power of architecture. Law, Culture and the Humanities, 7(2), 217–243. Calhoun, C.  J. (1980). The authority of ancestors: A sociological reconsideration of Fortes’s Tallensi in response to Fortes’s critics. Man, 15, 304–319. Carsten, J. (2001). Substantivism, antisubstantivism, and anti-antisubstantivim. In S.  Franklin & S.  McKinnon (Eds.), Relative values, reconfiguring kinship studies (pp.  29–53). Duke University Press. Collard, C., & Zonabend, F. (2013). Parenté sans sexualité. L’Homme, 206, 29–58. de Heusch, L. (1987). Pour une dialectique de la sacralité du pouvoir [1962]. In Écrits sur la royauté sacrée (pp. 215–263). Editions de l’Université de Bruxelles. Fortes, M. (1953). The structure of unilineal descent groups. American Anthropologist, 55(1), 17–41. Fortes, M. (1958). Introduction. In J. Goody (Ed.), The developmental cycle in domestic groups (pp. 1–14). Cambridge University Press. Fortes, M. (1961). Pietas in ancestor worship. The Journal of the Royal Anthropological Institute of Great Britain and Ireland, 91(2), 166–191. Fortes, M. (1965). Some reflections on ancestor worship in Africa. In M. Fortes & G. Dieterlen (Eds.), African systems of thought (pp. 122–142). Oxford University Press. Fortes, M. (1969). Kinship and the social order. Aldine. Fortes, M. (1976). An introductory commentary. In W.  H. Newell (Ed.), Ancestors (pp. 1–16). Mouton. Fortes, M. (1987). The concept of the person In Fortes, Religion, morality and the person: Essays on Tallensi religion (pp. 247–286). Cambridge University Press. Fortier, C. (2020). Religious and non-religious issues of medically assisted reproduction in France: Sexuality, incest and descent. Reproductive Biomedicine & Society Online, 11, 73–81. Godelier, M. (1999). The enigma of the gift. University of Chicago Press. Godelier, M. (2009). In and out of the west. Verso. Godelier, M. (2012). The metamorphoses of kinship. Verso. Godelier, M. (2013). Lévi-Strauss. Seuil. Godelier, M. (2021). L’interdit de l’inceste. CNRS.

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Gomez, N. B. (2016). A critical approach to Hannah Arendt’s concept of worldliness and its applicability in the social sciences. Human Affairs, 26, 201–211. Lévi-Strauss, C. (1969). The elementary structures of kinship. Beacon. Long, C. P. (1998). A fissure in the distinction: Hannah Arendt, the family and the public/private dichotomy. Philosophy & Social Criticism, 24(5), 85–104. Pitt-Rivers, J. (1974). The kith and the kin. In J. Goody (Ed.), The character of kinship (pp. 89–106). Cambridge University Press. Radcliffe-Brown, A. R. (1950). Introduction. In A. R. Radcliffe-Brown & D. Forde (Eds.), African systems of kinship and marriage. Oxford University Press. Scheffler, H. (1966). Ancestor worship in anthropology: Or, observations on descent and descent groups. Current Anthropology, 7(5), 541–551. Scheffler, H. (2001). Filiation and affiliation. Westview. Tocqueville, A. (2000 [1835]). Democracy in America (H.  C.aflin Mansfield & D.  Winthrop, Trans.). University of Chicago Press. Walsh, P. (2015). Arendt contra sociology. Ashgate. Weiner, A. (1992). Inalienable possessions: The paradox of keeping-while giving. University of California Press.

The A Priori: A Structure of an Ascendant Imaginary Hania Kassoul

When I read a law text, what strikes me first is its obsession with reality: the determination it puts into trying to contain it, to master it, sometimes even to reinvent it. (This French quote, and all the following ones, have been freely translated by the author of this chapter) —J.-M. Chonnier

Abstract  The aim of this work is to rediscover the a priori as a structural element having an ascendancy over the law and lawyers. Instead of emphasizing the classical temporal dimension of the a priori, which is due to its “prior” character, I propose to emphasize its vertical dimension, namely, the hold it has on our perception of reality. In this way, the a priori will be presented as the structure of an ascendant – that is, dominant  – imaginary. The ascendancy must also be understood as that which institutes an inheritance of primary images, that is, it forms the genealogical links which maintain in history and space the images which structure our representation of the world and thus direct the norms along a certain path. While the imaginary is often presented as a force for the renewal of institutions, I would like to emphasize, on the contrary, that primary images sediment prefigurative narratives that enclose our definition of things and hinder their redefinition. Thus, the a priori is somewhat surrealist, taken as a structure that allows the ascendancy of the imaginary over reality but also, in addition to its explanatory potential, has a prescriptive effect.

H. Kassoul (*) Université Côte d’Azur, CERDP, Nice, France © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 J.-S. Bergé (ed.), The A Priori Method in the Social Sciences, https://doi.org/10.1007/978-3-031-38260-4_6

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Introduction I wish to question our a priori in a multidisciplinary approach. That is the challenge posed by this book, whose description asks in particular: what precedes our disciplines in human and social sciences? The verb used (“precedes”) emphasizes the idea that the a priori is a “preexisting,” an “antecedent,” thing. Indeed, “a priori” is commonly used as an antonym of “a posteriori.” Often reduced to this meaning, it opposes anteriority to posteriority. Thus considered, the a priori imposes a temporal dimension and a sequential order. It also has, in a phenomenological framework, a transcendental dimension. More colloquially, it is synonymous with “opinion, bias, prejudice.” The intuition I want to express now is rather that the a priori is not limited to temporality, nor does it require recourse to phenomenology1 or to the survey of opinion. More precisely, it should not require mainly the idea of a precedent or an antecedent but must be seen essentially as an “ascendant.” To understand this, we must remember that the Latin root prius, prior certainly means what comes before, first but also, in another sense, what is superior. In this superiority, it is possible to see ancestry, understood as a genealogical link and as a dominant influence. With regard to the multidisciplinary issue, the two elements – “imaginary” and “structure” – inspire a response to the argument of Jean-Sylvestre Bergé’s project, as they are each presented as multidisciplinarity fields. In particular, I have chosen to use the imaginary as a fundamental heuristic notion in humanities (Grassi, 2005). It is moreover readily designated as a place of inter-knowledge (Durand, 1996) but also as the principal characteristic peculiar to humanity.2 The imaginary, particularly when it is related to narratives, would thus define the anthropological invariant that unites human beings. This is why it constitutes a perfect area for multidisciplinary research in the so-called human and social sciences. Before going any further, I should say that all this work comes from an extrapolation from my research on the relationship between human and animal3 but also on  Contrary to Jean-Paul Sartre’s phenomenology thesis (1940), which is strongly deconstructed by Gilbert Durand 2  As Pascal Picq and Boris Cyrulnik maintain, but also François Ost for whom “of all the characteristics that one attributes to human beings - laughter, which, one says is their ‘own’, language, political drive (zoon politikon, said Aristotle), sapience (homo sapiens)… - it is this fictional faculty that seems to me the most fundamental. Homo fabulans: the human being, this animal that tells stories…” (2013). 3  This work has focused on the foundations of animal ethics, the relationship between the representation of human nature and the nature of the law, and more recently on the question of reparation for harm caused to animals and on the link between the law and the myth of dragon hunting. A recurrent motif, an anthropological invariant, that of humankind’s own nature, has appeared more or less explicitly. Finally, working on the animal object systematically raised the question of the imaginary which dominates our view of it and of ourselves, so much so that it is unthinkable to know the object looked at without thinking of the subject. It emerged that the links between the arts, sciences, and religions are incredibly meaningful when it comes to better understanding the way in which law is structured by models of representation. The evolution of cross-readings of the law, jurisprudential decisions, and doctrinal discourse, with literature, art, cinema, religious cos1

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the law and pop culture movement.4 These two research perspectives (animal and human relations, law and fiction relations) have allowed me to see that legal norms, as well as their objects, are prestructured by an ascendant imaginary. Particularly concerning the legal representation of the animal, “a priori” appears very anchored in the norms of the definition of the animal and the organization of our relationships with it. Their anchoring is so strong that it can justify conceptions and interpretations of law, as well as reasonings and judicial practices, which are prisoners of a dogmatic heritage which diminishes the “autonomy” of the representation of the legal world (Biet, 2000). Such a heritage reveals the historiographic, even scenographic, dimension of the rules.5 Indeed, though some authors have observed that literary narratives, for example, are an “instrument for transforming society” (Ségur, 2017) or a “law revision” (Baron, 2019), we must not lose sight of the fact that they also institute a lock-in effect. So many antecedent references are able to block the transformations of society, instead of encouraging them. The work on the animal thematic has as such shown a network of artistic, literary, historical, and scientific references that maintain a genealogy of meanings with the legal norm. This referential network constituted a prefigurative account of what the animal could represent for the legislator, the judge, and the law professor. In this way, it gives a certain imaginary a hold on the law. At the same time, the law reproduces and consolidates this imaginary. It is in this double institutional movement that I propose to consider the a priori. Then, in both configurations, the a priori would be understood as a structure of representation shaped by primary images (I). It also forms an ascendant structure that institutes prescriptive images (II). This ascendancy can be so strong that the a priori could be considered as a normative structure carrying prescriptive images, if they are not simply descriptive.

mology, mythology, philosophy, and sciences, showed not necessarily causal links between the multidisciplinary representations of the animal but genealogies of meanings which form structuring images, instituting a surrealist relationship between the jurist or the legislator who describes the animal and the animal itself. This structuring has a hold on the prescriptive norm and acts as a lock on the norm. 4  Linking the imaginary and knowledge is an act that is echoed today in the movements of law and pop culture, law and cinema, and law and literature, in a more specific approach called epistemocriticism (i.e., researching the relations between literature and knowledge). These movements allow us, for example, to highlight the way in which law exists in imaginary worlds and is reflected in narratives (cf. recently: Guittard et al., 2022). More broadly, the exploration of the imaginary acts as a reality mirror and as a mediator – one could even say an intermediary – between branches of knowledge but, especially, in parallel, between narratives and meanings. Links can thus be made between juridical knowledge and the imaginary and at the same time between juridical knowledge and other knowledge. The a priori, grasped in this framework, reminds us that the study of the law can be inscribed in something other than the references to concepts, to notions, and it can be inscribed in the reference to the image, to images. 5  This is notably what Sophie Wahnich, interested in the role of the social imaginary in sociopolitical changes, shows in her recent book La Révolution française expliquée en images (Wahnich, 2012).

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The A Priori Representative Structure: The Primary Images

“The imagination is a stimulating reference because it lets a structure of primary images emerge that predominantly guides the norm perception.” (Picture generated by Dall-e openai)

An Imaginary The imaginary has an ambivalent reputation.In a logocentric approach, the imaginary is reputed to be a source of errors, a falsification of the real. It acts as a “rogue demon” (Munier, 2018) or a “folle du logis” (Durand, 1960) that is to say a “chatter of the mind.” An anti-science, this is what the imaginary exemplifies, taken as the antagonistic dimension of reality. In this approach, imaginary and knowledge are irreconcilable.In a structuralist approach, the imaginary is, on the contrary, rehabilitated. Considered as a state of thought that allows the construction of knowledge (Levi-­Strauss, 1958 and Durand, 1996), it is seen as a useful and powerful thinking instrument.6 In this  For a rehabilitation of narratives, cf. François Ost for whom “the dominant and inherited Western thought is marked by the dictatorship of reality. This is also the reign of the present (of presence), of the a priori and of the given, or of the stable form (the essence or the idea): a certain idea of purity and of the perfect (the opposite of the composite and of becoming). There is therefore a framework of thought and action which conditions our most elementary, and thus the most fundamental, representations. […]Everything happens then as if we were imperatively required to conform to this framework, on pain of error, madness, offence or sin, if we deviate from it, and a fortiori if we contest its validity.[…] It is understandable that, in this context, the narrative is held in strong suspicion. It is because it opens up the space of the what if, which instantly breaks down the constraining framework of the ‘real-true-a priori.’ An immense and virtual field unfolds as soon as the storyteller pronounces these words: Once upon a time… An imaginary is activated which seems to shake up the future, put in doubt our certainties, and excite our appetite for the possible. The official version of the world becomes the object of a generalized subversion” (2013). 6

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case, imaginary and knowledge are reconciled. The imaginary is also, with a surrealist coloration, considered as a dimension of reality (Merleau-Ponty, 1964 and Castoriadis 1975). As a dimension of the reality, it is then approached like a structure of the real, an instituting force, a perceptive modality: “the imaginary is not opposed here to reality like an inconsistent fiction, but on the contrary it structures this social reality even in its most concrete aspects” (Vanni, 2006). Moreover, imaginary and reality are united in a continuity (Lapierre, 2015). When the imaginary, which makes us dream, is put in perspective with the law, which makes us reason, the comparison could seem ill-assorted. However, a famous reference goes beyond this cleavage by affirming that “law is the most powerful school of the imagination. No poet has ever interpreted nature as freely as a jurist interprets reality” (Giraudoux, 1935). We can see here the incredible antithesis according to which there could exist a “school of the imagination,” that is to say, by periphrasis: a place teaching how to accomplish a falsification of reality. And this place would be a law school! The jurist is regarded in this case as a hermeneuticist, with the ability to take liberties with reality even more than a writer may. This comparison with the poet is moreover adventurous because it puts law and literature face to face (Ost, 2004). Also let us remark that, within the definition of a poet, it would be quite possible to recognize a jurist’s portrait. Reading the words of Lemaitre, we should be transfixed by the following definition: “I understand by poet a writer who, in virtue of an idea or in view of an ideal, notably transforms reality and, thus modified, makes it live” (Lemaitre, 1885). If the poet serves a dream, does the jurist also reason in order to serve a dream? Is the jurist a reasoning dreamer? To imagine another reality, in order to make it come alive: that would be what the law school teaches judges, lawyers, and other legisperiti. Giraudoux’s sentence seems to demonstrate such an idea. The jurist does as the writer does: he “puts at our disposal all of reality” (Blanchot, 1949). Moreover, this is the way to discover in the imaginary a surrealistic power, isn’t it? Giraudoux’s words were written in 1935. It is probably necessary to briefly recall the historiographical context. Firstly, historically, “The Trojan War Will Not Take Place” is a drama written with a strong political background of European nationalism and international hostilities rising. The playwright emphasizes that governmental choices are justified by argumentative fictions. Giraudoux thus insinuates that society can be reformed by proposing the “re-enchantment of the world through the imaginary” (Catteau-­ Sainfel, 2019). In addition, conceptually, the writer is himself inspired by German romanticism (Brancourt, 2018). Secondly, the play was written just a few decades before the emergence of structuralism. Actually, the period is marked by the surrealist movement, which precisely highlights the primacy of subjectivity over reality. Surrealism marks the importance of focusing on the subject’s world representation. Thinking

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about the subject becomes as essential as observing the object itself. Such is the famous lesson given in 1929 by Magritte in The Betrayal of Images: “This Is Not a Pipe”.

The Betrayal of Images, René Magritte, 1929 (Los Angeles County Museum of Art)

In other words, this is not the real object (a pipe), as this is a representation – however realistic – of the object. This is thus the surreal object. This idea is even more perfectly summarized by the father of surrealism, for whom “nothing of what surrounds us is object, everything is subject to us” (Breton, 1928). Giraudoux’s statement, by placing us in the surrealist movement, reminds us more broadly that any will of description of reality, but also any prescriptive will, acts as a reinvention of reality. From the real model to the represented model, there exists a whole world that is the subject, whether it is the legislator creating the law, the judge applying it, or the author of doctrine interpreting it. The door of the a priori could then be opened more specifically on the imaginary likely, first, to structure the norm, before it structures the reality that is its object. In these terms, the imaginary that emerges is no longer so much the one produced by the norm, but the one that has a hold on it, or even the one that the norm reproduces. It could be said now that when the legal norm describes or prescribes, it refers to surreal objects and not to real objects. Moreover, the norm is structured by the subject. It is thus through the window of the subject that the a priori arises, because it is through the subject that representation is brought.

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A Structure

“All representations have a sedimentary anchor whose meaning is imprisoned, like a river in its bed” (Picture generated by Dall-e openai)

However, it is now difficult, not to say impossible, to offer a definition of structure: firstly, because structure is not the fruit of a unitary conceptual approach and, secondly, because it is coated with a certain vagueness. No doubt this vagueness is also very convenient. It allows for intellectual malleability. For all that, if we had to retain a strong idea, which one should we choose? Extending what interests me here – namely, the reiteration of motifs giving rise to galleries of influential models/ images/myths/narratives – I would like to choose the Durandian metaphor: the river one, which is very well explained by Aurélien Fouillet in his theories of the imaginary (2014). The structure has something fluvial, even geological: the images that form the imaginary settle – like alluvium – and shape the bed of a river. A semantic bed is thus structured. I personally add that this semantic bed welcomes, preforms a movement, that of the current. A current that carries us in a certain direction. The structure appears thus like an “instituting force,” like a guiding current which imposes itself by the effect of primary images – and the primary nature of these images is justified in that they are the first source of the enchantment of reality, before any experience of most ordinary things, as explained by Nicolas Grimaldi: “[the imagination] is primordial, […] nothing begins but with it” (2007). The metaphor is inspiring, and on this basis, we must therefore see the structure in the river bed, and I propose to see also in the movement of the water, the flow of the holding narratives. In the end, the a priori is presented as a certain sense – the current – and its structure is a melting pot of primary and sedimented images. Moreover, this crucible necessarily institutes a certain relationship between the subject and the object, a relationship that depends on a set of representations. If it depends on a set of representations, it is because the imaginary has an ascendancy over the subject – or, to put it from the surrealist angle, the imaginary model has an ascendancy over the real model through the medium that is the subject.

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Let us then posit the representation, through the imaginary model, as an element of research about a genealogy of a priori meanings. This genealogy structures the creation and the comprehension of legal norms as a narrative full of guiding references. The a priori could then be presented as the form taken by the imaginary narrative that prefigures an object. In this framework, “to question our a priori today” is not a matter of concepts. The questioning relates to images endowed with a narrative normative power. It asks: which images, taken as reference guiding models, structure the subject’s gaze? To avoid confining ourselves to the path of psychological introspection of each subject,7 I am speaking about reference models which, due to the number of times they occur, belong to an imaginary that also exists outside the subject. The reference must be available not only for an individual but also for others. To put it differently, what is questioned is not the intimate imagination of each individual. It is rather what I will call here, for simplicity, a museum-type imaginary, which is accessible, and transmissible, and which is established on an anthropological level.8 We are very close to the idea of “social imaginary,”9 “global conceptual reservoir,” or “metaphorical system” (Todeschini, 2019). In the galleries of this museum-like imaginary, we find the a priori: structures that contribute to the construction or knowledge of the law. The phenomenon of recurrence is therefore important because it reveals the motif that repeatedly, even invariably, roots relations of meaning between legal discourse and other areas of representation. Moreover, in this respect, what is striking in the word “representation,” besides the figurative register to which it leads, is undoubtedly the prefix “re”: re-presenting means certainly “showing by reference, by correspondence, by mimesis.” But it could also mean “showing several times, presenting again.” To show and show again. What is represented is thus what reappears, what usually returns. At this point, I do not necessarily presuppose that a subject consciously wants the imaginary structuration of the legal norm. Strong and influential images can be identified, as shown by Claude LeviStrauss’s structural anthropology identifying myths and elementary statements of our imaginary. These structures determine a meaningful a priori position of the norm. As a result, the imaginary is stimulating in that it shows the emergence of a primary structure of images that directs a paranormative narrative. The primary character (“a priori”) thus comes from the fact that the representation by the image

 A distinction can be made on this point between the notion of imagination, dedicated to the imaginative aptitude and to the individual representations of a subject taken in a particular way, and the imaginary which is instituted historically and collectively by a set of signifiers. 8  One could also say that this imaginary is cultural. If culture is undoubtedly part of the instituting forces of the imaginary, the latter is not reduced to it. 9  According to Pierre Ansart, “by the expression ‘social imaginary,’ one designates the whole of the imaginary representations specific to a social group: myths, cosmic and religious beliefs, utopias. One supposes that this set, generator of meanings, participates in the common life, in the social practices: it is these links, these implications of the symbolic in the practices which retain particularly the attention of the analysts of the social,” V° “social imaginary,” Encyclopedia Universalis. 7

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precedes the perception of the norm or its object. It also comes from the fact that these images are dominant and constitute as such an ascending structure – a prescriptive one.

The A Priori Prescriptive Structure: The Ascendant Images The imaginary is at the same time “inherited thought” and “instituting force” (Castoriadis, 1975) and thus exerts an ascendancy over the law. Whereas structure is very often presented, in structuralism, as an “underlying” element, seeing it through the prism of the a priori allows us to rediscover it as an “ascendant” one. Simultaneously, instead of considering the a priori in a relation of temporal anteriority, of preconception or transcendentality, it is considered as a structural dimension, in a genealogical relation and one of holding. On the one hand, I see a structural ascendancy due to a genealogical network (ascendancy involves a lineage). The structure of the imaginary forms links of kinship between the occurrences of the same object. It expresses its most familiar meanings. Consequently, we can look for an origin, a source, and links of connotation. On the other hand, I see an ascendancy by domination (ascendancy involves sway). The imaginary model arises through the subject and carries it in a certain relationship to the object. If the set of the object representations has a sedimented anchorage, this implies that the meaning is trapped – like the river in its bed. To continue the metaphor, the certain meaning follows the bed structured by the crucible of images. It is hard to get out of it, as it is difficult to escape the current. The meaning is then determined, locked, by the structure. Like this, the a priori generate an inertial force in the evolution of law – which is dominated by primary images. Let us take two examples: the first one is devoted to the animal theme, taken from a famous myth of Levi-Strauss, the sauroctonia (dragonslayer) allegory – on which I worked in the framework of a literature and law movement (Kassoul, 2019, 2023a, 2023b, 2023c); and the second one relates to the primary image representing the banker and the implications this has for the protection needed by bank customers – on which any teacher of credit law could elaborate. These examples show that the melting pots of images can be deep, but the currents can sometimes be counteracted.

The A Priori Image of Sauroctonia (Dragonslayer) The dragon is an animal representation. That is why, broadly, it is interesting to remember that the civil status of the animal still bears a dogmatic heritage maintained by the imaginary reification of the animal. Such a reification trend was promoted by the former Article 528 of our Civil Code, which until 2015 provided that

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an animal is, “by nature,” movable property. What a false naturalism! There is no such thing as “property” in nature. Only an effort of “scholastic” imagination, as described by Giraudoux, allows one to imagine not only that there can be things that are, “by nature goods,” but also that animals are such things. The legal definition has, contrary to what it claims, no natural description of reality, but only a surrealistic one. This shows the protonormative function of the a priori and the ascendancy of the imaginary, taken as factors of jurisprudential inertia.10 Despite the reforms that introduced an exclusively biological definition of the animal, several decisions consistently show that, in practice, the courts reproduce an a priori view according to which the specific prejudice toward animals necessarily depends on the recognition by the legislator of a legal personality for animals (Goujon-Bethan & Kassoul, 2022). It can be shown, however, that the civil liability law, allied to civil procedure, has the potential to work usefully, from now on, for better protection of the animal. The recent reforms of the Civil Code offer means for legally recognizing a purely animal prejudice, with no need for the legislator to have yet envisaged the recognition of an animal legal personality. The legal reasoning, however, betrays a paranormative imaginary which prescribes that the judge should associate the recognition of a specific prejudice with persons alone and to relativize the importance of the harm caused to animals. Furthermore, the relativization of animals’ suffering can vary depending on their representations and reputations. The philosopher Gilbert Durand wrote that “of all the images, indeed, it is animal images which are the most frequent and the most common. One can say that nothing is more familiar to us, from childhood, than animal representations” (Durand, 1960). He insists here on the power of the imaginary dedicated to animal figures, underlining in particular that, from the youngest age, we see in dreams animals that we have never met in reality. The animal theme example is therefore very interesting in that it offers primary images with a quasi-universal dimension that are particularly abundant in literary and artistic motifs. Reputations are lent to certain species on the simple basis of our inner narratives and not on scientifically established facts. Thus, we assume the clever monkey, the lazy dormouse, the gluttonous pig, the temperamental bear, the silly donkey, the lone wolf, and so on. Some have an advantageous image and others an unfavorable one – and that point could change according to different cultures (Kassoul, 2023). Animal archetypes are indeed based on mythologies that are, from an ethnographic point of view, rooted. Also, in spite of the universal dimension of the animal theme, it is necessary to take into account a certain cultural relativism. It is however a rather Eurocentric primary image that I focus on here, concerning the purely imaginary animal that is the dragon.

 This is a kind of expression of Dworkin’s conception of law as an “interpretative concept” (1986), which allowed him to say that each decision of a judge is an act of creation, like an artistic act, based on his own convictions about the interest of law. 10

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Saint George and the Dragon, Mattia Preti, 1678 (Basilica of Saint George in Victoria, Gozo)

His name could be Fáfnir, Cétus, Python, Smaug, or Viserion. His victorious enemy could be Saint George, Theodore, Hercules, or Siegfried. Without going back over the plethora of images and narratives featuring dragon hunting, the sauroctonie myth poses an a priori: the holy hero is a hunter, from which it follows that, reciprocally, the hunter is a holy hero. The slain dragon embodies a human – and divine – victory over the telluric forces considered as evil forces. Moreover, there is an imaginary invariant in this set of occurrences, very well expressed in La folle de Chaillot: “to steal a treasure, it has always been necessary to kill the dragon that guards it” (Giraudoux, 1943). As a reminder, a set of draconic occurrences sediment comparable stories all over the world: those of an ugly beast that invades a territory, guards a treasure, monopolizes resources, withholds water, or eats sheep. In other words, creatures spawned from the Earth’s entrails embody threatening monsters. The primary image thus posits the bloody and necessary triumph of the human hero over the ferocious beast while at the same time keeping the creature, dominated, at a safe distance from human society (Kassoul, 2023). It thus creates an a priori which –– Structures an a priori relationship: the dragon can be chased. –– Prescribes an a priori standard: the dragon must be chased. Why? Why do we have to chase the dragon? Why so much hatred? The a priori answer is: because he is a dragon. The mythical dynamic posits a subject, the

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sauroctonie, which maintains an eradicative relationship, the occasion, with its predicate, the dragon. The representation entails the prescriptive relationship of slaughtering. It creates an a priori, a certain dominant relation that structures a behavioral standard. In so doing, it anchors the self-justification of the norm in question. In this way, the sense of the a priori as an unsubstantiated statement appears clearly. For example, public policies and derogative laws about national security are undoubtedly not free of traces of this imaginary, whose references appear in many discourses. The use of metaphor shows it when, in reaction to attacks, R.  James Woolsey (16th director of the CIA) declared about the US fight against terrorism in the 1990s: “It is true that we have slain the dragon, but we live in a jungle of poisonous snakes” (Melandri, 2002). The metaphorical recourse to the dragon mobilizes a prescriptive a priori of eradication, and it requires absolutely no argument. In this sense, the protonormative dimension of the a priori appears, that is, its capacity to impose a prescriptive narrative that precedes the legal norm. The metaphorical argument draws its normative force not from the law but from the links of meaning (the duty to eradicate, the fight against evil forces, etc.) summoned by the icon mobilized (the dragon). Thus, the a priori naturally orders the eradicating norm and, above all, its legitimacy. When the director of the CIA says this, he uses an image that structures our gaze outside his own experience. He speaks from the museum-type imaginary and we understand spontaneously, without further explanation, that the discourse serves to justify an exterminating norm. The meaning is structured by the preexisting reference that founds the a priori. Thus, the place of metaphor in discourse has a protonormative role: it is preformed behavioral instruction. The metaphor is an a priori argument and the narrative fulfills a prescriptive function.

Saint George and the Dragon, Peter Paul Rubens, 1606–1608, (Prado Museum, Madrid)

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The Hunt for the Wolf and the Fox, Peter Paul Rubens, 1616, (Metropolitan Museum of Art, New York)

Now, the imaginary dedicated to the evil lizard has structures of kinship with the norms dedicated to hunting and more specifically to the destruction of the so-called “harmful” animal – as witnessed, for example, by the paintings of Paul Rubens, whose painting conceived for a scene of wolf and fox hunting is structured by the same staging as that dedicated to dragon hunting. In an anthropocentric imaginary, lists of animal species have been classified by law as harmful and therefore eradicable in principle by virtue of this classification alone. This reference to nature demands an animal category that is irrefutably presumed to be damaging. It is difficult not to think then about moralist bestiaries or medieval physiology. Both the vocabulary and the elementary statement (“the harmful animal must be hunted”) mobilized are structured by a “draconic” ascendant imaginary. However, it is edifying to recall that, in France, legal terminology has emancipated itself from the imaginary determinism that suggests that certain species are, by nature, evil. As the environmentalist doctrine points out, the expression “malicious or harmful animals” was erased from our Environmental Code by the decree implementing law n° 2016-1087 of August 8, 2016, for the restoration of biodiversity, nature, and landscapes (Jolivet, 2019). It certainly took time for our legislators to reform the legal vocabulary: already in 1985, a parliamentarian (deputy for the Marne) pointed out that the use of the terms “harmful” or “malicious” no longer corresponded to the sensibilities of the French or to the most advanced state of biological knowledge (Colin, 1985). The sociologist André Micoud recognizes that this is a “fact of language [attesting] to the passage from one representation to another” (Micoud, 1993).

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The issue is not exhausted, however, as a new category of animals has been thrown into the semantic bed of eradication since 2016. These are the so-called invasive exogenous species. The invader, according to Articles L. 411-7 and following of the Environmental French Code, can be not “euthanized,” but “destroyed,” according to the most imaginative modus operandi, ranging from archery for the coypu to shooting with a pistol or freezing for the Florida turtles. The “destruction” techniques are most often very painful, but the semantic bed in which the norm is structured, namely, the eradication register, refers to a surreal model of the animal that is very different from the one mobilized by Articles L. 214 of the Rural Code, 515-14, of the Civil Code or 19 of the 2014 European regulations on the prevention and management of the introduction and spread of alien species, which provide that when animals are targeted, they must be spared any avoidable pain, distress, or suffering. Our Environmental Code, for its part, maintains a more epic imagination in its provisions for dealing with such species. Of course, the imaginary structures are not limited to the animal. Socioeconomic and legal institutions, such as the family, the contract, or the judge, are the object of representations which, often, evoke an archetypal image of essential figures of everyday life. Such is the case of the loan contract and its associations, considered through the figure of the banker.

The A Priori Image of the Banker “Don’t be afraid to give up the good to go for the great”.11 Representations of the banker seem to be structured by a priori that are kneaded by literary and artistic imaginaries but also by an important social imaginary polished by the waves of history and politics.12 There is certainly an ambivalence in the banker’s image, as witnessed by French history, which reminds us that bankers were “kept at a distance and used by Napoleon I, discussed under the Restoration, appreciated under Louis-­ Philippe, favored by the Second Republic, very much listened to and honored by Napoleon III, and commanded under the Third Republic” (Bigo, 1947). Great figures have engraved their names in the marble of the preindustrial and industrial centuries in an equivocal capitalistic way: either as a wealth multiplier – “recognized as the elected representatives of a humanity on the way to perfection” (Todeschini, 2019) – or as a wealth hoarder “who enjoys the idle profit of the blood sweat of others” (Marx, 1844). Mayer Amschel Rothschild and John Davison Rockefeller are the epitome of the talented self-made man turned into banker-­ monarch, capable of founding a dynastic countervailing power with an incredible  John D. Rockefeller, divisive figure of the American gilded age  Jean-Jacques Wunenburger (2003) thus observes that “the imaginary (of a work, a creator, a people, or an era), far from being an anarchic, chaotic whole, made of heterogeneous associations of images, obeys deep roots, complex properties, and structures, but also an evolution, and thus a history, marked by a subtle play of constants and variations in time.” 11 12

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economic-political influence exclusively in favor of big capital, are they not? On a macroeconomic level, the banker personifies a countervailing power to which the major players of the bank are equated. Wasn’t it presidential candidate François Hollande who declared in 2012: “My real adversary is the world of finance” (speech at Le Bourget)? He added that “in twenty years, finance has taken control of the economy, society and even our lives” – although after his election, he chose as his Minister of the Economy a financial inspector who was also a business banker from Rothschild & Co, namely, Emmanuel Macron, the current French President. What a spectacular alteration in opinion, not to say contradiction, regarding what characterizes the banker, upgraded here from adversary to head of state.

The Banker, Daumier, Le Charivari, October 16, 1835 Reproduction of an original lithograph. BnF, Prints and Photography Department This lithograph by Daumier from his series on “French Types” is reminiscent of his engravings of the “Bons bourgeois.” The portrait of the banker takes on the characteristics of corpulence and grandeur of a notable, whom Daumier represents as sure and satisfied with his wealth and his position in society.

From the 1929 crash to the subprime crisis, from William Shakespeare’s Shylock in “The Merchant of Venice” to Martin Scorsese’s Jordan Belfort, via the Kerviel affair, the world of finance has aroused fascination and suspicion. As Hubert de

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Vauplane observes in his analysis of the European iconography of the banker, “the figure of the traditional banker, that of the moneychanger and lender between merchants, has given way to that of the financier. […] the image of the banker (in caricatures) is equated with that of the profiteer, the hoarder, the speculator” (2015). In French literature, whether we think of the moneylenders imagined by Balzac or the figures of Stendhal, the banker oscillates too between the man of modern talent, philanthropist, driver of progress, and the financial predator, greedy and privileged: “the artisan of credit turns into a comedian in order to strangle the debtor, the professional of money constructs a ‘masquerade’ to catch the innocent in his nets” (Spandri, 2020). Also the occurrences often testify to an insincere character, like the fat and tall baron Frederic de Nucingen, recurring figure in the Human Comedy who grants himself, like so many others, “tithes wrung from misfortune’ which are ‘swelled by a tax on commercial failure.” He uses in his accounting “dreadful fictions, fit to cause any debtor, who henceforth shall reflect upon this instructive page, a salutary shudder.” And the writer adds, in Lost Illusions, that the nank, which feasts on unpaid debts, “flings at the debtor, from the august height of the counting-­ house she flings an observation, full of common-sense, at the debtor, ‘How is it’ asks she, ‘that you cannot meet your bill?’ to which unfortunately one cannot answer anything” (Balzac, 1874). The Balzac historical context reminds us that with the industrial boom, the banker figure would have become not only a moneychanger, a usurer, or a financier but a businessman “definitively placed in the popular imagery in the class of the wealthy and other speculators” (de Vauplane, 2015). The author adds that “the banker symbolism in iconography has not changed much since the nineteenth century: a fat man, smoking a cigar, top hat on his head, on top of the world, sitting on a pile of gold or dollars. And the crisis of 2007 has not changed this vision, even if the cinema has replaced the caricature in the criticism of the banker. There is, however, one exception to this vision of the banker: the figure of Scrooge, who, although swimming in his pool of gold, remains a sympathetic character, because of his big heart and despite his greed!”. But, let us notice that even Scrooge does not embody clearly a monolithic primary image of the banker: Charles Dickens’s Scrooge is much darker than Disney’s funny duck. Indeed, in Dicken’s tale (A Christmas Carol, 1843), Scrooge is a “family ogre” in the eyes of poorest workers. This ogre figure shows how the people’s lives depend on the banker’s virtues/sins and good/bad will and how he can make money in spite of other fundamental interests. Scrooge hates the Christmas celebrations and represents firstly a misanthropic, selfish, and greedy man, described as “a tight-fisted hand at the grindstone, Scrooge! a squeezing, wrenching, grasping, scraping, clutching, covetous, old sinner! Hard and sharp as flint, from which no steel had ever struck out generous fire.” At the beginning of the story, he is an uncompassionate bank director who has no empathy for even the most vulnerable child, exclaiming about a fragile boy: “What then? If he be like to die, he had better do it, and decrease the surplus population.”

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Scrooge in front of the last spirit, Arthur Rackham Illustration, in Christmas Carol by Charles Dickens, CHAPMAN & HALL, 186, STRAND, 1843

He is finally confronted with his own inhumanity through a supernatural ghost who rebukes his heartless behavior: “Man, if man you be in heart, not adamant, forbear that wicked cant until you have discovered What the surplus is, and Where it is. Will you decide what men shall live, what men shall die? It may be, that in the sight of Heaven, you are more worthless and less fit to live than millions like this poor man’s child. Oh God! to hear the Insect on the leaf pronouncing on the too much life among his hungry brothers in the dust!”. Through the two faces of Scrooge, a penitent villain, we can see two visions of the same figure, although there may be a predominant a priori following the narrative and context – which are, here, certainly dedicated to Christmas values but also inspired by the great phenomenon of poverty in England in the middle of the nineteenth century. However, already long before the Industrial Revolution, there are traces of disparaging evocations of the banker. Isn’t this what the biblical scene depicting Jesus driving the usurers out of the Temple, as painted by Renaissance painters and, shortly after, by Rembrandt, suggests?

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Christ chasing the money changers out of the Temple, Rembrandt, 1626 (Pushkin Museum of Fine Arts)

As a reminder, here is what this episode of the Christian liturgy tells us: Jesus entered the Temple of God. He drove out all those who were selling and buying in the Temple; he overturned the tables of the moneychangers and the seats of the dove sellers. And he said to them, “It is written, ‘My house shall be called a house of prayer (domus orationis).’ But you make it a den of thieves.” (Matthew, 21, 12–13; Mark 11, 15–17; Luke 19, 45–46, John 2, 13–17)

The a priori image of the usurer is therefore that of a thief! In the twelfth century, the biblical pericope founded, in the Gratian Decree (1140), the idea of an incompatibility between the merchant’s profession and the good Christian: homo mercator vix aut nunquam potest deo placere (the merchant can never please God). The decree places the usurer in a bad position, even less well regarded than the merchant, establishing the principle that usury is theft (Bain, 2008). The text spirit is very much in line with the philosophy of Aristotle as well as other religious sources, such as the as Qur’an. For reminder, both Sharia and Hadith law prohibit onerous loans (ribâ): “O believers! Fear God and give up the residue of usurious interest, if you are believers. And if you do not, then receive the announcement of war from God and His Messenger” (Surah II, verses 278 and 279). Such a principle expresses, among other things, that time belongs to God, not to people, so a lender cannot sell time, that is, make money merely from the fact of time passing. In this perspective,

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time definitely is not money! This is a far cry from what Rockefeller would declare centuries later: “God gave me my money. I believe the power to make money is a gift from God” – suggesting that socioeconomic imbalances are entirely part of a natural order.13 Christian and Islamic beliefs remain generally attached to the fact that the loan shark’s lending is not philanthropic: the lender takes advantage of the borrower’s state of economic dependence, even distress.

The usurers, Quentin Matsys, 1520 (Galleria Doria Pamphilj)

We touch here on the banker-predator archetype, strengthened by Luther in the sixteenth century for whom, in his treatise “On Trade and Usury,” the usurer loan is an invention of the devil (Luther, 1524). The banker easily symbolizes the devil’s associate, whose avarice and egoism are furthermore comically exposed, one century later, in Molière’s “The Miser” (Act II, scene 1, 1668). The playwright paints a portrait of a professional moneylender who is rarely seen in the story, but whose characteristics can be guessed through the reading of the contract clauses which are, in his image, predatory and exploitative. The moneylender intends to enrich himself excessively by taking advantage of Cléante’s situation as a character fleeing from paternal pressures and neuroses. Cléante is thus forced to ask for a loan. We learn that  Giacomo Todeschini explains this occidental liberal belief that “formally, certain aspects of modern economics (and, more generally, of Western economic modernization) would rather result from the incorporation and systematic implementation, during the modern era, of linguistic/political components inherited from premodernity. These components consist of metaphors, images and allegories that represent economic growth or stagnation, as well as economic asymmetries and social disparities, as part of an organic equilibrium, based on a natural or providential order. This metaphorical system of notions, originally rooted in a conceptual syntax derived from theological discourse, was translated into a language that, by converting economic metaphors into laws of economics, concealed their historical and political meaning. The premodern economic imaginary could then be reactivated in the form of a rhetoric that represented economic asymmetries as the natural and necessary consequence of a rational and verifiable economic order” (2019).

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–– In order to lend, the lender must borrow too. –– The “small terms” to which the borrower must agree are, on the contrary, greatly abusive. –– The lender arranges the deal through a broker who is responsible for getting them accepted by expressing them in more palatable terms. –– In addition to requiring a bond, the lender intends to impose a dation in payment on the borrower and then will deliver overvalued objects in lieu of a portion of the loaned amount. Cléante then concludes: “However, I must resolve to consent to what he wants, for he is in a position to make me accept everything, and he has me, the villain, with a dagger to my throat.” Is the credit institution of the twenty-first century structured by the same a priori as in the universe of Molière? The balance of power between the banker and the individual borrower is an a priori that underlies the rules of security law and, more generally, of credit law. Both the legislator and the judge have favored the figure of a contracting party who has neither the cunning of Ulysses nor the strength of Hercules, easily falling victim to his own naivety when he makes a pact with the opportunistic banker. The ratio legis of the French “Scrivener law relating to the information and the protection of the consumers in the field of certain operations of credit” (1978) could be summarized in these terms. In the face of the representation of suspicious banking practices, a naturally diminished borrower model emerges in contrast. The reinforcement of consumer rights and the banking sector regulations are based on this a priori and justify, in particular, the imposition of precontractual obligations on the part of professionals, the sanctioning of unfair terms, the control of disproportionate transactions, and a burden of proof that is fairly favorable to the borrower. On a more sociological level, this is also what has encouraged the development of alternative financing models. Thus, to escape both family disputes and the constraints of a limited loan market, a contemporary Cléante could turn to crowdfunding, imagined in the eighteenth century and democratized in the 2010s, allowing him to improve his access to financing and to broaden his possibilities without being at the credit professionals’ mercy. This is not to say that the a priori relationship between borrowers and banks is monolithic today. There are opposing views between the First Civil Chamber and the Commercial Chamber of the French Court of Cassation, with each conveying a different representation of the relationship in question. The case law on the banker’s duty to warn does indeed show divergent juridical views on the requirements of the banker’s obligations, for the reason that the Commercial Chamber has helped to deconstruct the topos of the borrower-victim and the banker-hangman. The commercial jurisprudence has made it possible to envisage a more responsible image of the borrower, erasing the “infantilized” image conveyed so far by the courts, by focusing on the borrower’s real skills and qualities. The judgments of the Mixed Chamber of June 29, 2007 (n° 05-21.104 and 06-11.673), completed this nuanced reconstruction of the representation of the client, by creating a differentiated treatment between the informed borrower and the unqualified one. It is then possible to

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observe that this change in the prefigurative narrative of the banking relationship justifies a modulation of the protection due to borrowers. Jurisprudence also chronicles everyday life, making the application of the rule of law an opportunity, but also a lever, for representing reality. In so doing, the a priori image is also a prescriptive image.

Conclusion Finally, we observe that alternative imaginaries make it possible to structure both dogmatic conservation, or self-justification, of law and legal reforms. The reform trends have revealed oppositions between structures, showing at the same time the hold of an imaginary on the norm (the imaginary structure has such an ascendancy that it slows down law reform). When a priori sedimentation is strong, the degree of hold borders on prescriptive determinism: the prefigurative narrative about objects keeps law in a surrealist dimension. As I stated above: the a priori has a semantic lock-in effect. The meaning is trapped in the deeply sedimented image. The result is that the real object is assigned a surreal model, without the legal norm being able to counteract this ascendancy on its own. The law reform that manages to be accomplished is then often the fruit of a process of deconstruction – or reconstruction – of a particular hyperstructuring a priori made from primary images. Of course, this is not systematically true; it all depends on the positioning of the norm and the model mobilized. And I will conclude with this. Indeed, if the a priori structures models without any reality, it invents, in a poetic act, a reality. The law truly fulfills its function as a “school of the imagination,” to use Giraudoux’s words. It is most often the primary structure of an imaginary of which it is the source. The norm is in this respect itself an a priori structure. Such is the case of the object “legal person,” pure juridical production. The law makes its own imaginary and narrations. If the a priori separates image models from their reality, the prescriptive act is a deterministic act because it is the tool of a surrealist hold (such is the case of the animal). Between the image and the norm, the a priori plays the role of a prescriptive narrative, like a containing structure. In its turn, the standard serves to reproduce and conserve the a priori structure. However, the emergence of realistic claims – or new imaginaries – that are usually but not always sociopolitical is likely to call into question the a priori that the law reproduces. This is not yet the case for the animal, but it is demonstrated by the banker a priori. The a priori takes the place of a surrealist structure, the law plays the role of a structure of reproduction (which calls into question its conception as much as its functions), and the reform cannot operate without profoundly reworking the ascendant structure. Ultimately, the legal and political institutions are in this respect a place in which prefigured narrative structures are combined and confronted, showing that if the imaginary is, in addition to its explanatory potential, a force of renewal of the law, it is also, taken in its a priori dimension, a force of conservation.

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Instinctively, we can estimate that when the descriptive function of the norm is implemented, in a realist approach, it mobilizes much less the question of the imaginary, realism prevailing over surrealism. To put it another way, the law that purely and simply receives reality, when it says what a motorized land vehicle is (although it could be discussed), or what a real estate building is, does not really mobilize a priori in the sense that I intend to propose, as an ascendant structure. Nevertheless, it emerges that in the case where the law is a structure of reproduction of a surrealist model, it is necessary for jurists who wish to study the conceptions and functions of the law to take their noses out of the code and to go and take a tour of museums.

References Bain, E. (2008). Les marchands chassés du Temple, entre commentaires et usages sociaux. Médiévales, 55, 53–74. Balzac (De), H. (1837–1843). Illusions perdues, in Œuvres complètes (tome 8, p.  465). éd. Houssiaux, 1874. Baron, C. (2019). Droit et littérature; de la prise de conscience citoyenne à la révision de la loi. COnTEXTES. Revue de sociologie de la littérature, La fiction contemporaine face à ses pouvoirs, 22. Biet C. (2000). Introduction. Droit et littérature, un lien nécessaire. Littératures classiques, n°40, automne, Droit et littérature, 5–22. Bigo, R. (1947). Les banques françaises au cours du XIXe siècle (p. 270). Librairie du recueil Sirey. Blanchot, M. (1949). La littérature et le droit à la mort. In La part du feu (pp. 306–307). Gallimard. Brancourt, V. (2018). Giraudoux, juge des romantiques français. L’écrivain et la crise de la nation. Romantisme, 182, 90–99. Breton, A. (1928). Le surréalisme et la peinture. Gallimard. Castoriadis, C. (1975). L’institution imaginaire de la société. Seuil. Catteau-Sainfel, A. (2019). Fiction et actualité dans l’œuvre littéraire de Jean Giraudoux. Th. Angers. Chonnier, J.-M. (2018). Ce que le droit ne dit pas que la littérature dit. Revue Droit & Littérature, 2(1), 107–114. Colin G. (1985, September 16). Report on the modernization of hunting and wildlife law (p. 122). Dickens, C. (1843). A Christmas carol. J. B. Lippincott Co, 1915. Durand, G. (1960). Les structures anthropologiques de l’imaginaire: introduction à l’archétypologie générale. éd. Dunod, 2016. Durand, G. (1996). L’imaginaire, lieu de « l’entre-savoirs ». In Champs de l’imaginaire [en ligne]. UGA Éditions, éd. Dworkin, R. (1986). L’Empire du droit. Presses Universitaires de France, 1994. Fouillet, A. (2014). Les théories de l’imaginaire. Sociétés, 123, 51–55. Giraudoux, J. (1935). La guerre de Troie n’aura pas lieu, La Bibliothèque électronique du Québec Collection Classiques du 20e siècle, Volume 3: version 1.0. Goujon-Bethan, T., & Kassoul, H. (2022). Pour un aggiornamento de la responsabilité civile: vers la reconnaissance d’un préjudice animal pur. Revue Semestrielle de Droit Animalier, 2, 527. Grassi, V. (2005). L’imaginaire. In V. Grassi, Introduction à la sociologie de l’imaginaire: Une compréhension de la vie quotidienne (pp. 11–59). éd. Érès. Grimaldi, N. (2007). Préjugés et paradoxes. Presses universitaires de France. Guittard, J. et al. (Dir) (2022). Narrations de la norme. Mare & Martin, Libre droit.

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Are Numbers A Priori Like any Other? Mathieu Corteel

Abstract  The question of whether numbers are a priori, or a posteriori, is part of an unresolved philosophical debate that questions the place of mathematics in the field of theoretical but also empirical knowledge. Is the a posteriori synthesis of the multiple the basis of the judgment, or is numeration founded on an a priori logic? In other words, do numbers exist prior to the numeration of things or do they result from it? This chapter returns to Kant’s transcendentalist perspective, Mill’s psychologism, Frege’s logicism, and Husserl’s phenomenological stance to explore this enigma. Following the commentary on the philosophical works, it offers a reflection on the a priori application of probabilities to judgments in the field of justice. In this sense, it questions whether an a priori numerical framework determines the legal decision or whether it is the a posteriori result of legal judgments.

Introduction The question of whether numbers are a priori, or a posteriori, is part of an unresolved philosophical debate that questions the place of mathematics in the field of theoretical but also empirical knowledge. Is the a posteriori synthesis of the multiple the basis of the judgment or is numeration founded on an a priori logic? In other words, do numbers exist prior to the numeration of things or do they result from it? To address this, we could go back to Plato who opened the way to this problem by situating mathematics in the Metaxy: the abstract space situated between the world of ideas and that of things. According to this theory, starting from a definition or an axiom, one can reach true conclusions about a shape or a number by abstract analysis. This is the very principle on which the geometrical method that leads to Euclid is founded (Fowler, 1999). However, the ancients quickly noticed the existence of “irrational” numbers that posed a problem for geometric and arithmetic purity (Brunchvicg, 1947). The M. Corteel (*) Harvard University, Cambridge, MA, USA © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 J.-S. Bergé (ed.), The A Priori Method in the Social Sciences, https://doi.org/10.1007/978-3-031-38260-4_7

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square roots of natural numbers that are not perfect squares problematize the logical purity of mathematics. The square root of 2 appeared to be an irrational number in view of its decimal expansion, even though its usefulness in geometry was essential. In the same way, the problem of the incommensurability of the diagonal and the side of a square illustrated this issue that preoccupied the ancients. How is it possible then that a geometric form can be measured from incommensurability? Is there an unresolved gap between the axioms and the synthesis of numbers? Otherwise, are the numbers products of human psychology, which remain, despite all their logical framework, vague and unclear? Basically, it comes down to asking whether the foundation of numbers and calculation is deductive (from the general form to the particular) or inductive (from the particular to the general form). Are numbers a priori like any other? This chapter returns to Kant’s transcendentalist perspective, Mill’s psychologism, Frege’s logicism, and Husserl’s phenomenological stance to explore this enigma. Following the commentary on the philosophical works, it offers a reflection on the a priori application of probabilities to judgments in the field of justice. In this sense, it questions whether an a priori numerical framework determines the legal decision or whether it is the a posteriori result of legal judgments. To do this, the text returns to the debate between Laplace and Poisson.

Transcendentalism of Numbers At the end of the eighteenth century, Kant introduced a transcendental description of numbers. According to his theory, the logical necessity of mathematics finds its foundation in the understanding and not in the intuition (Kant, 1998, B14-B18). There is moreover a nonquantitative (non-accounting) mathematics pertaining to transcendental or analytic logic which is close to Euclidean axiomatics. But in addition to the analysis of axioms, the operations that organize numbers by calculation are not the result of a pure analysis, but of the a priori synthetic judgment. The synthesis allows the connecting of numerical elements to each other at the transcendental level while joining them to the intuition by schematism. Mathematics joins the quid juris to the intuition by a subtle junction of a priori categories of the understanding and the time and space of esthetics. There is thus a presupposed synthetic link between numbers and things. But, as Kant says: “without getting help from intuition we could never find the sum by means of the mere analysis of our concepts” (Ibid, B16). The mathematical principles make possible a numerical synthesis which acquires its true meaning only by linking the conditions of the intuition and the judgment under the schematized form of the number. The foundation of the laws of nature is deduced, from this abstract necessity allied to the concreteness of the intuition, in the form of the a priori synthetic judgment. The path followed by scientific reasoning is thus made possible by a set of conditions that make possible, in an a priori way, the epistemic crossing of the

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transcendental and experimentation: “Without sensibility no object would be given to us, and without understanding none would be thought. Thoughts without content are empty, intuitions without concepts are blind” (Ibid, A51/B76). The link between the transcendental and experimentation allowed by the a priori synthetic judgment is thus crucial. To ask what mathematics is without intuition becomes apagogic. For Kant, it seems that mathematics without intuition presupposes abstract numerical connections without concretely linking anything. It is therefore necessary to summon the number schema to perform calculations by mixing a priori judgment with intuition. An understanding without intuition produces only a priori analytical judgments, never syntheses, which are the work of mathematical calculations. For there to be a mathematical thought, someone must think. So much so that to concretely make mathematical syntheses, one must be helped by intuition. To establish the addition of 5 + 7, it is necessary to go beyond the analytic sense of the numbers 5 and 7, from which one cannot infer 12. One must link this reasoning with schematic intuition to produce an a priori synthesis. The foundations of arithmetic are thus transcendental in nature, but the calculation requires an a priori synthetic judgment. It depends entirely on the link between the understanding and the intuition by means of the numerical scheme.

Psychologism of Numbers Against Kantian transcendentalism, the psychologism of Mill makes a posteriori synthesis the exclusive fruit of empirical intuition. The arithmetical concepts all derive in this sense from physical phenomena printed in the form of numbers in the mind. The transcendental is a set of experiences accumulated by intuition. By founding a purely empirical perspective, Mill establishes the theoretical basis of psychologism. Everything that uses mental states falls under psychology. In this sense, mathematics and logic, which depend entirely on mental states, can only be explained in a psychological approach. Hence, mathematics is fundamentally a science resulting from a posteriori induction. Its axioms, its laws, and its theorems are born from our sensory relationship to the world. It is therefore necessary to account for the induction of arithmetical forms by means of the a posteriori empirical approach to physical phenomena if we want to establish a system of logic. According to Mill, the equivocation with respect to numbers comes from mathematical definitions that can be analyzed a priori. But this is only a form of explanation given beforehand. It is a deduction that takes the primordial induction backward. According to Mill, upstream of the analytic, there is another aspect which surpasses the definition and gives rise to the number in the mind, and it is the “assertion of a fact” (Mill, 1882, p. 749). Mill places an empirical perspective in the formation of numbers beyond the Euclidean analytical definition. Mathematical reasoning necessarily implies a factual relationship with reality. “The fact asserted in the definition of a number is a physical fact” (Ibid). Therefore, the number always denotes a

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property of physical phenomena. The number 2 connotes pairs in the same way that 12 connotes dozens. Thus, the definition of each number establishes the assertion of a particular fact, the way in which objects are agglomerated (Ibid, p.  750). The assembly specific to calculation and the activity of numeration are established above all in relation to a quantity of physical elements given in an a posteriori way. One could say that number exists first in experience and that understanding only produces definitions of it thereafter. Number is denoted from physical reality by experience. The foundation of mathematics is therefore to be found in induction and not in deduction. One infers the properties of numbers by the aggregation of elements perceived by the senses: the cube of 12, i.e., 1728, can be obtained by the aggregation of 12 sets of 12 stones. From this induction, we can by conversion establish that the cube root of 1728 is 12 and thus lays the foundation of deductive logic (Ibid, p. 751). Mathematical deduction is therefore nothing other than a converse induction. The number is above all an element formed a posteriori by subjective experience. It then takes an objective form when, already formed by the senses, it is integrated into logical deductions. The very formation of the number is physical, heterogeneous, and infinite. It is only in the second instance that it acquires a uniformity favorable to calculation. The empirical formation of numbers makes it possible to establish their cardinal aspect on the inductive principle that all that is constituted of parts is constituted of parts of these parts. The formation of series and sets is established as a result of the numerical induction of physical facts: the induced truth (a posteriori) becomes a first-order truth of nature (a priori). For Mill, the law of induction (physical→ numerical) guarantees the truth of all calculations. Without it, no deduction can be established. Arithmetic finds its foundation in the a posteriori partes extra partes of numbers as physical facts. Psychologism therefore changes the very nature of the number. It becomes an a posteriori physical phenomenon that the mind abstracts from the observation of nature to make it a priori. The number is a sign signifying the states of matter allied to our mental states. If nature is written in mathematical language, the mind reads it. This reading is inductive. It establishes the quantitative relations at the level of the intellect and thus gives meaning to the connection of the elements at the level of the mental representation of the number. But, although logic organizes the validity of this arithmetical connection in the world, it is not the origin of it. It is indeed psychology that is at the foundation of logic as a fact of nature that allows us to clarify the real relations that mathematics defines. This empiricist stance is nevertheless confronted with two limits: (1) on the one hand, psychological science supposes that mathematical logic depends exclusively on the act of thinking and therefore that it does not exist independently of the one who thinks it – which is invalidated by the existence of computers that process mathematical symbols. (2) On the other hand, it is part of a vicious circle: psychology implicitly assumes the validity of the (mathematical) laws that it brings to light; in this sense, it integrates logic into its reasoning. How then can logic be deduced from the study of mental states that have been analyzed by means of logic?

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Logicism of Numbers Frege proposes a new approach in a strictly opposite sense to Mill’s empiricism. He develops a structuring of numbers independent of psychological laws by raising the primacy of the analytic to the level of mathematics. The laws of psychology, being vague and lacking in accuracy, cannot be the basis for the principles of pure logic. It is necessary to distinguish them from the perfection of mathematical logic. The laws of psychology are above all demonstrated quid facti, whereas the laws of mathematical logic are quid juris. It is important to distinguish these two levels of demonstration. The induction of facts, which is a posteriori conjecture, can in no way form the basis of arithmetic, which is apodictic certainty demonstrated by a priori deduction. This remark could have been integrated into the Kantian perspective concerning transcendental logic, but Frege goes further. He separates himself from Kant by showing that number is not the product of a schematism stemming from transcendental esthetics. Number is itself the product of pure understanding. It is an analytical inference: an extensional relation established by means of the categories of pure logic. The number is formed as an extension of the concept, independently of the space and time of the intuition. It states something about a concept without having to represent the schematism through succession and disposition (Frege, 1990). It is obvious for Frege that the numbers 0 and 1 do not refer to physical elements. They are not either cardinal numbers which would state a quality of elements; otherwise, they would refer to a set, a multiplicity, or a plurality, which would be absurd. Those numbers are only abstract extensions of concepts. One could explain 0 by the absence of meaning as an empty sign in the manner of Mill. However, is not that ignoring its very nature? It is obvious that at the level of arithmetic logic, 0 has a numerical meaning in the same way as 1 or 2. It is absurd to consider an empirical foundation for 0. In the same way, the empirical foundation of 1 from a perceived unity in an unbreakable or indivisible body is absurd. It leads to confusion about the identity of the symbol 1 by distinguishing 1 + 1′ + 1″ + 1″ in the form of multiple elements with a subjective arbitrariness which does not respect the a priori identity of the number. According to Frege: “The number is not a physical being” (Ibid, p.  175). For Frege when one says “Venus has 0 moons,” one indicates that the concept of “moon of Venus” has the property that it subsumes nothing. The number is thus established beyond our perception of the world. The number is a purely objective element whose existence does not necessarily depend on subjectivity. It is only by an act of abstraction that we manage to grasp a number. Moreover, it is the number itself that allows us to establish the subsumption or non-subsumption of elements under a concept. If, therefore, to attribute a number is to say something about a concept, what exactly do numbers say about concepts? The number allows us to state relations based on identity. It is an a priori extension of the concept. It specifies the scope of the concept and the relations that it establishes with other concepts. The mathematical objects that are numbers are a priori in the sense that they only specify

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the relations established between the concepts. Frege derives his theory of cardinals from this strictly analytical approach by indicating the a priori relation that a number establishes with a concept: A number belonging to the concepts F and G establish an identity relation between these two concepts that Frege calls “equinumerous.” This symmetrical and transitive relation establishes a conceptual link (Ibid, p. 194). This means that the concept F establishes a relation of identity and extension with the concept G, if and only if the same number belongs to both concepts. This mutual belonging of the number to the concepts allows us to establish a cardinal relation. We can thus define a priori set relationships. The mathematical objects can be put in relation according to a strict analytic (Ibid, p. 197). If a relation Φ is the basis of a biunivocity between two concepts, the equinumerous aspect of the concepts allows, by an a priori analysis, to establish a biunivocal link between the objects of the series-Φ. One thus establishes a correspondence in the succession of the elements in F and in G by the cardinality of the series-Φ, by a priori deduction, so that the cardinality is defined in the relations of a set. The cardinal number n in the sequence of numbers is deduced from the one-to-one relation of the objects in the series-Φ. Numbers are thus pure objects of understanding. The definition of the cardinal number appears separately in Frege’s analytical approach (Ibid, p.  203). Frege’s logicism thus develops the idea that the basis of judgment is the a priori structure of numbers. Quantitative truths exist independently of the one who thinks them. The autonomy of the sphere of mathematics abolishes the relation to intuition in the foundation of numbers. We can understand their reality by an a priori analysis. However, is it possible to abstract our reasoning from our mental states? If so, how can we achieve this? Psychologism could find a psychological element in this process of abstraction. How then to reach pure logic by an abstraction which is not reducible to mental states?

Against Psychologism Husserl’s perspective on logic allows the pitfalls of both psychologism and logicism to be overcome. Psychologism, failing to grasp the a priori nature of logical and mathematical truths, and logicism, refraining from considering the technological extension of logic in the sciences, can both to be surpassed by the approach of a pure theory of multiplicities mixing philosophy and mathematics. The axioms of Mill’s psychologism are rejected for their inadequacy with respect to pure logic. As for the perspective of the anti-psychologists, it is questioned. The confusion between ideal and normative law is seen as a limit to be overcome by a new approach: this is the birth of phenomenology. To fully grasp the Husserlian critique of psychologism in favor of a new conception of pure logic, one must first consider that the theoretical consequences of such an approach lead to three difficulties: (1) the consideration of logical laws as having a psychological origin distorts the ideal aspect of these laws (Husserl, 1994, p. 68).

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Psychological relativism (a posteriori) distorts pure logic (a priori). (2) As the only way of establishing logical laws through psychology is induction, it appears in consequence that the said laws are probabilistic (Ibid, p. 69). However, the determinism of these laws leaves no room for the probable. (3) Finally, if logical laws are a normative extension of psychological facts, they would be imbued with experience. But neither the form nor the validity of logical laws implies psychological experience (Ibid, p. 77). According to Husserl, the trap of this perspective is simply to reduce the universal and inalienable truth of the laws of logic to a validity relative to the mental states of normal individuals. For example, the psychological consideration of the principle of noncontradiction ⊨¬ (p ^¬ p) would derive, if we are to believe Mill’s posture, from the mutual exclusion of belief and nonbelief. However, how can one move from these mental states, relative to individuals, to an absolute, immutable, and universal principle such as noncontradiction? According to Mill, it is the impossible coexistence of two types of mental states (belief/nonbelief) that establishes noncontradiction, and this occurs through intuitive experience. But this in no way allows us to understand the scientific basis of such a rule. Thus, Mill never explains the transition from prescientific evidence derived from belief to the domain of scientific proof. Moreover, if we grant Mill this assertoric foundation of the noncontradiction, it becomes by this very fact relative to the normal by excluding the pathological. The normativity of the law depends on psychological normality. Madness thus limits the universality of noncontradiction (Ibid, p. 92). Moreover, if one accepts this relativism, noncontradiction becomes just as likely to vary in time according to the states of consciousness of the individual and the evolution of the species. The apodictic evidence of noncontradiction cannot therefore be derived from the assertoric evidence without causing the loss of its universal and unchanging nature. To establish a logical principle from the psychic experience engenders a reduction of the law. The normal, and fully conscious, individual would thus now become the only guarantor of the logical truth. Basically, the problem raised by psychologism in the foundation of logical laws is simply that of relativism. With psychologism, the formula of Protagoras, “man is the measure of all things,” takes a particular meaning. Individuals become the measure of the truth according to the disposition of their mental states. Truth is simply relative to the subject who experiences it as such. Husserl notes two forms of psychological relativism from this consideration: (1) the first one, which has to do with a reduction of truth to the individual consciousness, claims “To each his own truth”; (2) the second one, which reduces truth to the human species, affirms “Only Man, among all species, is capable of grasping the truth.” Both individualism and anthropologism are criticized for restricting the universality of logic to a psychological realm. Individual relativism is dismissed without the slightest difficulty. Subjectivists are indeed inscribed in a vicious circle: individuals, who affirm their own opinion ahead of those of others, open a place for objective refutation. They thus presuppose the existence of an objective truth external to their own thoughts without resorting to it. Hence, although skeptics are part of a subjective process of evaluation of truth,

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without even wishing it, they tend toward objectivity by offering the possibility of refutation. Even if skeptics consider their assertions only for themselves, the possibility of an adverse refutation necessarily introduces the universality of truth in the background of the debate (Ibid, p. 128). As for specific relativism, which limits truth to such and such a type of being according to its own constitution, it is based on the thesis according to which a judgment can be true for one particular species and false for another. This, by definition, contravenes the principle of noncontradiction and thus is opposed to logical truth. Anthropologism, which thus considers the relativity of logical principles to physiological dispositions, falls into the pitfall of a reduction of truth to a specific form of existence. The universal and inalienable aspect of logic would depend on the particularism of a species. This would lead to dividing access to the truth in the form of an epistemological speciesism (Ibid, p. 130). From this relativity of the truth to a species follows the relativity of the existence of the world around us. Since the grasp of the laws and facts that define the sequence of causes in nature varies from one species to another, we must agree: the world is a multiplicity, not a unity. The reality of our rational world would thus be preserved by the constitution of our species. Hence, the human being would be the only guarantor of the reality of this rational world. Without human beings, everything disappears. But, once we admit this, it becomes possible that the order of the world varies when a mutation occurs in the constitution of our species. Does the evolution of the human species change the reality of the rational world? Could a neurophysiological variation therefore change the laws of nature? (Ibid, p. 134).

Against Logicism However, can pure logic be the foundation of mathematical truth? Husserl’s position, far from resolving the criticism of psychological positions, highlights the limitations of Frege’s own anti-psychologism. Although pure logic has the privilege of guaranteeing its truth independently of any extension, it is nonetheless true that it must deal with specifically human scientific activity. The methods that extend logic in the order of applied sciences manifest a precise use of logic that goes beyond the mere consideration of its ideal aspect (Ibid, p. 181). Husserl highlights the fact that logicists have unjustifiably contrasted normative law (derived from formal logic) with natural law (derived from empirical rules). For them, the normative law is prescriptive. The laws of logic are always and already presupposed in the methodological rules coming from the natural law. Husserl does not agree on this point. He considers that the natural law is not opposed to the normative law but that it is more opposed to what he calls the ideal law – which is not prescriptive. This purely aprioristic law is what characterizes pure logic through a legality that relates to pure essences and conceptualities. In other words, the laws of logic do not legislate on the rules of method.

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In this sense, the vicious circle that the logicists invoke against the psychologists is a form of reductionism of pure logic (Ibid, p. 183). The logicists, by confusing purely logical laws and normative laws, have thus generated an error which has to do with the prescriptive aspect of logic. They thus fall themselves into a vicious circle in which premises and conclusions are confused. The evidence that psychologists put forward is unfit for the consideration of the ideal experience that is played out in the objective and a priori grasp of the laws of formal logic. However, it is essential to characterize the ideal conditions of a general theory from not only the logical aspect of the laws, but also according to an aspect referring to the pure intuition (a priori). The idea of an eidetic intuition founded by intentionality would thus explain the birth of mathematics. But how is practical judgment concretely connected to this pure a priori legality specific to mathematical logic?

The A Priori Synthetic Judgment in the Social Choice The question of the application of the pure logic of mathematics to improve practical judgment predates the debate between psychologism and logicism. As early as the eighteenth century, the a priori judgment has been questioned through the application of mathematics to public affairs. In theory, the mathematical a priori of judgment should be able to reduce the margins of error of decisions. But how does this happen? Is it through an a priori synthesis or an a posteriori synthesis? In the light of the French Revolution, Condorcet proposed to subject public judgment to the law of large numbers. The reason for applying the calculus of probabilities in public affairs appeared to be an a priori that would favor just decisions in the judicial and political domains. According to this theory, there would be a structural truth attached to mathematical logic that would condition any form of decision. Understanding it would allow us to order our judgments to favor the truth. For example, in the absence of a convention or rule, the sharing of an obligation can be formulated as a practical problem that can be solved a priori. “Such would be the sharing, either of an obligation that must be fulfilled in common, or of a thing to which various individuals have rights, whenever these rights are mixed, of possible considerations that require recourse to the calculation of probabilities” (Condorcet, 1849, p. 571). All cases of dispute would thus, in theory, be susceptible to resolution by the a priori logic of mathematics as soon as there is uncertainty. The a priori structure of mathematical judgment offers quid juris the possibility of resolving disputes and reducing errors (Condorcet, 1805, p.  210). This desire to demystify uncertainty by means of a priori reason has had the effect of perfecting decision-­ making methods. In this sense, it appears that mathematics can thwart the errors that plague decisions in the field of law and justice when there is a lack of information. The judgment must therefore be the object of a probabilistic formulation (an a priori synthesis) capable of favoring the truth by organizing the system of public affairs. To do this, it is necessary, according to Condorcet, to define “(1) the probability of

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having a system that contains no contradictions; (2) the probability that this system, if it takes place, will be formed only of true propositions; (3) finally, the absolute probability of having a system formed only of true propositions” (Condorcet, 1785, pp. clxxij–clxxiij). According to this theory, we can, for example, from the geometric control of the number of candidates and voters, promote the truth of a ballot and, thus in a certain way, capture the intentions behind the decision.

Geometrizing the Legal Judgment This mathematical a priori of justice and morality led Laplace to propose a geometrical refoundation of the courts to avoid errors. Morality and justice, promoted by the Enlightenment, appealed to the laws of mathematics to guarantee the a priori veracity of the judgment (Laplace, 1912, p. 173). The legal and political fields were thus the object of a new theory of practical judgment: Laplace’s research on the application of probabilistic judgment (a priori) in the judicial domain (a posteriori). In his work, he proposes to preserve the truth by regulating the conditions of judgment during a trial without abolishing the casuistic competence of jurists (Laplace, 1886, pp. 520–521). In other words, mathematics does not replace the sagacity of judges (Ibid, p. 526) but rather helps them. By organizing the geometric and arithmetical structure of the judgment, the risks of legal error can be reduced. Even if the decision is based on quid facti evidence, the laws of mathematical logic order quid juris the structure of the decision. To demonstrate this, Laplace mathematically models a trial. He sets the a priori guilt of the accused at 1/2 and the true judgment of each member of the jury between 1/2 and 1. But this varies with each case. Everything depends on the quid facti evidence and the intentions of the members. Hence, to reduce the error of intentions, one can arrange the jury geometrically. Laplace shows that for an absolute majority vote, in a jury of eight members, the probability of an error is one-fourth. By reducing the number of judges to six, the probability of error is reduced in favor of the accused. However, this does not mean that the accused should be given too many chances. It is therefore by weighting the risk of error in favor and against the accused that Laplace determines an optimal geometric system (Ibid, pp. 522–524). By analyzing the arithmetic and geometric variations of legal errors, he proves that a majority of 9 votes out of 12 guarantees the truth by avoiding locking up the innocent and protecting society from the guilty: the risk of error then drops from 25% to 12.5%. However, the error may vary according to the political situation of the country or because of random events. This is why it is necessary to determine “the probability of the offence resulting from the decision of the court and to fix the majority in such a way that these probabilities are equal” (Ibid, p. 525); but in this case, it is necessary to know the quid juris intention of each judge confronted with the quid facti evidence, that is to say, to consider the link between the a priori synthesis and the a posteriori synthesis. This difficulty appears to Laplace as an insurmountable epistemological obstacle. The a priori structuring of the judgment leaves

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open the psychological uncertainty of the judges, for whom it is impossible to form an idea in a strictly a priori manner. The A Posteriori Synthetic Judgment of Legal Errors Poisson shifts the quid facti problem to the level of the decisions made by judges by adopting a position similar to Mill’s psychologism: “Laplace limited himself to considering the probability of the error of a judgment rendered by a known majority; however, the danger that the accused runs of being wrongly convicted by this majority, when he is brought before the jury, does not depend only on this probability; it also depends on the chance that such a conviction will be pronounced” (Poisson, 1837, p. 4). For Poisson, it is necessary to establish the probabilistic structure of the judicial judgment from the judges’ decisions. Rather than being interested in the arithmetical and geometrical form of a jury, one must measure a posteriori the chances of truth to avoid errors. He mobilizes the law of large numbers as an a posteriori synthetic judgment to limit the possibility of error from the observed data. Poisson periodically evaluates the constants and variables of the decisions rendered by the court of justice by questioning quid facti the modalities of moral judgment. To do this, he developed a formula capable of showing the occurrences of decisions over time by considering random variables such as the exceptional regime of the revolutionary courts.1 To define the probabilities of judicial judgment, he used statistical data from the Comptes généraux de l’administration de la justice criminelle (General Accounts of the Administration of Criminal Justice). By measuring these data, he shows that the proportion of convictions is 0.61 between 1825 and 1831 and varies by only 100th each year. Poisson uses this observation to establish the chances of conviction by synthesis a posteriori. He also evaluates the probability that a judge is in error. The error amounts to 0.07 and varies only slightly from year to year. The probability of conviction before trial is therefore set at 0.54. This process of (a posteriori) induction of numbers resembles Mill’s psychologism, which highlights the emergence of the numerical structure of judgments from the assertion of facts. Contrary to Laplace, Poisson bases all his reasoning on the introduction of statistical data. The application of the law of large numbers is established in the form of an a posteriori synthetic judgment articulating the accumulation and processing of data: “The distinctive character of this new theory of the probability of criminal judgments being thus to determine first, according to the data of observation in a very large number of cases of the same nature, the chance of error of the vote of the judges, and that of the guilt of the accused before the opening of the debates, it must be appropriate to all the numerous species of judgments” (Ibid, p.25). Statistical

1  The application of this formula to legal judgments can be found in Chap. 5 of Recherches sur la probabilité des jugements.

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observation makes it possible to define a posteriori the numerical structure of the judgment. It is therefore the assertion of a fact that allows the emergence of the number in the principle of judgments. According to Poisson’s theory, it becomes possible to apply the law of large numbers to all physical and moral things in the form of psychologism.

Conclusion It appears from a reading of the philosophers who have tackled the problem that the nature of the judgment that employs numbers leads to a set of limits and paradoxes: the quid juris always seems to become entangled with the quid facti in the game of calculation and thought. In a sense, the search for the foundations leads the seeker to ask if numbers are a priori at the interface of things or if things are a prerequisite for numbers. One could say that numbers and their structures are a form of logical and psychological hybridity which overarches the real. Moreover, the numerical application of the a priori synthesis and the a posteriori synthesis to judicial judgments invites us to reassess this question of nature. In a way, it seems obvious from the work of Condorcet and Laplace that the geometric structure of the jury directly influences the decision in an a priori synthetic way. The a priori number conditions the judgment. One could say that there is a transcendental structure that shapes the judgment and the decision depending on the number of judges. However, Poisson’s demonstration shows us the importance of an a posteriori synthesis to consider the variations of this same judgment over time. In this respect, the accumulation of data on judgments allows us to specify their inherent psychological nature (a posteriori). The question of whether the a priori synthesis structuring the judgment geometrically is primary or whether it is the a posteriori synthesis of judgments that is primary leads us to a vicious circle in which the logical presupposition seems primary even if it comes afterward. In a sense, its ontological evidence invites us to always put it first by begging the question. But, in any case, the distinction between the quid juris and the quid facti of numbers remains an epistemological problem which leads to a reflection on the nature of judgment: is an a priori science of judgment possible?

References Brunchvicg, L. (1947). Les étapes de la philosophie mathématique (1912), Paris, Puf. Condorcet, N. (de) (1785). Essai de l’application de l’analyse à la probabilité des décisions. Imprimerie Royale. Condorcet, N. (de) (1805). Éléments du calcul de probabilités (1787), Paris, Royez. Condorcet, N. (de) (1847–1849). Tableau général de la science. In Œuvres de Condorcet, Paris, Firmin Didot Frères, 1972.

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Fowler, D.  H. (1999). The mathematics of Plato’s academy: A new reconstruction. Oxford University Press. Frege, G. (1990). Les fondements de l’arithmétique (1884) (C.  Imbert, Trans.). Seuil, l’ordre philosophique. Husserl, E. (1994). Recherches logiques 1: Prolégomènes à la logique pure (1901) (H.  Elie, A. L. Kelkel, & R. Scherer, Trans.). PUF, Épiméthée. Kant, I. (1998). Critique of Pure Reason (1787) (P. Guyer, & A. W. Wood, Trans.). Cambridge University Press. Laplace, P. -S. (1886). Théorie analytique des probabilités (1812). In Œuvres complètes de Laplace, Paris, Gauthier-Villars. Laplace, P. -S. (1912). Leçons de mathématiques données à l’École Normale en 1795; dixième séance : sur les probabilités. In Œuvres complètes de Laplace, Paris. Mill, J. S. (1882). A System of Logic, Ractiocinative and Inductive (1843). Harper & Brothers. Poisson, S. D. (1837). Recherches sur la probabilité des jugements. Bachelier.

Part II

Economics, Management

Antecedents in Labor Economics Jean-Luc Gaffard

Abstract  There is a basic opposition between a theory of equilibrium and a theory of evolution in dealing with the question of labor and employment. The one claims that an optimal state of the economy and of society, to which the fluidity of jobs and the flexibility of wages would be coupled, exists and is known beforehand. The other maintains that the search for the solidity of jobs and the viscosity of wages only makes sense in terms of the consequences that one expects in terms of the viability of an evolution whose contours it is not possible to know a priori. This opposition actually reveals distinct philosophies of knowledge, one referring to a preexisting reality, the other attentive to experience without a priori.

Introduction Dewey, in his book The Quest for Certainty (1929), identifies two philosophical traditions: the one according to which “the office of knowledge is to uncover the antecedently real” and the one according to which “it is to gain the kind of understanding which is necessary to deal with problems as they arise” (p. 20). The pure intellectual activity is, thus, separated from the practical action, where change and contingency reign. The philosophical tradition predisposed to the universal, the invariable or the eternal, in search of certainty (a “complete system of immutable and necessary truth”) is placed in opposition to a pragmatic philosophy attentive to experimental investigation. This vision of philosophy favors “the contingency without a priori on all that can occur in the world, without prejudging any law or any norm that would be substituted for it from outside or from all eternity” (Cometti, 2018 p. 22). It leads Dewey to consider that the validity of a theory is measured by its consequences.

J.-L. Gaffard (*) Université Côte d’Azur, Nice, France © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 J.-S. Bergé (ed.), The A Priori Method in the Social Sciences, https://doi.org/10.1007/978-3-031-38260-4_8

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By following this approach, it becomes possible to revisit the theory of market economies and what it tells us about labor, employment, and wages. On the one hand, the reflection on the place and role of labor is located in a theoretical reference frame, that of a virtual reality, without any relation to experience, and is none other than the state of perfect competition as conceived by Walras (1874). On the other hand, this same reflection refers to concrete experiences, those characteristic of a situation of coordination in a situation of incomplete information as conceived by Keynes (1936), which belong to a specific historical and institutional context and therefore cannot respond to an immutable law, the putative mechanics of prices. Markets where labor supply confronts demand and where wage rates are set exist in practice. These markets are multiple. They correspond to various qualifications and locations. They are places of power and negotiation. They can be internal or external to the firm or the branch of activity. This elementary presentation, on which everyone can agree, masks antagonistic conceptions or premises of what is meant by the market economy, one conducted in terms of equilibrium, the other in terms of disequilibrium. From a general equilibrium perspective, in a competitive regime, supply and demand behaviors are guided by price signals (including wage rates), which reveal the degree of imperfection of the markets defined with respect to a reference state, perfect competition. The flexibility of these prices is the guarantee of the efficiency of behavior and the possibility of reaching this optimal state. From a disequilibrium perspective, in a situation of imperfect and incomplete information, employment depends, of course, on the tension between labor supply and demand, but also on the monetary and financial conditions affecting this supply and demand and, more generally, on the sequence of events that structure the evolution. The necessary coordination requires appropriate institutions and policies. Depending on the assumption made, the expected consequences of the policies or the lack of policies implemented will be different. It is these consequences that ultimately measure the validity of the a priori. If we are led to discard the a priori that relies on the belief in the existence of an equilibrium independent of any historical or institutional contingency, this does not mean that it is easy to adopt another a priori inasmuch as placing the requirement of coordination in incomplete information at the center of the game does not imply that the nature of the coordination problems is an invariant. The challenge is to move away from an attitude of thought that would make the a priori an ideology.

The Assumption of a Predefined Equilibrium This is an analysis of the functioning of market economies that is based on the idea that there is a state of perfect competition, a state in which the free formation of prices (and wages) ensures the communication of complete and immediately available information and leads to an optimum. Such an assumption is sufficient to

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explain the presumed harmful nature of market imperfections and the need to remedy them. It leads, in particular, to the dissociation of the unemployment rate from the inflation rate.

The Mechanics of the Labor Market The economic analysis of labor is most often driven by a conception of the market economy, that of Walras and Pareto, which consists in referring to an ideal – a social optimum – that one seeks to reproduce as closely as possible. Labor is the object of an exchange on a market, the labor market, thus becoming a commodity offered by some (the workers) and demanded by others (the employers). This merchandise has a price fixed on the market, the wage, which, in the best case (in perfect competition), is given by the marginal productivity of labor. At this wage rate, the supply of labor is equal to the demand for labor. All those who seek a job at this wage rate get it. There is no unemployment other than voluntary unemployment. This situation is conditional on a perfect flexibility of the wage rate that guarantees the existence and stability of the equilibrium on the labor market. Dealing with labor, employment, and wages in this way is at the heart of macroeconomic theory, which is based on the existence of a long-run equilibrium characterized by a natural rate of unemployment. According to this theory, the natural rate of unemployment is the only rate of unemployment compatible with a constant rate of inflation – positive, zero, or negative. Full employment is none other than the equilibrium reached in a labor market without assistance or distortion from government regulation. This unemployment rate can increase under the influence of shocks that increase the size of the flows irrigating the labor market: inflows and outflows of the labor force, the employed population, and the unemployed population. The larger these flows, the higher the unemployment rate and the job vacancy rate, for possibly low and constant unemployment or job vacancy durations. Thus, when the economy is engaged in an innovation process that creates and destroys jobs simultaneously, the equilibrium (natural) unemployment rate resulting from the matching conditions between vacancies and unemployed jobseekers will be higher the higher the innovation intensity and the higher the product growth rate (Aghion & Howitt, 1994). The other factor that increases the natural rate of unemployment is the imperfections that affect the functioning of both the labor and goods markets. One way of accounting for these imperfections is to establish two relationships between the real wage rate and the unemployment rate, one relating to the functioning of the goods market, the other to the functioning of the labor market (Layard et  al., 1991). According to the first, the price level is determined by the nominal wage rate plus a markup that reflects imperfections in the goods market. According to the second, the real wage rate – the nominal wage rate relative to the expected

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price level – depends negatively on the unemployment rate, but positively on the rigidities specific to the labor market (institutional layoff and unemployment compensation schemes), which reflect the bargaining power of employees. In equilibrium, the current price level is equal to the expected level, and the prevailing unemployment rate is the natural rate of unemployment. The increase in the markup, due to increased market power of firms, and increased rigidity in the labor market, due to increased bargaining power of employees, both result in an increase in this natural rate of unemployment. On the one hand, the expected price level increases so that in equilibrium the supply of goods decreases. On the other hand, the real wage rate for each level of the unemployment rate increases so that at the same expected price level the natural unemployment rate increases. This unemployment due to market imperfections of an institutional nature remains voluntary unemployment, which is nothing other than the reflection of institutional choices and power positions.

The Dichotomy Between Unemployment and Inflation The analytical approach thus promoted tends to dissociate the explanation of unemployment from that of inflation (Friedman, 1968). Unemployment is due to dysfunctions in the labor and goods markets. Inflation is due to monetary and budgetary excesses attributable to the government. No trade-off between the unemployment rate and the inflation rate can be sustained. Their dichotomy has as its corollary the neutrality of money and finance, in other words the dichotomy between a “real” sector and a monetary sector. From this perspective, employment can be described as casual, and the employment contract is a hire contract. As for unemployment, it is the result of market imperfections that must be corrected as much as possible if we want to reduce it. These imperfections take the form of rigidities in the wage rate due to the existence of a minimum wage or unemployment benefits, to the exercise of union power for the benefit of workers already employed, but also to the exercise of market power by firms, which leads them to raise their prices and reduce the volume of production and the number of jobs, even when they choose a wage level higher than the competitive equilibrium wage, known as the efficiency wage, which is supposed to encourage employees to reveal their true productivity level. In all cases, legal rules and institutions that exercise power are at stake and are systematically perceived as obstacles to the achievement of the social optimum of perfect competition, which is a state that is in some way a-institutional and a-historical. The solution advocated consists in structural reforms aimed at making markets more competitive by promoting price and wage flexibility. These reforms may be accompanied by so-called job security measures, which remain individual job training measures and do not call into question the principle of free markets.

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The Need for Coordination Out of Equilibrium An alternative approach breaks with the idea of competition as a state and gives way to the idea of competition as a process of rivalry aimed at the progressive acquisition of relevant information. According to this other original (antecedent) conception of competition, certain market imperfections or public interventions are required to ensure not the optimality of a particular state of equilibrium but the coordination of decentralized activities and the viability of evolution of the economy. From the perspective looked at by Keynes at the time of the Great Depression, the relationship between unemployment and the wage rate takes on a completely different dimension. Involuntary unemployment exists and is that which resists a fall in the real wage rate or decreases when this same wage rate increases (and aggregate demand increases). Of course, the money wage rate is rigid downward when more labor is available at the same or a lower wage rate. This rigidity is due to the fact that wage rates are not subject to daily auctions but are posted and fixed for fixed durations. It may be explained by workers’ preoccupation with relative wages and by the absence of a central (economy-wide) mechanism for changing all money wages together, that is, decentralized bargaining (Hicks, 1974). Employers and workers do not have the ability to coordinate at the aggregate level to set a real wage rate that would ensure a level of effective demand (anticipated by entrepreneurs) corresponding to full employment.

 he Link Between the Disequilibrium in the Labor Market T and the Disequilibrium in the Goods The link between the disequilibrium in the labor market and the disequilibrium in the goods market explains this lack of coordination. Excess supply in both markets does not lead entrepreneurs to increase employment in the expectation that newly employed workers will increase their demand for goods. Similarly, workers do not accept a fall in their money wage rate in the expectation that the fall in prices will translate into an increase in their real wage rate, all the more because the fall in wages and prices is likely to aggravate the excess supply of goods and unemployment. As a matter of fact, employment and wages are driven by separate but interdependent forces. The level of employment depends on the interaction between different markets, including the financial market. More precisely, it depends on entrepreneurs’ incentives to invest (and thus on effective demand, that is, the demand anticipated by entrepreneurs), which is controlled by the state of long-term expectations in a context where financial markets (interest rates) fail to ensure the coherence of long-term production and consumption plans. Thus, a fall in the expected rate of profit is not accompanied by a fall in the interest rate, which would result from a reduction in the demand for loanable funds ensuring equilibrium in this

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market and full employment at the cost of a redistribution of demand between consumption and investment. The reason for this is the behavior of capital owners who anticipate a fall in the price of securities, in other words a rise in interest rates, resulting in an increase in the unemployment rate. More generally, two mechanisms are at work. One regulates prices and the wage rate in response to market disequilibria on the basis of trading conditions in decentralized markets. The other determines employment, which depends on available financing resources given negotiated price and wage levels and demand expectations.

 he Complex Relationship Between Unemployment T and Inflation In this perspective, unemployment and inflation can no longer be considered as independent of each other. Both reflect disequilibria in the different markets, are closely related to each other, and reveal coordination failures that cannot be resolved by price and wage changes. The simplest situation is one characterized either by generalized excess supply, which leads to a rise in the unemployment rate and deflation, or by generalized excess demand, which leads to a fall in the unemployment rate and inflation. Thus, the Phillips curve is derived, reputed to be a stable inverse relationship between the unemployment rate and the inflation rate, opening the way to a fine-tuning of the economy through global, fiscal, or monetary means. In fact, this relationship does not have the stability that has been attributed to it. It can happen that the unemployment rate and the inflation rate increase (or decrease) simultaneously. This does not mean that they are independent of each other but that they reflect the heterogeneity of the micro markets for goods and labor. Indeed, it is enough for the reactions to market disequilibria in terms of prices  (wages) and quantities (of employment) to be asymmetric – firms increase prices (wages) rather than quantities (employment) in the face of excess demand and vice versa in the face of excess supply – for a greater variance of the distribution of excess demand and supply to result in a simultaneous increase in the inflation rate and the unemployment rate (Tobin, 1972; Fitoussi, 1973).

The Labor Relationship Revisited An a priori emphasis on coordination failures is part of a representation of labor that breaks with the reference to the market relation alone. The “ordinary” theory ignores the fact that the labor relationship has been transformed at the same time as labor has acquired a new status, that of a fund of resources comparable to physical capital because of the specific character of qualifications and the duration of their commitment (Georgescu-Roegen, 1971). Labor now has a qualitative as well as a

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quantitative dimension. It no longer has the property of homogeneity that is attributed to it in many models. It cannot be transferred freely (without cost and without delay) from one type of production process to another. Thus, the employment contract has appeared, whose characteristic, often forgotten in economic literature, is that it is not a strict market relationship like the hire contract. It constitutes a relationship of authority before being a market relationship (Simon, 1951). Moreover, it presupposes a certain continuity in the relationship between employer and employee. This continuity explains why there is a cost to breaking this relationship, for the employee of course, but also for the employer, since there is, to the detriment of both, a loss of accumulated human capital and of the learning capacity. In other words, the employment contract is part of a progressive enrichment of skills that responds to the need for the company to constantly renew its business and its customers (Segrestin & Hatchuel, 2012). Labor is not inevitably a commodity subject to the possibly erratic vagaries of supply and demand. A job can be described as regular. The durability of the employment relationship requires mutual trust between the employer and the employee. Wage formation is then governed by conventional rules based on the principle of equity, which meets the need for the viability of both firms and the global economy. Fairness goes hand in hand with the fact that wages set by employers do not react suddenly and rapidly to labor shortages or surpluses but remain relatively rigid. This rigidity is a matter of continuity in the employment relationship, not of monetary illusion (Hicks, 1974, pp. 65–66). Unemployment cannot be reduced to a malfunctioning of the labor market. The flexibility inherent in the employment contract is that the tasks set by the employer can and usually do change to meet new business needs. It is a form of liquidity that aims, like financial reserve assets, to preserve the widest possible range of future choices (Simon, 1951). This is based on the conviction that innovation is a matter of collective learning, at the heart of which stands the firm. From this perspective, “the great singularity, and the enduring modernity of labor law, consists precisely in recognizing that the capacity of individuals is necessarily embedded in that of the groups to which they belong, and that society is not and cannot be this dust of contracting particles to which market fundamentalists would like to reduce it” (Supiot, 2010, pp.  139–140). This construction takes as its starting point the creativity of people and their collective capacity. It is anchored in an economy of imperfect knowledge, not in an economy of perfect competition. The flexibility required cannot be equated with an immediate responsiveness of wage rates to market signals, which generates the mobility that ease of hiring and firing would make possible. It becomes a capacity for initiative that allows the firm to evolve, to create new productive options, and to build its own environment by creating new skills and competences (Amendola & Bruno, 1990). The emphasis is therefore placed on the long-term potential of human resources rather than on their immediate performance. What is important is not so much the tasks assigned to workers at a given moment as the possibility of their redeployment to perform new tasks. The purpose of outsourcing some of these tasks is not to reduce costs, but to free up internal resources for new, more productive, or more

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promising tasks. These learning and redeployment processes take time and involve temporary cost increases, mobilizing resources whose use is neither systematically nor immediately optimized. It is true that in the field of new technologies, de facto, firms mainly use the external labor market with the result that the duration of job is relatively low. These firms do this because they are looking for the experience their employees have gained with their competitors. For this reason, they offer ever higher wages to new workers who exercise their market power and remain permanently employed, albeit in different firms. They can do this because they are in a position of monopolistic competition. This is a very specific form of labor mobility, which must be distinguished from the mobility required by the destruction of jobs due to changes in technology or customer preferences that lead to changes in required qualifications. No less particular is the mobility induced by the existence of communities of practice or knowledge, associating employees who may work in different firms, whose object is the creation of knowledge. These communities transcend the distinction between internal and external labor markets while at the same time stabilizing individual commitments, far from flexibility in its common sense of immediate optimization of individual situations. They reflect the desire to control social interactions, not at a given moment in time, but throughout a never-ending process of innovation (Cohendet & Gaffard, 2012). Stable jobs and fair wages are part of a conception of the firm, not as the property of shareholders who are supposed to be in the best position to make strategic choices, but as a political coalition contractually associating the different stakeholders, i.e., managers, employees, capital owners, customers, and suppliers (March, 1962). Executive managers and workers base their actions on long-term, contractual or informal commitments. Incentives are based on the duration and stability of the employment relationship. Hiring decisions are not simply determined by the wage rate. They are determined by reference to the present value of expected costs and benefits (Bruno, 1987 p.  138). Work force is a fund of services in the sense of Georgescu-Roegen (1971), the effective use of which proceeds from a labor contract of indefinite duration. “The rise of this wage status has led to a legal resurgence of non-contractual forms of exchange, such as the intergenerational solidarities established by pay-as-you-go pension schemes, which institute a life-long debt to the previous generation” (Supiot, 2013 p. 34). The durability of the employment relationship (or the employment contract) is, moreover, conditioned by the durability of the finance contracts. Entrepreneurs can guarantee the duration of the employment relationship only if they have the necessary financial resources at their disposal at the time they are needed. The employment contract can no more be dissociated from the finance contract than the labor market can from the financial market. The distinction between “outside” and “inside” shareholders takes on its full meaning here. Consequently, “the fact that corporate law favors one or the other of these two forms of shareholding is obviously much more significant for employment than the more or less protective nature of the firing law” (Supiot, 2010 p. 112).

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The Experimental Consequences of an A Priori The a priori assumed are not without consequences for the course of events, whether they postulate the existence of an optimal equilibrium outside of any experience or whether they are embedded in a historical and institutional context. This is demonstrated by the following experiments, one described as neoliberal, the other as Keynesian.

The Neoliberal Experiment From the 1970s onward, after inflation had been eradicated, apparently thanks to the intervention of central banks, human resources once again became an individual rather than a collective resource in the minds of policymakers. Job mobility measures, which are supposed to provide individual job security, have taken precedence over job tenure guarantees. The frequency of job changes, and thus of switching to the external market, has increased at the same time as the average length of time spent in particular jobs has decreased. Of course, one could always imagine that the specificity of investments made by firms to create jobs, reinforced by institutional rules that prevent layoffs, would devalue the firm’s option of using its resources outside the initial employment relationship and reduce the opportunity to invest because of the risk of appropriation of part of the quasi rent by labor. The result would be technological sclerosis and underutilization of labor (Caballero and Hammour (1996, 1998). To see things this way, however, is to ignore the fact that maintaining a certain level of employment protection is the way to encourage investment in human capital, that is, to create conditions that are favorable to learning and innovation and to encourage the adaptation of skills to the new requirements of the goods market. Finally, it ignores the existence of financial constraints that inevitably have an impact on the learning process. The apparent paradox is that by favoring immediate flexibility of reaction, firms deprive themselves of the capacity to adapt in the future and are subsequently confronted with rigidities due to a lack of physical and human capital. The main result of the flexibility of labor markets has been a lasting polarization between high-skilled, high-paying jobs and unskilled, low-paying jobs, with the result that median wages have fallen. The human resources freed up, far from being directed toward better paid high-tech activities, have been forced to go toward activities where the jobs offered were low-skilled or unskilled, sometimes part-time, and most often precarious. This is because the workers who were dismissed did not have sufficient financial resources or the knowledge to access the higher qualifications required. The multiplicity of jobs held over the course of a working life was then a reflection of this precariousness rather than a reflection of the multiplicity of occupations performed and qualifications. The high entry and exit rates were more

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indicative of the precariousness of jobs than of the intensity and speed of innovation, and the decrease in the unemployment rate went hand in hand with an increase in the rate of precarious employment and the poverty rate. All empirical studies of the employment situation in the United States (Katz & Krueger, 2019) as well as in Europe over the past two decades attest to this polarization. A very large number of the millions of jobs created have been temporary, ad hoc, short contract, independent consultant jobs. Most often, the working poor, with little or no qualifications, navigate between unemployment and precarious jobs because of their low probability of benefiting from any training during or outside their employment period, all of which creates limitations on their ability to adapt, in other words, rigidities, which is not the least of the paradoxes. Encouraging flexible responses and authorizing institution-wide fluctuations in employment apparently encourage firms to choose riskier investments, since they will not have to bear the totality of these risks, part of which will be borne by the workers, contrary to the thesis that only shareholders are exposed to risk. Above all, it encourages these same firms not to invest much in human capital, since they anticipate potentially losing the benefit of this investment with the departure, voluntary or involuntary, of their employees. In a way, the bad firms could drive out the good ones. Creativity is exercised with the only aim of achieving very short-­ term gains. This transformation in the nature of jobs and the associated fall in wages have affected the quality of human resources and, hence, potential growth. It is not labor market rigidities that have steered investment and technological choices in a direction damaging for productivity and growth, but the development of dualism in labor markets. The malfunctioning of these markets has resulted in the perpetuation of labor supply surpluses in one part of the market and labor demand surpluses in the other, with wages falling on one side and rising on the other. The result has been a widening of inequality and a decline in the middle class, affecting the structure of demand for goods. The richest households, whose incomes are largely rent-like, buy luxury goods manufactured in small volumes, sometimes abroad, or use their abundant savings to buy existing financial and real estate assets. The poorest households in rich countries have turned away from domestic products to buy products manufactured at low cost in low-wage countries. A form of deindustrialization seems to have taken place, reducing productivity gains, export capacity, and potential growth rates. In general terms, close links have continued to exist between disequilibria in labor markets, goods markets, and financial markets. The quasi-disappearance of inflationary pressures has been associated with the restructuring of jobs and trade and with the financialization of the economy. The rise of dualism is undoubtedly the reason why, over the last period, productivity gains were as low in the United States and the United Kingdom as in the eurozone countries, despite significant differences in employment protection, the intensity of competition in the goods and services markets, and the weight of the public sector and taxation.

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The Keynesian Experiment Revisited The crisis in Keynesian economics in the 1970s was above all the consequence of an erroneous assessment of the nature of the coordination difficulties faced by developed market economies, which were the result of profound structural changes. The a priori response brought about by what had been learned from the crisis of the 1930s no longer produced the expected results. Faced with the simultaneous, unprecedented increase in the unemployment rate and the inflation rate, the indiscriminate support of aggregate demand failed, causing inflation to soar without halting the rise in unemployment. The increase in wages to increase aggregate demand came up against the heterogeneity of both supply and demand and the specific coordination problems that this heterogeneity gives rise to. The reality at the time was that the sharp rise in the prices of all commodities resulted in a disruption of the structure of the economy, with some sectors going into decline while others began to expand again. This was the basic reason for stagflation. Firms in the expanding sectors increased prices (wages) rather than quantities, as they remained uncertain and were cautious about investment. Firms in declining sectors cut quantities and employment rather than prices (wages) in the false hope of maintaining their market share. In this situation, a generalization of wage increases in response to the rising unemployment rate could only precipitate an inflationary spiral while accelerating job losses in declining sectors. Inflation, having passed a certain threshold, proved harmful in that it undermined the trust in bargaining that makes the labor contract a guarantee of economic efficiency and social equity (Hicks, 1974). This was a major reason to fight it. This was not a reason for questioning the foundation of the labor contract. Today, the digital revolution and the need for ecological transformation of production and consumption methods, combined with geopolitical upheavals linked to the health crisis and the war in Ukraine, are creating a situation that in some respects is reminiscent of that of the 1970s. Inflation has resurfaced in the form of soaring prices for raw materials, certain agricultural products, and industrial components. Temporary shutdowns of certain production processes and disruptions in supply chains are cited as explanations. The implicit assumption, from the perspective of equilibrium, is that there will be a more or less rapid return to normality. The reality is more complex. Inflationary pressures are spreading from upstream to downstream. Sectoral restructuring becomes all the more likely as exogenous shocks are likely to lead to the relocation of activity. So, once again, we are talking about an evolution based on a more or less virtuous chain of disequilibria in the different markets and in the different spheres of the economy, rather than convergence toward a predetermined equilibrium. In this situation, a strongly and rapidly restrictive monetary policy, designed to reestablish an imaginary equilibrium, is likely to result in a collapse of the financial markets and an increase in the cost of public debt, which would also vary from country to country, creating a particular difficulty within the eurozone. This would depress aggregate demand and harm growth, without resolving any of the sectoral disequilibria and bottlenecks that characterize the structural transformation of the economy.

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Inflationary pressures would be contained, but at the cost of penalizing productive investment, raising the unemployment rate and delaying structural change. It would be better to promote an organization of work that favors the long-term relationship between managers and employees, an organization that is inseparable from a financial organization that guarantees its durability. Globalization has threatened this durability by establishing the dominance of capital owners focused on short-term performance, leading firms to fragment their production processes and to play on the competition between legal systems, leading to the development of precarious jobs. The challenge is to restore the institutional dimensions of markets, particularly the labor markets. It is up to the law to set the limits of competition or cooperation, to establish the contours of the firm, which is not a simple knot of contracts, but a political coalition between what are called its stakeholders.

Conclusion Economic theory is driven by various a priori, each of which undoubtedly has an ideological dimension. Things are, however, a little more complicated than that. Thus, the theory of general equilibrium is ambiguous. For Walras (1874), it constitutes “a realistic utopia, i.e., a delineation of a state of affairs nowhere to be found in the actual world, independent of time and place, ideally perfect in certain respects, and yet composed of realistic psychological and material ingredients” (Jaffé, 1980, p. 530). It does not, however, entail prescribing measures that would disregard the informational hypotheses on which it is based. Where ideology takes over is when this precaution is abandoned, and one believes in the omnipotence of coordination through price flexibility even though information is incomplete. Keynesian theory, in its standard version, is also not immune. Applied outside the context in which it was developed and consisting in sticking to the management of aggregate demand through the budgetary instrument, it becomes in turn an ideology that leads to a loss of control over macroeconomic variables when there are structural changes in the economy. From this discussion, it emerges that the a priori that should guide the theory is none other than a twofold observation: an evolution punctuated by recurrent changes in technologies, preferences, and institutions systematically comes up against changing coordination difficulties; paradoxically, this evolution is only viable if certain forms of inertia prevail, which are inscribed in the institutions. Thus, the search for job stability and wage stickiness only makes sense in terms of the consequences expected regarding the viability of an evolution whose contours it is not possible to know a priori. This conception of work is opposed to the notion that there exists an optimal state of the economy and of society that can be known beforehand, to which the fluidity of jobs and the flexibility of wages are attached. It is part of a legal order that includes, among others, labor law, competition law, and company law, a multiple order that is the product of experience, in this case the experience of instability. In the philosophical perspective, which is the one argued by Dewey (1929) and which we have adopted, “an idea is tentative, conditional, and rigorously

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determinative. It controls an action to be performed, but the consequences of the operation determine the worth of the directive idea” (ibid. p. 274). Thus, following Dewey, “we have considered some of the definitive steps by which security has come to attach to regulation of change rather than absolute certainty to the unchangeable. We have noted how in consequence of this transformation the standard of judgment has been transferred from antecedents to consequents, from inert dependence upon the past to the intentional construction of a future” (ibid., p. 276).

References Aghion, P., & Howitt, P. (1994). Growth and unemployment. Review of Economic Studies, 61(3), 477–494. Amendola, M., & Bruno, S. (1990). The behaviour of the innovative firm. Relations to the environment. Research Policy, 19, 419–433. Bruno, S. (1987). Micro-flexibility and macro-rigidity: Some notes on expectations and the dynamic of aggregate supply. Labour, 1(2), 127–151. Caballero, R. J., & Hammour, M. L. (1996). On the timing and efficiency of creative destruction. Quarterly Journal of Economics, 111(3), 805–852. Caballero, R.  J., & Hammour, M.  L. (1998). The macroeconomics of specificity. Journal of Political Economy, 106(4), 724–767. Cohendet, P., & Gaffard, J.-L. (2012). Coordination, incitation et création de connaissance. Management International, 16, 11–19. Cometti, J. –P. (2018). ‘Présentation’ de Dewey J. Écrits politiques, Extraits de The Collected Works of John Dewey. Gallimard. Dewey, J. (1929). The quest for certainty, a study of relation of the knowledge and action. Allen and Unwin. Reprinted in The collected works of John Dewey, The Later Works (1925–1953) vol. 4 (1984): Southern Illinois University Press. Fitoussi, J.-P. (1973). Inflation, équilibre et chômage. Cujas. Friedman, M. (1968). The role of monetary policy. American Economic Review, 58, 1–17. Georgescu-Roegen, N. (1971). The entropy law and the economic process. Harvard University Press. Hicks J.  R. (1974). The crisis in Keynesian economics. Basil Blackwell. Traduction française (1988) La crise de l’économie keynésienne. Fayard. Jaffé, W. (1980). Walras’ economics as others see it. Journal of Economic Literature, 18(2), 528–549. Katz, L. F., & Krueger, A. B. (2019). The rise and nature of alternative work arrangements in the United States, 1995–2015. ILR Review, 72(2), 382–416. Keynes, J. M. (1936). The general theory of employment, interest, and money. Macmillan. Reed. The Collected Writings Vol. VII (1973). Macmillan for the Royal Economic Society. Layard, R., Nickell, S., & Jackman, R. (1991). Unemployment, macroeconomic performance and the labour market. Oxford University Press. March, J. (1962). The business firm as a political coalition. The Journal of Politics, 24(4), 662–678. Segrestin, B., & Hatchuel, A. (2012). Refonder l’entreprise. Le Seuil. Simon, H.  A. (1951). A formal theory of the employment relationship. Econometrica, 19(3), 293–305. Supiot, A. (2010). L’esprit de Philadelphie. La justice sociale face au marché total. Le Seuil. Supiot, A. (2013). Grandeur et Misère de l’État social. Collège de France – Fayard. Tobin, J. (1972). Inflation and unemployment. American Economic Review, 62, 1–18. Walras, L. (1874). Éléments d’économie politique pure ou théorie de la richesse sociale, Edition comparée, P. Dockès et alii. Economica 1988. English translation Elements of Pure Economics, translated from the definitive edition by W. Jaffé. Allen and Unwin 1954.

Blockchain: Antecedents and Future Challenges Martin Cimiterra and Jackie Krafft

Abstract  Studying the antecedents and future challenges of blockchain is the major goal of this chapter. This contribution examines some of the heuristics that seem to persist in the collective consciousness, especially the ones commonly associated with blockchain as a cryptocurrency, as a potential source of energy/environmental imbalances, and as a tool for cybersecurity. The goal of this chapter is to highlight that these heuristics do not fully capture the complex implications of blockchain, and the technology should be viewed as having a much broader spectrum of implications for economic activity and society. While the disruption of financial institutions by cryptocurrencies and the decentralization of transactions remain prominent in the minds of many observers and commentators, the potential of blockchain technology goes far beyond these features, along with consequences that may be counterintuitive at first glance. This chapter explores the limitations and challenges of blockchain technology, providing a more complete understanding of its potential impact.

 rom Cryptocurrency to Turing Complete Decentralized F Virtual Machine Since the emergence of Bitcoin in 2008, blockchain technology has been associated with its financial applications, including cryptocurrencies, initial coin offerings (ICOs), and non-fungible tokens (Halaburda et al., 2022; Makarov & Schoar, 2022; Lyandres et al., 2022; Vasan et al., 2022). The decentralized aspect of blockchain technology is a well-known narrative, as it is defined as a distributed ledger technology that allows secure and distributed exchanges of information without the need for a central authority, thanks to cryptographic techniques. This results in immutable, secure, time-stamped information that is shared among multiple systems. M. Cimiterra (*) · J. Krafft Université Côte d’Azur, Nice, France e-mail: [email protected]; [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 J.-S. Bergé (ed.), The A Priori Method in the Social Sciences, https://doi.org/10.1007/978-3-031-38260-4_9

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While Bitcoin and other related cryptocurrencies can offer financial inclusion for populations that lack solid institutional infrastructures (Cong et al., 2023), they are at the same time criticized for the threat to democracy that results from the rejection of governmental monetary sovereignty. As such, the cryptocurrencies challenging central banks all around the world suggest the increasing need to develop Central Bank Digital Currency (Donmez & Karaivanov, 2022). On the other hand, the achievement of such a Central Bank Digital Currency could lead to a “digital leviathan,” that is, a technology that would threaten privacy and civil liberties (Baronchelli et al., 2022). In sum, blockchain does not seem to provide an ideal remedy because of the difficulty of regulating it. This controversial aspect of the technology sometimes leads to a negative appraisal in the debate because of the illegal activities which occur in this new type of network, as some argue that decentralized finance (DeFi) enables “black e-­commerce,” ransomware, and Ponzi schemes (Foley et al., 2019; Walch, 2019). The criminality operating in these systems must be prohibited by updating the jurisdiction of governments, but this should not be at the expense of the technology, which is considered strategically important.1 The “alegality” of blockchain (De Filippi et al., 2022), together with an intensive market demand, can lead to a vision where successful entrepreneurs tend to be attracted to transgressive behavior (Levine & Rubinstein, 2017). Yet, a study shows that venture capitalism through blockchain technology, corresponding to ICOs, leads to higher growth and recruitment than start-up fundraising through more traditional sources of funding (Howell et al., 2020). Furthermore, the labeling provided by the French Financial Market Authority regulator2 and the recent Market in Crypto Assets3 and Transfer of Funds Regulation4 legislation in preparation at the level of the European Union are examples that demonstrate a motivation to manage the ecosystem in order to fully capitalize on the technology. Before the development of blockchain, digital assets were vulnerable to double-­ spending and other forms of fraud. Now, cryptocurrencies create digital scarcity (Brekke & Fischer, 2021) using cryptographic algorithms that enable a new level of trust and security in digital transactions. Cryptocurrencies such as Bitcoin disrupt financial institutions by decentralizing transactions, but Ethereum takes disruption a step further. While Bitcoin and other cryptocurrencies focus primarily on financial transactions, Ethereum aims to disrupt social and political institutions as well, by providing a distributed state machine that allows the development of smart contracts on a large scale (De Filippi & Mauro, 2014). Ethereum brings trust and security into the digital sphere at an efficient cost and is accessible to almost any Internet user, making it applicable to any kind of organizational structure, and it has been adopted

 https://digital-strategy.ec.europa.eu/en/policies/blockchain-strategy  https://www.amf-france.org/en/eli/fr/aai/amf/rg/article/713-3/20190605/notes 3  https://www.consilium.europa.eu/en/policies/digital-finance/ 4  https://www.europarl.europa.eu/legislative-train/theme-an-economy-that-works-for-people/ file-revision-of-the-regulation-on-transfers-of-funds 1

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by leading firms in various industries (Cimiterra et  al., 2021). Ethereum and the associated currency Ether were built on the same basis as other cryptocurrencies, but the blockchain adds a layer including a virtual machine that is Turing complete (Berg et al., 2019). This means that, in theory, any software can be developed and launched with the computational power of the blockchain, thus corresponding to decentralized applications, making Ethereum the second generation of blockchain technology (Cimiterra & Krafft, 2022). The potential of blockchain technology can be better exploited to disrupt the digital platform market, currently dominated by big techs, through decentralization. Indeed, this is a key feature of Web3 where user transactions are not captured by one actor but rather shared among all users, while intellectual property can still be attributed to one person. As a result, the incentives of Web3 differ from those of Web2.0, where network effects favor powerful intermediaries (Zingales, 2017). With the second generation of blockchain technology, tokens with cryptographic properties can be created through smart contracts, changing the way services are valued and distributed. This has the potential to challenge the power of big techs in the platform market. By providing digital scarcity, blockchain facilitates users switching between platforms easily with interoperability. Therefore, the potential of blockchain technology in decentralizing the platform market is significant, with Web3 incentivizing a new type of platform economy that prioritizes benefits to users (Pike & Capobianco, 2020; Frolov, 2021; Catalini & Kominers, 2022). On the other hand, the risk of anticompetitive behavior should not be underestimated (Schrepel, 2021). In this sense, blockchain technology pushes back the digital boundaries to new dimensions, bringing both opportunities and challenges for governments and regulators. It is not yet clear the extent to which blockchain will enable concrete decentralization within our society and organizations (De Filippi et al., 2020). While enthusiasts and proponents of blockchain technology aim to spread it as a tool for global governance, it is important to keep in mind that the human aspect of its development requires identifying and highlighting complex power relationships in order to avoid the same situation that we are facing with big techs (De Filippi & Loveluck, 2016; Walch, 2019; Frolov, 2021). This implies that a more nuanced approach should be adopted when thinking about blockchain as a whole, notwithstanding that the technology could also lead to a dictatorial technocracy with social exclusion for citizens who do not respect the rules of the system, the lex cryptographia (Wright  & De Filippi, 2015). But from a social contract perspective (Reijers et al., 2016), the technology seems to mitigate this issue since it offers a countervailing power to a “blade runner scenario” (Dosi & Virgillito, 2019) because blockchain allows new forms of organization that can complement the government instead of discarding it (Berg et al., 2019). Furthermore, the destruction of traditional institutions such as government through lex cryptographia seems unlikely to happen for many reasons. The main one is that the contracts that represent the basis of agreement in society are incomplete, whereas smart contracts are complete contracts (Davidson et al., 2018). Nevertheless, if blockchain technology is appraised as a means for global governance design, the need to develop the digitalization of the society with an adequate balance between a cost-savings approach and a focus on human rights is prominent

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and appears to be of a crucial importance, and blockchain is no exception to this rule (Langford, 2020).

Beyond Proof-of-Work Protocols to Achieve Sustainability The massive energy consumption of the first and the most capitalized cryptocurrency, Bitcoin, implies that this cryptocurrency alone could potentially raise the global temperature by more than 2 °C (OECD, 2019; Mora et al., 2018). While this claim can be controversial in the sense that it is difficult to measure precisely the extent to which Bitcoin is mined through carbon-intensive means, it is nonetheless important to consider this aspect of the technology and its impact on greenhouse gas increases (De Vries, 2019). This explains why blockchain technology is considered by some as a brown technology whose functioning is generally explained by the Bitcoin protocol, the proof-of-work consensus. Trust in this case is achieved by solving a difficult mathematical problem through specific computations requiring intense consumption of energy. Currently, the energy consumption of Bitcoin is estimated to be about 89 terawatt hours.5 But there exist a wide variety of consensus algorithms. For example, a proof-of-­ stake protocol reduces wasteful energy consumption while preserving the key properties of the technology. The blockchain Ethereum, the second platform in terms of capitalization, switched to this mechanism in September 2022, resulting in a significant decrease in energy consumption6 (De Vries, 2022). The incentives behind the mechanism still preserve the security and resilience of the network without necessarily concentrating the power in the hands of few actors (Saleh, 2021). Other protocols are under development, such as proof-of-solution. Here the objective is to use the computational power to solve complex issues in the management of electricity networks, instead of solely ensuring the integrity of the system, as in Bitcoin’s protocol. This results in the optimization of the energy dispatch between users (Chen et al., 2022). Thus, it appears that blockchain technology per se is not necessarily characterized by energy intensive protocols. Therefore, it should be reappraised as a new kind of digital platform with its own characteristics that can potentially enable sustainable development goals (Chandan et al., 2023). Blockchain has high complementarity with other digital technologies such as artificial intelligence (AI) and the Internet of Things (IoT), which makes it crucial for deploying these key enabling technologies on a large scale (Akter et al., 2022). Because blockchain is considered to provide a transparent, secure, resilient, time-­ stamped, and immutable information structure without the need for a central authority, the technology can be used for feeding AI algorithms to monetize data and facilitate audits (Tsolakis et al., 2022). The other aspect of this convergence lies in

 https://digiconomist.net/bitcoin-energy-consumption  https://digiconomist.net/ethereum-energy-consumption

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the fact that AI can improve the protocol in terms of cybersecurity and scalability since it detects suspicious behavior and malicious attacks through increased scrutiny (Choo et al., 2020). The combination of the two leads to what some have called “blockchain intelligence” (Zheng et al., 2021). Interestingly, blockchain intelligence can help to achieve sustainable development goals in supply chain management in the food industry (Chandan et al., 2023). The advantage of using blockchain lies in the traceability between the different actors, from the origins of production to the last miles of delivery, where respect for human rights and environmental efficiency represent major improvements (Friedman & Ormiston, 2022). In terms of the benefits of combining with AI, blockchain technology can improve the efficiency of the decision-making process by providing real-time data management (Marke et al., 2022). Concerning the complementarity with IoT devices, this technology can transfer physical information to the digital sphere where IoT devices correspond to what some call “oracles” (Bakos & Halaburda, 2021; Makarov & Schoar, 2022). The benefits of the synergy for IoT technology is that blockchain ensures the decentralization, continuity, privacy, and security of big data, which can then be analyzed efficiently by AI. The result of this synergy has been called “BlockIoTIntelligence architecture” (Sing et al., 2020). This combination could catalyze sustainable practice in a wide range of sectors such as electricity (Morstyn et al., 2018), forestry (Hownson et al., 2019; Gabrys, 2020; He & Turner, 2022), and marine management (Howson, 2020; Tsolakis et al., 2022; Chandan et al., 2023). For example, while investments in solar panels used to be costly, the decentralization of information exchanges through blockchain-based smart contracts reduces the transaction costs and enhances the diffusion of smart energy (Diestelmeier, 2019; Thomas et  al., 2019). In the forest sector, smart forestry promises to improve the management of fires and reduce the threat of deforestation activities through connected devices while ensuring trust in the information and avoiding corruption of its true status in line with REDD+ activities.7 In a broader perspective, global warming appears to be the most challenging problem of this century, with crises and natural disasters likely to intensify significantly. Taking this into account, another way blockchain can help in climate change issues is by providing an infrastructure that emphasizes the decentralization of governance in the carbon market (Chapron, 2017; Marke et  al., 2022). The fact that different jurisdictions could autonomously integrate a network based on blockchain technology dedicated to communicating the intended nationally determined contributions is in line with the objectives of the Paris Agreement.8 Indeed, the decentralized aspect of blockchain makes more local initiatives possible, which can facilitate social acceptance (Geoffron & Voisin, 2019). Its association with AI and the IoT may also make it possible to enhance the governance of this market on a large scale

 https://unfccc.int/topics/land-use/workstreams/redd/what-is-redd  https://unfccc.int/process-and-meetings/the-paris-agreement/nationally-determined-contributions-ndcs/indcs 7 8

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(Marke et  al., 2022). This is because blockchain coupled with AI and IoT could automate and improve the transparency of the Measurement, Reporting, and Verification process. Both governments and climate service technology providers may benefit from this structure of open information sources (Keenan, 2019). Technology addresses the environmental challenges faced by humanity, through smart automation, in which blockchain, AI, and IoT are likely to play a key role (Chapron, 2017). While these technological possibilities seem promising at a time of urgency regarding global warming, one of the risks of these potential tools for planetary governance is to consider nature as a resource to be optimized instead of a common good that must be conserved in cooperation with local populations that are facing disparities (Palagi et al., 2022) and need help to adapt to this inevitable change (Gabrys, 2020).

Pre-quantum to Post-quantum Blockchain Blockchain technology’s reputation of providing a high level of security is based on cryptographic techniques common to all permissionless blockchains, even though their consensus protocols may differ (Choo et al., 2020). More precisely, these techniques correspond to hashing and asymmetric cryptography. Hashing is a process of converting input data into a fixed character length using a mathematical function.9 In the blockchain, the hash is added to each block as a unique identifier and is used to link the block to the previous one in the chain. This creates an immutable and tamper-proof record of all transactions that is particularly difficult to alter without invalidating the entire chain. Indeed, while it is easy to verify the hash, it’s almost impossible to reconstruct the original input data from it, making it a secure way of ensuring the integrity of data in the blockchain. The second technique, asymmetric cryptography, is used in blockchain to ensure that only authorized parties can modify the data. Each user has a pair of public and private keys, where the public key is used to generate an address which is used to store, send, and receive cryptocurrency. The private key is used to sign transactions and prove ownership of the address, like a password. The security of the system relies on the fact that with a classical computer, it is impossible to derive the private key from the public key. In sum, assuming the protocol of consensus of the blockchain technology is not altered, the combination of these cryptographic techniques is considered to create a secure system. Although these specific techniques are widely recognized for their resilience, they may face challenges in the near future due to the development of quantum technology (Allende et  al., 2021; Rohde et  al., 2021). The two most capitalized blockchains, Bitcoin and Ethereum, use asymmetric cryptography that relies on elliptic curve

 For instance, Bitcoin uses SHA-256 (Secure Hash Algorithm 256) that provides a suite of characters of 256 bits. 9

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cryptography (ECC) to generate public and private key pairs for digital signatures, authentication, and encryption. This technique will be vulnerable to quantum computing because of Shor’s algorithm, a quantum algorithm capable of efficiently factoring large integers. Indeed, if a quantum computer with sufficient qubits is developed, it could be used to break cryptographic protocols such as RSA and ECC.  As a result, these blockchains could become vulnerable to quantum attacks (Aggarwal et al., 2018). While the norm for many cryptocurrencies is to use a public key once, this is not always the case, and this threat is particularly relevant for blockchains operating on account-based transaction systems such as Ethereum. Another well-known quantum algorithm, developed by Grover, has implications for cryptography as it could be used, for example, to efficiently solve the hashing process of blockchains although the threat is considered less serious (Allende et  al., 2021; Kearney & Perez-Delgado, 2021). Overall, the development of quantum computing is likely to increase vulnerabilities for systems that rely on cryptography (Hull et al., 2020). So far, classical computers still compute and solve complex calculations more cheaply than quantum computers, and, moreover, the advent of quantum experiments has not yet led to concrete applications. Nevertheless, there is an incentive to develop a quantum advantage because it will lead to greater opportunities for companies that own this strategic capacity. Indeed, Bova et  al. (2022) demonstrated theoretically that a company might lead the market by investing in quantum, not because of any quantum advantage this may provide but because of the specific cost structure of the technology, which implies that the more complex the calculation, the more efficient its quantum capacity will become. In the era of digital data and the promise concerning the combination of different technologies (i.e., blockchain, AI, and IoT), this means managing a huge amount of data that will grow exponentially. In this respect, the advance of quantum technology is likely to become even more valuable. The extent to which the quantum era will happen remains unclear because of the numerous issues it faces so far, both technical and practical (Hull et  al., 2020). Nonetheless, quantum computing is coming, and this means that it will become a risk for systems like the financial sector, the whole Internet network, and blockchain technology, in which the security relies on cryptography (Allende et  al., 2021). Indeed, the development of quantum capabilities is making quantum attacks credible, and the US government is already taking this threat seriously.10 As an example, Google and China recently claimed to have developed a quantum computer (Bova et  al., 2022). More recently, Google claims to have achieved a minimization of quantum errors that could drastically enhance the capacity of this technology with further development (Google Quantum AI, 2023). While systems based on cryptography face risks from these developments, there are solutions such as developing post-quantum cryptography (Cojocaru et al., 2020; Allende et al., 2021).

 https://www.technologyreview.com/2021/11/03/1039171/hackers-quantum-computersus-homeland-security-cryptography 10

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Interestingly, just as with AI and IoT, blockchain can be combined with quantum to avoid a complete collapse of security and preserve the integrity of data encryption. Theoretical research concerning the association between quantum and blockchain technology shows that this combination allows a significant improvement of some parts of blockchain technology in line with its scalability. Thus, it results in what some call “blockchain quantum,” implying a design of algorithms with higher security because they are based on laws of physics considered unbreakable (Edwards et al., 2020). Another way blockchain could be impacted concerns the development of quantum money. The monetary implications of blockchain technology have been particularly scrutinized, but quantum technology also brings its own features that could diminish the intrinsic value of cryptocurrencies (Hull et al., 2020). This implies that, although quantum money remains mainly theoretical and there is not yet any practical use case, blockchain platforms must be prepared for the future challenges of quantum advances by implementing quantum features to maintain their reliability if they want to keep a competitive advantage (Coladangelo & Sattath, 2020).

Discussion Blockchain technology presents many opportunities for innovation, but it also raises key challenges to be considered. In our first highlighted antecedent – blockchain corresponds to a cryptocurrency infrastructure that decentralizes exchanges – there is a need to find a balance between digital currency, cryptocurrency, and private money while also preserving data privacy and compliance with antitrust laws (Walch, 2019; Schrepel, 2021; Baronchelli et al., 2022). Policymakers can consider implementing new training programs that meet the demands of firms and institutions and encourage experts to analyze blockchain algorithms to identify and avoid potential anticompetitive practices (Pike & Capobianco, 2020). Standardization at the European Union level can also help address these problems. Regarding our second a priori – the waste of energy inherent to blockchain technology – the challenge lies in the need to promote sustainability in the use of blockchain (Chapron, 2017). This can be achieved by identifying, supporting, and labeling blockchain-based projects that align with the sustainable development goals (Schlumberger, 2022). Enabling smart grids and smart energy on a large scale with clear regulations can also help sustainability practices (Diestelmeier, 2019). Policymakers can encourage the use of proof-of-stake blockchains and other environmentally friendly protocols while penalizing projects that have a negative impact on the environment (Saleh, 2021). It is also crucial to better evaluate supply chains to ensure sustainability and transparency (Friedman & Ormiston, 2022). Here the combination of blockchain technology with other technologies such as AI and IoT appears promising (Tsolakis et al., 2022). Finally, for our last antecedent – security based on the cryptography features of blockchain technology – the challenge focuses on the need to deploy quantum-safe

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public-key cryptography to preserve security. At the same time, increased vigilance will be required to avoid escalation in terms of energy consumption of post-­quantum blockchain protocols (Allende et al., 2021). Regarding this, policymakers can anticipate risks at the early stage of development of blockchain-based projects, identify weaknesses and exposures of strategic firms and sectors that use blockchain technology, and encourage switching from proof-of-work to proof-of-stake protocols (Kearney & Perez-Delgado, 2021). In summary, while blockchain technology shows promise for transforming various sectors, there are complex issues and challenges that must be appraised to fully realize its potential. By better understanding the limitations, policymakers and stakeholders can work toward a more inclusive and sustainable future enhanced by blockchain and other breakthrough technologies

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A Priori to Investigate Innovation in Management Science Cécile Ayerbe

Abstract  This chapter aims at discussing an antecedent approach to innovation in management science. Innovation management is an inherently interdisciplinary field. It also of course addresses specific research interests. To what extent have the inherited commonplaces of innovation in social science influenced the construction of innovation management scholars’ self-related beliefs? How do they shape current leading approaches to innovation management? Our objective is to answer these questions by supposing that antecedents do mold, forge, and shape the very identity of the object of study. To follow this antecedent reasoning, we will first outline the historical and theoretical foundations of innovation management. We will then present the specificities of the managerial approach to innovation by focusing on its strategic and organizational dimensions.

Introduction How do a priori help to investigate innovation in management science? Innovation management is an inherently interdisciplinary field. It also of course addresses specific research interests. To what extent have these inherited commonplaces of innovation in social science influenced the construction of innovation management scholars’ self-related beliefs? How do they shape current leading approaches to innovation management? The objective of this chapter is to deal with these questions by considering a priori as presuppositions, common beliefs, and shared visions which have progressively built and delineated a scientific field. Indeed, management science has been developed over decades with clear connections with other social disciplines, not only economics, sociology, and law but also history, geography, and psychology. Moreover, it has close links with engineering sciences when it comes to investigating technological innovation. Because of its youth and filiation, C. Ayerbe (*) Université Côte d’Azur, CNRS, GREDEG, Nice, France e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 J.-S. Bergé (ed.), The A Priori Method in the Social Sciences, https://doi.org/10.1007/978-3-031-38260-4_10

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in essence, management science has developed a capacity to borrow and integrate but also to build autonomous topics of investigation which are particularly relevant when looked at from the perspective of a priori. In this chapter, we take this starting point, considering the a priori as antecedents. These antecedents mold, forge, and shape the very identity of the object of study. This reasoning through antecedents is particularly suited to management science for two reasons. First, its youth places management in the position of inheritor, which perfectly corresponds to the antecedent approach. Second, this approach also advocates the identification of “the prior stance of knowledge” which supports the construction of autonomous knowledge. In this sense, we consider the a priori as antecedents in which a common, identity-based, and self-determining approach is rooted. This identity of management science is characterized by its aim to understand and explain social phenomena within organizational contexts in order to provide actors with managerial recommendations. Its purpose is to produce useful knowledge rooted in organizational practices, commonly called appropriable or actionable research. In other words, for management science, the question of innovation is fundamentally a matter of organization. To follow this antecedent reasoning (from the inheritance to the stance of organizational identity), this chapter is organized as follows. First, we deal with the foundations of innovation management. Second, we present the specificities of the managerial approach to innovation through its strategic and organizational dimensions.

The Foundations of Innovation Management Consistent with the antecedent approach defined in our introduction, this first part aims at presenting the roots of innovation management. We first introduce its historical background before moving to its theoretical foundations. Both are at the origin of its disciplinary identity by delineating the key role of organizational phenomena.

The Historical Foundations In the mid-nineteenth century, technological invention became the driving force of economic and social development. In that context, it also became the cornerstone of business creation, industrial laboratories, and new forms of organized science. The existence of organized inventive activities did not begin in the nineteenth century, but during this period a scientific discourse emerged on innovative activities that recognized them as being inherently collective. Indeed, the nineteenth century witnessed the rise of new manufacturing industries that required technological and scientific expertise, for example, in electricity, chemicals, metallurgy, and pharmaceuticals. All these industries demanded rapid investments based on scientific

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discoveries (Valibhay, 2021). They fostered the emergence of industrial research, in the broader context of a new institutionalization of innovative activities. For years, the collective unconscious has maintained the myth of the isolated inventor whose discoveries revolutionized the society. Whatever the literature, either academic or more popular, it has largely supported this heroization of a single inventor. Like Thomas Edison, Louis Pasteur, or James Watt, emblematic figures are inscribed in our collective representations of scientific creation. Thus, the focus is on individual characteristics, life trajectories, the role of chance, and the idealization of the inventive genius. In that context, at the beginning of the nineteenth century, the literature paid particular attention to the inventor as an object of investigation, but from a sociological or psychological perspective which aimed at discovering the determinants of the inventive faculty. Later on, this individual-centered approach encountered a profound change in the nature of the inventive activity. Indeed, technical invention is no longer recognized as being the work of isolated individuals, but that of industrial research (Valibhay, 2021). At the beginning of the nineteenth century, these industrial research activities were primarily conducted by external laboratories composed of independent experts who offered their services to industrial companies. But at the end of the nineteenth century, industrial research became internalized with in-house laboratories that foreshadowed the R&D centers of large industrial groups such as AT&T, BASF, Hoechst, and Air Liquide, among others (Le Masson & Weil, 2016). Gradually, these innovation activities were also differentiated into the generation of new ideas, their production, and their exploitation in various markets, leading to a division of innovative work. In addition to the development of large internal industrial laboratories, new emerging organizations participated in the institutionalization of innovation (Valibhay, 2021). New institutes, like the Franklin Institute in the United States or the Royal Society of Arts in England, were created and increasingly positioned themselves to professionalize innovative activities with dedicated skills and resources. Coinciding with these organizations’ support for technological and economic growth, patent institutions also fostered an environment favorable to inventive development. These institutions created new expertise to evaluate inventions using specific tools and procedures from new actors: patent examiners, judges, and specialized lawyers. As Valibhay (2021) points out, this new “patent world” developed a common language and set of beliefs around technological invention. Therefore, patent institutions did not only constitute a legal system based on a recognition of the importance of intellectual property rights but also enabled the structuring of technical knowledge and a shared vision of inventive activities. That is, they created common mechanisms to protect technological improvement and shared measures of invention and evaluation procedures. Above all, they institutionalized at the international level the sharing of knowledge that created “management norms” associated with inventive activity. In this way, managerial and organizational activities did not only concern industrial laboratories, but a broader ecosystem which called for a collective rationale for innovation. This progressive institutionalization and common understanding of creative and innovative activities is essential to their further theoretical investigation in management.

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Overall, these historical foundations outline two main points that are consistent with an antecedent approach to innovation. First, they highlight the development of shared representations of innovative activities with a worldwide dimension encompassed in large industrial firms, research and patent institutions. Second, they emphasize the collective dimension of innovation which is progressively embedded in organized entities with dedicated internal resources and competencies. This historical context sets the basis for a new competition based on technological knowledge and intellectual property rights.

The Theoretical Foundations Schumpeter is unquestionably recognized as the father of innovation economics for his work on the key role of innovation in economic dynamics. However, his contributions go beyond economics to permeate social sciences and, in particular, management. They can therefore be considered as an antecedent approach in the sense of the “theoretical roots” of innovation management. In this respect, Pénin (2016) clearly affirms that Schumpeter’s ideas are essential for management science. He even qualifies him as the “father of innovation management.” Three key aspects can be highlighted to outline this antecedent theoretical approach. The first aspect lies in the Schumpeterian definition of innovation, both in terms of type and degree of radicality. Indeed, innovation is presented as a “new combination,” characteristic of the “creative destruction” which brings economic growth. This economic development remains at the heart of the conventional wisdom which recognizes the positive role of innovation for society. This new combination can take five different types: a new good (i.e., unfamiliar to the consumers or with new quality), a new method of production (i.e., unknown in the branch of industry considered), a new market, a new source of supply of raw materials, or a new organization of any industry (such as the creation of a monopoly situation). Based on the recognition of these five types, from the 1930s, the Schumpeterian theory did not reduce innovation to its technical dimension. This opened up a wide field of research on its various types, which is very relevant for management scholars. In particular, the recognition of its organizational dimension is essential for further managerial research. Clearly, in the Schumpeterian approach, the organizational dimension of innovation refers to market structures and not to the internal organization of the firm. Nevertheless, it affirms the key role of purely organizational arrangements in economic growth. This can be considered as the very foundation of the rich literature on the organization of innovation and the innovative capacity of a firm based on its internal arrangements. The recognition of multiple degrees of radicality is also one of Schumpeter’s key contributions to the management of innovation. Indeed, economic cycles are explained by radical innovations which subsequently sustain the development of more incremental ones. This coexistence of radical/incremental innovations would give rise to the abundant literature in management on exploration/exploitation (March, 1991) and the ability of companies to balance potentially

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conflicting logics. In particular, these tensions were investigated at the organizational level through the characterization of ambidextrous organizations (Duncan, 1976; O’Reilly & Tushman, 2004). The second aspect of the antecedent approach lies in the fundamental distinction between invention and innovation. Here again, this distinction is very important for management science as it makes it possible to investigate innovation separately from the purely technological standpoint of previous beliefs. Indeed, from the Schumpeterian perspective, while invention stems from a technical ability (often associated with creativity), innovation consists in bringing invention into commercial use. Thus, the genesis of innovations, or more precisely the process of invention, is a question that does not belong to economics. Conversely, the use of inventions in the firm or on the market is an innovative activity. In other words, whatever its form, innovation is in essence an implementation, a diffusion which entails a collective process of dissemination and acceptance. As Pénin (2016) points out, this distinction between innovation and invention is fundamental for management science: leaving the technocentric questions to engineers, it opens the door to pure managerial investigations, specifically dedicated to the way in which invention becomes innovation. Finally, the third aspect of the antecedent approach resides in the importance of the “producers” of innovation. These producers are entrepreneurs, on the one hand, and large companies, on the other hand. Indeed, Schumpeter’s first works highlight the characteristics of the symbolic role of the entrepreneur (i.e., an individual actor). In line with the above distinction between invention and innovation, this entrepreneur is not the inventor of a discovery, but the one who introduces it into the economy, who gives it value and turns it into an innovation. This is the very specific function of entrepreneurs. They do not necessarily participate in the development of new products but draw from a wealth of knowledge and exercise their talents through judicious choices. They can thus be considered as “mediators between two impermeable worlds” (Maunoury, 1968), by building connections between technology and economics. With regard to the investigation of this chapter in terms of an antecedent approach, it is important to emphasize that this bridging ability of entrepreneurs is close to the that recognized today for managers. It is therefore largely through the role of the entrepreneur that Schumpeter first lays the foundations for the management of innovation. This role is widely studied in his first works but then leaves more room for the analysis of large firms as a privileged locus of innovation (Pénin, 2016). From that perspective, the Schumpeterian thesis highlights that the size of the company is a strong advantage in undertaking the risks and uncertainties associated with innovation. Large firms are uniquely endowed to exploit innovative opportunities. The R&D laboratories that developed within large industrial groups became the new collective places for the production of innovation. This focus favors an understanding of innovation “where it takes place,” that is, where collective work of entities is organized and resources are available. This approach is at the very source of the disciplinary identity of management. These historical and theoretical foundations enable us to outline the empirical context and the scientific background of innovation management. The purpose of

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this first part was to focus on its embedded and inherited knowledge. The second part of this chapter is devoted to the management of innovation as a discipline in its own right with an autonomous research focus.

The Managerial Approach to Innovation The objective of this second part is to emphasize the disciplinary identity of innovation management. As stated in our general introduction, management science aims at understanding and explaining social phenomena within organizational contexts and providing actors with managerial recommendations. Its objective is to produce knowledge useful to the practices of managers. In that respect, two complementary aspects are presented in this second part to outline innovation management as an autonomous field of investigation: the first emphasizes its strategic dimension and the second its organizational one.

The Strategic Dimension A first major aspect of management science deals with strategic issues related to competitive advantage, positioning, and differentiation. Innovation and technologies were investigated merely as the source of such advantages, in the context of two complementary approaches. In the first, technological change and strategic choices resulted from an understanding of the external environment, whereas the second approach emphasized the internal competences and capabilities. Porter (1985) dedicated one chapter to technology and competitive advantage, recognizing technological change as a key driver of competition: “of all the things that can change the rules of competition, technological change is among the most prominent” (Porter, 1985, p. 164). Porter examined the links between technology and competition. This approach is very close to the Schumpeterian perspective, as far as the technology is able to shape new industry and create new competition. In particular, Porter outlines the role of technology in the value chain of firms and their resulting ability to achieve lower costs and/or differentiation through their value activities. From that perspective, a firm is presented as a collection of activities, which can be seen as a collection of technologies. These technologies can come from several disciplines such as engineering, information systems, and administrative or materials technology and are also known to shape the industry structure. For example, technological change creates entry barriers which directly affect potential competitors. It is also well recognized as the main driver for new products or uses that replace previous ones. In line with this key role of technology in competitive advantage, Porter presents various methods for selecting a technology strategy. This strategy is defined as “a firm’s approach to the development and use of technology” (1985, p. 176). It includes choices regarding the technologies to be developed and

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the related investments, the leadership position in those technologies, and the potential licensing activities. These strategic choices have led to a rich managerial literature on the position and competitive advantage of firms, namely, the first-mover/imitator position (e.g., in terms of reputation, learning curve, access to facilities, or costs). In line with this competitive approach, the management of technology and innovation addresses issues at the heart of strategic management, such as the selection of technologies, the access to technological knowledge, or technological changes in the face of competition (Durand, 2004). These issues were characteristic of the 1980s: at that time innovation management was very close to strategic management and aimed at developing the competitive advantage of the firm. However, by improving the understanding of competitive factors, the research progressively moved from an exogenous approach to technology to an endogenous investigation of the resources and capabilities which sustain an advantage over competitors. Whereas the early research interests were in industry structure and externally driven factors, the new approach adopted an internal view of sustainable advantage. The resource-based theory, which strongly influences strategic management, is particularly emblematic of this new perspective. Long-term success relies on firm-specific resources which are recognized as valuable and difficult for other firms to replicate or imitate (Barney, 1991). This introduced a major change in the comprehension of innovative activities that was consistent with a more internal approach. The search for a sustainable competitive advantage remained at the core of innovation management but turned toward a firm-centric approach. Teece’s seminal article “Profiting from Innovation” (PFI) particularly highlighted this new common focus on internal sources of strategic advantage. Based on several empirical examples, the objective was to understand why innovators commonly fail to capture value from their investments while “followers” may gain the lion’s share of the profits. Teece’s framework reconsidered the “first-mover advantage” of the Porterian approach and represented a strong break with the industrial organization tradition. Instead, he focused on the innovator’s internal advantage based on its complementary assets: “PFI hypothesized that appropriability, and success at innovation more generally, is related not so much to the innovator’s ex-ante market share, but to the (complementary) asset structure of the innovator, management’s market entry timing decisions, and the contractual structures employed to access missing complementary assets” (Teece, 2006, p. 1132). Therefore, an innovator’s success requires that technical expertise be used in conjunction with other capabilities or assets (marketing, manufacturing, after-sales support, etc.) that form the basis of a strategic advantage. Strategic decisions rely on either the internal development of or the external access to such assets. These decisions have strong implications for managers regarding the integration of technologies or the use of licensing to benefit from external technologies. Owning or accessing complementary assets requires dedicated capabilities which are essential to benefit from innovation. The key role of internal capabilities has been investigated in the context of changes in external conditions relative to markets or technologies. To face the rapidly changing environment, the capabilities of the firm have to evolve and become

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“dynamic capabilities” (Teece et al., 1997). In line with this body of research, several studies have investigated the relationship between dynamic capabilities and innovation capabilities. They aim to connect the concept of dynamic capabilities, which was developed first in the field of strategic management, with that of innovation capabilities, which emerged from innovation studies. We do not intend to examine this discussion but to emphasize the new and common turn toward internal focus in the strategic approach to innovation management. This strategic turn is consistent with the organizational literature in this field.

The Organizational Dimension This second point puts the emphasis on the organizational dimensions of innovation in management science. The study of “innovative organization” is at the heart of the managerial approach to innovation. The rich literature first outlines the organizational arrangements and processes required by the development of technological innovations. This focus on the organizational dimension of innovation progressively leads management scholars to recognize the company’s own capacity for evolution which opens the door to a rich literature on organizational innovation and new open forms of innovative activities. This evolution of research is in line with the previous theoretical antecedent which calls for a recognition of the multiple types of innovation. In the early 1960s, in line with Burns and Stalker’s pioneering research (1961), scholars investigated the organizational structures favorable to technological product and process innovations. This body of research, dedicated to the organization of innovative activities, distinguished two main streams (Mohr, 1982): the variance and the process approaches. First, innovation variance research focuses on the relationships between the internal characteristics of the firm and its ability to sustain innovative development of products or processes. The objective is clearly to highlight the determinants of a firm’s innovativeness through structural arrangements (centralization of decision-­ making, length of hierarchical lines, specialization of activities, etc.). For example, complexity, by promoting creativity and the development of knowledge, is considered favorable to innovation, unlike centralization, which harms the exchange of ideas. Overall, the variance approach aims at outlining causal relations between variables. In line with this first structural approach, many scholars investigated the organizational arrangements favorable to innovation activities (Mintzberg, 1990; Aoki, 1986). The adhocracy outlined by Mintzberg or the Japanese versus American organization characterized by Aoki is particularly representative of this stream of research which aims at understanding organizational configuration models at the firm level. While it has contributed substantially to understanding the structural arrangements of innovation, this body of research has also been criticized because of its static character. “The variance approach works perfectly well for examining research questions about comparisons among entities or relationships among

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variables. However, in the study of change and development, its assumptions prove too restrictive” (Van de Ven & Engleman, 2004, p. 351). Second, innovation processes research emphasizes the importance of a processual approach to innovation and has a clear focus on the temporal analysis: “whereas variance theories provide explanations for phenomena in terms of relationships among dependent and independent variables, process theories provide explanations in terms of the sequence of events leading to an outcome” (Langley, 1999, p. 692). This body of research has been mainly documented by the Minnesota Innovation Research Program (Van de Ven et al., 1989) which aims at understanding how and why innovations emerge, develop, grow, or terminate over time. The focus is on the dynamic nature of innovation, giving rise to the study of routines and learning phenomena that take place in organizational contexts and drive innovative trajectories. This approach is particularly represented by the evolutionary school which stresses the endogenous characteristics of technology, related to tacit knowledge, in the development of new products. Thus, the evolution of firms is not random. On the contrary, it is encompassed in “path dependencies” which are the result of accumulated knowledge. Technological development is therefore presented as a cumulative process, specific to companies, embedded in routines which are not readily transferable. Therefore, they constitute “specific assets” which are the key source of differentiation. By affirming the key role of structural arrangements and their evolution over time, these two streams of research led to a prominent theme in the literature. This concerns organizational innovation as a separate set of studies which progressively moves away from the technocentric approach. Organizational innovation became independent of the technological perspective and a field of investigation in its own right. The 1980s extended the interest of organizations in innovation, through a field of research dedicated to organizational innovation (Damanpour, 1987; Kimberly, 1981; Mol & Birkinshaw, 2009). Beyond the sheer variety of terms used by the authors in this field (organizational, administrative, structural, or even managerial innovation), organization itself became the object of investigation. By “organization” scholars referred to the administrative systems, the management practices, the relationships among members, and the decision-making process. From that perspective, they recognized the multidimensional nature of organizational innovation. They also insisted on its disruptive nature. To the extent that it questioned the firm’s actual functioning and the way managers ran their activities, organizational innovation was considered as disrupting the whole firm. The tacit dimension of organizational innovation was also recognized, as it created interactions and new routines between the actors (Mol & Birkinshaw, 2009). The key role of organizational innovation lay in its ability to foster collective learning, which itself generated new innovative capacities (either technologically related or not) and enhanced the global performance. Here the focus of investigation was the organizational settings which were recognized as being themselves innovative and favorable to global innovativeness. This is very different from the previous studies which claimed that the organization only supported the development of new technological products and processes.

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Instead, this body of research gave rise in the innovation management literature to a broader scope of investigation with new interest in various contexts (e.g., low tech, public or service organizations, firms in emerging economies). This wider scope is rooted in the fundamental recognition of the collective dimension of innovative activities and organizational capacities for change and renewal. Over the last 20 years, increasing attention has been paid to access to external knowledge and its role in sustaining internal development. More precisely, since the publication of Chesbrough’s seminal book in 2003, a huge interest from both scholars and practitioners has grown up around open innovation (OI). This interest underlines the importance of the paradigm shift reported by Chesbrough in the openness of innovative companies to actors outside their boundaries. Among the many definitions, Chesbrough’s pioneering book remains one of the most frequently cited: “open innovation is a paradigm that assumes that firms can and should use external ideas as well as internal ideas, and internal and external paths to market, as firms look to advance their technology” (Chesbrough, 2003, p. 24). The main idea lies in the purposive inflows and outflows of knowledge through a firm’s boundaries which become porous. The pooling of knowledge is the very essence of the paradigm, as he reasserted in 2014, defining OI as “a distributed innovation process based on purposively managed knowledge flows across organizational boundaries” (Chesbrough & Bogers, 2014). Three now well-known processes sustain this distributed innovation (Gassmann & Enkel, 2004): the inside-out process (introduction and commercialization of the firm’s knowledge on the market), the outside-in process (integration of external technologies from a variety of partners), and the coupled process (combination of the other two). In line with Chesbrough’s pioneering works, open innovation scholars have produced a rich body of literature dedicated to the organizational settings conducive to innovation in various contexts. Open innovation research first mainly investigated the outside-in process in technology-intensive industries (electronics, biotechnologies, automobile) and large Western groups. Recent works (Bogers et  al., 2017) emphasize the importance of broadening the approach of the open innovation paradigm to consider low-tech services and sectors, small and medium-sized businesses, emerging countries, the public sector, or more generally nonprofit organizations. This expansion into new settings reinforces the value of the collective dimension of innovation and clearly affirms the role of the combination of external and internal capabilities in sustaining innovation whatever its types (technological innovation, organizational innovation, services innovation, business model innovation, social innovation, etc.). A noticeable evolution in the open innovation literature also lies in the broadness of the level of investigation. Whereas the first studies were clearly focused on the firm level, recent works expand this firm-centric approach to other levels: individuals and groups, networks, users, and communities (Randhawa et al., 2016). The role of users and communities has been particularly studied in dedicated sectors such as open source software and crowdsourcing. This body of research focuses on informal links, self-organized and emerging contexts that necessitate new organizational forms. They highlight the interactions between diverse communities (communities of practice, epistemic communities, and informal learning

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groups) who are willing to be involved in sharing common knowledge. This perspective is particularly important to understand the emergence and formation of creative processes, notably in creative cities. For example, Cohendet et al. (2010a) characterize three different layers  – the upperground, the middleground, and the underground – as the basic components of the creative processes involved and show how new knowledge moves between them to sustain new collective creativity. This even leads to revisiting the traditional approach to the firm by emphasizing the space that is created for creativity and innovation by knowing communities. The growing role of communities in the theory of the firm demands a balance between the new ideas that emerge from formal units (such as a research lab or an artistic department in charge of the conception of new projects) and the new knowledge produced within the different communities (Cohendet et al., 2010b). More generally, the firm is reconsidered as a social entity composed of a nexus of communities.

Conclusion This chapter discusses an antecedent approach to innovation in management science. This approach is very suited to this discipline because of its relative youth and strong connection with other social sciences. It shows that initial comprehensions of innovation phenomena, both from an empirical and theoretical perspective, have strongly influenced innovation scholars. But at the same time, they have created opportunities for an identity-based and self-determined understanding of these phenomena. This identity has been explored in this chapter regarding two complementary dimensions of innovation management: strategy and organization. Both of them have undergone major changes in former decades, with an increased focus on internal capabilities, informal collective contexts or communities, the creation of new knowledge as the result of open systems, and a widespread theoretical interest in the various forms, sources, and levels of analysis in innovation management. New challenges, such as ecological and digital pollution, overconsumption, health crises, exclusion, and so on, also outline the “dark side” of innovation which is widely documented by management scholars. Their understanding of organizational settings and actors is undoubtedly an advantage in facing these challenges.

References Aoki, M. (1986). Horizontal vs vertical information structure of the firm. The American Economic Review, 76(5), 971–983. Barney, J. (1991). Firm resources and sustained competitive advantage. Journal of Management, 171, 99–120. Bogers, M., Zobel, A. K., Afuah, A., & Almirall, A. (2017). The open innovation research landscape: Established perspectives and emerging themes across different levels of analysis. Industry and Innovation., 24, 8–40.

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Burns, T., & Stalker, G. M. (1961). The management of innovation. Tavistock. Chesbrough, H. (2003). Open innovation: The new imperative for creating and profiting from technology. Harvard Business Press. Chesbrough, H., & Bogers, M. (2014). Explicating open innovation: Clarifying an emerging paradigm for understanding innovation. In H.  Chesbrough, W.  Vanhaverbeke, & J.  West (Eds.), New frontiers in open innovation. Oxford University Press. Cohendet, P., Grandadam, D., & Simon, L. (2010a). The anatomy of the creative city. Industry and Innovation, 17(1), 91–111. Cohendet, P., Llerena, P., & Simon, L. (2010b). The innovative firm: Nexus of communities and creativity. Revue d’Economie Industrielle, 139–170. Damanpour, F. (1987). The adoption of technological, administrative and ancillary innovations: Impact of organizational Factors. Journal of Management, 13, 675–688. Duncan, R. B. (1976). The ambidextrous organization : Designing dual structures for innovation. In R. H. Kilmann, L. R. Pondy, & D. P. Slevin (Eds.), The management of organization design (Vol. 1, pp. 167–188). Elsevier. Durand, T. (2004). Bringing technology and innovation into the boardroom, european institute for technology and management, chap. 3, 47–75. Gassmann, O., & Enkel, E. (2004). Towards a theory of open innovation: Three core process archetypes. In R&D management conference. Kimberly, J.  R. (1981). Managerial Innovation, in NYSTROM P. and. STARBUCK W. (Eds), Handbook of Organizational Design, Vol. 1, New York : Oxford University Press, 84–104. Langley, A. (1999). Strategies for theorizing from process data. Academy of Management Review, 24(4), 691–710. Le Masson, P., & Weil, B. (2016). Fayol, Guillaume, Chevenard  – la science, l’industrie et l’exploration de l’inconnu: logique et gouvernance d’une recherche conceptive. Entreprise et histoire, 2(83), 79–107. March, J. G. (1991). Exploration and exploitation in organizational learning. Organization Science, 2(1), 71–87. Maunoury, Y. J. L. (1968). La genèse des innovations. Presses Universitaires de France. Mintzberg, H. (1990). Le management. Voyage au centre des organisations, Les Editions d’Organisation, Paris, Traduction de Inside our Strange World of Organizations. The Free Press. Mohr, L. B. (1982). Explaining organizational behavior. Jossey-Bass. Mol, M. J., & Birkinshaw, J. (2009). The sources of management innovation: When firms introduce new management practices, Journal of Business Research, 62, 1269–1280. O’Reilly, C. A., & Tushman, M. L. (2004). The ambidextrous organization. In Harvard business review (pp. 74–81). Avril. Pénin, J. (2016). Joseph Aloïs Schumpeter. Père de l’économie et de la gestion de l’innovation? In Les grands auteurs en management de l’innovation et de la créativité (pp. 13–36)., Thierry Burger-­Helmchen, Caroline Hussler, Patrick Cohendet (dir.), Editions EMS. Porter, M. (1985). Competitive advantage, creating and sustaining superior performance. The Free Press. Randhawa, R., Wilden, R., & Hoberger, J. (2016). A bibliometric review of open innovation: Setting a research agenda. The Journal of Product Innovation Management., 33(6), 750–772. https://doi.org/10.1111/jpim.12312 Teece, D. J. (2006). Reflections on “profiting from innovation”. Research Policy, 35, 1131–1146. Teece, D.  J., Pisano, G., & Shuen, A. (1997). Dynamic capabilities and strategic management. Strategic Management Journal, 18(7), 509–533. Valibhay, C.. (2021). Le brevet, norme de gestion de l’activité inventive  – Nouveaux modèles pour penser une gestion des capacités inventives (thèse de doctorat). Université PSL-Mines Paris Tech. Van de Ven, A. H., & Engelman, R. E. (2004). Event- and outcome-driven explanations of entrepreneurship. Journal of Business Venturing, 19, 343–358. Van de Ven, A. H., Angle, H., & Poole, M. S. (Eds.). (1989). Research on the management of innovation: The Minnesota studies. Ballinger/Harper & Row.

Part III

Anthropology, Sociology

Not Having an A Priori Has Become the Anthropological A Priori: Multiple Forms of Knowledge Are Produced in Ethnographic Experiments Ana Lúcia Pastore Schritzmeyer

Abstract  This paper resulted from my remote participation, on June 16 and 17, 2022, in the Senior Research Workshop Questioning Our A Priori Today? A Multidisciplinary Approach (Sophia Antipolis, France). In the sixth and final session, I presented reflections on anthropology having ethnographic fieldwork as its main a priori for at least a century, which implies that there is no a priori, because the knowledge that is built and results from it is made in the interactive flows of the field. This has become a radical view in recent years. And as ethnographic experiments are considered, simultaneously, theory and method, they allow the knowledge of several a priori to be incorporated into anthropological knowledge. However, it has not always been like that. Like any kind of knowledge, anthropology was and is made in consonance with the conditions of existence and possibilities of discursive thought of its time. The epistemological twists involved in this path, as well as some of its ethical-theoretical-methodological implications, are what, very briefly, I point out below.

Some A Priori That Guide This Text Itself When preparing my contribution to the Workshop Questioning Our A Priori Today? A Multidisciplinary Approach, I mainly returned to contents I’ve worked with in scientific methodology classes that I teach to undergraduate and graduate students in anthropology, law, and anthropology of law. It was inevitable for me, as it is now, to think of classical references in the field of philosophy of knowledge and science, This paper was originally written in Portuguese by the author and translated into English by anthropologists Diego Gomes Pereira Flores and Caio do Amaral Mader.

A. L. P. Schritzmeyer (*) NADIR - Center for the Anthropology of Law, University of São Paulo, São Paulo, Brazil e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 J.-S. Bergé (ed.), The A Priori Method in the Social Sciences, https://doi.org/10.1007/978-3-031-38260-4_11

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as well as some works by neuroscientists – areas that fascinate me, although I am no more than an interested layperson. However, before mentioning why such references occurred to me, I will recount a memory that has stayed with me from the beginning of my studies in anthropology and which has greatly contributed to embracing it as my profession. The classroom at the University of São Paulo was full of newcomers to graduate studies in social sciences, in that first half of 1983. The professor had the challenge of debating themes like cultural diversity, ethnocentrism, and, consequently, the existence of different and complex ways of producing knowledge, which leads to an awareness of multiple possibilities of perceiving, feeling, classifying, and being in the world or, generally speaking, multiple “cultures.” She began her class by reporting the case of a group of American anthropologists who, around the 1930s, took some people to New York who were representatives of an indigenous community that had never been to a city before. The anthropologists’ expectation was that those indigenous people, from the moment they arrived, and especially when seeing the great avenues full of people, cars, buses, subway lines, and tall buildings, would become excessively excited and restless. However, their reaction, without exception, was the opposite: indifference and disinterest, as if nothing new was happening around them. And so they remained, to the concern and surprise of those anthropologists, until, upon entering the hall of a large building and encountering an immense staircase whose handrail ended in a shiny metallic sphere, they got agitated and gathered around it to evaluate it, feel it, and smell it. From that moment on, they began to interact not only with each other but with the anthropologists and the environment.1 This case generated many discussions in several subsequent classes about the extent to which something very strange to our perceptive, sensorial, and classificatory universe can, instead of shocking us, go unnoticed, it being necessary that some element of our familiar repertoire connects to some aspect of the strange universe so that our attention is awakened and associative, comparative, and, therefore, cognitive processes can occur. The results of these processes, obviously, can range from revulsion to being enchanted by the novelty, as the association and comparison can either negatively value the new, converting it into something bad and undesirable, or can consider it good and pleasurable. Countless examples of similar situations can be found in studies on the most diverse topics, including “stories” of tropical and subtropical fruits in South America. This is the case, for example, of the fruit known as abacaxi, in Brazil, or ananás, in Portugal, France, and certain Spanish-speaking countries. Despite its unprecedented shape, color, and flavor for European settlers and botanists, it was initially described as a kind of pine cone, hence its name piña, in Spanish, and  I apologize to the readers, because, 40 years later, I no longer have the notes from that class and I don’t remember which source this report was taken from, nor does the professor; today, my colleague at the Department of Anthropology at USP, Sylvia Caiuby Novaes, remember it. We have the impression that this is a case narrated by Franz Boas, to whom we are greatly indebted. 1

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pineapple, in English.2 It didn’t take long for the pineapple to be appropriated by Christian and political European imaginaries and represented in countless sacred texts and iconographies. Its flower replaced the “purity of the rose” in many Brazilian “rosaries,” and its “crown,” its bittersweet pulp, and its bark with “protective thorns” were considered typical qualities of royalty (De Oliveira Batista, 2017). Knowing something, therefore, seems to require, first, establishing connections of meanings between what is already known and what one intends to know, or, in other words, cognitive processes seem to depend on previous references that allow connections of meanings to be triggered, even if this then modifies the original references and creates new meanings. Considering that any living being interacts with the world based on the potentialities and limitations of its physical body and that, in the case of human beings, this becomes even more complex, since such interactions depend on a corporeal-existential dimension that is biopsychosocial, as Marcel Mauss highlighted so well in the classic text Techniques of the Body3 (1973), I understand that there is no way to address the issue of knowledge production without, even at a glance, mentioning neuroscience. This interdisciplinary field, which was established in the 1970s, was initially closely linked to biology but soon also linked to psychology and, currently, quite marked by research conducted by physiologists who study the brain. It can be stated, for example, that thought, in addition to being a concept whose scope is the subject of much controversy, refers to conscious and unconscious activities, verifiable in many animals and related to complex levels of representation of oneself and the world (WMC1-08). Among the many reflections made by neuroscientists, also present in other areas, such as anthropology, it is worth remembering those that refer to mechanisms related to sensory perceptions and how they are processed in the brain. Obviously, it is not for this text, nor for me, to retrace the complexity of recent neuroscientific studies, but I dare to suggest that there is a consensus that the human brain works with models that guide it in the capture and interpretation of certain stimuli to the detriment of others. That is why we are “confused” or passive in the face of what does not come close to or does not fit our models or even what, although appropriate, merges models in an unusual way for us. One of the most iconic, popularized, and even commonplace examples of this last situation is the figure of

 The word abacaxi results from the combination of the Tupi terms i’bá, which means fruit, and ká’ti, which refers to that which exudes a pleasant and intense smell (Ferreira, 1986). The word ananás comes from naná, from ancient Tupi and Guarani (Navarro, 2013) which indicates the plant whose fruit smells strong. The prefix a names the fruit. It is worth noting that, from these languages, the fruit is identified by characteristics that are unique to it rather than by comparisons with other fruits. 3  On May 17, 1934, Mauss presented a communication to the French Society of Psychology which resulted in the text that was published in the following year in the Journal de Psychologie Normal et Pathologique, 32(3–4). 2

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the duck-rabbit or duck-hare, worked on by the philosopher Ludwig Wittgenstein (1999, 178) and borrowed by him from the psychologist Joseph Jastrow (1900, 295) to illustrate the so-called aspect perception. We can even recognize the duck and the rabbit, but we can perceive sometimes one and sometimes the other, separately.4

Wittgenstein presents several other examples of what he calls “change of aspect” to investigate what happens when we change our way of seeing a certain figure and perceive another one, which “was already there” but we could not see it. He refutes the explanation that something happens internally to the observer and concludes that, at all times, any observer can perceive certain aspects to the detriment of others because our senses are directed by concepts that guide them and allow the identification of only those parts to which it is possible to confer meanings, usually given in advance. As elucidated by philosopher Stephen Lawis (2018): You are ‘seeing as’ right now. You are looking at these squiggles on a white background and seeing them as letters, words and sentences, and indeed as meaning something. (…). And we don’t just ‘see as’, we ‘hear as’. What goes for written English goes for spoken English, too. When I hear another person speak English, I don’t hear mere noises I must then decode – I hear those noises as meaning (e.g., shut the door!). One particularly interesting example of a change of aspect perception involves our ability to suddenly ‘get’ a tune or a rule, so we are then able to carry on ourselves. (…). Suppose someone starts to explain a rule by gradually revealing a series of numbers – first 2, then 4, then 6, then 8. I might suddenly ‘get’ the rule they’re explaining (call it ‘Add 2’), so that I can then confidently continue myself: ‘10, 12, 14’. What happens when I have that flash of insight? (…).

Wittgenstein was particularly interested in what happens when we suddenly grasp a rule in this way – when we “flip” from seeing just a series of numbers to seeing them as the manifestation of a rule that extends over the horizon. 4   Figure available at: https://www.gutenberg.org/files/48869/48869-h/images/fig 19_p295.jpg Wittgenstein (1863–1951). Jastrow (1863–1944).

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Raising a very similar question and reaching an equally similar conclusion, the anthropologist Franz Boas, in the text On Alternating Sounds (1899), adds that, thanks to persistent and continuous social practices, we internalize models that allow us, physiologically, socially, and psychologically, to hear and emit sounds to which we attribute meanings that, in turn, enable us to communicate. We learn to pronounce the sounds of our language by long usage and attain great facility in bringing our sound-producing organs into the positions in which these sounds are produced. We also learn by constant and long-continued practice to pronounce certain combinations of sounds (idem, 48). Boas adds that there are always small variations in this complex process and, consequently, in the perception and emission of sounds since human beings are biopsychosocially very similar, but not identical. This explains why, when faced with a word that we have never heard, even if it belongs to our own language, we can misunderstand it. As this is the most important part of our considerations, we will illustrate it by a few examples. It is well known that many languages lack a term for green. If we show an individual speaking such a language a series of green worsteds, he will call part of them yellow, another part blue, the limit of both divisions being doubtful. Certain colors he will classify today as yellow, tomorrow as blue. He apperceives green by means of yellow and blue. We apperceive odors in the same way and classify new odors with those to which they are similar. It will be understood that I do not mean to say that such sensations are not recognized in their individuality, but they are classified according to their similarity, and the classification is made according to known sensations (ibidem, 50). All these digressions, in my opinion, are closely related to the case of indigenous people in New York and the “history of the abacaxi.” The metallic sphere was the stimulus that allowed a significant bridge between the world of those indigenous people and that of the anthropologists. Abacaxi or ananas was perceived and named, natively, for its olfactory aspect, “pleasant smell,” therefore comparable to other smells, while Europeans named it for its visual appearance, similar to other fruits they knew. The production of scientific knowledge does not escape these biopsychosocial controls that model the mind, body, and senses; after all, it is just one of several types of knowledge produced by human beings and is socially embodied, alongside and in interaction with, for example, what we call arts, moralities, and religions. Referring only to the arts, Moles (1971, 258–260) states that the fundamental aspects of creativity are common to science and art, the differences being superficial, from a heuristic point of view. The geneticist Newton Freire-Maia (1991, 36–37), in the same direction, states that: There is an analogy between the artist’s creative emotion and the scientist’s creative idea. And there is also an inspiration in the creation of science; (…) [although it is] possible that there is no inspiration in the day-to-day of many routine scientists, that is, who do exactly the same thing every day (…). The “artistic” characteristics of scientific creation cannot be discovered by simply reading scientific works. They do not reveal the secrets that are hidden

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in the deep mechanisms of the creative act. It would be necessary to place scientists and artists side by side and let them tell “stories” about their activities, for lay people to discover the intimate kinship that unites them.5

Freire-Maia, in that same book (chapter 1), contrasts “science as a discipline” with “science as a process,” considering the first to be taught dogmatically to students and required of them in exams (a closed “package,” faultless), while the second is science research, unfinished, in constant expansion and/or correction and rarely shared in classrooms. At this point, he mentions the inaugural lecture that the experimental physiologist Claude Bernard gave at the Collège de France, in Paris, on December 23, 1854, and the open praise that this scientist gave to the institution and the freedom it gave to research professors to change their syllabus during the courses in order to share doubts and concerns they were facing in their experiments. In fact, and not by chance, it was at this institution that Michel Foucault taught, between 1970 and 1982, some of his most disruptive courses, which resulted in several of his most outstanding works. Freire-Maia also contrasts science with what he calls “vulgar knowledge” or “common sense” and does so stating that, when comparing their analyses in relation to specific points, science presents more precise, predictive, and rigorous discourses, while the common sense ways of discovering facts and formulating explanations and theories are more trivial and unsystematic. He recognizes, therefore, in line with the anthropologist Clifford Geertz (1983, 75), “common sense as a relatively organized body of considered thought.”. Explains Geertz: “The terms I want to use in this way with respect to common sense, each with a ‘-ness’ added on to substantivize it, are: natural, practical, thin, immethodical, accessible. ‘Naturalnesss,’ ‘practicalness,’ ‘thinness,’ ‘immethodicalness,’ and ‘accessibleness’ are the somewhat unstandard properties I want to attribute to common sense generally, as an everywhere-found cultural form.” It is impractical, in this text, to delve into this important discussion, as this would entail considering, for example, classic works such as those of the physicist and philosopher of science Thomas Kuhn (1962, 1963) – his considerations on dogmas, paradigms, and the structure of scientific revolutions – and the reflections of Michel Foucault (2005), on the concept of episteme, albeit superficially. I will risk saying, though, that there is a certain consensus regarding the existence of countless flows and points of contact between scientific knowledge and common sense, either regarding certain themes or because there are demands, from the media, for example, to keep a constant dialog. I would add that, in the case of contemporary social sciences, in general, and anthropology, in particular, what is studied the most are precisely those aspects of common sense shared within different groups and between groups. In the case of anthropological knowledge, more than any other knowledge that is considered scientific, I understand that it does not place itself when compared to common sense, as more complex, better, or true, especially when faced with common sense

 Translation of the Portuguese language edition.

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whose a priori are quite different from the ones upon which modern sciences are based. I will return to this argument, at the end of this text, when addressing, specifically, so-called decolonial anthropology, in its ethical, methodological, and theoretical aspects. Finally, before moving on, I will be making use of a passage that I consider perfect to condense the arguments raised and articulated so far. I conclude this first part of the text with the answer that the anthropologist Claude Lévi-Strauss gave to the art critic, translator, and writer Georges Charbonnier in an interview, held in 1960, in which they specifically discussed the differences between “the scientist,” especially ethnologists and anthropologists, and the “ordinary man.” After Charbonnier had stated that “The scientist is a man who knows, and who knows how to know” (Charbonnier, 1969, 10), but it seemed to him “(…) that anthropological research allows him [anthropologist] fully to accommodate within himself both the man and the scientist” (idem, 17), Lévi-Strauss reacts: In other words, it teaches us the rather harsh and painful intellectual lesson that we must abandon the conception of a ‘Euclidean’ sociology – if I may use this expression – just as physicists and astronomers have taught us that we must no longer believe that all phenomena, from the infinitely small to the infinitely great, occur within a homogeneous form of space. When you study different societies, it may be necessary to change your system of reference, and that involves somewhat painful mental gymnastics which furthermore can only be learnt from experience in the field. It is inconceivable, even impossible, to be an armchair anthropologist. I would almost go so far as to say that the effort involved is physical, physically exhausting, and to this extent we can perhaps, if not solve the difficulty to which you alluded, at least understand that it is insoluble, that there are contradictions we must get used to and learn to live with on terms of resigned familiarity. (ibidem, 17–18)

Next, I will deal with the current impossibility of being an armchair ethnologist, which is the hallmark of academic anthropology at the end of the nineteenth century. I will then advance toward what, in 1960, was still barely outlined in the horizons of Lévi-Strauss, Charbonnier, Geertz, Freire-Maia, and even less so for thinkers from the turn of the nineteenth to the twentieth century, such as Wittgenstein, Boas, and Mauss. Although none of them came close to a “Euclidean sociologist,” the human beings they reported on were quite intangible and free of social markers of difference. I therefore will insert into the debate what I consider to be the second epistemological turn that anthropology has been going through, the first being the implementation and legitimation of ethnographic fieldwork as a sine qua non condition for the production of anthropological knowledge. This second and current shift, resulting from the so-called decolonial turn, requires perhaps more far-fetched and painful “gymnastics” from those who participate in ethnographic experiments, as well as from the respective teaching and research institutes and their course models.

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The Two Epistemological Turns in Anthropology Assuming, once again, that my philosophical background is insufficient to introduce the theme as I would like to, I risk referring to Michel Foucault and his concept of episteme, as an “epistemological field,” to affirm that the achievements of the first academic chairs in anthropology, sociology, psychology, and other kinds of knowledge, in Europe and the United States of the late nineteenth and early twentieth centuries, integrated a broad and complex set of relationships which involved certain discursive practices, epistemological figures, sciences, and formalized systems. Foucault states that this knowledge “(…) ground its positivity and thereby manifests a history which is not that of its growing perfection, but, rather, that of its conditions of possibility,” there having been: (…) two great discontinuities in the episteme of Western culture: the first inaugurates the Classical age (roughly half-way through the seventeenth century) and the second, at the beginning of the nineteenth century, marks the beginning of the modern age. The order on the basis of which we think today does not have the same mode of being as that of the Classical thinkers. Despite the impression we may have of an almost uninterrupted development of the European ratio from the Renaissance to our own day, (…) all this quasi-­ continuity on the level of ideas and themes is doubtless only a surface appearance; (…) the mode of being of things, and of the order that divided them up before presenting them to the understanding, was profoundly altered. (Foucault, 2005, XXIV)

Within the narrow limits of this text, I obviously do not have the slightest intention of trying to make an “archaeology of anthropology,” but my proposal is to point out how some of the so-called schools of anthropological thought – heterogeneously composed and sometimes recognized as such a posteriori – have ordered “the way things are,” sharing certain a priori that conditioned the development, execution, and publication of their methods, theories, and productions. I consider that this scientific ordering “of things” can be equated with what Lawis (2018) referred to as “suddenly ‘obtaining’ the rule” or a “flash of insight” and what Freire-Maia (1991, 36–37) described as “secrets hidden in the deep mechanisms of the creative act.” I am suggesting that it is not a question of “discovering” a naturally given rule but rather of inventing it by assigning an order to elements perceived as connected, which could be related or unrelated in different ways if other aspects were perceived. Prejudices that persisted and still persist, for example, male chauvinism, racism, misogyny, homophobia, transphobia, and many other “sorts of orderliness” on which certain moral and political systems are based – promoters of hierarchizations of human beings in social life – result from associations of elements of a certain episteme that have organized them. Social Evolutionism was, in this sense, the label attributed to the first attempt to order “the way things are” in the epistemic field of academic anthropology. This label brought together, a posteriori, a group of thinkers who, despite being trained in different areas, such as law and classical studies,6 or even not having attended a

 Lewis Henry Morgan (1818–1881) and James George Frazer (1854–1941), respectively.

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university,7 shared, between 1870 and 1920, certain a priori to explain, in the name of the nascent anthropology, why human groups formed a single set or a large family but, at the same time, were so different from each other. With the premises of a common origin, psychic oneness, and universal history, they explained the unity. The diversity was explained based on a certain notion of biological evolution (not directly resulting from the work of Charles Darwin), adapted to the concept of social evolution, to which the idea of progress was added, on a scale which ranged from forms considered simple to others considered complex. Thus, they classified the various human groups, from the past and present, into the stages of savagery, barbarism, and civilization. At the height of the civilizing stage, they placed societies whose forms of marriage (monogamous), political organization (unified and institutionalized States), religion (monotheistic), communication (literacy), commerce (industry and market economy), and so on, were more similar to those of the European colonizing metropolises. The “scientific” research that supported this “epistemological field” was deductive and took as its starting point the already mentioned premises that, associated with certain “criteria” – such as recurrences in reports produced by missionaries, travelers, merchants, and colonial administrators, among others – transformed cases into “proofs” that exemplified general laws. This method became known as “armchair anthropology,” and this marked the beginning of modern anthropology. Therefore, it was in the midst of this specific way of organizing and inventing relationships and discourses that, for the first time, culture as a singular, intangible, deterritorialized, and timeless concept was scientifically forged: “Culture or Civilization, taken in its wide ethnographic sense, is that complex whole which includes knowledge, belief, art, law, morals, custom, and any other capabilities and habits acquired by man as a member of society” (Tylor, 1920, 1). A thousand ducks, rabbits, and other elements could fit into other configurations of what humanity is, but only certain aspects of what was considered human and social were perceived, emphasized, ordered, and postulated as a scientific theory. Therefore, despite the relevant and still current questions about human diversity and universality  – and notwithstanding the scientific-political conclusion that all human groups were, in fact, human  – only white, male, and European humans, legitimized by universities, were considered capable of producing scientific knowledge. All the others, their ways of living, perceiving, and acting in the world, were objects to be classified, “preserved” as living memories of the European past or, not uncommonly, despised, controlled, subjugated, or even catechized and “instructed” in the name of “progress.” But soon, what could be considered the first epistemological shift in the epistemological-anthropological field occurred. Within a few decades, the production of knowledge in the area radically changed: the end of “armchair” work and the beginning of ethnographic fieldwork.

 Edward Burnett Tylor (1832–1917).

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As early as the end of the nineteenth century,8 but especially starting in 1910,9 some anthropologists began to meet directly with groups that they had previously known only through reports from third parties. The long journeys to what were, for the most part, still colonies involved long and lonely stays in the so-called exotic lands. Although some of these anthropologists had already migrated from their countries of origin and felt what it was like to be “a stranger,” an “other” forced to learn a new language in order to integrate, this ethnographic fieldwork took the experience of alienation and otherness to extremes. The continued and in-depth coexistence, which Malinowski called “participant observation,” triggered the perception of aspects of the social life of people labeled as “primitive” and “savage” that, until then, were invisible to the analyses of armchair anthropologists, inaugurating reflections not only about the scientific but also political role of anthropological knowledge. Those “modern” anthropologists began to record their most varied impressions and sensations in diaries and field notebooks that became fundamental instruments, during the research and when they returned to the office, for the systematization of the data and the publication of the results. The records of these experiences, both in writing, in photographs, and, later, in films, mixed with theoretical insights, sowed the seeds of what would become questions related to what, why, and how to record, in addition to the realization that perceiving-recording-thinking is a creative-selective act. The original scientific backgrounds of these anthropologists still varied, covering areas such as psychophysics, geography (Boas), and mathematics (Malinowski), which undoubtedly influenced their thematic and theoretical approaches. Their perceptions were guided by previous models from these areas, which, at least initially, made them emphasize certain “aspects” to the detriment of others. Malinowski initiated what became known as the Functionalist School, which was prominent between the 1920s and 1950s, especially in British and American anthropology. Based on mechanistic and organicist assumptions, he interpreted societies as totalities whose institutions, if in good working order, would guarantee the cohesion of the whole, which implied considering conflicts as dysfunctional. It is also worth mentioning that, despite having left for one of his first field trips, in the Trobriand Islands, with a very structured research project, the ethnographic experience made him rethink the relationship between theory and empiricism: If a man sets out on an expedition, determined to prove certain hypotheses, if he is incapable of changing his views constantly and casting them off ungrudgingly under the pressure of evidence, needless to say his work will be worthless. But the more problems he brings with him into the field, the more he is in the habit of molding his theories according to facts, and of seeing facts in their bearing upon theory, the better he is equipped for the work. Preconceived ideas are pernicious in any scientific work, but foreshadowed problems are the main endowment of a scientific thinker, and these problems are first revealed to the observer by his theoretical studies. (Malinowski, 2002, 36)

 Franz Boas (1848–1942).  Bronislaw Malinowski (1884–1942).

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In one of the most emblematic passages of what became this first anthropological-­ epistemological shift implemented by the ethnographic method, he expressed it this way: This goal is, briefly, to grasp the native’s point of view, his relation to life, to realize his vision of his world. We have to study man, and we must study what concerns him most intimately, that is, the hold which life has on him. In each culture, the values are slightly different; people aspire after different aims, follow different impulses, yearn after a different form of happiness. In each culture, we find different institutions in which man pursues his life-interest, different customs by which he satisfies his aspirations, different codes of law and morality which reward his virtues or punish his defections. To study the institutions, customs, and codes or to study the behavior and mentality without the subjective desire of feeling by what these people live, of realizing the substance of their happiness —is, in my opinion, to miss the greatest reward which we can hope to obtain from the study of man. (Idem 48)

The reference to the “native’s point of view” was central to this new “order of things,” but it was an order that did not face the historical process which brought together anthropologists and exotic peoples. The “ethnographic present” despised the colonial past and present. Boas and his aforementioned study On Alternating Sounds (1899) not only became known for having questioned the comparative method used by evolutionists contrasting it with the historical-comparative method, in which he points out the importance of considering the particular histories of the various groups studied so that possible relationships between them could be verified, but also for having inserted in anthropological debates the notions of cultural relativism, cultures, in the plural, and “patterns of culture” or styles of culture (“ethos”). His fierce political positions against racism in the United States, his theoretical criticisms of the concept of race and the evolutionary notion of progress, as well as his openness to what became known as studies of culture and personality, in interface with psychology, marked generations of new anthropologists that already included some white women, although in small numbers.10 Until the middle of the twentieth century, not only were few women anthropologists recognized in the field, but several of them, as research assistants to their husbands, did not even sign the works (Corrêa, 2003). There were practically no black people attending universities, especially women. Although this epistemological shift brought about by ethnographic fieldwork led anthropologists to initiate a critical review of the strong colonizing feature of knowledge produced until then, this did not mean that gender and ethnic-racial issues, among others, became central in the repertoire of research, debates, and anthropological theories. It was only after World War II and at the height of the 1960s, with the movements and protests related to the counterculture and the new waves of the feminist movement, that the seeds of a new epistemological turn timidly began to germinate. It would take much more than the few lines that follow to properly approach the relevance and complexity of the so-called French Sociological School, whose 10

 Ruth Benedict (1887–1948) and Margaret Mead (1901–1978), for instance.

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philosophical-rationalist a priori greatly contributed to formulations about the social origin of the “categories of thought” (time, space, force, causality, totality, classification), the conceptualization of “collective representations,” and to the thesis that exchanges and systems of reciprocity are at the foundations of social life. I emphasize that its main representatives,11 especially the abovementioned Marcel Mauss, opened spaces for important dialogs with other areas, such as psychology and linguistics, which implied not only the recognition of interdisciplinary theoretical and empirical powers but also the confrontation with new conceptual challenges. The Maussian concept of “total social fact,” for example, broadened the anthropological horizon to dimensions until then little considered in traditional studies of kinship and religion, allowing the identification of how, in practice, what is analytically separated “blends together” legal, political, economic, moral, and esthetic aspects of social phenomena (Mauss, 1966). Drawings of duck-rabbits were becoming more complex, but still with the assumption that universal and intangible observers, provided they were “prepared” and “equipped” properly with relevant theories and ethnographies, would be able to analyze them well. The structuralist theory and method, elaborated by the anthropologist Claude Lévi-Strauss (1908–2009), were direct heirs of the French Sociological School and the logical a priori according to which there are universal principles that organize the human spirit, such as pairs of opposites and binary codes from which the most diverse arrangements are produced, resulting in, at the same time, unity and diversity. Reciprocity, for example, would be one of those principles, whose manifestations in specific social groups take on particular tones. At this point, I will make an abrupt leap between the French and the American contexts, but not between the relations that anthropology was establishing with linguistics, psychology, history, and literary theory. In the 1950s, Clifford Geertz (1926–2006), graduate in philosophy and English, concluded his doctorate in anthropology unhappy with anthropological studies that he considered too abstract. This fact led him to propose a new ethnographic-analytical method capable of producing “dense descriptions” of certain social aspects, such as, for example, religion in Java. The result of this and other research constituted the anthropology that became known as hermeneutic or interpretive, not escaping, however, abstractions and generalizations that generated criticism, especially from the first generation of anthropologists trained by Geertz himself. His semiotic concept of culture inspired and still inspires countless works: (…) the culture concept to which I adhere has neither multiple referents nor, so far as I can see, any unusual ambiguity: it denotes an historically transmitted pattern of meanings embodied in symbols, a system of inherited conceptions expressed in symbolic forms by means of which men communicate, perpetuate, and develop their knowledge about and attitudes toward life. Of course, terms such as “meaning,” “symbol,” and “conception” cry out for explication. But that is precisely where the widening, the broadening, and the expanding come in. (Geertz, 1973, 89)

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 Émile Durkheim (1858–1917) and Marcel Mauss (1872–1950).

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Amid wars – no longer like the two world wars that had already permanently marked the twentieth century  – and entangled in cultural and technological revolutions, in growing socio-legal-political demands for identity recognition and access to rights, and in speeches and militant ecological studies aimed at denouncing the decline of the planet’s “natural” resources and inevitable climatic catastrophes, new social actors, still quite excluded from the scientific field, or participating in it as “objects,” were gaining, albeit not easily, some ground in the epistemological field of anthropology. First, white women and non-white men reached some important spaces and then, thanks to many social movements, the acronym GLS12 (gays, lesbians, and sympathizers) expanded to LGBTQIAP+ (lesbian, gay, bisexual, transgender, queer, intersex, asexual, pansexual “+,” other expressions of gender and sexuality) and the wide spectrum of gender diversity became visible; thus, a more varied set of people claimed legitimacy for themselves as protagonists in various areas. However, representatives of indigenous peoples and traditional populations, refugees, people of low income, and especially those who recognized and still recognize themselves as located at intersection points between these various social markers were and continue to be overrepresented in several dimensions, particularly in statistics that count them as victims of the most diverse forms of violence. For the purposes of this text and within the limits it entails, it is worth suggesting that the “current” of anthropological thought that emerged, at the turn of the twentieth to the twenty-first century, in the United States as well as Europe, already contained ingredients of what would later become what I argue qualifies as the second epistemological turn in anthropology. This is the postmodern or critical anthropology which, from the 1980s onward, anchored in areas such as narrative theory and cultural studies, radicalized the politicization of relations between “observers and observed.” Works by various anthropologists (James Clifford 1945–, Georges Marcus 1941–, Richard Price 1941–, and Michel Taussig 1940–, among others) began to harshly criticize the “ethnographic authority” pointing out that the power relations between them and their interlocutors are generally asymmetrical, in the sense of being more favorable to the interests of anthropologists than to those of the interlocutors, a fact that, in most cases, is not even explicit or acknowledged. The concept of culture, in this debate, began to refer to polysemic and political processes, therefore posing a challenge for ethnographic fieldwork in capturing these multiple voices, not only in the field, but as an ethical-political duty, so they could appear in the research results. Finally, there was a radical self-critique of anthropology itself as scientific knowledge, and new dialogs and fronts for research and ethnographic experimentation opened up, especially at the interface with the arts. In view of these remarks, if we return once again to the figure of the rabbit duck, perhaps we can continue to agree that, although as a general rule, it is valid to say

 Translator’s note: The term “GLS” gained strength in Brazil in the 1990s for its gay-friendly appeal before being replaced by the term LGBT (lesbians, gays, bisexuals, and transgender) and later being updated to LGBTQIAP+. 12

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that observers perceive only certain aspects of something because they necessarily fail to perceive others, it is worth adding that, as a result of the social markers of the observer, some aspects become especially visible and others go unnoticed. Due to the “decolonial turn” that further radically altered postmodern anthropology, the new and current epistemological-anthropological turn involves focusing on those aspects that, for at least a century, were invisible to anthropological knowledge. This is the case both because the social markers of the anthropologists themselves were not considered determinant in the production of their knowledge and because epistemological fields studied as objects were not recognized as new scientific possibilities for anthropology itself. This is what I will very briefly deal with next, in order to finalize the text.

Concluding Considerations In the final decades of the twentieth century, marked by independence movements in parts of Asia and Africa, among many other geopolitical rearrangements, more and more historiographic revisions, artistic productions, and ethnographies began to bluntly denounce various forms of domination and oppression. Despite being a heterogeneous group, some shared common inspirations,13 as well as the problematization of various aspects of “coloniality” and the consequent historical disqualification of many epistemic fields in spaces of power, such as universities. In Latin America, since the 1990s, studies such as those by the Peruvian sociologist Aníbal Quijano (1928–2018) and those by the Argentine semiologist Walter Mignolo (1941–) have systematized research focused on the “coloniality of power.” Such systematizations gave rise to critical developments, in the sense of pluralizing the concept so that it encompasses a broader and intersecting range of colonialities, such as those of being, knowledge, gender, nature, humans and nonhumans, and so on.14 Grada Kilomba (1958–), Portuguese writer, psychologist, theorist, and artist, from her productions on memory, trauma, gender, racism, and postcolonialism, is, for example, one of the authors who explores the intersectionality between power and academic-scientific knowledge: (…) concepts of knowledge, scholarship and science are intrinsically linked to power and racial authority. What knowledge is being acknowledged as such? And what knowledge is not? What knowledge has been made part of academic agendas? And what knowledge has

 For example, works by Michel Foucault (1926–1984), Jean-François Lyotard (1924–1998), Jacques Derrida (1930–2004), and Stuart Hall (1932–2014). 14  The works dedicated to these intersectionalities are extensive. I will limit myself to exemplifying it by highlighting, at the intersection between gender and power, the works of Argentine philosopher, political scientist, and professor of comparative literature María Lugones (1944–2020) and the Nigerian social scientist Oyèrónkẹ́ Oyèwùmí (1957–) – both not by chance women, from countries considered “peripheral.” 13

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not? Whose knowledge is this? Who is acknowledged to have the knowledge? And who is not? Who can teach knowledge? And who cannot? Who is at the centre? And who remains outside, at the margins? These questions are important to ask because the centre, which I refer to here as the academic centre, is not a neutral location. It is a white space where Black people have been denied the privilege to speak. (Kilomba, 2010, 27)

Whatever the intersectionality addressed, the thesis that there is no neutrality in the production of scientific thought emerges as central, since what is researched, how, why, for what, and for whom it is produced are anchored in political guidelines that justify relevance and irrelevancies and legitimize certain methodologies to the detriment of others, which leads, therefore, to biased results suited to particular purposes. As stated by Tereza Maria Spyer Dulci and Mariana Rocha Malheiros (2021, 175), (…) the object of study cannot be of interest [only] to the individual researcher but must be built in the collective, with communities and peoples that the research aims to reach. (…) Arguments, (…), must start from the needs that present themselves, as it is not a science that seeks the “truth” but that transforms reality and also transforms itself. Likewise, within the construction of decolonial methodologies, one seeks to start from the suspicion about what is intended to be universal and neutral, pointing out that there is no neutrality in the production of scientific thought, with a political orientation in the questions and theoretical frameworks used by researchers, which may have in “epistemic disobedience,” “anthropology on demand,” and “sentipensar” and “corazonar” possible of methodological construction. I, as a white woman, but because of “being a woman” and having several other social markers associated with me, such as “being an anthropologist,” “being Brazilian,” and “being a mother,” have many times experienced, including at the university where I graduated and where I have been a professor for 20 years, not only the almost absolute absence of black and indigenous colleagues but also being the target of silencing by white men, older, poorly disguised misogynists, at the top of their career and occupying positions of power. Currently, I coordinate an Ethics Committee on Research with Human Beings.15 I can say that timid seeds of decolonial ethics were sown in the late 1980s and are germinating, at least in the so-called human and social sciences. Regulations such as the Code of Ethics of the Anthropologist (ABA, 2012), as well as other broader ones from the National Research Ethics Committee (CONEP)16 and the National Health Council (CNS),17 not only substituted “research objects” and “interlocutors” with “research participants” but postulated, for example, that the rights of the populations that are objects of research that must be respected by anthropologists include the following:

 Information available at: https://pesquisa.fflch.usp.br/cep#:~:text=O%20Comit%C3%AA%20 de%20%C3%89tica%20em,os%20deveres%20da%20comunidade%20cient%C3%ADfica 16  http://conselho.saude.gov.br/comissoes-cns/conep/ 17  CNS Resolution 510 of April 7, 2016. Available at: https://conselho.saude.gov.br/resolucoes/2016/Reso510.pdf 15

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1. The right to be informed about the nature of the study 2. The right to refuse to participate in a study 3. The right to have their privacy protected, according to their own cultural standards 4. The guarantee that collaboration with the study will not harm the group under study 5. The right to access the results of the study 6. The right by a population to the authorship and coauthorship of its own cultural production 7. The right to have their cultural codes respected and to be informed, in various forms, about the meaning of informed consent in studies conducted in the field of health (ABA, 2012) Having made these very brief statements, insufficient to account for such complex reflections and contexts, I will only reiterate that the so-called decolonial turn in anthropology, which I am suggesting is a second epistemological turn, in full swing and initiated with the (self)criticisms of postmodern anthropologists, does not intend to annul what has already been developed since Social Evolutionism. The aim, on the contrary, is to know evolutionist thought very well, to understand the arguments that were used to contest it by the “schools” which succeeded it, and also to point out, in a very well-founded way, how much they also produced biased and localized theories, methods, and explanatory categories. Eurocentric and American-­ centric, they built knowledge limited to their perspectives and repertoires, as this is how all sciences and any forms of knowledge work, including hard sciences, whose results, apparently indisputable and absolute, directly impact our lives, whether positively with vaccines and medicines that save us from death or negatively with pesticides, pollutants, and weapons that kill us. Advancing toward the realization that knowledge is always biased and localized is an insight developed by the American philosopher and zoologist, emeritus professor at the Department of History of Consciousness and at the Department of Feminist Studies at the University of California, Donna Haraway (1944–). In the text “Situated Knowledges” (1988), she points out that the scientific notions of translation, conversion, and mobility of meanings are quite wrong because they are based on the a priori that there is a valid and legitimate standard against which to mark out and carry out comparisons, as it is the case of my own text: written in Portuguese – a language imposed by European conquerors on the native peoples of the lands known today as Brazil – it had to be translated into English, a language also imposed by European conquerors on the native peoples of the lands known today as the United States and subsequently imposed as a universal scientific language par excellence. In this process, there are layers of impositions and conversions that delimit, limit, subject, and, by adopting a standard, reduce, hierarchize, and make invisible and thus produce what the Portuguese philosopher of law Boaventura de Sousa Santos (1944–) calls nonexistence (De Sousa Santos, 2004).

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Finally, what is under discussion and being denounced by decolonial discourses is that what is supposedly scientific and universal hides localized choices and decisions and, consequently, constitutes ethical opaqueness and irresponsibility. Well explained by the Brazilian doctor in literary theory and comparative literature, who graduated in social communication and journalism, Francielly Baliana: When we open the scientific field to localized perspectives, we do not eliminate the importance of a scientific policy or broader and even global expressions of social technologies. On the contrary, since openness to critical evaluation comes from and together with subjectivities that assume contact and connection networks, it is important that science is understood as a field of tension. (Baliana, 2020)18

Opening scientific practices and discourses to symmetrical dialogs with nonscientific knowledge, recognizing the distinct partialities and the power of the encounter between them to broaden horizons, is what has guided decolonial ethnographies such as that carried out by the Moroccan-French anthropologist Bruce Albert (1952–) in coauthorship with the Yanomami shaman Davi Kopenawa (1956–). Originally released in French in 2010 with the title La Chute du ciel: Paroles d’un chaman yanomami, in English it was titled The Falling Sky: Words of a Yanomami Shaman (Kopenawa & Albert, 2013). Albert’s anthropological-­ethnographic knowledge is combined with Kopenawa’s Yanomami knowledge, and, from this encounter, an ethnography-political manifesto emerges focused on the imperative need to know and respect lives that are constituted according to a cosmology very different from the rational-scientific one. An important addendum, decolonial initiatives like this one, both in anthropology and in other scientific areas and the arts,19 should not, however, be recognized as mere “new branches” on the “tree of knowledge”20 but as a new rhizomatic epistemology, as suggested by Deleuze and Guattari (1987). A rhizome has no beginning or end; it is always in the middle, between things, interbeing, intermezzo. The tree is filiation, but the rhizome is alliance, uniquely alliance. The tree imposes the verb “to be,” but the fabric of the rhizome is the conjunction, “and… and…and….” This conjunction carries enough force to shake and uproot the verb “to be”: (…). Between things does not designate a localizable relation going from one thing to the other and back again, but a perpendicular direction, a transversal movement that sweeps one and the other away, a stream without beginning or end that undermines its banks and picks up speed in the middle. (Deleuze & Guattari, 1987, 25).

 Translation of the Portuguese language edition.  I think, for example, of the work of the indigenous leader, environmentalist, philosopher, poet, and Brazilian writer Ailton Krenak (1953–), internationally recognized and which, in Brazil, earned him the title of Professor Honoris Causa at many universities, just as happened with Davi Kopenawa. 20  René Descartes (1596–1650), in the preface to his work Principles of Philosophy (1644), uses the image of a tree to define wisdom/philosophy, indicating the roots as metaphysics, the trunk as physics, and the top, with its branches and fruits, as the sciences (medicine, mechanics) and morals. All knowledge, therefore, would be “rooted” in the existence of God and his truths, leaving people to deduce them, through research, in order to understand the world. 18 19

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To philosophize about the production of knowledge as arising from this type of stem, the rhizome – which, unlike a tree, grows in unusual spaces, parallel to the ground, below or on its surface, launching multiple roots and aerial shoots, like grass  – is to think about the possibility of knowledge that is irreducible to one cohesive whole, hierarchical and anchored in rooted a priori meanings. The rhizome is the metaphor that best matches the possibility of various types of knowledge living together, combining, being accessible, and not having an origin or an end, as they will always be made in the “between” that unites, separates, and makes it proliferate. I believe that the movement that pulled anthropologists out of their offices and put them in direct contact with the multiplicity of forms of human knowledge spread around the world was the first and fundamental mutation that allowed anthropology to slowly lose its arboreal form of knowledge and begin an experience that promises to “rhizomatize.” Malinowski went into the field prepared to study magic among the Trobrianders, but, from them, he learned the complexity and richness of a ritual: the Kula. There were no effective exchanges between the Trobrianders and Malinowski’s repertoires and worldviews, but it cannot be denied that the anthropologist opened up to a worldview that was different from his own, even if, later, he interpreted it according to anthropological-scientific categories and models. This is how a lot of ethnographic fieldwork was carried out throughout the twentieth century, until more daring initiatives began to emerge, “rhizomatically speaking.” This was the case, for example, of the ethnography carried out between 1969 and 1972 by Jeanne Favret-Saada (1934–), a Tunisian-French philosopher and anthropologist. As she reports: My work on Bocage witchcraft led me to reconsider the notion of affect and the importance of exploring it. Both as a way of addressing a critical dimension of fieldwork (the state of being affected) and as a starting point for developing an anthropology of therapy (be it “savage” and exotic or “scholarly” and Western). And finally as a way of rethinking anthropology itself. Indeed, my efforts to challenge anthropology’s paradoxical treatment of affect as a notion were inspired by my experiences of fieldwork (of dewitching) and psychoanalysis (therapy). The central role of affect in human experience has frequently been neglected or denied; (…). My work, on the contrary, focuses on the idea that the efficacy of therapy depends on an engagement with non-representational forms of affect. More generally, my work calls into question anthropology’s parochial emphasis on the ideal aspects of the human experience, on the cultural production of “understanding,” to employ a term derived from classical philosophy. It seems to me that there is an urgent need to rehabilitate old-fashioned “sensibility,” the more so as we are now better equipped to address it than seventeenth century philosophers were (Favret-Saada, 2012, 437).

She dared to go beyond what, until then, was considered conventional and ethnographically correct and was heavily criticized for this. Despite the criticisms, this encouraged many anthropologists to take the affects experienced in the field and work with them as an essential part of the ethnographic material that is constructed in nonverbal communicative interactions and which allows us to reach knowledge that is inaccessible by other means, especially those traditionally legitimated by the sciences.

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Since then, anthropological works with analyses such as those of Favret-Saada have been growing and gaining legitimacy and are being added to decolonial issues, making the bodies of anthropologists gain centrality. In this sense, says the Brazilian anthropologist Silvana Nascimento: In ethnographic research, to be in the field, and to write from it, is to come across the evidence of one’s own body and deal with its material and symbolic visibility, putting it in question. Its material presence, which occupies a certain space, moves in a certain way, has a certain language, expresses marks of gender, sexuality, generation, race/ethnicity, region, nationality, etc., has effects on places and situations where the interactions … take place (…). (…) the anthropologist, with a body, takes her place on the boundary between worlds, following paths marked by inequalities, differences and alterity relations that allow encounters and mismatches that inspire thought, revive the senses, decolonize the vision. (Nascimento, 2019, 471, 487–488)

For all this and much more, in the title of this text, I state that “not having an a priori has become the anthropological a priori. Multiple forms of knowledge are produced in ethnographic experiments.” We’ve learned a lot from Malinowski’s inaugural field notebooks and diaries, as well as from the teachings of Boas and Mauss, about our bodies being socially constructed filters through which we interpret only certain forms of “duck-rabbits” while not even imagining or perceiving thousands of others. Lévi-Strauss allows us to travel between the finer points of myths and the logical-analytical possibilities that structure them, and Geertz plunges anthropology into deep interdisciplinary waters in which the “areas of the symbolic” are entangled. The generation of anthropologists he trained began a critical review of anthropology itself, which, at first, seemed to throw the house into disarray and not propose any better arrangement. And that is exactly what we have now: no longer a single house nor a single standard to order the horizon of possibilities that has opened up for ethnographic fieldwork. Doing ethnography and, at the same time, thinking about what is involved in doing it are what mobilized all these people and what continues to mobilize us. Now, however, accepting our corporeities, partialities, and localized knowledge, rather than conducting our fieldwork, we let ourselves be guided by it. I conclude this text by returning to Lévi-Strauss’ dialog with Charbonnier to suggest another possible conclusion: When you study different societies, it may be necessary to change your system of reference, and that involves somewhat painful mental gymnastics which furthermore can only be learnt from experience in the field. It is inconceivable, even impossible, to be an armchair anthropologist. I would almost go so far as to say that the effort involved is physical, physically exhausting, and to this extent we can perhaps, if not solve the difficulty to which you alluded, at least understand that it is insoluble, that there are contradictions we must get used to and learn to live with on terms of resigned familiarity. (Charbonnier, 1969, 18)

Perhaps it is time to no longer get used to and learn to live with these and other “contradictions” in an “familiar” and “resigned” way, but to face them publicly, disobediently, and based on new pacts, especially with research partners who are part of the humanity that resisted and survived “systems of reference” that despised and excluded them. We have that ethical responsibility.

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References ABA – Associação Brasileira de Antropologia. (2012) Code of ethics of the anthropologist. Created in the administration of 1986–1988 and revised in the administration 2011–2012. Available at: http://www.portal.abant.org.br/codigo-­de-­etica/ Baliana, F. (2020). Sobre saberes decoloniais. In ComCiência, Dossiê Descolonizações. Unicamp/ SBPC. Available at: https://www.comciencia.br/sobre-­saberes-­decoloniais/ Boas, F. (1899). On alternating sounds. American Anthropologist, 2, 47–53. Available at: https:// pure.mpg.de/rest/items/item_2287028/component/file_2287026/content Charbonnier, G. (1969). The anthropologist and the public. In Conversations with Claude Lévi-­ Strauss (pp. 9–20). Jonathan Cape. Corrêa, M. (2003). Antropólogas & Antropologia. Ed. da UFMG. De Oliveira Batista, E. L. A. (2017). Iconografia tropical: motivos locais na arte colonial brasileira. Anais do Museu Paulista: História e Cultura Material, 25(1), 359–401. Available at: https:// www.scielo.br/j/anaismp/a/gYJwM8kfzHcbdCMtXtrJz3Q/?lang=pt De Sousa Santos, B. (2004). Para uma sociologia das ausências e uma sociologia das emergências. In De Sousa Santos (org.) Conhecimento prudente para uma vida decente: ‘um discurso sobre as ciências’ revisitado (pp 777–821). Cortez. Deleuze, G., & Guattari, F. (1987). Introduction: Rhizome. In A thousand plateaus: Capitalism and schizophrenia. The University of Minnesota Press. Available at: https://files.libcom.org/ files/A%20Thousand%20Plateaus.pdf Dulci, T.  M. S., & Malheiros, M.  R. (2021). A decolonial turn to scientific methodology: Epistemological notes for methodologies since and for Latin America. Espirales (Revista para a Integração da América Latina e Caribe, Dossiê VII Encuentro de Estudios Sociales desde América Latina y el Caribe, 174–193. Available at: https://revistas.unila.edu.br/espirales/ article/view/2686 Favret-Saada, J. (2012). Being affected. HAU, Journal of Ethnographic Theory, 2(1), 435–445. Available at: https://www.journals.uchicago.edu/doi/epdf/10.14318/hau2.1.019 Ferreira, A. B. H. (1986). Novo dicionário da língua portuguesa (p. 2). Nova Fronteira. Foucault, M. (2005). Preface. In Order of things (pp. XVI–XXVI). Taylor and Francis e-Library. Freire-Maia, N. (1991). A ciência por dentro. Vozes. Geertz, C. (1973). The interpretation of cultures. Select essays. Basic Books. Available at: https:// is.muni.cz/el/1423/jaro2018/SOC757/um/clifford-­geertz-­the-­interpretation-­of-­cultures.pdf Geertz, C. (1983). Common sense as a cultural system. In Local knowledge. Further essays in interpretative anthropology (pp. 73–93). Basic Books. Haraway, D. (1988). Situated knowledges: The science question in feminism and the privilege of partial perspective. Feminist Studies, 14(3), 575–599. Available at: https://www.jstor.org/ stable/3178066 Jastrow, J. (1900). Fact and fable. Houghton, Mifflin and Company/The Riverside Press. Available at: https://www.gutenberg.org/ebooks/48869 Kilomba, G. (2010). Plantation memories. Episodes of everyday racism. Unrast-Verlag. Available at: https://schwarzemilch.files.wordpress.com/2012/05/kilomba-­grada_2010_plantation-­ memories.pdf Kopenawa, D., & Albert, B. (2013). The falling sky: Words of a Yanomami shaman. Belknap Press. Kuhn, T. S. (1962). The structure of scientific revolutions. University of Chicago Press. Available at: https://www.lri.fr/~mbl/Stanford/CS477/papers/Kuhn-­SSR-­2ndEd.pdf Kuhn, T. S. (1963). The function of dogma in scientific research. In: Scientific change, Alistair C. Crombie Ed. (pp. 347–369). Available at: https://classes.matthewjbrown.net/teaching-­files/ hps/kuhn-­dogma-­revolutions.pdf Lawis, S. (2018, July 31) Do you see a duck or a rabbit: Just what is aspect perception? Aeon. Available at: https://aeon.co/ideas/do-­you-­see-­a-­duck-­or-­a-­rabbit-­just-­what-­is-­aspect-­perception

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Malinowski, B. (2002). Argonauts of the western Pacific. An account of native enterprise and adventure in the archipelagoes of Melanesian New Guinea. Routledge. Available at: https://monoskop.org/images/4/41/Malinowski_Bronislaw_Argonauts_of_the_Western_Pacific_2002.pdf Mauss, M. (1966). The gift. Forms and functions of exchange in archaic societies. Cohen & West. Available at: https://monoskop.org/images/a/ae/Mauss_Marcel_The_Gift_The_Form_and_ Functions_of_Exchange_in_Archaic_Societies_1966.pdf Mauss, M. (1973). Techniques of the body. Economy and Society, 2(1), 70–88. Available at: https:// monoskop.org/images/c/c4/Mauss_Marcel_1935_1973_Techniques_of_the_Body.pdf Moles, A. A. (1971). A criação científica. Perspectiva/EDUSP. Nascimento, S. (2019). The anthropologist’s body and the challenges of the near experience. Rev. Antropol. (São Paulo, Online), 62(2), 470–495. Available at: https://www.revistas.usp.br/ra/ article/view/161080/156155 Navarro, E.  A. (2013). Dicionário de tupi antigo: a língua indígena clássica do Brasil (p. 326). Global. Tylor, E.  B. (1920). Primitive culture. Researches into the development of mythology, philosophy, religion, language, art and custom. John Murray. Available at: https://archive.org/details/ in.ernet.dli.2015.42334/page/n1/mode/2up Wittgenstein, L. (1999). Investigações filosóficas. Nova Cultural. WMC1-08. (2022). Web-minicurso Compreendendo o Cérebro. Sociedade Brasileira para o Progresso da Ciência  – SBPC.  Available at: http://portal.sbpcnet.org.br/noticias/ sbpc-­recebe-­inscricoes-­para-­3-­ciclo-­de-­cursos-­online-­7/

The Investigation as an Antecedent in Sociology and Other A Priori Gérald Gaglio

Abstract  This chapter presents and discusses a research antecedent in sociology linked to the inevitable need to perform “social investigations” to promote the scientificness of the discipline. It shows that, although this a priori has been criticized, it has nevertheless become established. This chapter then reviews how sociologists deal with the a priori (in the usual sense of the term) of the actors they study, as well as their own, as part of the knowledge production process. The positions adopted with respect to these a priori differ greatly. They can be dismissed as obstacles to be surmounted or burdens to be shed, or they can be welcomed as highly useful landmarks and facilitators for analysis.

Introduction Among the many meanings that the term “a priori” has, and which are discussed in this book, we shall refer principally to the idea of something that is “taken for granted.” In other words, it is a preconception, something that is often implicit, known to researchers in a discipline but not necessarily formally stated among peers and even less so to the outside world. Furthermore, in our opinion, the “questioning of an a priori” involves uncovering its origin, deconstructing it, and identifying some of its implications (epistemological, methodological, and analytical) but also its limitations and shortcomings. Our premise is that disciplinary a priori guides and partly determines the research process. This likens the “a priori” to the notion of “antecedent,” in the sense that it is something that precedes the production of knowledge or thought. In this way, exploring the a priori of scientific disciplines, where consensus is not always achieved, helps to characterize them without setting them in stone. In other words, it helps to address them as part of a dynamic process.

G. Gaglio (*) University Côte d’Azur, Nice, France e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 J.-S. Bergé (ed.), The A Priori Method in the Social Sciences, https://doi.org/10.1007/978-3-031-38260-4_12

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The primary objective of this article is to question the a priori of sociological research that concerns the fact that, as sociologists, we are bound to “perform social investigations.” In other words, it is appropriate to set up a methodological system in order to collect and then analyze data. This a priori has a normative dimension, i.e., it involves a “must”: the sociologist Alain Caillé (1993) speaks of the “empirical imperative” (to observe and describe reality)1 which, according to him, attests to the scientific nature of the social sciences. Additionally, the a priori binds researchers to specific research actions, such as finding “fields” or supporting a demonstration with empirical facts. Let us be totally transparent about our own position with respect to this a priori: we fully adhere to it. For us, sociology is an empirical as well as a theoretical discipline, in the sense that the concepts and theories it proposes need to be founded empirically. We shall therefore question neither the foundations nor the consequences of the a priori that will be dissected. Moreover, the practice of sociologists is punctuated by expressions and watchwords that echo this a priori: “work your field,” “free yourself from your field,”2 “make your field speak for itself,” “a good theory is first and foremost a good investigation,” etc. However, here we are only considering one a priori of the discipline, albeit one that has a structuring effect. To ensure that our approach to the relationship between sociology and the a priori is more comprehensive, the second objective of this article will be to examine researchers’ stances in relation to the a priori of the actors they study. From this point of view, these a priori should be referred to more as “prenotions” (Durkheim) or “common sense” (Bourdieu). Finally, the link with researchers’ own a priori with respect to their study subjects will also be considered. Our thought process will thus follow three different paths, each one following on from the other. Firstly, we shall show how the empirical a priori and the need to “investigate” form the basis for sociology, although this pillar may have wavered over the course of the discipline’s history. Secondly, we shall review and discuss a cleavage in sociology which consists in either going against the a priori of the actors or taking advantage of them to conduct sociological reasoning. Thirdly, and following on from the above, we shall consider the main positions of researchers in relation to their own a priori, within the framework of a research approach.

 According to Caillé, the three other imperatives are the explanatory imperative, linking the phenomena observed to causes, without applying mechanical determinism; the comprehensive imperative, relating causes to actors’ reasons or motives, which amounts to questioning the meaning of actions; and, finally, the normative imperative, shedding light on the “normativity criteria” applied to the analysis since “it is impossible to question the meaning sought by social actors without questioning the very meaning of the questioning” (ibid. p. 60). 2  These expressions, commonly used in discussions among sociologists, can be found in the call for articles in a special issue of the journal Zilsel entitled “Sur le terrain” (In the Field): https://calenda. org/1002240. Here it can be read that: “The field directs and organises the act of research; it is also a specific stage of this research, that of an opening up to all the possibilities of intellection.” In a way, the “field” mentioned here is the signifier of the investigation. 1

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The Investigation as the Basis for the Sociological Approach If we take the primary sense of investigation to mean the collection of data by the researchers who carry it out (in other words “firsthand” data), then this investigative work constitutes a sort of pillar and foundation for sociology as a discipline, and it does so in its three main areas of emergence. In the French holistic tradition, which stemmed from the work of E. Durkheim, sociology inherited the positivism of Auguste Comte. This called for a demonstration using factual elements. It also sought to distinguish itself from both psychology and philosophy and hence conquer a scientific and institutional space of its own at the very end of the nineteenth century. Durkheim thus developed a methodology based on the collection of statistics that would make it possible to treat “social facts as things,” i.e., to objectify them and link them to causes external to the individual behaviors to be studied or compared. To put it simply, these facts were to be determined by structural factors and affiliations. For example, Durkheim examined the variety of suicide rates in Europe (Durkheim, 1951) with the help of macro-­ sociological variables such as religion or “social integration” (whether a person was married or not). These variables helped to explain trends, consistencies, and disparities. His method was based on a theory of social facts (forces bearing down on individuals) but also on figures to support his demonstrations, in short, on social investigations. Although disciplinary borders are much less watertight on the other side of the Rhine than in France, during the same period, Max Weber’s individualism (1968) also called for social investigations to be performed. Indeed, the formulation of ideal types such as bureaucracy, which help to approach reality without subsuming it, is an invitation to investigate further. In this way, ideal types can be tested by observing concrete situations. The same applies to the comprehensive approach defended by Weber: putting oneself in the place of the actors studied with a view to understanding why they act the way they do implies questioning them, hearing them speak. Once their reasoning has been grasped, an account can then be given of it, with the intellectual operation of “putting oneself in their place” as the backdrop. Unlike the Durkheimian sociologist, the Weberian studies suicide by examining, for example, the letters of suicide victims, including those who are not dead. In other words, the Weberian approach does not distance itself from the subjectivity of individuals and their personal history. As we can see then, the social investigation can follow various paths and apply quantitative or qualitative methods. The link between the social investigation and American sociology stemming from the Chicago tradition (which began in the 1920s and 1930s) (Chapoulie, 1996) is even more explicit. Especially as part of their thinking about the urban characteristics of a large city marked by massive immigration, these sociologists, commonly called “interactionists,” encouraged their students to leave their offices (and libraries) and go out into the community to see for themselves how different social worlds functioned. The idea was that they compare what they saw to what was said about these worlds. Moreover, this Chicago movement is still concerned with answering

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the nodal question posed a few decades later by E.  Goffman: “what’s going on here?” (Goffman, 1974). This is a sociology attentive to the experiences of actors in situ. Using language, it focuses on the meanings people exchange to understand each other, or at least for misunderstandings to be avoided, as well as the spatiality and materiality of the place where they are. Involving the study of the interactions that make up society (together with its norms and developments), the social investigation is consubstantial with the sociological approach. Beyond these historical reminders and legacies, the a priori that investigations need to be performed in sociology has epistemological implications. The most important point is to situate the investigation in a Popperian framework of refutability and falsifiability to underscore the scientific nature of the statements made. In other words, the scientific debates about human behavior in society (which is basically the main subject of sociology) cannot be supported by anything other than empirical data. This means that a position defended in a sociological production can only be refuted by contesting the way in which the data has been collected and/or analyzed or by comparing that data with other data and hence other investigations. There is no consensus on this since “society” cannot be compared to matter or physical phenomena; it cannot even be reduced to something unique given that there is not one but many societies. The corollary of this is that sociology is a cumulative social science. In other words, sociological research results can be discussed by other works based on new investigations, on the same subject (e.g., patient-doctor or inmate-prison guard relations) carried out in different places, at different times and using different methods. This is how sociological knowledge is advanced. Another important epistemological implication is linked to the evaluation of theses or articles submitted to peer reviews. Judging by my personal experience (as reviewer and reviewed) over the last 15 years, it is important to think about the fit between the methodology and the theoretical framework, as well as the robustness of the material and the empirical basis of the analyses. However, unlike in psychology, the conditions under which a social investigation is performed, and bias is avoided, are rarely discussed. The reviewer will often reason more in terms of the aim of the text: is there anything new to learn about this topic from this article/thesis, which is based on an investigation, compared with the existing literature? Is it interesting? Is it original? In this Popperian framework, essayism is to be avoided. The a priori that analyses are to be founded on data is a pillar of the discipline. First, the German sociologist G. Simmel, a contemporary of Durkheim and Weber, proposed an approach that was both more formal (his analysis of the transition from the dyad to the triad in social relations is an example) and more “inspired,” in the sense that he did not necessarily see the need to perform investigation work. However, his brilliant insights, based on a theoretical framework that could be described as “relationist,” really underscore the ambivalence of phenomena (e.g., fashion) and social relations (we confide in a stranger more easily than in a close friend, and the hardest conflicts are often between people who are very close). Indeed, his ideas can be applied in investigation work through observations that are more systemic than the ones Simmel himself made. Second, as a form of provocation, some authors may have

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wanted to undermine the a priori necessity for investigations, which, as we have said, are the scientific basis of sociology for most of its practitioners even today. In France, a thesis in sociology that was defended in 2001 by the media astrologer Elisabeth Tessier paved the way for a relativist approach. Arguing that astrology is a science like any other, this doctoral student at best relegated the need for an investigation to the backburner and, at worst, dismissed it altogether. Indeed, in her written thesis, the author takes advantage of her position as a known authority in astrology, providing anecdotes of her consultations with the great and good. The reaction of the community of French-speaking sociologists was that, despite their differences, they shared a common denominator in the empirical basis of sociological analysis, which is something that this unusual doctoral student and her controversial thesis director (Michel Maffesoli) did not. This controversy and the ensuing debates gave rise to the creation of the French Sociology Association in 2002.

Sociology and Actors’ a Priori In the first section, we discussed the a priori need to investigate as a marker of “doing sociology,” together with some of the implications of this. But sociologists also have to deal with the a priori (to which we are now giving the usual meaning) of the actors they study. This means they must position themselves in relation to these actors, with all the epistemological, theoretical, and methodological consequences this entails. The picture is much more divided in this area, and there is no consensus on how to go about doing this. First, there is the Durkheimian school of thought, firmly promoted in a work on the job of the sociologist by Pierre Bourdieu, Jean Claude Chamboredon, and Jean Claude Passeron, entitled “Le métier de sociologue” (1968). Today, this continues to be the dominant stance in the discipline with the assumption that sociological knowledge is created against “common sense” (Durkheim spoke of “prenotions”). It involves going against the “spontaneous sociology” (ibid.) produced in everyday life by actors when they talk among themselves. In other words, individuals have their a priori, but not in a Kantian sense: their knowledge is based on their experience (their opinions, their past, the ideas on which they base their beliefs, etc.). Their categories of perception and interpretation are therefore not scientific in the strict sense of the term and can distort researchers’ appraisals if they are taken as a basis. What needs to be done, therefore, to guarantee scientific objectivity, is to create an “epistemological break”3 with the actors’ common sense and adopt specific analytical categories. As a result, the vocabulary used by sociologists is partly hermetic and often unintelligible to the actors whose behavior is being reported on. The methodologies are mostly quantitative, and the authors prefer macro-sociological  Max Weber’s position is somewhat different. According to him, it is necessary to make a distinction between “value judgements” and “factual judgements.” The sociologist should focus on the latter, which, as described in the previous section, calls for an investigation to be performed. 3

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concepts such as distinction or reproduction, which emphasize stability rather than movement. The work of the sociologist also consists in highlighting mechanisms that the actors, deluded4 by their a priori, i.e., by permanently exercising their “common sense,” are unaware of. Without realizing it, they are often oppressed by their own logic: here, we might refer to the mechanisms of domination and discrimination which, for example, can undermine social mobility, even in democratic countries. In this respect, sociologists play the role of scouts and whistleblowers of inequalities. Although the actors could potentially put the sociologists’ work to good use, they do so very little in reality. This results in the problematic “radical academicism” criticized by D. Lapeyronnie (2004): all sociologists do is talk among themselves, claiming to speak in the name of oppressed actors without giving them a voice, and even denying the way in which they formulate their problems and the practical solutions they come up with. Understandably, the “epistemological break” between actors/researchers and common sense (i.e., “a priori”)/scientific sociology is part of the continuity of Marxist “false consciousness” (Bourdieu, Passeron, and Chamboredon speak of “nonconsciousness”; 1968): the actors are not genuinely conscious of what they are going through and what determines their actions and choices; instead, these things are revealed to them, thanks to the Promethean work of sociologists. Second, another position,5 in the continuum ranging from radicality to the search for compromise, emerged through several sociological movements, including the interactionism referred to above. When we say “radicality,” we are in particular thinking of the ethnomethodology which considers that an action is only an action once it has been “accounted for” by the actors themselves: nothing other than the closely studied situation and the actors in it (and their interaction with objects and their spatial environment) is of scientific interest to sociology. The culture, social class, and gender of individuals are only important for the analysis if the actors specifically mention them. The English sociologist A.  Giddens (1991) is more nuanced as he distinguishes between “discursive consciousness” (what people are able to verbally express in relation to what they are doing) and “practical consciousness” (what they do that they do not put into words). Beyond that, this other position consists in refusing the “epistemological break” referred to above. From this point of view, common sense is no longer an enemy of or an obstacle to knowledge. Instead, it provides support, and it supplies a starting point and material – for example, what actors say about the unfairness they feel – that can be used to analyze the social world. Yet, although actors’ accounts and opinions are taken seriously in this approach, they are not taken at face value. The sociologists use a theoretical framework to put them into perspective. This framework is above all that of a pragmatic sociology or a sociology of épreuves (in the sense of “proof”). This sociology starts with ordinary conversations and looks at actors’ justifications when they are asked to explain themselves and when they attempt to reach an agreement about shared

 The “illusion” is in this respect proposed by P. Bourdieu.  It should be underlined that this is also our position.

4 5

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principles. It is also important in this approach to focus on the way the actors forge their categories of perception and how they themselves define phenomena (such as innovation) and strive to overcome any difficulties they encounter (when an object is said to be innovative, e.g., and its first users are not sure it is, what happens?). This sociology emanates from and is based on the work of L. Boltanski and L. Thevenot on “economies of greatness” (2006), which puts an end to the great sharing, instituted by T. Parsons (1937), between values (traditionally left to sociologists) and value (a classic attribute of economists): individuals act according to what “counts” for them. To continue this overview, we need to consider how sociologists view their own a priori in the knowledge production process. This is not unrelated to the implicit idea that the social investigation is the foundation of sociological practice and the relative positioning of actors’ a priori, as described above. Indeed, the imperative that “we must investigate” (go out into the field, collect firsthand data, etc.) induces a certain relationship to scientific knowledge in sociology and the way in which such knowledge can be forged. This is classically reflected in two distinct scientific postures: induction, on the one hand, which consists in collecting empirical data first, leaving to one side any overbearing a priori (linked to existing literature or the sociologist’s own understanding or knowledge of the subject, as we shall see later), and then conceptualizing and theorizing based on an analysis of this data, and deduction, on the other hand, which involves forming hypotheses first and then testing these to confirm, invalidate, or reformulate them according to the empirical data available. For the purposes of this article, it is the relationship with the researcher’s own a priori that is important, even more so than the posture and methodology. Here, the a priori refers to the researchers’ preconceptions, their previous knowledge of a subject, or their experience with it (owing to the social groups to which they belong or have belonged). The question is then whether researchers’ a priori should be considered as a strength and beneficial asset or whether they should be considered as a burden to be shed at all costs. Here we find the same divide as in the previous section, but with the “producers” of knowledge as the center of gravity (and not the actors): the researchers’ preconceptions can be seen as part of their “common sense,” acting as an obstacle to the production of sociological knowledge. From this viewpoint, they are a kind of embarrassing bias to be acknowledged and discarded. On the other hand, having intimate, prior knowledge of a subject can also be seen as a time-saving advantage, a benefit that can prevent researchers from being taken in by actors’ rhetoric, for example. As the sociological approach largely consists of studying the gap between discourse (what is said) and action (what is actually done), the contribution of this point of view, when applied, is fully understandable. This is typically the position adopted by H. S. Becker when studying jazz musicians in his famous book Outsiders (1963): having been a jazz musician himself, he was able to draw on that experience, both for his investigation (he had many contacts and acquaintances in the field) and his analysis (he was highly familiar with jazz music practices). Consequently, and since the subject of sociological research can never be

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taken for granted, it is the researcher’s job to develop it, and any inside knowledge of the subject can provide support with this. We also share this epistemological position. Thus, in our opinion, there is nothing to prevent engineers trained in data science from switching to sociology and writing a thesis on artificial intelligence. Their prior training will help them to open the technological “black box,” to use the expression favored by the actor-network theory, without having to ask the people encountered for endless technical explanations. This does not necessarily mean that the engineers will become technologists or espouse the visions of the actors in the field under investigation. If we take as an example the research we are currently conducting on the adoption and appropriation of software embedding artificial intelligence in radiology, it is necessary both to know and understand the technological categories involved (such as the supervised or unsupervised learning to which algorithms are subjected) and to be able to step back from them: use is not dictated by technology alone, as the properties of the professional field where the technology is implemented weigh in too. It is also essential to examine the work and activities of the radiologists, as well as their national institutional context and the different places where they practice their profession (private surgery, hospital, etc.). However, here again, when the sociologist asks the radiologists what typology they propose for the different artificial intelligence applications in their field, the answer they give will not be taken as it stands. The researcher will review and reformulate the categories proposed using their own assessment criteria, such as the degree of work rationalization and intensification or the degree to which a machine is judged to be reliable. A final point deserves our attention regarding how sociologists relate to their own a priori. To examine this point, we shall return to Max Weber (1968). In our opinion, his thinking should not be interpreted too hastily as this would lead to an overestimation of the necessary “axiological neutrality” of researchers. To push this point further still, researchers should leave aside any form of personal judgment or subjectivity in relation to what they are studying: values (their own and those of the surrounding world) should be treated with the highest mistrust, if not rejected altogether. Of course, all researchers must perform an introspective examination of their own a priori regarding the fields they are investigating and their associated values by comparing them with their own. But does this mean they can claim to be totally objective and that the view they adopt is totally that of an outsider? We do not think so and, indeed, do not believe that this is what Mr. Weber meant. On the contrary, we believe that he calls for research founded on values since he constantly underscores the fact that accessing and studying reality can only be done through a certain “value relationship” (Wertbeziehung), which inevitably requires the adoption of a particular perspective. Put differently, and even though research and activism must not be confused, what is worthy of knowledge (and hence requiring investigation) for the researcher is above all what is important to that researcher and what holds a certain “value” in his or her eyes. This can influence the choice of research and investigations that the sociologist wishes to undertake. In our case, for example, we wanted to look at retirement homes as part of our research from the point of view of the technologies being installed or imposed in them. By simply

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adopting this point of view, we were able to address the subject differently compared with the existing social science literature and media presentation of such establishments. At the time of this research (at the end of the 2010s), the general reading of the situation focused on the idea of a “total institution” in the sense of Ervin Goffman, mixed with the panoptic approach to the surveillance society put forward by Michel Foucault (1977). Another focus was on the mistreatment of residents by care staff, although the systemic dimensions were not considered. Adopting this technology-based viewpoint, therefore, made it possible to talk about these establishments both in an original way for research and for the public debate, or at least this is what our aim was when we were invited to talk about the subject outside of the academic sphere.

Conclusion Having arrived at the end of this overview presenting the necessity to perform social investigations as an a priori (in the sense of an antecedent) on which the sociological discipline is based, and having reviewed the main positions of sociologists regarding actors’ a priori and their own, we feel dissatisfied and somewhat uncomfortable. The dissatisfaction stems from the fact that this overview is far from exhaustive; it is too rushed and too succinct since many other aspects could have been explored further. The discomfort comes from having spoken on behalf of all sociologists, when in fact we are but “one” sociologist, in one country, France, who has been practicing the discipline for roughly only 15 years and has certain theoretical and epistemological preferences. We can only hope that our attempt to be intelligible and to underscore our own point of view whenever possible will garner the forgiveness of our readers! To conclude, let us simply point out that the a priori leading to the investigation reflex, dealt with in the first part of this text, has its shortcomings. On this topic, Charles W. Mills (1959) talked about the risk of “abstract empiricism” and, to put it differently, research that is limited to an investigation, to descriptions devoid of theory and conceptual contributions. One way to free oneself of this limit is to perform rigorous investigations that apply a clear theoretical framework, and clear questioning, and by problematizing previous research work in a comprehensible and distinct manner. Beyond this, a social investigation is scientifically useful if the researcher “knows what he or she is looking for”6 while remaining open to the contingencies of the investigation and to accidental discoveries. This brings to mind the letters from Polish immigrants sent to their families back home, unearthed by chance by W. I. Thomas and F. Znaniecki (1927) in the streets of Chicago. These authors then used these unexpected letters as the main material for their analyses.

 If not, the idea of “investigating for investigation’s sake” might be compared to the vacuity of “art for art’s sake.” 6

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Similarly, other sociologists may well fall upon something that leads to probing results enabling them to put forward (or revise) the concepts encapsulating and incorporating the mechanisms and phenomena brought to light.

References Becker, H. S. (1963). Outsiders: Social studies of deviance. Free Press. Boltanski, L., & Thevenot, L. (2006). On justification :Economies of worth. Princeton. Bourdieu, P., Chamboredon, J. C., & Passeron, J. C. (1968). Le métier de sociologue. Mouton. Caillé, A. (1993). La démission des clercs. Les sciences sociales et l’oubli du politique. La Découverte. Chapoulie, J.  M. (1996). Everett Hugues and the Chicago tradition. Sociological Theory, 14(1), 3–29. Durkheim, E. (1951). Suicide: A study in sociology. Free Press. Foucault, M. (1977). Discipline and punish: The birth of the prison. Random House. Giddens, A. (1991). Modernity and self-identity. Self and society in the late modern age. Polity. Goffman, E. (1974). Frame analysis, an essay on the organization of experience. Harvard University Press. Lapeyronnie, D. (2004). L'académisme radical ou le monologue sociologique: Avec qui parlent les sociologues ? Revue Française de Sociologie, 45(4), 621–651. Mills, C. W. (1959). The sociological imagination. Oxford University Press. Parsons, T. (1937). The structure of social action. The Free Press. Thomas, W. I., & Znaniecki, F. (1927). The polish peasant in Europe and America. Bedminster Press. Weber, M. (1968). Economy and society. Bedminster Press.

Index

A Academic, 9, 13, 14, 22, 145, 163, 164, 170, 171, 187 Animal, v, 4, 67, 78, 79, 85, 86, 89, 90, 97, 159 Antecedent, vi, 3–15, 45, 48, 53, 78, 79, 121, 129, 138, 144, 146, 147, 150, 153, 179, 187 Anthropology, vi, 18, 24, 28, 29, 57, 65, 84, 157–159, 162–166, 168–175 A Posteriori, 7, 78, 101–105, 107, 109–112, 164 Appearance, 38, 49, 56, 70, 73, 161, 164 Arithmetic, 101, 103–105, 110 Artificial intelligence (AI), v, 9, 10, 13, 53, 134–138, 186 Assumptions, 4, 11, 53, 118, 127, 151, 166, 168, 183 Axiological neutrality, 43, 186 B Behavior, 20, 21, 32, 33, 49, 93, 118, 122, 132, 133, 135, 167, 181–183 Belief, v, 4, 5, 11, 17, 21, 23, 24, 32, 66, 95, 107, 118, 143, 145, 147, 165, 183 Biases, v, 4, 5, 11, 18, 52, 78, 182, 185 Blockchain, vi, 131–139 Body, 14, 19, 36, 48, 53, 56, 57, 62–68, 70–73, 105, 150–152, 159, 161, 162, 175 C Capital, 9, 91, 122–126, 128 Choices, 3, 4, 9, 12, 81, 120, 123, 124, 126, 147–149, 173, 184, 186

Coherence, 7, 33, 121 Commonplace, v, 4, 5, 11, 143, 159 Comparison, 11, 12, 81, 150, 158, 172 Complexity, 150, 159, 167, 174 Cryptography, 136–139 Cultures, 17–21, 24, 56, 59, 61, 70–74, 79, 86, 158, 164, 165, 167–169, 184 D Definition, 28, 31, 39, 45, 46, 51, 52, 59, 68, 79, 81, 83, 86, 101, 103, 104, 106, 108, 146, 152 Descriptions, 31–43, 51, 78, 82, 86, 102, 168, 187 Discipline, v, vi, 5, 8, 10–12, 18, 27–30, 33, 47, 49, 78, 143, 148, 153, 162, 179–183, 187 Disruption, 127, 132 Doctrine, v, 4, 22, 23, 33, 36, 82, 89 Dogmatic, 32–43, 79, 85, 97 E Economics, vi, 9, 10, 18, 20, 28, 30, 32, 33, 39, 40, 49, 60, 95, 117–129, 143–147, 168 Emotion, v, 4, 5, 11, 43, 161 Empirical, 27, 29, 31, 32, 46–48, 52, 101, 103–105, 108, 126, 147, 149, 153, 168, 180, 182, 183, 185 Employment, 118–127 Epistemology, v, 5, 28, 31, 43, 53, 173 Ethnographies, 168, 170, 173–175 Ethnology, 17, 28

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 J.-S. Bergé (ed.), The A Priori Method in the Social Sciences, https://doi.org/10.1007/978-3-031-38260-4

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190 Experience, v, 5, 6, 11, 20, 37, 83, 88, 103, 104, 107, 109, 118, 124, 125, 128, 163, 166, 174, 175, 182, 183, 185 Explanation, 6, 29, 32–34, 38, 39, 41–43, 49, 51, 60, 88, 103, 120, 127, 151, 160, 162, 186 F Fact, 4, 7, 8, 10, 11, 14, 18–20, 22, 23, 28–36, 38, 41–43, 46–49, 51, 52, 59, 61, 63, 64, 67–69, 72, 79, 84–86, 89, 94, 95, 103–105, 107, 108, 111, 112, 121–125, 135, 136, 162, 165, 166, 168, 169, 180, 181, 186, 187 Family, 8, 56, 57, 59–72, 74, 90, 92, 96, 165, 187 Flexibility, 118–120, 123–125, 128 Function, 7, 30, 34, 40, 52, 86, 88, 97, 98, 136, 147 Fundamental, 8, 9, 30, 41, 49, 51, 58, 78, 80, 92, 147, 152, 161, 166, 174 G Genealogies, 63, 67, 79, 84 Geometry, 48, 102 Governance, 133, 135, 136 H History, 8, 10, 15, 18–20, 22, 29, 30, 42, 43, 46, 90, 143, 161, 164, 165, 167, 168, 172, 180, 181 I Iconography, 92, 159 Idiosyncrasy, 21, 23, 24 Imaginary, 56, 57, 61, 66, 71, 73, 78–90, 95, 97, 98, 127, 159 Industry, 133, 135, 144, 146, 148, 149, 152, 165 Innovation, vi, 119, 123–126, 138, 143–153, 185 Institutions, 19, 31, 39, 48, 57, 62, 65, 66, 73, 90, 96, 97, 118, 120, 128, 132, 133, 138, 145, 146, 162, 166, 167, 187 Interest, 7, 28, 32, 40, 47, 83, 92, 94, 121, 122, 143, 149, 151–153, 169, 171, 184 Intergenerational transmission, 58, 73 Interpretation, 5, 29, 31, 37, 79, 159, 183 Investigation, 7, 13, 43, 49, 117, 144, 145, 147–149, 151, 152, 180–183, 185–187

Index J Jurist, 6, 20, 23, 28–32, 36, 47, 49, 51, 81, 98, 110 K Knowledge, v, 5–7, 9–15, 17, 18, 22, 27–43, 48–52, 80, 81, 84, 89, 101, 117, 123–125, 144–153, 157–159, 161–175, 179, 182–186 L Labor, vi, 68, 71, 117–129 Law, vi, 3, 17, 28, 45, 65, 79, 102, 117, 138, 143, 157 Legal reality, 27, 28, 34–43 Linguistics, 28, 29, 31, 49, 50, 53, 95, 168 Logic, 8, 101–110 Logics, 147, 184 M Management, vi, 90, 128, 134, 135, 143–153 Mathematics, 32, 52, 101–106, 109, 110, 166 Metaphysical, 46–48, 68 Method, vi, 3–15, 20, 22, 23, 28–30, 43, 47, 48, 101, 108, 109, 127, 146, 148, 164, 165, 167, 168, 172, 181, 182 Morality, 21, 22, 24, 47, 60, 110, 161, 167 Movements, 8, 9, 13, 32, 42, 79, 81–83, 85, 167, 169, 170, 173, 174, 181, 184 Multidisciplinary, 7, 11–13, 78, 79 N Naivety, 96 Naturalism, 86 Normative, 8, 9, 29–31, 33, 45, 52, 61, 79, 84, 88, 106–109, 180 Numbers, 7, 8, 41, 51, 84, 101–106, 109–112, 120, 126, 160, 167 O Objectivity, 18, 29, 41, 56, 65–74, 108, 183 Object of law, 31, 51 Ontology, 39, 45–49, 52, 53 Organization, 10, 34, 48, 69, 79, 128, 133, 144–147, 149–153, 165 P Paradigm, v, 4, 5, 11, 40, 152, 162 Particularism, 108

Index Perception, v, 5, 36, 80, 85, 105, 159–161, 166, 183, 185 Permanence, 56, 70, 71, 73, 74 Phenomenology, 8, 78, 106 Philosophy, v, vi, 4, 5, 19, 24, 94, 106, 117, 157, 168, 173, 174, 181 Plurality, 25, 33, 56, 66, 70, 72–74, 105 Positivism, 21, 24, 30, 45, 52, 181 Practices, 4, 9, 10, 13, 14, 17, 19, 20, 22, 24, 28, 29, 46–49, 51–53, 60, 68, 79, 86, 96, 118, 124, 135, 138, 144, 148, 151, 152, 161, 164, 168, 173, 180, 185, 186 Pragmatic, 8, 41, 117, 184 Prejudices, v, 4, 5, 11, 17–22, 25, 78, 86, 164 Presupposition, 4, 11, 33, 35, 112, 143 Pre understanding, 7–12, 14 Primitive, 20, 24, 166 Private/public divide, 56 Probabilities, 102, 109–111, 126 Process, 14, 18, 20, 22, 29, 36, 62, 66, 97, 104, 106, 107, 111, 119, 121, 123–125, 127, 128, 135–137, 147, 150–153, 158, 159, 161, 162, 167, 169, 172, 179, 180, 185 Proof, 37, 38, 41, 50, 96, 107, 165, 184 Psychology, 28, 29, 48, 102–105, 107, 143, 159, 164, 167, 168, 181, 182 Public assessment, 9, 10 Q Qualifications, 36, 37, 118, 122, 124–126 R Realism, 23, 32, 45, 46, 52, 98 Reality, 3, 6, 9, 10, 20, 23, 24, 29, 32, 34–38, 41–43, 49–51, 70, 80–83, 86, 97, 98, 103, 104, 106, 108, 118, 127, 171, 180, 181, 184, 186 Reasoning, 17, 18, 20, 22, 23, 34–37, 79, 81, 86, 102–104, 106, 111, 144, 180, 181 Relationship, vi, 5, 18, 21–22, 29, 37, 47, 62, 68, 78, 79, 83, 85, 87, 88, 96, 97, 103, 106, 119, 121–125, 128, 133, 150, 151, 164–167, 180, 185, 186 Representation, 6, 17, 20, 28, 36, 56, 61, 62, 64, 66–69, 72, 74, 79–86, 88–90, 96, 104, 122, 145, 146, 159, 168 Rights, 24, 25, 29, 32, 34, 39–42, 46, 51, 59, 67, 69, 72, 96, 109, 133, 135, 145, 146, 148, 151, 160, 169, 171, 172

191 S Savage, 166, 174 Sciences, v, 4–6, 12–14, 17, 18, 22, 27–34, 52, 53, 73, 78, 103, 104, 106, 108, 112, 143, 144, 146–148, 150, 153, 157, 158, 161–164, 170–174, 180, 182, 183, 186, 187 Semiology, 29 Social identities, 57, 61, 62 Sociology, vi, 18, 24, 28–31, 43, 143, 163, 164, 180–187 Space, 9, 11, 12, 37, 64, 70, 101, 102, 105, 153, 163, 168–171, 174, 175, 181 Standard, 33, 87, 88, 97, 128, 129, 172, 175 State, 6–8, 14, 21, 23, 24, 30, 32, 34, 39, 40, 42, 48, 63, 80, 89, 91, 95, 103–107, 118, 120, 121, 126, 128, 132, 145, 161, 164, 165, 167, 169, 172, 174, 175 Strategy, 15, 148, 153 Structure, 8, 21, 31, 41, 52, 57, 61, 64, 65, 71, 72, 78–85, 88–90, 97, 98, 106, 109–112, 118, 126, 127, 132, 134, 136, 137, 146, 148–150, 162, 175 Synthetic, 102, 103, 111, 112 T Technology, vi, 63, 124, 128, 131–139, 147–149, 151, 152, 173, 186 Time, v, 4, 8, 11, 14, 17, 19–25, 32, 37, 41, 42, 50, 51, 64, 66, 70, 71, 79, 84, 85, 87, 89, 94, 95, 97, 102, 105, 107, 111, 112, 121, 122, 124, 125, 127, 128, 132, 136, 139, 149, 151, 153, 160, 165, 168, 171, 175, 182, 187 Transcendental, v, 5, 46, 78, 102, 103, 105, 112 Translation, 6, 19, 36, 162, 172, 173 U Understanding, v, 5–12, 14, 28, 30–33, 46, 50, 53, 102–106, 109, 117, 139, 145, 147–151, 153, 164, 174, 181, 185 Universalism, 18, 24, 25 V Value, 10, 19, 21, 22, 30, 36–38, 42, 49, 51, 52, 93, 124, 138, 147–149, 152, 158, 167, 183–186 Virtual facts, 36, 37, 43 W Wages, 118–128