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- Herausgeber: John Wiley & Sons
- Kategorie: Geisteswissenschaft
- Sprache: Englisch
Law is the most sacred fetish of our time. From radicals to conservatives, there is no militant, activist or thinker who would consider doing without it. But the history of our fascination with law is long and complex, and reaches deeper into our culture than we might think. In After Law, Laurent de Sutter takes us on a journey to uncover the sources of our fascination. He shows that at a certain moment in our history a choice was made to treat law as a decisive feature of civilization, but this choice was neither obvious nor necessary. Other political, social, religious or cultural possibilities could have been chosen instead - from ancient Egypt to Mesopotamia, from medieval Japan to China, from Islam to Judaism, other cultures have devised sophisticated tools to help people live together without having to deal with norms, rules and principles. This is a lesson worth reflecting on, especially at a time when the rule of law and the functioning of justice are increasingly showing their sinister side - and their impotence. Is there life beyond law?
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Contents
Title page
Copyright page
Dedication
Translator’s Note
Foreword by Avital Ronell
PRELUDE
§
A. Law
Note
1:
NOMOS
§1. Isonomia
§2. Thesmos
§3. Rhêtra
§4. Nemô
§5. Philosophy
§6. Order
§7. Polis
§8. Thémis
§9. Phusis
§10. Anomia
Notes
INTERLUDE 1
§
B. Chaos.
Note
2:
DĪNUM
§11.
Hammurabi
§12. Mišarum
§13.
Dīnum
§14. Šumma
§15. Prophesy
§16. Šamaš
§17.
Kittum
§18. Model
§
19.
Akālum
§20. Understanding
Notes
INTERLUDE 2
§C. Code
Note
3:
IUS
§
21.
Rogatio
§
22.
Ius
§
23.
Fas
§
24.
Iura
§
25.
Nexum
§
26.
Civitas
§
27. Corpus
§28.
Iurisprudentia
§
29.
Institutes
§
30. Disruption
Notes
INTERLUDE 3
§
D. Case
Note
4:
LEX
§
31.
Leges
§
32.
Lectio
§
33. Cicero
§
34.
Uinculum
§
35.
Nomos
§
36.
Perfectio
§37.
Schola
§
38. Norm
§
39. Morality
§
40. Synthesis
Notes
INTERLUDE 4
§. E. Being
Note
5:
FIQH
§
41.
Oumma
§
42.
Sharia
§
43.
Fiqh
§
44.
Qiyâs
§
45. Shâfî’i
§
46.
Furû
§
47.
Taqlîd
§
48. Djinn
§
49.
Tariqâ
§
50. Doubt
Notes
INTERLUDE 5
§
F. Man
Note
6:
LI
§51. Confucius
§52.
Li
§53.
Relation
§54.
Ren
§55.
§56
.
Fa
§57. Shang
§58.
Xun
§59. Form
§60. The pear tree
Notes
INTERLUDE 6
§G.
Sanction
Note
7:
GIRI
§61. Ritsuryô
§62. Tang
§63. Shôtoku
§64.
Horitsu
§65.
Giri
§66. Emotion
§67.
On
§68. Assessment
§69.
Kyaku
§70.
Rei
Notes
INTERLUDE 7
§H. Reason
Note
8:
DHARMA
§71. Smriti
§72.
Sutra
§73.
Trivarga
§74.
Pramana
§75.
Arya
§76. Abjection
§77.
Artha
§78.
Varna
§79. Manu
§80. Asoka
Notes
INTERLUDE 8
§I.
Judgement
Note
9:
MAÂT
§81. Maât
§82.
Ânkh
§83.
Isfet
§84. Oasien
§85. Communication
§86. Tomb
§87.
Ba
§88.
Âdja
§89.
Hépou
§90.
Nefer
Notes
INTERLUDE 9
§J. Politics
Note
10:
AGGADAH
§
91. Torah
§92. Halakha
§93. Justification
§94. Maimonides
§95. Chaim
§96. Beyond
§97. Pluralism
§98.
Mishpatim
§99.
Aggadah
§100. Betrayal
Notes
POSTLUDE
§K. Right
Index
End User License Agreement
Guide
Cover
Contents
1: NOMOS
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After Law
Laurent de Sutter
Translated by Barnaby Norman
polity
Copyright page
Originally published in French as Après la loi © Presses Universitaires de France/Humensis, Après la loi, 2018
This English edition © Polity Press, 2021
This work received the French Voices Award for excellence in publication and translation. French Voices is a program created and funded by the French Embassy in the United States and FACE Foundation (French American Cultural Exchange).
French Voices Logo designed by Serge Bloch.
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ISBN-13: 978-1-5095-4236-9
ISBN-13: 978-1-5095-4237-6 (pb)
A catalogue record for this book is available from the British Library.
Library of Congress Cataloging-in-Publication Data
Names: De Sutter, Laurent, author. | Norman, Barnaby, translator.
Title: After law / Laurent de Sutter ; translated by Barnaby Norman.
Other titles: Après la loi. English
Description: Cambridge, UK ; Medford, MA : Polity Press, [2020] | Includes bibliographical references and index. | Summary: “Why law may be less important than we think”-- Provided by publisher.
Identifiers: LCCN 2020020737 (print) | LCCN 2020020738 (ebook) | ISBN 9781509542369 (hardback) | ISBN 9781509542376 (paperback) | ISBN 9781509542383 (epub) | ISBN 9781509545438 (adobe pdf)
Subjects: LCSH: Law--Philosophy. | Law (Philosophical concept) | Law--History.
Classification: LCC K230.D4343 D4713 2020 (print) | LCC K230.D4343 (ebook) | DDC 340/.1--dc23
LC record available at https://lccn.loc.gov/2020020737
LC ebook record available at https://lccn.loc.gov/2020020738
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Dedication
For Serge Gutwirth
Translator’s Note
The English translation of Après la loi – After Law – presents a particular problem, apparent in the final word of the title and traversing the entire text until the last sentence of the Postlude. Put simply, the English language collapses two concepts that are separated in the French terms ‘loi’ and ‘droit’ into the single all-embracing ‘law’. In some ways, this is a striking confirmation of one of the central theses of the work: that over the course of Western history, the law, ‘la loi’, with everything it entails in terms of abstraction and normativity, has come to dominate and determine the concrete and casuistic ‘droit’. The obvious solution, and the one used throughout this work is to translate ‘loi’ with ‘law’ and ‘droit’ with ‘right’. This procedure is not, however, perfect, and carries certain risks. The most significant of these is that ‘right’ in English has come to be associated almost exclusively with the ‘rights’ of the ‘subject’, which is to say the individual rights the subject embodies within a political construct. ‘Right’, as it is predominantly used in this work, is better understood in its opposition to ‘Law’: a disruptive activity of becoming that challenges, perhaps deconstructs, the being of Law. All this becomes most explicit in the ‘Postlude’, which returns to all the oppositions in play throughout the work as it passes through a global series of legal traditions. Throughout the English text, as it builds to this finale, I have, therefore, capitalized ‘Law’ and ‘Right’ when they are clearly to be understood in the tension of this opposition. This is intended to serve as a visual reminder that neither ‘Law’ nor ‘Right’ quite map onto the common meanings the terms carry in English, and it will be to some degree the responsibility and the experience of the reader to come to an understanding of how they operate across this text.
ForewordAvital Ronell
Our relation to the law is not easy to untangle or tame using merely historical narrative. Fortunately, Laurent de Sutter provides us with a scanning apparatus, hermeneutically fine-tuned, by which to measure essential prompts of juridical life. With the care of a relentlessly searching analysis, his text hands us a number of flagged contracts to renegotiate and, where necessary, to repudiate.
We know that, beginning with Cleisthenes’ fateful intervention, philosophers bristled while they defended the demos, worried about the takeover of a mob primed to go off locked and loaded, lawless and intemperate. After Law offers a sweeping historical account of conceptual overhauls that are responsible for boosting democratic tenacity in the face of so many obstacles and their punctual power failures. Perhaps now more than ever our legal and juridical inheritance presses upon us, urging a review of a speculative jurisprudence that involves an untold history and stealth attack plans.
Timely and incisive, this work repurposes our juridical scaffolding, making allowances for wide-ranging effects of existential fallout in the political realms that affect us today. It faces down the transcendental assumptions that fuel our relation to the law and its legally constellated satellites. Without explicitly calling up psychoanalytic theory, After Law locates the power-pump of social narcissism and forms of drivenness that undergird an abiding relation to the law. We are given to understand that, like Kafka’s man from the country, one’s condition of sheer stuckness ‘before the law’ cannot be abrogated. This predicament holds for a diverse and often incompatible cultural rhetoric of law and governance, a temporal span that involves the subtle implications of finding oneself called before the law only to be snagged after the law’s epoch of authority.
On civic alert, Professor de Sutter examines the moves that were made historically in order to supplant familial logic with the idea of Law and the implementation of human rights. He trains his analysis on distinctions drawn by the fundamental juridical structures reconfigured under structural mutation, their emergence and inherent instabilities – in some cases, their unapologetic takeover stratagems. The text’s questioning looks at the foundational yet elusive facets of law and aporias of power. Its microanalyses interrogate the workings of Law, constitutions, penal codes, institutions, acts of positing and the co-implicating force of hypothetical judgement that hold them together as well as apart. The account of juridical presuppositions reflects the processes of corresponding historical changes in political vocabularies. So that ‘no tyranny could ever return’, the reigning god or legislator in Greek legal arbitration had to be replaced by the City itself, a repartition involving a new understanding of sharing together with an ever new distribution of civic responsibility. The strife between human nomos and divine nomos, in the limited yet self-replicating instance of ancient Greek philosophy, has had to be renegotiated at crucial junctures in modernity. At one point, the agonistic terms of law-giving powers reappear with the Spaltung (split-off) discussed in Walter Benjamin’s reflections on law and violence in terms of the striking force that differentiates human from divine law. Yet, how do we live with a relation to law whose authority is eroding?
In Freudian terms of social pessimism, it may well be the case that we will never be able to effect a jailbreak from narcissistic lockdown and expunge the vacuity of shameless self-promotion that pervades our times, exercising a reckless disregard for the rule of law and its principled apportionment of equality. We’re neither the only nor the first ones to contend with encroaching morphs in despotism, the chokehold of a lawless political organization. De Sutter’s argument indicates that every social body on record has been tempted by tyrannical excess.
Ensnarled in familialisms and archaic structures of troubled coexistence, each phase of civilization has registered a will to break free of local bullying tendencies, hoping to dissolve tenacious political strangleholds. The tyrannical impulse exposed by Plato’s legendary analyses and the refinements of Aristotle’s political warning system exemplifies philosophical pushback on autocratic incursions. In the assertive span of Athenian juridical life, Cleisthenes was the first to call up Greek democracy. Not everyone in the history of philosophy was on board with the initial rallying call, and certainly no philosopher proved more ready to march along with a destructive politics than Martin Heidegger in 1934. What does this tell us about philosophers –not to say of formations of will-to-power, and the enduring appeal, whether heeded or dismissively cast, made in theoretical studies of Law?
By now, we know this much: the tyrant, whether on the loose or held in place, is always ready to pounce, breaking out of a republic of unchecked phantasms and into states of lawless abandon. According to the tag-team of Plato and Freud, one falls into tyranny when betraying the democratic model of paternal legacy, squeezing out the law internalized, honoured, remembered. Superego and the inheritance it implies are kicked to the curb, fully divested by the tyrant who, according to Plato, has snuffed out paternal mimesis and regulatory hand-downs.
The law and its representatives are disseminated by various institutions and positing acts that exercise a provisional flex of power. Where regulatory habits are disdained, if arbitrarily applied, and surveillance mechanisms idle on the edge of lawful intrusion have spread with viral tenacity, we need to contend with crucial questions of a primary order. Why are we governed by laws, and who gets to escape their alternatively crude and sophisticated forms of punishing inscription? How do we account for the historicity and cultural codifications of Law that reassert its authority – or expose transcendental principles as problematic and wobbly? And, to introduce a perspective covered in Derrida’s reflections on Benjamin’s essay ‘The Critique of Violence’, what is the force of Law? How does it determine or overdetermine culpability, axioms of retribution and various forms of juridical sentencing? Is the regime of legal violence inescapable once a subject is placed in signifying chains?
Jean-François Lyotard, for his part, takes up the juridical shortfall in The Differend, a theoretical rollout citing the need for a pushback on legal falsification, gestures that could not be registered by techniques of legal review: a nervous tic, a blush, a hysterical cough, yet another somatic outbreak such as hives, or the resolute silence of a torture victim. Lyotard folded these unlitigatable shudders into what he named a ‘phrasal regimen’. The phrasal regimen covers an entire syntax of extra-legal efforts to speak a truth before a court without reverting to a strictly coded and pre-authorized rhetoric. These efforts involve releasing new types of information on the semiotic build-up of a distressed body under interrogation, its attendant symptomatologies, including the inability to say what one has witnessed or recount the violence to which one has been made to succumb. In Masochism: Coldness and Cruelty, Gilles Deleuze outlines the masochist’s presuppositions of lawful adherence, whereas Jacques Lacan, in ‘Kant with Sade’, brings up the rear with his anal-sadistic location shot for the juridical disposition. There’s more to this line-up because the cartography of the legal impingement on our lives – intimate, body-bound and insidious – is as complicated as it is prevalent. In the wake of Kafka’s grammar of hypothetical speculation, it has become impossible, argues Lyotard, to prove one’s innocence. Kafka was already driving while Black, steering a minority’s literature of legal despair.
In these times, what still passes for ‘human relations’ seems irremediably beholden to legal institutions and conceptual grids. The prediction made by de Tocqueville about the modern democratic state rings true: the citizenry will have complied with the juridification of all relations. No moment of interiority will be spared legal assignment, interrogation or potential dispute. (I amp up for effect. Alexis de Tocqueville had enough problems on his hands without having to trifle with a presumed subject’s ‘interiority’ and other Hegelian acrobatics.) Tyrannical breakouts have separated off from paternal law – and, we could add, calling upon a pending Kleinian politics, that the tyrannically seized soul has failed to internalize the good breast, to learn repair or submit to reparative justice. Is the commitment to reparative justice still something we can imagine, if only as a regulatory ideal, an aneconomic gift? It seems as though we must do so, imagine and commit to repair, even if Heinrich von Kleist has made the aporias of repair undefeatable for us moderns.
PRELUDE
§A.Law. For more than two thousand years, the West has lived under the rule of Law – a jealous rule, which tolerates infractions only insofar as they are the means by which offenders come to recognize anew its incontestable supremacy. This dominion was not built in a day, and has not failed to provoke resistance; but the legal proposition possessed, it would seem, a persuasiveness that its rivals did not: it won. Looking carefully at its contemporary form, it is possible to understand why: behind Law, there extends a whole domain of thought, valorizing order, reason, coherence, power and security. Even today, this domain of thought constitutes the default regime for everything, from university research to café conversation – from the perspective of this regime, anything escaping the parameters of the domain in question would lead to chaos. And the fear of chaos is without doubt the dominant psychological factor in the ecology of Law: the fear that something should flee, dodge, escape the lawful state of things, and in this way, reveal it to be nothing. The real is what Law fears: the whole history of the progressive triumph of the idea of Law in the West can be reread in light of this maxim, which might be thought of as embodying, in an originary way, its inexpressible. By this, we must understand that what Law fears most is not the real as such, but its own real, everything that traverses it and makes it possible – but that makes it possible only by being excluded from its discourse. Excluding its own real is, moreover, the most essential task to which the category of Law has been devoted since the beginning: Law is what works to exclude its own real – Law is what accomplishes its own closure on its blind spot. This beginning is Greek and philosophical, where the real that the category of Law sought to exclude was that of Right, as though Law only existed to make Right impossible except under its exclusive direction.1 In this way, the most precious juridical treasures were forgotten, and with them countless inventions allowing for the imagination of unregulated lives and societies that would yearn for movement. After Law, we will have to learn to remember them.
Note
1
NB. For the way in which ‘Law’ and ‘Right’ are used through this text, see the Translator’s Note.
Note
§A.
– On the concept of the real: Jacques Lacan,
The Seminar of Jacques Lacan IX: Identification
, trans. Cormac Gallagher from unedited French manuscripts (London: Karnac Books, 2002); Alenka Zupancic,
Ethics of the Real. Kant with Lacan
(London: Verso, 2000); Slavoj Zizek,
The Most Sublime Hysteric: Hegel with Lacan
(Cambridge: Polity, 2014); Massimo Recalcati,
Il vuoto e il resto. Il problema del reale in Jacques Lacan
(Milan: Mimesis, 2013); Alain Badiou,
À la Recherche du réel perdu
[
In Search of the Lost Real
] (Paris: Fayard, 2015). See also Laurent de Sutter,
Théorie du kamikaze
[
Theory of the Kamikaze
] (Paris: PUF, 2016).
1NOMOS
§1.Isonomia. Tradition has forgotten Cleisthenes; of all the great ‘legislators’ of ancient Greece, however, he is doubtless the one whose decisions have produced the most serious consequences – and have enjoyed the most enduring legacy. Unlike his predecessors Draco or Solon, he left just a spectre of his existence; we know of his life only through Herodotus’ account – and of his laws only through the criticisms of his opponents. But it is a spectre that has forever haunted the history of Europe, as though, at a moment that was as crucial as it was unexpected, it had bestowed on it the decisive direction towards what, for modern man, it was destined to become. When we speak of Greek ‘democracy’, of the political moment when, suddenly, a new concept bursts into the history of governance and breaks the old equilibrium of aristocracies, it is really of Cleisthenes that we are speaking. Because it was Cleisthenes who, in order to block the attempt to establish an oligarchy in Athens after the tyrant Hippias had been forced out at the beginning of the fifth century bce, decided, for the first time, to call on the demos. Where the former equilibrium had been based on a familial logic, in order to reform the city’s institutions so that no tyranny could ever return, Cleisthenes chose to embrace a geographical logic. Until then, Athens had been governed primarily by the aristocratic members of the four major Ionian tribes; from now on, it would be governed by the inhabitants of the one hundred ‘demes’ into which he divided the city’s territory. To this new equilibrium, the name ‘isonomia’ was given – equality in the attribution to each of the share to which they were entitled in the city’s governance, guaranteed by the institutions that Cleisthenes had created to this end. We should even, perhaps, be more precise: isonomia did not just define a form of equality in the attribution of stakes; most importantly, it defined a form of equality before the instrument of this attribution. An instrument for which Cleisthenes invented the name, at the same time that he revealed, through the reforms he conducted with its support, the principles that governed it – the name ‘nomos’, the name of ‘Law’.
*
§2.Thesmos. Contrary to a common misconception, the invention in Greece of what we still call ‘Law’ was a phenomenon as belated as it was localized – a kind of exotic singularity, belonging to Cleisthenes’ reforms. Before them (before, say, 507–506 bce), no one in the Greek world had ever paid sustained attention to the word ‘nomos’, or imagined that it could signify something like a ‘Law’. This is not to say that the word was unknown: a great variety of usages have been noted, going back to Hesiod (it does not exist in Homer) and encompassing a large proportion of ancient Greek literature, extending to Pindar and Aeschylus. Notwithstanding this diversity of usage, however, none implied the very peculiar form of normativity that has habitually been associated with the idea of ‘Law’, and which Cleisthenes helped instigate. Before his intervention, the Greeks were not familiar with the idea of ‘Law’; they knew only a constrained form of decision or commandment which they called ‘thesmos’ – ‘that which is posited’. When, a century before Cleisthenes, Solon recalled the decisions he had made during his archonship, congratulating himself on the wisdom they demonstrated, he did not employ the word ‘nomos’, but rather ‘thesmos’. It would have been absurd to consider the matter any further: since Homer, this was the word that had been used to refer to the results of the political activity of the city’s leaders inasmuch as it was a matter of an activity focused on positing something. As Émile Benveniste once noted, the Indo-European root *dhè– (which is also found in ancient India, in words such as dharma and dhaman) indicates the foundation, establishment in existence. But this foundation and this establishment never operate generally; they cannot be dissociated from the place [lieu] in which they operate – you only posit in the setting [milieu] of that which posits: thesmos is both the posited and that which posits. Neither Law nor constitution, it is institution in the most original, elementary and rigorous sense; it is the fiat by which what did not exist suddenly appears in the world, finally obtaining the existence that, until then, it lacked.
*
§3.Rhêtra. Nothing was more opposed to the idea of institution than the idea of ‘Law’, than the word ‘nomos’ that Cleisthenes had made the cornerstone of his reforms: in no sense did ‘Law’, as he conceived it, aim to ‘institute’. But neither did it aim to ‘constitute’, in the sense that it would have sought to provide the city with something like a charter summarizing the fundamental principles governing its operation. The Greeks had a separate word for this too: the word ‘rhêtra’ – or the ‘thing said’ (rhêtra is linked to the verb ‘to say’, rhêto), that which has been pronounced once and for all, and to which it is no longer necessary to return. It was a word occurring even more rarely than the word ‘nomos’, and seems only to be confirmed in the case of the Spartan ‘constitution’, as discussed by Plutarch in the Life of Lycurgus (VI, 1–3) – which may have been authored by Lycurgus. The ‘Great Rhetra’, as Plutarch called it, took the form of an oracle given by the Apollo of Delphi, which Lycurgus was said to have taken back to Sparta, to make it the foundational text on which to base the order of the city. In contrast to thesmos, which depended, so to speak, on the demiurgic power of the individual delivering it, rhêtra enjoyed a privileged link with the world of the gods – coming, as it did, from the mouth of one of them. The order of the city discovered in the divine order a kind of indirect origin, which conferred on it a ‘sacred’ dimension – an extraordinary quality establishing the rules by which it was defined in a dimension no longer accessible to everyone. It was no longer a question of a singular fiat, the work of a ‘thesmothete’ like Solon; but rather of a normative emanation of the divine, for which the legislator was just a humble spokesperson, bound by it like everyone else. When he decided to establish a form of isonomia in Athens, however, this was not what Cleisthenes was thinking: the nomoi he passed were claimed to be neither the emanation of another order, nor the simple result of a legislator’s desire. Cleisthenes had a completely different conception of ‘Law’ in mind, one where the main player in the legislative act would no longer be a god or a legislator, but the city itself.
*
§4.Nemô. Along with the idea of ‘Law’, there also appeared in Greece the idea that the decisions taken by the leaders of the city required justification – a justification that did not simply take the form of a short circuit with the divine world. The word ‘nomos’ itself conveys the different significations that its history has introduced into it, all of which turn around what we might refer to as ‘measurement’. Nomos comes from metrology: it deals with the weighing of rights and duties within the city, just as, in music, it could signify the temporal unity with which participants must coordinate in order to play together. Because the ‘measurement’ in question is a shared [partagée] measurement – as suggested by the Indo-European root *nem, from which the verb nemô, meaning ‘to distribute’ (which gives us ‘nomos’), is, it would seem, derived. A measurement that was not shared would not be a measurement; it would be a kind of hapax, an incomparable singularity, incommensurable with any other, as arbitrary and without justification as a caprice. The irruption of the word ‘nomos’ into political and juridical discourse signals, therefore, the inauguration of an order of measurement, of a shared mechanism that would at last allow for the measurement of measurements. Nomos is what allocates to each the share to which they are entitled, the sum of which establishes the sharing of the city; it is the medium for ordering the order specific to the city, and of what is shared there. When he sought to institute isonomia in Athens, Cleisthenes did not intend anything but this: to confer on each their share – or to ensure that everyone received their due in the order of Law. Isonomia was the equality of Law and equality before the Law; it announced that from now on there would be a rule shared by all, and no longer only the unilateral imposition of the will of a few. This is the reason why many have seen here the first democratic moment of ancient Greece – and, to the extent that we continue to believe in the ‘Law’, in nomos, it is a moment that is still today our legacy.
*
§5.Philosophy. A banal observation: the philosophical tradition followed immediately in the steps of Cleisthenes and his reforms, producing countless meditations on the theme of nomos, which we still read today. The best known of these are by Plato and Aristotle – but they are incomprehensible if we do not keep in mind that they were conceived in response to theories produced by the Sophists. In fact, at the beginning of the fifth century bce in Athens, the debate on the nature of nomos gave tangible form to the fault line that for a long time would delineate the opposition between philosophy and its outside. The nature of this outside is at first difficult to define – but we can say that, in the Sophists, it finds an incarnation through which it can be approached. Were they politicians, lawyers, lecturers or jurists? Maybe a bit of all at once; what is certain, however, is that, in contrast to the philosophers, the Sophists seemed to think that the invention of nomos brought little change to the order of the city. The invention of ‘Law’ was little more than a civilized, polite and dressed-up version of something the inhabitants of Athens had always respected without question – namely, custom, tradition or practice. If Plato and Aristotle decided to follow the change in political vocabulary put forward by Cleisthenes, each in his own way seeking to establish its meaning, it was because they thought otherwise. The order of the city could not be left to customs, traditions or practices, even if its administration should somehow find in them something like an origin or a limit. Be it Plato or Aristotle, after Cleisthenes’ reforms, the philosophers all moved in the same direction: what interested them most in the concept of nomos was not variability, but permanence. For Greek philosophy, the innovation introduced by the idea of ‘Law’ was not only that an order existed, but that this order found all the justification it needed in itself. The order, in other words, before being the result of the imposition of a force on the population, and before being a collection of principles enacting its inequitable division, was an idea.
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§6.Order. The first to have made the ideal nature of the concept of nomos perceptible was doubtless Heraclitus, one of whose fragments took up the connection that, according to him, existed between human nomos and divine nomos. This connection was not one of participation, as might have been the case with the Great Rhetra of Sparta; it was a connection rooted more in analogy, in a structural relationship between the two forms of nomos. Heraclitus wrote: ‘τρέφονται γἀρ πάντες οί ἀνθρώπειοι νόμοι ὑπὸ ένὸς τοῦ θείου’ – that is: ‘For, all the nomoi of men are nourished by that of the gods.’ Unlike the oracle of Apollo brought back to Sparta by Lycurgus, human nomos was not the simple word of a god, whose meaning it was then a matter of implementing in the city context. It was in fact the same thing as the divine nomos; it was equivalent to it inasmuch as the divine nomos was the model of all order, that which embodied the ideal of order – or rather the ideal order. The best proof of this was certainly the fact that Heraclitus spoke of the divine nomos in the singular: there was only one divine nomos; the divine nomos was the one Law, the one order, from which the multiple human nomoi drew their inspiration. As many scholars have noted, this analogical relation with the divine nomos was, paradoxically, what permitted the claim that human nomoi
