16,99 €
Mehr erfahren.
- Herausgeber: John Wiley & Sons
- Kategorie: Geisteswissenschaft
- Sprache: Englisch
In this book, Roberto Esposito continues his philosophical exploration of the relation between institutions and human life. Starting from the enigmatic Latin term vitam instituere, he charts its early emergence in modern philosophy and its development along a path that culminates in a novel understanding of the relationship between politics and life.
Although the concept of institutio vitae originated in Roman law, it was Machiavelli who first conceived of politics as an instituent force. After Spinoza endowed the social imaginary with the capacity to institute relational life, Hegel was the first to view the ‘objective spirit’ as the space in which society and state are structured by institutional dynamics. However, in the Hegelian system it is the same dialectic – as an infinite process in which ideas materialize in reality – that expresses instituent power. Only by drawing from these modern roots, argues Esposito, can contemporary thought recognize the movement of institutions as the strategic nexus where the languages of philosophy, anthropology and politics intersect on a new horizon of meaning.
This book completes the inquiry that Esposito began with Instituting Thought and Institution, offering a fresh view of the philosophical tradition from an instituent perspective. It will appeal to students and academics in philosophy and the humanities generally, and to anyone interested in contemporary philosophy and cultural theory.
Sie lesen das E-Book in den Legimi-Apps auf:
Seitenzahl: 312
Veröffentlichungsjahr: 2025
Ähnliche
CONTENTS
Cover
Table of Contents
Title Page
Copyright
Introduction
1 Rome
Notes
2 Machiavelli
Notes
3 Spinoza
Notes
4 Hegel
Notes
5 The Twentieth Century
1. Idea
2. Reality
3. Field
4. Nature
5. Second nature
6. Conflict
7. Imaginary
Notes
Index
End User License Agreement
Guide
Cover
Table of Contents
Title Page
Copyright
Introduction
Begin Reading
Index
End User License Agreement
Pages
iii
iv
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
149
150
151
152
153
154
155
170
171
172
173
174
175
176
177
178
179
180
181
182
Vitam Instituere
A Genealogy of the Institution
Roberto Esposito
Translated by Zakiya Hanafi
polity
Originally published in Italian as Vitam Instituere. Genealogia dell’istituzione© 2023 Giulio Einaudi editore s.p.a., Torino
This English translation © Polity Press, 2025
The translation of this work has been funded by SEPSSegretariato Europeo per le Pubblicazioni Scientifiche
Via Val d’Aposa 7, 40123 Bologna, [email protected] – www.seps.it
Polity Press65 Bridge StreetCambridge CB2 1UR, UK
Polity Press111 River StreetHoboken, NJ 07030, USA
All rights reserved. Except for the quotation of short passages for the purpose of criticism and review, no part of this publication may be reproduced, stored in a retrieval system or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher.
ISBN-13: 978-1-5095-6409-5
A catalogue record for this book is available from the British Library.
Library of Congress Control Number: 2024951563
The publisher has used its best endeavours to ensure that the URLs for external websites referred to in this book are correct and active at the time of going to press. However, the publisher has no responsibility for the websites and can make no guarantee that a site will remain live or that the content is or will remain appropriate.
Every effort has been made to trace all copyright holders, but if any have been overlooked the publisher will be pleased to include any necessary credits in any subsequent reprint or edition.
For further information on Polity, visit our website: politybooks.com
Introduction
1. This book completes the inquiry I began with Instituting Thought and continued with Institution. The first explored contemporary philosophical debate for a conceptual alternative to the impolitical ontologies of Heidegger and Deleuze; the second reconstructed the historical challenges and paradigmatic resources essential for a new way of thinking about institutions. Compared to both, what you are about to read has an even more ambitious goal: to retrace the classical and modern philosophies that resonate most closely with institutional semantics, but also to look at the history of philosophy from a perspective that is itself instituent. This involves reversing the traditional approach: instead of beginning with a given set of authors and arriving at a particular conclusion, I attempt to open a new theoretical angle from which to critically examine the philosophical tradition. What I have sought to do, in short, is to cast an instituent perspective onto modern thought, and reinterpret it from this viewpoint. This reversal in perspective has allowed me to approach Machiavelli, Spinoza and Hegel from a fresh standpoint, despite their established positions in the canon, and to recognize them as precursors of the theory of institutions that developed in the twentieth century. The result is a kind of genealogy that flows down to us from the pages of their works, in the languages of philosophy, law, anthropology and political science.
The term just used – ‘genealogy’ – should not be taken broadly but in a precise sense that uses the tools of historiography or philology to catch hold of an elusive origin. The modern and contemporary authors who appear in this book are examined starting from a lemma that precedes them in time, not as a known fact but as a presupposition whose significance is difficult to fully fathom. I am referring to the Latin expression of uncertain provenance, vitam instituere, which also lends its name to the book. In the first chapter, I retrace its shifting fortunes, from the twilight of antiquity to the dawn of the modern era – developments that continue to challenge us today. The striking thing about this expression is its enigmatic or at the very least problematic character. When reduced to its essential terms, it calls up the two sides of life, at once instituent and instituted. Yet, when looked at from the other side of the mirror, it also evokes the potentially vital dimension of institutions. It is precisely this intersection between law and life that appears so opaque, like a tangle wound too tightly to be unravelled – hence the genealogical mode with which I approach it: indirectly, that is, rather than frontally. Vitam instituere is the distant matrix from which we originate and, at the same time, the still hazy goal towards which we move.
2. The fertile period of Roman law, represented by some of the prominent figures of the imperial age – from Ulpian to Marcianus – appears incapable of incorporating the semantic power of this expression, even though it arose from its own language. Roman law, imprisoned in a dense web of formalism, never caught up with the most radical meaning of vitam instituere. The idea of a life led according to the laws it gives itself first flickered in Greece, amid the shortlived experiment of Athenian democracy, and not in Rome, despite the Romans’ deeper appreciation for the potential creativity of the law. The threshold of awareness that even the most gifted legal minds of Roman jurisprudence were unable to cross was that dividing nature and history in a form ungraspable by the ancient mentality. Although the Roman idea of nature held a potentially emancipatory value for all humanity, at least in the eyes of later eminent jurists, it was incapable of recognizing its own historicity and, therefore, of affecting the real dynamics of its time. As Hegel noted astutely, this prevented Roman law from breaking free of the limits that encircled it, and thus from developing the more disruptive sense of institutio vitae. Even though everything in Rome – from nature to the city, knowledge to power – was instituted or susceptible to legal institution, institutions could not relate to life except by submitting life to their exclusionary dispositifs. Consequently, in the power wielded by a Roman father over his children, the right of death (ius necis) remained inextricable from the right of life (ius vitae), as its grim shadow. A lethal element intensified the bond between sovereignty and biopolitics, an entanglement that only modernity would strive – not always successfully – to break apart.
In Rome, it would seem that the relationship between life and institutions was contemplated purely from its negative side – or at least from a point of view that clouded over its universal value. What most propels Roman law towards modern institutionalist theory is that its instituent practice involved both persons and things. And yet this power to institute, firmly established in the realm of private relations, was never extended to society as a whole, which was regulated instead by inviolable thresholds of domination and submission. The modern idea of legal subjectivity is lacking, since it is inconceivable in a context like Rome’s where the focus is entirely on objective relations. This absence of subjectivity, even more than a dehistoricized conception of nature – though the two are linked – makes what has been called Roman ‘natural law’ (borrowing from modern terminology) impracticable.
Even in the Christian world, when nature upended its subordinate role to the law and elevated itself above it, institutions failed to re-establish an intrinsic connection with a human life created by God, now the sole legitimate source for both. It was this phase in particular – long dominated by Augustinian political theology – to which the vertical, authoritarian idea of institutio dates back, revolving around whoever bore its title. Throughout the ancient era, both Roman and Christian times, up to the early Renaissance, law and nature, institution and life, could only meet in mutual subordination, in service to their transcendental destination. While in Rome the law assumed nature as an object for its own instituent workings, in the Christian world, nature, originated by God once and for all, prescribed its everlasting norms to a legal system designed to transmit them, unchanged, into human life.
3. Modern reflection on institutions begins with Machiavelli, a man so deeply entrenched in them that he felt lost when ousted from the Florentine government. Considering what we have just discussed, the significant influence of the Roman experience on his cultural background does not seem irrelevant. But it was the step he took from law to politics that proved decisive. The connection between institutions and life, barred from Roman law, was afforded to Machiavelli from his new focus of study: no longer the frosty legal relations between private parties, but the communal fabric of a political affair woven into the effectual lives of people. ‘Free life’, ‘civil’ and ‘political’ were the new terms Machiavelli used to tackle the still unresolved question of institutio vitae. However, for this paradigm shift to become possible, he had to overcome the two conceptual obstacles that had stood in the way of Roman jurists: the vertical break between nature and history, and the ban on political subjectivity.
As for the first point, it must be said that, while Machiavelli historicizes human nature, plunging it into the dynamics of contingency and change, he does not lose sight of the tensions created by this intersection. On the contrary, he emphasizes them in a dramatic conception of human destiny, undermined not only by the battle for power but also by nature’s implacable work, wielded through ageing, disease and death. In Machiavelli’s worldview, imbued with vital desire, death is just as prevalent as life. In contrast to freedom (along with the lust for power, the most potent driver of political action), nature stands on the side of necessity, as something that, sooner or later, must be reckoned with. As Italian institutionalists would argue five centuries later, necessity is one of the ineradicable sources of the law. But, at the same time, necessity may generate freedom by motivating political subjects to overcome objective obstacles with a surplus of creative energy – provided, however, that the institutions around the subjects remain solid and are adaptive to circumstances. This explains the importance that institutions assume in Machiavelli’s thought – directed, of course, towards the instituent.
This word should be understood in its full meaning. Machiavelli pioneered instituent thought because he worked his entire life for Florentine institutions, to whose reform he dedicated his final writings. But also, because, starting with The Prince, and from a different perspective in the Discourses on Livy, he upholds the primacy of the instituent over the instituted. Institutions are preserved only if, and as long as, they do not lose their relationship with their source – namely, the constituent power. This immediately brings into play the other critical element of Machiavelli’s theory of institutions: its relationship with political conflict. Flying in the face of all previous and later political philosophy, Machiavelli breaks with the traditional dichotomy between order and conflict, making one the foundation of the other. It is no wonder that, returning to Rome from another point of view, the most innovative Roman institution Machiavelli analyses is the Tribune of the Plebs, which was born out of conflict and generated others in its turn. Even beyond Machiavelli’s republican stance, what makes him the first instituent thinker is his identification of political conflict as the dynamic space between institution and life.
4. It may come as a surprise to find Spinoza included in the instituent paradigm, given that the immanent form of his metaphysics appears difficult to assimilate into such a paradigm. Both prevailing interpretations of Spinozian philosophy – the liberal-individualistic and the radicaldemocratic – would appear to exclude an institutionalist approach. In an ontology that readily converts into politics, any institutional mediation seems out of place, whether it concerns the autonomy of an individual or of a group. However, a closer look reveals a more complex picture. To begin with, wholly reducing the two political Treatises to the Ethics remains problematic; but, above all, Spinozian metaphysics are in no way related to a ‘destituent’ perspective. Granted, Spinoza’s thought is a philosophy of potency – and not of power, but of a potency that is always active, and, therefore, continually instituent.
Life, propelled by an inexhaustible conatus, both conservative and expansive, is involved in every expression of potency. Since life coincides with its modes of being, it is inseparable from its manners; it is always ‘modal’ or ‘mannered’, which is to say, instituted as well as instituent. For Spinoza, there is no such thing as a life stripped of its forms – a life that is not a form-of-life. From this standpoint, he is the first philosopher to fully embrace the principle of vitam instituere. The concept of nature that expresses it stands distinct from the notions held by ancient Romans, Christians and thinkers of the modern era. In Spinoza’s ontology, nature is the general horizon on which every being and every action is inscribed. This puts it at some distance from Machiavelli: nature is not an incumbent dimension that the political subject must reckon with, in a clash often made dramatic by counterattacks. But it stands even further from Hobbes, who views nature as a perilous state of conflict from which human beings must emancipate themselves in order to secure an orderly survival. Conversely, in Spinoza’s philosophy there is no transition from a state of nature to a civil state; nor are individual rights handed over to a sovereign power. By equating the rights of individuals with the potency of which each is capable, institutions become integral to citizens’ lives rather than being remote from them, echoing the most powerful meaning of institutio vitae.
Institutions, or, more precisely, instituent practices, impact life at the individual level, but even more so at the sociopolitical level. What intertwines them inextricably is the faculty of imagination, which brings the thought of Spinoza closer to Machiavelli than any other immediately political concept. While, for the Florentine Secretary, political dynamics result from the interplay of looks that subjects exchange, for the Dutch philosopher the social imaginary is the primary and most impactful instituent power. From a cognitive standpoint, the faculty of imagination is seen in ambivalent terms, because it is inadequate for rational thought. However, politically, it gains performative value, as demonstrated by the establishment of the Jewish state, where prophetic imagination is transformed into institutional creativity.
Although the individual and collective realms are inseparable, they are not the same, leading to an unavoidable gap between ontology and politics. Despite all attempts to unify them, something prevents their equivalence. Were this not the case – if individual life flowed linearly into social life, as social life flows into political life – there would be no need for constituent power to solidify into constituted power. This is not how things stand, as Spinoza clearly states when he shows that human beings are inadequate for the rational setting to which they naturally belong. This inadequacy reveals a negative factor that – contrary to what has been argued – is unresolvable in a fully affirmative ontology. But this does not mean it is opposed to affirmation; rather, it is integrated into it, like the finite into the infinite, for which it serves as both limit and definition. The same relation exists between instituent practice – in itself, infinite – and political institutions – necessarily finite. Seen from this angle, the instituted can be viewed as a crucial intermediary in managing a natural process that is otherwise ungovernable.
5. This passage through the negative immediately invites Hegel into the discussion. Although nearly every institutionalist of the twentieth century alludes explicitly or implicitly to Hegel’s theory of objective spirit, an institutionalist interpretation of his work is rarely adopted. Unless one reduces it to a philosophy of state, an institutionalist reading demands a significant hermeneutic conversion, requiring a fresh interpretation of Hegelian philosophy of right as well as what has long been termed ‘idealism’. It involves viewing idealism not as the idealization of reality, but as the realization of the idea. In Hegel, the institution is an ‘ideal fact’, an idea that solidifies in objective forms. From this perspective, the understanding of dialectic itself shifts, now identifiable as the process that institutes reality through engagement with the negative, including sometimes violent confrontations. A closer look, on the other hand, reveals that both dispositifs – dialectic and instituent practice – entail the same productive use of negation. They deny immediate freedom so that it can be realized in necessary forms, thus, the only ones possible.
The point of articulation between freedom and necessity, or between subjectivity and objectivity, is what Hegel calls ‘second nature’ – understood as that which gives natural impulses an artificial yet simultaneously spiritual quality. The institution is both the locus and the effect of this entailment, which, from the very beginnings of biological life, propels humanity towards the horizon of history. The modern philosophy of institutio vitae never arrived at this meaning. To reach it, Hegel had to make a dual paradigmatic shift: a pointed critique of the formalism of Roman law, including its contemporary counterparts; and a reworking of the idea of nature, an elaboration that releases nature back into circulation with history through a connection previously unknown to the natural law tradition. If nature is thought of as a process rather than a state, then right (or law) becomes its immanent criterion of legibility. On these lines, standing apart from both normativism and decisionism, Hegelian juridical thought can be placed at the origin of institutional thought, in the sense that humans do not merely produce norms and decisions – they cement them into enduring institutions.
Of course, when extending Hegel’s concepts towards twentieth-century outcomes, one must not lose sight of the historical milieu to which he belonged, suspended between the authoritarian state and the legislative state, between absolute monarchy and constitutional monarchy. It cannot be said that his efforts to mediate between the old and the new were always successful, or that certain aspects of his discourse, such as references to corporations, were forward-looking. Hegel’s philosophy of history, laden with prejudices about non-Western civilizations and misconceptions, about America’s role in particular, traps him in a mindset profoundly marked by its time. Nonetheless, from another perspective, the one of interest to us here, Hegel opens up a new space for instituent thought. By shifting political and legal thought from philosophy to ontology, he makes a crucial departure from the modern tradition of Hobbes, Rousseau and Kant – a shift that, in some respects, and despite their many differences, draws him transversally closer to Spinoza. The realm of ethics – of the objective spirit – hardly exhausts itself in the simple relationship between society and state that we left behind long ago. In his system, what truly challenges us are the institutional ‘limbs’ that connect society and state, and even more so, the instituting process that draws them into a continuous relationship with the development of a ‘living spirit’.
6. It was not until the 1920s, after the crisis of Hegelianism had subsided, that the modern segments of instituent thought, just described, began to converge. During the previous century, the Hegelian dialectic experienced a shockwave, which crashed over the entire theory of institutions and warped its contours. While Marx called for abolishing the state, Nietzsche labelled it the coldest of all cold monsters, an image only slightly attenuated by Weber’s equally charged ‘iron cage’. This rejection of institutional logic, which was forced into the mould of conservatism and contrasted with the dynamism of movements, has persistently co-opted the culture of the left, from Sartre to Foucault and through to contemporary neoanarchism. Because the creative potential of the instituent process – with all the social innovation it brings – is stuck within the stability of the instituted, it ends up obliterated.
However, in contrast to this anti-institutional tone, starting from the second decade of the last century, a different feeling emerged, both theoretical and political, which revived a conceptual lexicon that had never truly been exhausted. This finds expression mainly in the Italian legal tradition, French phenomenology and German anthropology. The last chapter of this book retraces the key steps of this analysis, specifically through the insights of Maurice Hauriou, Santi Romano, Maurice Merleau-Ponty, Gilles Deleuze, Arnold Gehlen, Claude Lefort and Cornelius Castoriadis. Their works on the institution are well known to researchers. Less known, however, is how they revitalized concepts developed by modern thought and integrated them into their writings. This pivotal moment for the institution stems from the innovative articulation of four conceptual pairs traditionally seen as antithetical: nature/history, freedom/necessity, reason/imagination, and order/conflict. The theoretical and political energy of the newly invigorated institutive thought stems from its ability to blend seemingly opposing paradigmatic poles. What places them on the same semantic line, before their overt meanings, is the original question out of which they arise, captured in the Latin lemma that lends the title to this book. At the heart of institutional theory lies the intrinsic connection between institutions and human life, a life thought in its dual aspects, instituent and instituted.
The first dichotomy is between nature and history, fractured by a premodern world unable to conceive of these terms together. In the face of this schism, not healed even by modern jusnaturalism, instituent thought captures, on the one hand, the historicity of nature and, on the other, the natural root of history. History and human nature intersect in the biological constitution of the living body, instituted naturally. It is Merleau-Ponty who describes this most rigorously, dedicating two courses, closely linked in timing and vocabulary, to nature and the institution. Although drawing from different sources, such as Hume’s empiricism, the early Deleuze also views history and nature as intertwined, which makes humans naturally historical animals, able to turn instincts into institutions. In a similar vein, but from a more markedly anthropological standpoint, Gehlen argues that institutional constructs are not in opposition to human nature; rather, they emerge from it, as compensation for an instinctual deficiency. Clearly, none of these authors sees this as a linear transition. To reach a more advanced level than animals on the ‘organic scale’, humans must somehow stand at a distance from themselves, by reinterpreting themselves symbolically. For the human animal, this involves acquiring what Hegel would have called a ‘second nature’, arising from our first nature and at the same time detached from it. Viewed at the highest degree of generality, this is what the institution is: a differential unity.
It therefore conveys an element of negation, or at least of mediation. In order for life to preserve itself in increasingly facilitated forms, to stop itself from dissipating, it had to incorporate a kink, serving as both brake and motor. The seemingly aporetic relationship between freedom and necessity alludes to this model, portrayed differently by Machiavelli, Spinoza and Hegel, before being reformulated by twentieth-century institutionalism. Along with itself, absolute freedom – autonomous from any nomos– is bound to lose anyone intending to put it into practice. While this principle can be found in philosophical and anthropological institutionalism, it becomes the linchpin of legal institutionalism. Hauriou assumes this principle earlier, and then Romano takes it to its most radical conclusion, coming to see necessity as the primary source of law. More than just a source, necessity is already a law simply waiting to be codified. Although legitimized by a voluntary act, the legal order coincides with the institution that embodies it and arises out of a social necessity, which always prevails over individual demands. For good reason, far from being confined to the state – as a partial interpretation of Hegel would have it (partial in both senses: incomplete and biased) – the instituent principle actually extends beyond it, not only to constitutional and representational bodies but to all social aggregates endowed with some form of organization.
The third dichotomy (listed in no particular order) that instituent thought deconstructs by articulating it into a more complex figure is one that, in the philosophical tradition, separates, if not opposes, reason and imagination. Initially highlighted by Machiavelli for its performative power, the concept of the social imaginary comes to coincide in Spinoza with the constituent process. Twentieth-century institutionalists, not always acknowledging their own debt to Machiavelli and Spinoza, take this same route and bring it to completion. The empiricism from which Deleuze starts is a philosophy of the imagination; going beyond this, Lefort argues that subjects do not create images but, rather, the other way around: images create subjects. However, it is Castoriadis who, more than any other author, acknowledges the autonomy of the imagination, largely overlooked by modern philosophy in favour of sensation and perception. The role of the imagination – both individual and social – is not merely to replicate the reality revealed to us through perception, but to institute it, simultaneously inaugurating the society in which it takes shape. If a society is slow to acknowledge itself as self-instituted, then it has consistently located the founding principle – be it a deity, nature or history – externally, denying that it instituted the principle itself, by imagining it.
More than any other polarity, the dichotomy between order and conflict stands as the central issue by which the relevance of an instituent thought that meets the demands of our times is gauged. Although long regarded as a neutralizing construct, institutions do not shut out conflictual dynamics; on the contrary, they serve as their arena and object of conflict. People fight within and for institutions, themselves potentially in conflict with each other. The originator of this idea was, of course, Machiavelli. Although it is found throughout instituent theory, it was Lefort who fully developed it, making it the core of his own thought. Nowhere does the instituent dynamic become the heart of political practice as it does in his work. Its role is specifically to institute society, revealing its inherently conflictual character to itself and thereby granting it the symbolic potential necessary to recognize itself. Through this route, the elusive principle of vitam instituere, which both classical and modern traditions struggled to understand fully, regains its meaning. Most likely, it is the only way to jettison all kinds of political theology – katechontic, eschatological or messianic. The need for institutions, at the intersection of order and conflict, arises not from a predetermined design but, on the contrary, from a lack of foundation in modern society. Relying only on themselves, humans have no other resources to face the challenges they encounter than the inexhaustible energy of their instituent practice.
1Rome
1. Ever since its first appearance, the expression vitam instituere has sparked a number of questions that make deciphering it complicated. Used in Latin literary and history texts with a mainly pedagogical aim by Cicero in De finibus (IV, 17), Terence in Andria (I, 67), and Sallust in De Coniuratione Catilinae (XXXI, 7), in the legal field it assumed a more elusive profile. Wrongly traced back to a fragment by the Roman jurist Aelius Marcianus (Digest, 1.3.2), this lemma has undergone an extremely tortuous history, even pitting interpreters against each other with unusual acrimony. The ensuing controversy, expanding beyond historical and philological aspects, suggests a deeper issue that goes beyond a simple textual matter, involving the entire relationship between law and human life: not just the historical form the expression has taken at different times, but its very conceivability – the possibility of envisioning life and law together without subjugating one to the other’s dominance. In short, the obscurity surrounding the term vitam instituere is the hallmark of a difficulty that threatens to obstruct the conceptual flow between institution and life, a flow that the phrase itself aims to facilitate. What has been blocked, in a way that continues to challenge us, is a perspective that simultaneously reflects the vital aspect of institutions and the instituent character of life. Rather than forming a unified figure, the two terms appear to diverge, eventually losing their apparent connection while still remaining linked beneath the surface. Where does this divergence arise? What pulls institutions away from life, leaving them frozen in a purely formal dimension? And why does life, in its turn, struggle to recognize its own instituent capacity? What prohibition has, for more than two thousand years, hindered the possibility of envisioning together institution and life, form and force, history and nature?
Before attempting an answer, let us try to reconstruct the intricate textual genealogy of the dyad vitam instituere, at least through its key transitions. At its origin is a passage by the philosopher Demosthenes, quoted in Greek by Marcianus, along with a passage of Chrysippus, included in the first book of the Digest. In general terms, it states that city inhabitants must live (zēn) in line with (kata) the common pact (synthékē) they have established for themselves. As we can see, both terms of the expression – ‘vita’ and ‘istituere’ – are missing in this proposition. And, in any case, life expressed in the verb form ‘to live’ appears more as the subject than as the object of institution. There is no mention of a life instituted by law but rather a way of living in accordance with the law, which the citizens have given themselves. Most importantly, though, is the fact that we are missing the Latin text. It only reappears at the end of the twelfth century in a translation by Burgundio of Pisa. Rather than vitam instituere, however, it uses an expression that is actually more faithful to the Greek text: secundum leges vivere. This is hardly a minor difference. Rather than being set above or before life, here institution appears to be life’s very mode of being – an immanent measure of life rather than a model that transcends it. Law does not institute an as-yet unlegislated life; rather, it is life that institutes itself as it unfolds, according to a freely adopted law. Only later, in renaissance transcriptions by humanists such as Guillaume Budé and Denis Godefroy, did the locution vitam instituere begin to circulate. Yet, within a century, it was incorporated into different lexical structures that altered its meaning, making life both subject and object of an institution with which it appeared to become one. Thus, in Loix civiles, Jean Domat (1625–96) speaks of ‘the common pledge of the state, according to whose directive all who are in that republic must institute their life’ (communis sponsio civitatis, ad cuius praescriptum omnes qui in ea republica sunt vitam instituere debent). He is followed by Gian Domenico Romagnosi (1761–1835), who, in his Genesi del diritto penale, erroneously attributes the same citation to the Roman jurist Papinian. From a certain point on, modern editions of the Digest, starting with Theodor Mommsen’s, updated and edited by Paul Krüger, restore the Greek text in Marcianus’ quotation and do away with its Latin translation.1
But it can hardly be said that the problem is entirely resolved by its removal. Once invoked, the twofold vitam instituere continues to raise questions that transcend its original historical-philological context, reaching as far as our contemporary philosophical horizon. A conceptual game is played around this lemma, with the stakes involving the definition of law and the qualification of life. Most importantly, though, it involves the mutually instituting relationship that binds them in an intricate knot. As noted earlier, they seem unable to overlap or diverge, bound to an aporia first announced in the quotation given by Marcianus.2 To begin with, we might wonder why a second-century Roman jurist would use that particular quotation. What does it reveal? And what does it conceal? These are questions historians of law have long asked themselves, arriving at conflicting conclusions. Incidentally, it should be recalled that the custom of quoting Greek authors is far from uncommon among Roman jurists. In this case, however, we are not looking at some banal reference but at a text of undeniable philosophical importance that apparently concerns not only the content but also the very foundation of law. Granted, there has been no lack of scholars who have regarded Marcianus’ reference to ius as technical and procedural: it would refer more to the functioning of the law than to its essence. However, this reductive interpretation clashes with the presence in the same fragment of the quotation from Chrysippus, whom Marcianus himself dubbed ‘a philosopher of the highest Stoic wisdom’ (philosophus summae stoicae sapientiae).
Law is king of all things human and divine [ho nomos pantōn esti basileus theiōn te kai anthrōpinōn pragmatōn]. Law must preside over what is honourable and base, as ruler and as guide, and thus be the standard of right and wrong, prescribing to animals whose nature is political what they should do, and prohibiting them from what they should not do.3
The Aristotelian allusion to human sociality, coupled with Pindar’s nomos basileus (law is king), imparts a clear philosophical timbre to Chrysippus’ passage. Only insofar as the law is universal, expressing a higher justice, can it stand over humans and gods. However, it is important not to exaggerate the religious undertone of the text either. Unlike in Pindar, here, nomos basileus should be interpreted not as a divine command but as the cornerstone of the human community, because it stands above both rulers and the ruled.4 It is this universality of the nomos – traceable to the Stoic inspiration of Chrysippus – that gives it the role of instituting the polis. Of course, this sort of theoretical awareness is hardly conceivable for a Roman jurist such as Marcianus. Moreover, at the time we assume he was writing, the only master of the laws was the princeps (emperor). By the second century, the republican comitial laws had long vanished in favour of imperial constitutions. This temporal gap is precisely what supports the hypothesis that Marcianus’ fragment is a veiled criticism, or at least a cautious distancing, from the absoluteness of imperial power. But this does not solve the problem – it actually intensifies it. Why this call to the universality of the law at the very moment it has been reduced to the particular will of the emperor? No jurist of the time could imagine a return to the republican world, forever spent, let alone a leap forward toward a still nebulous horizon such as the one heralded by Christianity. And yet a kind of apprehension, a subtly critical tone, seems to resound in that quotation.
This impression arises not only from the two references to Demosthenes and Chrysippus but also from its lexical similarity to another passage in the Digest (1.3.1) by the earlier cited Papinian, a jurist contemporary with Marcianus and a reader of Demosthenes. ‘A statute is a communal directive, a resolution of wise men, a forcible reaction to offenses committed either voluntarily or in ignorance, a communal covenant of the state (communis reipublicæ sponsio) (Pap. I, def., D, 1.3.1).5 Of course, one must stick to the letter of what is said. Neither Marcianus nor Papinian can venture beyond their juridical times, let alone expose themselves to unnecessary risks posed by imperial power. Nonetheless, in the text in question, the origin of the law is not attributed to the princeps
