[...] For an organism, the norms by which it functions are identical with its existence, whereas a society, in order to exist and maintain itself, must posit these norms outside itself. Kelsen perceived the necessary externality of fundamental norms, but this led him into the impasse of a purely formalist theory of law, blind to the values that inspire it and the reality that it governs. How can we avoid that formalism—without falling into a scientism which claims to find, in the observation of what is, the answer to the question of what should be?

However different they are, these two false solutions arise from the same positivist repression, which Pierre Legendre’s work brought to light very well: the denial by Western modernity of its own dogmatic foundations. It will take time for us in the West to admit that here, as elsewhere, the institution of human society rests on non-demonstrable premises, which are a matter of trust and not of calculation. An ancient metaphor represents justice as the mother of laws; this is the origin that our orphaned humanity postulates, without ever being able to return to it. In the terms of Kafka’s Trial and of the Keeper of the first door of the Law: it is not possible to enter the law, to accede to what would be its ultimate reason; even if we could pass through the first door, countless others would remain. In the same way an endless series of axioms, one on top of the other, will not free a formal system from its irreducibly incalculable element. Of course, we have known since Montesquieu that the spirit of a society’s law is bound up with the characteristics of its environment, so that the law necessarily differs from one place and time to another. But this is not a matter of mechanical causality, for the same setting can give rise to different representations of duty. Science does not have the power to ground a legal order. The principles on which law rests may be asserted and celebrated, but are neither demonstrated nor demonstrable.

This allows us to understand why the foundation of law took a religious form for so long in so many countries. It still does in some of them, where the legislator appeals to what the present Iranian constitution calls ‘divine revelation and its fundamental role in setting forth the laws’. Even where the source of laws is no longer imputed to the inscrutable will of God, the great book of nature may be called on in place of sacred texts. The laws of biology, history and economics continue to be invoked not only to explain the operation of human societies but as a supreme prescription, imposing itself on positive law. Before the Second World War, eugenic or racial legislation was adopted in the name of biology in many parts of the world, including the USA and Northern Europe. Today, it is economic science that finds itself elevated as the mother of laws.