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The Western social state was born at the end of the nineteenth century with the adoption of a new regime of responsibility for industrial accidents. A perspicacious witness of this legal turning-point was Franz Kafka, whose professional career was devoted to applying the law on industrial accidents that Austria–Hungary had adopted in 1887. His legal studies had left him with mixed memories, as he wrote to his father: ‘I was positively living, in an intellectual sense, on sawdust, which had, moreover, already been chewed for me in thousands of other people’s mouths. But in a certain sense this very thing was to my taste.’ [...] His friend Max Brod recalled that Kafka’s ‘social conscience was greatly stirred when he saw workers crippled through neglect of safety precautions’. ‘How modest those men are’, he confided one day to Brod, his ‘eyes wide’. ‘Instead of storming the institute and smashing it to little pieces, they come and beg.’
didn't know that about Kafka
[...] 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.
How should this ‘social state’ be situated within the history of the state as such? The Western state is not a timeless and universal institutional form, but an invention of pontifical lawyers between the 11th and 13th centuries—contrary to a tenacious legend that places the modern age in a direct filiation from Greco-Roman antiquity and spirits away the medieval melting-pot from which it arose. The idea of the immortal state was modelled on the life of angels, who have a beginning but no end; it has undergone three metamorphoses since its birth. The first dates from the Protestant Reformation, which established sovereign powers emancipated from the Pope, though not from all spiritual reference. The second, inaugurated in France by the Revolution of 1789, saw the disappearance of this balance between temporal power and spiritual authority, conferring on the state an omnipotence that only a new separation of powers could limit. The third metamorphosis was a response to the crisis of legitimacy that struck this omnipotent entity when, with the rise of industrial capitalism and scientific positivism, it began to be seen as simply an instrument of administration or domination. It was this crisis that led to the birth of the social state.
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The social state was born from a metamorphosis of this type. Over barely a century, the industrial revolution had subjected human labour to transformations of an unprecedented scope. This change was both technological—with the increased power of steam engines, exposing the army of workers operating them to new physical risks—and legal, with the rise in the hiring of waged workers, which treated labour as something freely negotiable, separate from the human person. The combination of these two factors proved deadly for the new labouring classes, to the point of imperilling their reproduction in the industrialized zones. Social law arose to neutralize this danger, as a technique for humanizing technology. By protecting physical and economic health and security, over the duration of a life-time, it served to domesticate machines and put them at the service of social well-being, rather than endangering human life. And by the same token, it made the exploitation of labour as a commodity both economically and politically durable.
[...] Exposed by the opening of its commercial frontiers to the competition of the lowest social and fiscal common denominators, and to systemic financial risks, it is seeing its resources crumble away at the same time as its burdens increase. Having become a universal debtor, it generates a population of creditors who no longer recognize their mutual solidarity yet expect it to remedy all their ills. [...]
This new international context is the most obvious cause of the destabilization of the social state, even if it is not the only one. The term ‘globalization’, however, promotes a confusion between two types of phenomena that are combined in practice but different in kind. On the one hand, there are structural phenomena, such as the abolition of physical distance through electronic communication, or common exposure to the health or environmental risks generated by technological development. These are irreversible and must be recognized as such in their impact on labour and the social bond. On the other, there are conjunctural phenomena, such as the deregulated circulation of capital and commodities, which proceeds from reversible political choices and goes hand in hand with the temporary over-exploitation of non-renewable physical resources. It is the confusion between these two phenomena that leads some people to see globalization as the expression of an immanent law not susceptible to any political or legal control.