After Law. Laurent de Sutter

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 were in no way rooted in the sphere of the sacred. The ideal is not the sacred or the divine; it is that whose transcendental incarnation is sometimes supplied by the sacred and the divine – without ever, for all that, exhausting its structural richness, or even supplying its terminus ad quem. In distinguishing between two domains of nomos, Heraclitus simply highlighted the existence of two manifestations, among other possible manifestations, of what the idea of order was in the first place: an ideal category. Order was an abstraction; it constituted the regulatory universe within which every concrete ‘Law’ must take place, and so indicated, by necessity, its eternal form; order was a category of order. Following Cleisthenes, this is what Plato and Aristotle effectively countersigned when they decided to adopt the vocabulary he had introduced into Athenian juridical life.

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§7. Polis. Law is indistinguishable from order; order and Law are one thing, and the word ‘nomos’ affirms their irreducible identity, their perfect superposition: Law is Law of order and order is order of Law. This identification of Law with order is what distinguished the word ‘nomos’ from the word ‘thesmos’, which did not in any way encompass a general dimension of order, but rather a singular dimension of will or force. Legal historians have suggested an explanation for this slow drift towards the acceptance, in Athens, of the generalization and abstraction of Law as order – together with the gradual progress of legislation towards the written form. This explanation goes as follows: as Cleisthenes had intended, the development of a logic of order was a way of withdrawing jurisdiction over disputes from the great families, so that it could be handed over to the city. Indeed, for a long time, the resolution of disputes had been the recognized competence of all those in a position to judge, on a case-by-case basis, between the opposing parties. Anyone who had a degree of authority (based on their age, reputation or the simple choice of the parties involved) could play this kind of mediating role, without having to make clear the reasons for the decision they made. In the age of nomos, on the other hand, the power to establish Laws and protect order would no longer belong to the great families, nor even to the leaders of the city, but to the city itself, by means of its institutions. Rather than an imprecise and uncertain bundle of decisions, it was now necessary for the state of the legislation in force to be verifiable – singular and concrete forms that could be apprehended in the general and abstract form of order. But this verification could only exist insofar as control of what order meant was taken away from just anybody (namely the citizens) and given over to something transcending them (namely the City, the polis). The rule of Law, as the rule of order, was therefore the rule of the City; it was the City considered as such, which is to say as superior to its citizens, that established the true meaning of the structural abstraction of order.

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§8. Thémis. In fact, gathering in a single conceptual gesture the ideas of Law, order and City was a radical departure from the conception the Greeks had had, until that time, of order. If, as Benveniste maintained, the concept of order belonged to the most elementary and most fundamental register of Indo-European vocabulary, then their very language was marked by it. The root *ar–, found in a whole series of Greek locutions (like arariskô, to adjust, to harmonize), and which suggested the idea of articulation, adjustment, sequencing [ordonnancement], opened a first path. But it was another root, belonging to the same linguistic constellation, that was, according to Benveniste, to prove decisive: the root *dhè–, of which we have already spoken in the context of thesmoi. Thesmos was not, in fact, the decision of just any leader; in ancient Greece, it was the measure decreed by the one who, as the head of a family, a genos, warranted the title ‘themiste’. This was a bifid title: on the one hand, the one who had the power to deliver thesmoi was considered a ‘themiste’; but, on the other, this power flowed from a superior power, which was called ‘thémis’. The concept of thémis has most commonly been translated as ‘justice’ – but the ‘justice’ in question had nothing to do with the kind of ethical value the concept has come to embody. It was a question of the ‘justice’ of the home, of the family, of the genos – of ‘justice’ as a characteristic feature of the order of the home, as opposed to that which does not participate in it, and is of the order of dikè. ‘Justice’ was the quality proper to the genos, which, because it was under his direction, was also guaranteed by the ‘themiste’; it was the quality of the fact that the family existed – and that this family was ordered. But this quality was not abstract; it served to define the singular and concrete group, where the themiste, even though he was its chief, was only a more eminent member. Ultimately, ‘justice’ indicated nothing other than the ‘nature of things’ that the law of the family professed to regulate.

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§9. Phusis. When they started to critique the idea of nomos in the name of phusis, of the ‘nature of things’, the sin committed by the Sophists was perhaps, therefore, one of excessive nostalgia, or blindness to the changes taking place in front of them. To defend phusis against nomos was effectively to defend the order of the genos against the order of the polis, the concrete order of the family against the abstract order of the City, by which it had, moreover, been intentionally consigned to history. Indeed, where, in the age of ancient thémis, before it became an ethical value, order had been regulated according to criteria coming from a reality external to what was to be regulated, it now regulated itself. Nomos had become its own regulation, since the order that had produced it was precisely the one it was establishing, and for which it was claiming to define the programme – at the same time as it was defined by it. There was something closed, shut off, tautological, in the establishment of the idea of Law: the tautology that always accompanies an abstraction when it seeks to constitute its own stratum of reality. It was this tautology that the Sophists (with Protagoras first in line) attempted to critique through recourse to phusis, without grasping the desperate nature of this attempt. The order of nomos was of such novelty that everything based in a former configuration had lost all purchase on it – this being precisely what it wanted to rid itself of. It was pointless to confront it with the necessity of rediscovering the concrete ground of the judicial decision, of reconciling itself with the familial unity of the former jurisdiction, or of taking up again a thesmotic conception of regulation. From the moment it became a question of smashing the former order of justice that the great families