Re-thinking the common means interrogating the concept at its root. In order to proceed with what we refer to as a “methodological reversal” (renversement dans la method), which is in many ways the essence of our project here, we must re-examine the long history, stretching back all the way to the Greeks, that literally stifled or snuffed out the notion that the common is an irreducible dimension of social life. Property, whether public or private, has been continually imposed as a kind of natural mediator between both people and “things,” as well as between people themselves. Through its centuries-long disconnection from direct activity, the common tended to become little more than a nominal or enveloping community, whose members were viewed as integrated parts of a natural, mystical, or political body of some kind or another. The central lesson to be drawn from our archaeological investigation is the fact that there are many ways to think about “living together” and about acting in common, and there are many ways of reading the history of our societies other than through the bipolar narratives of the glorious advent of “civilization” via the invention of individual property, or the anticipation of the final return of communal property. Re-reading the Greeks and Romans from this perspective is not, then, an attempt to find the “origin” of the common. Rather, it is an inquiry that tries to re-construct the way in which the constitutive “collectivity” of every political community has been repressed in Western thought, across multiple historical periods and authors, beginning, first and foremost, with Aristotle. Our “return” to these older texts should not be seen, then, as a kind of “detour.” Rather, contemporary political theory and activity is in the process of re-connecting, from today’s completely different historical circumstances, with a concept of the common that Greek philosophy and Roman law allows us to both grasp and potentially extend: the common, as the principle that binds us together, is the unappropriable as such. Hence our central thesis: if the common is to be instituted, it can only be done on the basis of unappropriability, and in no case can it become the object of property.
In Governing the Commons, Elinor Ostrom cites Aristotle’s critique of the Platonic community of women and children from Chapter 3, Book 2, of the Politics:
That which is common to the greatest number (to pleistôn koinôn) has the least care bestowed upon it. Everyone thinks chiefly of his own (tôn idiôn), hardly at all of the common interest (tôn koinôn); and only when he is himself concerned as an individual.1
The distinction between the personal and the common is immediately posed in terms of property: what is common to a large number of people is what they all possess in common – i.e., women and children, in the Platonic city – just as what is proper to each individual is what each individual owns – i.e., one’s wife and one’s children, in most other cities. What is at issue here is the quality or intensity of the care (epimeleia) the possessor endows upon that which he owns in common with many others: if one takes less care of that which is owned in common, it is largely because one “principally” takes care of what is one’s own (in terms of priority), and not because care or attention is diluted overall in direct proportion to the number of owners. Hence the question Aristotle poses in Chapter 5 of the Politics concerning the optimal political constitution: “What is the proper system of property for citizens who are to live under the best form of constitution? Should property be held in common, or not?”2
Aristotle poses three possible solutions: (a) “plots of land are owned separately, but the crops … are brought into a common stock for the purpose of consumption,” (b) “land may be held in common ownership, and may also be cultivated in common and worked in common, but the crops may be divided among individuals for their private use,” and (c) “the plots and crops may both be common.”3 Assuming those who cultivate the land are citizens who work on their own account – as opposed to slaves working on behalf of their owners – Aristotle argues that unequal distribution of profits and penalties will inevitably occasion frequent disputes. Aristotle thus makes the following general remark: “but indeed there is always a difficulty in men living together (suzên) and having all human relations in common (koinônein), but especially in their having common property.”4 As we can see, then, the issue here is grounded in the disadvantages associated with “common property” (koinas tas ktêseis). Common property arises from the act of pooling resources together, and solely and exclusively concerns goods (literally “acquisitions”). The difficulty Aristotle identifies is thus based on the dissonance between living together and sharing resources together. As we have already learned,5 Plato’s mistake, according to Aristotle, was to have confused “living together” (suzên) and “living in common” (koinê zên), and Plato’s justification for community property (at least for the guardians) arises out of this confusion. But if, as in Aristotle, the difference between the sun (the whole) and the koinê (the common) is irreducible to the point that it affects the very the nature of living (zên) itself, then it may well begin to appear that the imperative for all citizens of the same city to share goods in common will no longer square with the particularities of “living together.” For we should recall that Aristotle’s underlying premise is that a city should not have the same degree of unity as a family or, a fortiori, as an individual, and so for these reasons it is preferable, for Aristotle, to combine the common use of goods with their private ownership.6
Does this mean, then, that “living together” is fundamentally distinct from “sharing resources in common” (koinônein)? This clearly contradicts the basic fact that “living together” is the fundamental prerogative of those who live in a political community (koinônia) as such. This type of community, as Aristotle puts it, is based on “liv[ing] together and shar[ing] conversation and thought.”7 As Pierre Aubenque observes, the verb koinônein “does not refer to passive participation within an already existing order, but describes the active and reciprocal communication that makes such an order possible.”8 In other words, the term designates “participation” not in the sense of belonging, but in the sense of “equality in taking part.” The fundamental Aristotelian lesson, then, is the recognition that it is not the pre-constituted political community that enables forms of sharing or pooling to occur, but it is rather the fact of this sharing or pooling itself that makes the common qua political community itself possible. This is not to say we are dealing with the exercise of a “constituent power” in the modern sense of the term,9 but simply that the activity of sharing in common is the activity that brings the common into existence and which continues to sustain it throughout its existence. To put it more generally, and beyond Aristotle’s particular concerns, every true political common owes its existence to a sustained and continuous activity of collective sharing.
For us, this point is absolutely fundamental. It touches on all the essential aspects of the common as an institution, and therefore gets to the essential nature of the institution as such. In this respect, Hannah Arendt’s interpretation of Aristotle merits attention, insofar as she understands the “collective sharing of words and actions” as an activity that only takes place within a preliminary framework established by a lawmaker, understood as a constitutional “architect.” Arendt is concerned with separating the “making” (poiesis) of the lawmaker from the “activity” (praxis) of the political subject who acts within the constitutional framework. The founder, in her view, is like an artisan or a craftsman who makes the laws, and the politician is the one who acts within the boundaries of the law. For Plato and Aristotle, the act of constructing this constitutional framework (as well as producing laws) is considered to be a “pre-political activity,” and is therefore a more privileged activity than politics or political action properly speaking, because the former is a matter of craftsmanship, which is to say poiesis rather than praxis.10 Yet Aristotle’s privileging of “making” at the expense of “action” runs counter to a passage in the Nichomachean Ethics in which Aristotle distinguishes between two modes of “politics”: the first, which Aristotle calls nomothetikè, is “legislative” inasmuch as it refers to the laws (“legislative science”), and the second, which Aristotle calls politikè,11 refers to communicative action and deliberation and leads to the adoption of “statutes” designed to govern over particular and temporary issues. Immediately after marking this distinction, Aristotle states the following: “hence these people are the only ones who are said to be politically active; for these are the only ones who put [political science] into practice, as hand-craftsmen put [a craft] into practice.”12 Thus, while Arendt makes it very clear that only “legislators and architects belong in the same category,”13 Aristotle says precisely the opposite in this case: it is the “administrators,” or those who deliberate with a view to adopting decrees, that act as craftsmen. In other words, the legislators or lawmakers are more comparable to chief contractors who direct the craftsmen. There is nothing in this passage that suggests Aristotle viewed “poietic” legislative activity as pre-political; rather, administrative activity is subordinated here to legislative activity, inasmuch as the particular (the statute) is subordinated to the universal (the law). In the very same text, Aristotle even goes so far as to say that laws are “works of politics” (politikès erga), which would of course be nonsensical if he viewed legislation as a pre-political phenomena. For Aristotle, then, the legislative does not possess its own justification, but rather acts as a framework for political deliberation.14 The rules of justice, which are laws, are instituted at the level of the political community, which means that the law is both the effect and the cause of this community: it is effect inasmuch as “there is no legislative activity except within a polis,” and it is cause inasmuch as the law differentiates the polis from the non-political aspects of social life.15 In this sense, legislation is fully political and categorically koinônein. At base, and as strange as it may seem, Arendt’s biased reading merely revives the figure of the great, anti-democratic nomothète, or the creator and giver of the law (on the model of Lycurgus, Solon, or Numa). As such, any theory based on the principles of emancipation and autonomy must absolutely reject these kinds of mythological figures, and the foundation for politics they create.
Our reading of Aristotle thus suggests we ought to distinguish between two very different types of sharing in common: the sharing of “goods” that compromises or prohibits the political common as “living together,” and the sharing of “speech,” “thought,” and “actions” that is inversely irreducibility of the political common. In the first instance, the decisive difference between the two is that the second form of sharing does not concern acts appropriation: there is no such thing as communal property when we are dealing with “speech and thoughts,” whereas there may be common property in relation to “goods,” even if this property is undesirable insofar as it imposes an excessive and harmful degree of unity onto the city (as is Aristotle’s interpretation). As we know, Aristotle’s solution is not to adopt common property as such, but to opt for the common use of private property.16 If we take an overall view of the problem, however, it is difficult to avoid the following conclusion: the form of sharing that constitutes the political common does not deal with appropriation because the political common is neither common property or private property: it is not property of any kind at all. In other words, the political common is radically outside of property as such precisely because it does not involve a good, and there can be no property – private or common – unless we are dealing with a good of some kind. While there may, in short, be such things as “common goods,” the common itself is not a good, at least in the sense of something one could freely acquire and dispose of (what the Greeks call ktêsis).
But there is more. The political common – no matter what type of constitution governs a particular city – is always ordered according to a specific determination of the “common advantage” (koine? sumpheron). This means that every political common is based on a certain concept of “justice”: indeed, as Aristotle puts it, “the good in the sphere of politics is justice; and justice consists in what tends to promote the common interest.”17 In a well-constituted political community, this is determined through collective deliberation – i.e., a collective deliberation as “sharing of conversation and thoughts” described above – about what is just and what is unjust.18 Belonging to such a community presupposes each individual is endowed with “the will and the capacity to communicate, share, and participate.”19 In other words, only a subject who realizes this capacity for sharing with other subjects can partake in a political community. Indeed, this activity of sharing, and actualizing this capacity through deliberation, is precisely what founds the community in the first place, rather than the reverse: “belonging is the consequence, not the cause, of this participation.”20 Only the activity of sharing determines whether or not one belongs to the political community. But insofar as this deliberation also determines what is just and unjust, this also implies that the activity of deliberation concerning the political good constitutes the political common, which makes the latter an “order.” As Aristotle puts it, “justice is an ordering of the political association.”21 This is not to say that justice is a kind of order that emanates from the political community, but rather that justice is itself the activity that “constitutes the political community.”22 Deliberate and rational discussion about the rules of justice thus directly proceeds from the active participation of citizens engaged in collective deliberation. The political common, in other words, must be actively instituted through the actualization of our “natural” capacity to share in common.23
This Aristotelian exegesis singularly illuminates the importance of our “methodological reversal.” It shows the necessity of returning to the idea of common activity as the fundamental principle of the common, rather than construing the common as a natural datum that is independent of human activity, like a substance one could possess and exchange. It is crucial to recognize that the common is established by an act of sharing in common that that is literally law-producing – in the sense of Aristotle’s notion of “justice” – while necessarily excluding the possibility of this law becoming a right of ownership over the common. Unlike Aristotle, however, we shall not restrict the political common to the sphere of the “city” – in either the ancient Greek sense of the polis or the modern sense of the “state.” We refuse this conceptual limitation not only because participation in any form of commons always involves a political dimension, but also because the only form of politics capable of restoring the term’s foundational sense of koinônein – the sense of “equality in taking part”24 that is the essence of sharing in common as such – is that which makes the common its object, its principle, and its center of gravity, whatever its scale (the nation-state form has no particular priority in this respect). To repeat our fundamental thesis: the common can only be instituted on the basis of complete unappropriability; under no circumstance can the common be the object of the law of property.
To better articulate our thesis, let’s move on to an examination of the anthropological idea that “communal property” lies at the origin of human history and, concomitantly, that humanity’s fundamental mission is to “re-establish” this form of communal property – as if history itself posits a right of re-appropriation over the common that humanity need only consciously realize. This concept of history profoundly informed the development of “historical materialism,” insofar as the latter relied on specific historical data to establish successive modes of production characterized by different forms of ownership – from “primitive communism” all the way up to “advanced communism.” It is well known that Marx described “communal property” as the original form of property amongst the Romans, the Germanic tribes, the Celts, the Slavs, and in India.26 Indeed, Marx’s passion for history and ethnography (which he frequently discussed with Engels) was largely motivated by his search for “primitive communism.” Matters become much more complex, however, when it comes to understanding exactly what Marx meant by “communal property,” and how he understood the relation between communal property and individual property. For Marx is careful to never straightforwardly articulate these terms as opposites. This is evident, for instance, in the well-known passage from Chapter 32 of Capital (vol. 1), wherein the “negation of the negation” does not re-establish “private property” but rather re-establishes “individual property” based on cooperation and communal ownership over the land and the means of production.27 Marx’s refusal to see communal property and individual property as opposites is perhaps even more evident in the section of the Grundrisse that discusses “pre-capitalist modes of production,” wherein Marx compares Roman public property to the communal property of the ancient Germans.
Let’s look more closely at the historical material Marx drew from to formulate his notion of revolution, and carefully consider his interpretation of this data on the basis of his contrast between Roman and German forms of communal property. First, Roman communal property is specifically based on a distinction between the ager publicus (public domain) and private family property. Indeed, the institution of the ager publicus played a significant role in the history of the Roman Republic, from its archaic origins until the rise of the Empire.28 During the conquest of Italy, Rome confiscated part of the land it conquered and transformed it into the property of the Roman people, and these lands were then colonized by plebeian settlers. The Romans decreed “everything immovable belongs to the Roman state and is therefore inalienable and imprescriptible, although allocated as part of the public service.”29 This property was then doled out in parcels to plebeian citizens as “possessions” but not as “property” (dominium), which meant the Romans only recognized a citizen’s right to use and enjoy the plots of land, but not the right to divide or sell them.30 The state subsequently became accustomed to handing over large tracts of land to its creditors – i.e., members of the nobility – who were permitted almost unlimited enjoyment of these public tracts. According to the perspective adopted by Marx in the Grundrisse, Roman antiquity is thus characterized by a rather unique configuration between communal property and private possession: specifically, it was a relation in which state ownership was the prerequisite for private possession. Only state ownership enabled private appropriation of the soil: “the private proprietor of land is such only as a Roman, but as a Roman he is a private proprietor of land.”31 For Marx, then, the Roman question par excellence is: “what mode of property creates the best citizens?” The best citizen is precisely the citizen for whom state citizenship is the guarantor of his private ownership. This arrangement, in Marx’s view, is especially advantageous insofar as it is based on a certain equality between free and independent peasants, each of whom has the same right to possess a particular plot of public land.
When we then look closely at the passages in which Marx compares the Germanic form of property with its Roman counterpart, however, we find that the Germanic form is actually the inverse of the Roman: “among the Germanic tribes, the ager publicus appears rather merely a complement to individual property,” whereas, for the Romans, the public domain is viewed as a “particular economic presence of the state as against (neben) the private proprietors.”32 How should we understand Marx’s notion of “as against” (neben) here? Private owners who are private “in truest sense of the term” – i.e., they are “deprived” of partaking in the ager publicus – are the most wealthy citizens. They are deprived of the ager publicus because they already possess an ager privatus. This is a simple consequence of the fact that land in the public domain was originally created for those citizens who did not already own their own parcels of land. Private owners, “in the truest sense of the term,” are not therefore plebeians to whom the state concedes possession of a plot of land, but patricians who are literally “excluded from the ager publicus.” There are, therefore, two forms of private ownership: “possession” and “property.” The former is obtained through the allocation of common land, while the latter exists outside the ambit of common land entirely. Under these conditions, affirming the idea that the public domain only exists amongst the Germans as a “compliment to individual property” means affirming the idea that “individual property” is only recognized as such in relation to communal property. For the Germans, individual property designates the family household (“independent houses”), and these households are considered to be “independent organisms” separated from other households by “long distances.” If there is, then, an ager publicus for the Germans, it takes the form of “communal land” or the “people’s land,” and is generally reserved as “hunting land, grazing land, timber land, etc.”33 Far from belonging to the public domain in the sense of a Roman “prerequisite” or “pre-condition” for the private appropriation of land, individual or family property for the Germans presupposes simultaneous access to communal goods. The latter, in this case, is the communal property of multiple families who recognize themselves as members of the same “tribe” (Stammwesen). This is the inverse of the Roman configuration: that which was the pre-condition in the Roman system is the “result” in the case of the Germans. For the Germans, communal property is the product of mutual relations between individual owners or, as Marx put it, “their effective assembling for common purposes.” In other words, it is a “communal accessory” of individual land ownership rather than the latter’s pre-condition.34
What is most significant in Marx’s analysis of communal property amongst the Germanic tribes is ultimately the separation between the common and the state: indeed, it is precisely this separation that allows Marx to project communal property back to the origins of human history itself. In the case of the German ager publicus, one may say there is a public, but there is not yet a state. And for Marx, the prior existence of this configuration alone makes it possible to conceive of the “common of the future” as a form of non-state public that emerges after the fated post-revolutionary withering of the state form. In any case, what also merits particular attention here is how this “original common” gives rise to an important distinction between that which is merely individual and that which is privately individual: for this common, in effect, merely extended a form of individual appropriation that was not exactly “private,” in the sense of a dominium or an exclusive and unlimited right over a given object. It is undoubtedly still possible to talk of “possession” of the common, but only on the condition that this possession had the peculiar feature of being neither facilitated nor guaranteed (in the legal sense) by the state (unlike the Roman possessio enjoyed by the plebeians). In fact, the German is, in this respect, both an individual owner and a member of a tribe, and so his access to common land (for hunting, grazing, etc.) is premised on him already being an individual owner. His property is not “private” in the sense that the latter is primarily defined by what it excludes: if, in Rome, the wealthy proprietor “excludes” others while at the same time being himself “deprived” of access to the common, the German individual owner has access to the common only because he is already an individual owner.35 Marx thus feels justified in saying, “it is really the common property of the individual proprietors, not of the union of these proprietors endowed with an existence separate from themselves, the city itself.”36 The Germanic form as an originary prototype thus offers us a double example of (a) communal, non-state property and (b) individual, non-private property. It is no surprise, then, why this configuration garnered so much attention from the pioneers of the materialist conception of history.
Historically and anthropologically, however, it is an open question as to whether the ancient Germanic form of “communal property” was really as Marx repeatedly asserts. In his book Avant l’histoire (Before History),37 for instance, Alain Testart maps the flow of history as an evolution from the first forms of social life up until what he refers to as the “invention of wealth.” Testart observes how the ethnographic societies of the Neolithic period (in Melanesia and North America) recognized wealth has having only one “advantage,” namely the social consideration or esteem its possession provides. There was no wage labor in these societies and therefore no power over those who are forced to work for a wage, and, above all, there was no possibility for wealth to produce further wealth by investing in land, for instance. What was completely absent in these societies, then, was some means of differentiating amongst social classes: land could not be “rented by a landlord and transformed as income in the form of rent, what we could describe as ‘land rent’”). Ownership status was based on the actual use of an object, which in turn meant prolonged disuse led to the loss of status or title. Hence Testart’s distinction between two very different types of property: he refers, on the one hand, to the oldest historical form of property as “usufund property” because it is “founded on continuous temporal use and only so long as this use can be demonstrated.”38 This kind of use-based qualification on property makes modern modes of land ownership nearly impossible, insofar as the farmer and proprietor are always the same person. Contemporary property, on the other hand, is referred to by Testart as “fundiary property” because it is “founded on the basis of funds [i.e., money] independent of the work it creates or the uses to which it is put”: whether the landowner uses the land himself, leases it, or leaves it uncultivated has no bearing on his proprietary status or title.”39 What this means is that wealth cannot play the same role in both systems of property: in the fundiary property regime, wealth constitutes the basis of economic power insofar as land becomes a source of income through investment; in the usufund property regime, excess wealth cannot be invested and so instead it is converted into social prestige, through sumptuous feasts, for example.
From this essential distinction, Testart advanced the general hypothesis that Neolithic societies were largely organized according to usufund property regimes, and from this premise he sketched a more general model of social evolution comprised of three great periods he referred to as “worlds”: “world I” includes every “society without wealth” organized on the basis of usufund property regimes; “world II” designates societies that combined the accumulation of wealth with usufund regimes; and lastly, “world III” includes societies with wealth organized on the basis of fundiary property regimes. The historical succession of these three worlds – from world I to world II, then from world II to world III – defines, for Testart, the flow of history (sens de l’histoire) as based on the increasing importance of wealth. It should be noted that these worlds only approximately correspond to established archaeological periods: thus, while most Neolithic societies belong to “world II,” the Neolithic period is not entirely coincidental with world II insofar as certain Iron Age societies also belong to this world, as do certain hunter-gatherer and sedentary-storage societies, such as those in California (though the latter were not agricultural).40 Testart’s hypothesis undermines the presupposition that hunter-gatherer societies were – like the Neolithic societies that followed them and inherited their property conventions – societies in which property did not exist (or perhaps only in the form of collective ownership). The conspicuous obstacle we encounter here, then, is the categorical confusion between usufund property and collective property. For while usufund property may not lead to the expropriation and immiseration of workers, nor produce masses of landless peasants, it is certainly not immune to inequalities and hierarchies:
[Usufund property] is a real form of property – and not, as has been said, merely a usufruct – and is indeed a form of property that is part of the means of production, capable of generating inequalities and powerful dependencies. But it does not permit the expropriation of the worker, nor does it allow, in Marxian terms, the separation of the worker from his means of production. So long as the worker works his field, it cannot be taken from him.41
We should not, therefore, hastily assume that just because the means of production are collectively owned, and the worker is not separated from the individual means of his own production (and reproduction), that inequality is absent as well. While it may be true that “misery was born from fundiary property” and thus Neolithic societies were not “societies of luxury and misery,” they were not “egalitarian societies” either. For Testart, at least, the notion of an “egalitarian society” at the origin of history is largely contradicted by contemporary anthropological evidence.
Since the Germanic tribes were such an important historical datum for Marx’s analysis of property, the topic deserves a little more attention. These barbarian peoples belonged to the Iron Age and were part of “world II” (wealth alongside usufund property). Relying largely on classical sources that describe land ownership – specifically excerpts from Julius Caesar’s The Gallic Wars and Tacitus’s Germania – Testart arrived at very different conclusions from most contemporary commentators, who tend to see “evidence of the collective or public ownership of land” in these sources.42 Yet neither Caesar nor Tacitus uses the term ager publicus to describe land ownership, nor do they speak of the populous or the civitas. They talk instead about an “absence of property,” which simply designates their lack of any adequate notion for more precisely accounting for the real differences between the German property regime and the Roman model with which they were familiar. For Testart, however, only the notion of usufund property can precisely account for the German system, and for at least two reasons. The first reason is that cultivated land is clearly distinguished from uncultivated arable land in these sources: it is the abundance of the latter which renders their dispersed allocation practical,43 because “what is not cultivated is not property” and can be shared, whereas that which is cultivated, and is currently being used, cannot. This is exactly what we find in usufund property regimes. And the second reason is that both Caesar and Tacitus speak of an “annual re-distribution of land,” a practice that usually corresponds to usufund property: “if no one has right to land he has not cultivated, everyone therefore as a right to land to cultivate it.”44 Land is thus allocated on the basis of need, but what counts as “need” of course varies according to the social status of each individual (what Tacitus calls dignatio), or the number of clients or slaves who depend upon a given individual. Distribution is not, therefore, egalitarian, but the land is also not yet a “means of social domination” because the powerful cannot accumulate land by stripping the weak of their property. It should be pointed out, moreover, that in the case of the Germans, usufund property was not inherited (whereas it otherwise generally is). In summary, then, what we are dealing with is a profoundly inegalitarian society that was not, however, a “class society” in the classical Marxist sense. That is to say that it was not a society in which workers were separated from the means of production which then became the exclusive property of non-workers.
What about the “political system” in these types of societies (world II) and amongst the ancient Germanic tribes more specifically? Following the general consensus, Testart argues that the whole of Neolithic Europe consisted of “societies without a state,” but he is careful to distinguish between three main categories within this general framework.45 The first category (or society) is characterized by an “absence of functional power,” meaning power is not derived from political function but from ostentatiously spent wealth; the second type of society is characterized through the use of “councils” that function as sovereign assemblies at all levels of social life (village, tribe, confederation) – such as the “primitive democracy” of the Iroquois, as described by British anthropologist Lewis Morgan. And the third type of society is structured by lineage (as is typical of Africa), wherein authority is always derived by referencing a founding ancestor and is exercised through solidarity or co-responsibility. The leader in these societies is usually the eldest in the line of succession. The institutional politics of the Germanic tribes is best described as a kind of “military democracy,” as Engels puts it,46 which places the German peoples in the second of Testart’s categories. For the command exercised by the German generals did not derive from an acknowledged political or military position that guaranteed obedience: “warriors only participate in wars” if the chief, and the chief’s planned expedition, pleases them. In other words, “military service is not compulsory.”47 Accordingly, the Germanic armies were “small, private armies who sustain[ed] themselves through pillage” and whose structure depended on the personal ties of “warrior companionship.” Germanic societies also tended to be governed by an “assembly of people” (which was called the concilium) to whom affairs previously discussed by the “chiefs” were usually submitted.
The political organization of the Germanic tribes thus not only differed from the Romans, but also from the Gauls during the same epoch. The Gauls levied troops from the population en masse, convened assemblies of armed subjects, and collected taxes, all of which seems to attest to the existence of a state. “The difference between the Germans who only participated in wars if it pleased them and those who are compelled to fight is the difference between a society without a state and one with a state.”48 The antiquity of peoples’ assemblies in Europe, the close resemblance between the Germanic popular assemblies and the thing in medieval Scandinavia and Iceland, the absence of any traditions analogous to those of the Near or Far East, and many other convergent factors led Testart to posit the “hypothesis of very old examples of the common since the beginning of the Neolithic period, including primitive democratic regimes.”49 From this perspective, then, the Greeks did not “invent” democracy, but rather tried to “perfect a very old form” by altering its institutions to suit the needs of a new polis-based regime.50 A striking contrast thus emergences between the East of the fourth and third millennia and barbarian Europe in the second and first millennia: whereas the invention of bronze, the city, writing, and the state all coincided in the East, barbarian Europe welcomed the invention of bronze but refused the other three innovations. One explanation for this refusal, as articulated by Pierre Clastres, is “a sort of prescience about the horrors of despotism” alongside anxieties about social division. But perhaps there is a more plausible “political” explanation: these innovations were refused because of a several-thousand-year-old tradition of “primitive democracy,” characterized by an “assembly that appoints generals and confers upon them the power of delegation, and which are therefore equally capable of removing them.” In short, these democratic institutions (as opposed to lineal modes of organization) did not create hospitable environments for the emergence of the state.51 Yet, at the same time, it is clear that the example of the Germanic tribe is in no way an ideal image of an egalitarian society based on “individual possession of collective property.” Germanic society was rather based on a combination of usufund property, sometimes very stark social inequalities and hierarchies, and a “military democracy” in which the powers of chiefs were constrained by assemblies. If it was a “non-state common,” it was not one that was based on the land, but one whose commonality was embodied by the assembly: the assembly was no one’s property, it could not be confiscated by any of the chiefs, and it was based on some conception of “equal participation.”
What are we to say, then, about the nineteenth-century thesis on ancient collective or communal property? This was a widely held and shared anthropological belief in the second half of the nineteenth century, and Marx and Engels avidly adopted it for their own purposes (which are not too difficult to discern). In retrospect, the popularity of this thesis appears to be linked to the hegemony of political individualism during the nineteenth century.52 In the strictest sense, property rights are the most “absolute” of any right (plena in re potestas), in that their holder enjoys the following prerogatives: the right of use (usus), the right to the property’s fruits (fructus) – which is also called the right of enjoyment and includes both “natural fruits” and “civil fruits” (i.e., income from the property) – and finally the right to abuse (abusus) or dispose of the property, by destroying it, altering its substance, or selling or giving it away.53 It is obviously this last right, the right to dispose of a thing – whether by destroying it or by transforming its substance – that is most central to the definition of property rights, and it is on the basis of this definition of property rights that we are able to clarify the often imprecise notion of “collective ownership.”
Like Testart, we can immediately distinguish three kinds of ownership rights in French law: “undivided ownership,” the typical case of which is inheritance; the ownership of legal personhood (such as an abbey in the Middle Ages or a corporation today); and lastly, public property. With respect to the first, there is no doubt we are dealing with a form of private property that is subject to agreement by other members of the community (albeit very limited). In the case of legal persons, we are dealing with a form of collective ownership, but the collective is only a “nominal” form in the sense that it merely references the group or collective that manages the otherwise private property. And public property is, of course, almost entirely conceived as the property of the state, and this must not be confused with the property of the citizen, since public property is not always accessible to citizens; it may sometimes be accessible to citizens (road, communal spaces, etc.), but it is still nonetheless not the property of the citizens as such. The conclusion is clear: “public property is never the property of all.”54 If we examine the situation in Africa (where the practice of collective land ownership at the village level is still relatively common) in the light of these qualifications, the hypothesis is still untenable, despite the often-made comparison between the Russian mir and rural communes in the West. While the African “village” is perhaps the only serious candidate for true collective ownership of the land, the example is still problematic insofar as a village does not enjoy all the rights that are usually constitutive of ownership: it does not enjoy the right of use, nor the right to the property’s fruits, nor finally the right to dispose of or alienate the property.55 The village leader distributes vacant land amongst the family heads, but this does not mean that the “village” is the owner of the land. In fact, these vacant lands tend to be the only lands that are actually managed or controlled by the municipality, and so they are not really collective property but more like “non-property”: these lands are not a “good” in the usual sense and they are often not susceptible to appropriation (otherwise they would not be vacant). They are, in this sense, terra nullius.56 Moreover, the category of usufruct – and only individuals can be usufructuaries – does not work with this example either, because this category only has meaning in relation to the context of a true owner or a “bare owner,” which is precisely what is lacking here.57 We are forced to conclude, then, that it is actually the “men and their families who are the true owners of the land in Africa.”58
How then, under these conditions, do we account for the advent of “possessive individualism” – to use C.B. MacPherson’s phrase – and the re-imagination of human civilization as an association of private proprietors? Its arrival may have begun in a theological re-interpretation stretching back all the way to the Book of Psalms (as mentioned previously),59 wherein the earth was conceived as the gracious gift of God to his creatures. While God may be the original and only master (dominus) of the earth, the advent of sin compelled humanity to make arrangements that would allow them to lead their lives according to the natural order, one of the first of which is of course the preservation of life itself. Thus, enjoying the fruits of one’s labor, and ensuring the continuation of a dignified life through thrift and by building up a personal estate, necessitates a rational system of property rights, as Thomas Aquinas argued in his Summa Theologica. In his discussion of Saint Basil and Saint Ambrose’s theses on the community of goods, Aquinas distinguishes between property as such – which only applies to God’s absolute sovereignty over his creation – and the human uses of the earth. The latter is organized through positive law and is an expression of human reason that renders the possession of external goods lawful:
Community of goods is ascribed to the natural law, not that the natural law dictates that all things should be possessed in common and that nothing should be possessed as one’s own: but because the division of possessions is not according to the natural law, but rather arose from human agreement which belongs to positive law, as stated above … Hence the ownership of possessions is not contrary to the natural law, but an addition thereto devised by human reason.60
While private property is not therefore exactly “natural,” as was subsequently established in the Catholic dogma of Pope Leon XIII in his Rerum novarum of 1891 (which was entirely and explicitly directed against the socialist doctrine of collective property),61 possession to the end of supporting oneself is nonetheless lawful because it is necessary for life. Drawing inspiration from Aristotle’s remarks on the problems posed by collective property, Aquinas argues in favor of private property by referring to the incentives it provides in terms of personal advantage:
[Possession] is necessary to human life for three reasons. First because every man is more careful to procure what is for himself alone than that which is common to many or to all: since each one would shirk the labor and leave to another that which concerns the community, as happens where there is a great number of servants. Secondly, because human affairs are conducted in more orderly fashion if each man is charged with taking care of some particular thing himself, whereas there would be confusion if everyone had to look after any one thing indeterminately. Thirdly, because a more peaceful state is ensured to man if each one is contented with his own. Hence it is to be observed that quarrels arise more frequently where there is no division of the things possessed.62
Human reason is thus the basis for the practical necessity of the division of possessions and its guarantee by positive law. If this shift in scholastic ideology begins in Aquinas, it becomes even more entrenched through the later remarks of Pope Leo XIII:
It is the mind, or reason, which is the predominant element in us who are human creatures; it is this which renders a human being human, and distinguishes him essentially from the brute. And on this very account – that man alone among the animal creation is endowed with reason – it must be within his right to possess things not merely for temporary and momentary use, as other living things do, but to have and to hold them in stable and permanent possession; he must have not only things that perish in the use, but those also which, though they have been reduced into use, continue for further use in after time.63
This scholastic argument thus broke with the older ideal of the community of goods propagated by the first Christians and the Fathers of the Church by “naturally” – i.e., in conformity with the essence of man’s rational being – giving man not merely the right but the duty to “dominate nature.” This doctrinal shift was based on the notion that man, as “master of his own acts, guides his ways under the eternal law and the power of God, whose providence governs all things,” and this is because “it is in his power to exercise his choice not only as to matters that regard his present welfare, but also about those which he deems may be for his advantage in time yet to come,” in the words of Leo XIII. This justification for property through man’s rational nature was then used to undermine the frequent references made by nineteenth-century communists and socialists to the Gospels and the Fathers of the Church:
The fact that God has given the earth for the use and enjoyment of the whole human race can in no way be a bar to the owning of private property. For God has granted the earth to mankind in general, not in the sense that all without distinction can deal with it as they like, but rather that no part of it was assigned to any one in particular, and that the limits of private possession have been left to be fixed by man’s own industry, and by the laws of individual races. Moreover, the earth, even though apportioned among private owners, ceases not thereby to minister to the needs of all, inasmuch as there is not one who does not sustain life from what the land produces. Those who do not possess the soil contribute their labor; hence, it may truly be said that all human subsistence is derived either from labor on one’s own land, or from some toil, some calling, which is paid for either in the produce of the land itself, or in that which is exchanged for what the land brings forth.64
This justification for property is perhaps best understood on the grounds of work and need. In this respect, the Reformation significantly influenced this doctrinal shift by extolling the great merits of the worker and denouncing the vices – and even the crimes – of idleness, social parasitism, and decadent lust. Calvin, accordingly, argued that it was not so much nature but private property that was God’s true gift, the latter of which is said to be necessary for the good of the community. This shift was tantamount to a revolution in Christian thought: it is not merely the earth that God has given to man in common, but also the faculty of reason, the taste for work, the consciousness of oneself and one’s body – in short, everything that makes private property an authentically scared right. These arguments cleared the way for Catholics and Protestants alike to naturalize capitalism and the social inequalities it produced.
But the scholastic argument itself was not enough to transform civilization into an association of private proprietors. In the political philosophy of John Locke, for instance, we go far beyond merely depicting private property as a natural right. In Chapter 5 of his Second Treatise on Government, Locke strives to found property on the natural right of self-ownership: ownership of one’s body and faculties, and thus of one’s work, which is nothing other than the application and objectification of one’s faculties.65 For Locke, then, the right to ownership over the natural world is fundamentally and incontestably a function of the ownership of one’s self. In other words, property is no longer justified through mere convenience or utility (as conceived by human reason), but is now a fundamental right that everyone possesses in themselves. We know Locke describes property in various ways. In a very general sense, property is a concept that encompasses “life, liberty, and property.” In contrast to the absolutist thesis that endows Adam’s successors with property rights over the earth, Locke argues that the earth was originally owned by everyone. Locke thus interprets the primitive community as a “positive community,” as opposed to the notion of the “negative community” defended by Grotius and Pufendorf – i.e., God made all men co-possessors of the earth and all the fruits of nature (as opposed to the negative notion that there was no possession or belonging as such).66 For Locke, however, God did not give the earth in common to man so it could remain fallow; it must be put to productive use. It is therefore labor that legitimates property and allows it to take shape. The first form of property, as mentioned, is the ownership of oneself. The first right of property, then, is the right to self-preservation, which, by association, justifies the ownership of everything that issues from the application of one’s body and one’s personal efforts. Personal property is like a form of corporeal extension and a means of personal self-preservation. The axiom of this new normative regime is the idea that the individual owns his mind and body. This axiomatic premise of self-ownership cum individual property will be continuously repeated to render property rights both a natural and sacred right, and a fundamental condition of the commodious life.67 Locke’s notion of proprietary individualism is one of the defining features of modern economic dogma that has persisted largely unchanged all the way up to contemporary neoclassical economics. As Leon Walras puts it:
Personal faculties are by natural law the property of the individual. In other words, every person belongs to himself, because every person – that is to say, every free and rational person – has the right and the duty to pursue his own ends, to achieve his own destiny, and is responsible for this pursuit and its accomplishment. The principle of inequality applies here, which means we should enjoy in proportion to our efforts … Moreover, since the individual is the owner of his own personal faculties, he is also the owner of his work and his wages, and thus owner of the products, consumable income, or new capital he acquires through his wages.68
Such bourgeois apologetics were particularly refined and honed during those crucial periods when the proprietary class felt most threatened. In the face of the socialist menace, Adolphe Thiers went so far as to evoke a “natural instinct in man, child, animal whose sole end is the indispensible reward for work,” in his 1848 argument for property.69 In a very “laborious” manner, as he admits, Thiers attempted to justify property by virtue of its social universality and its corporeal naturalness in order to ward off the dangers threatened by society’s enemies. Wherever we find society, argues Thiers, there is property: it is a “general and universal fact, without exception.”70 For Thiers, the proprietary instinct is part of a universal faculty that produces a sensation and consciousness of one’s spiritual and corporeal individuality: “consciousness of self, firstly, then my faculties, both physical and intellectual: my feet, my hands, my eyes, my brain, my soul and my body.”71 This universal instinct is then overlaid with the social conventions derived from humanity’s adoption of a sedentary lifestyle, which in turn produces firmer and more developed laws:
Thus, in proportion as man develops, he becomes more attached to that which he possesses. In a word, he becomes more proprietary. In a barbarous state, property hardly exists; in a civilized state, man is passionate about his property. It has been said that the idea of property is weakening everywhere. This is a factual error. It regulates itself, becomes more precise, and grows stronger, not weaker.72
To undermine this natural and conventional fact would be to commit civilizational regression, for civilization itself is nothing but the generalization, strengthening, and refinement of property rights: “amongst all nations, however crude, we find property – first as a fact, and then as an idea, an idea that is more or less clear according to the degree of civilization that has been attained, but it is always invariably present.”73 From Thier’s perspective, then, anyone who questions property rights is no better than the barbarian, who must therefore be crushed, as the French bourgeoisie did in June of 1848 and May of 1871. All these bourgeois arguments are based on the idea that property is a function of individual faculties alone, and on the idea in particular that individual labor is the ultimate source of wealth. It is impossible for these bourgeois writers to imagine man as something other than an independent worker – “he works for himself,” as Thiers repeats – and proprietor. And if there are inequalities, if there is predation, all of this can be justified by the fact that nature did not evenly distribute faculties amongst men.
In addition to this natural rights argument (whose theological basis is never far removed), Thiers proffers a utilitarian argument concerning the incentive for personal advantage very similar to that already formulated by Aquinas: it is because of labor and property that humanity managed to escape misery and achieved well-being and prosperity: “man, thrown naked upon the bare earth, passes from misery to abundance through the exercise of the powerful faculties endowed by God,” as Thiers eloquently explains.74 Property is the guarantor of prosperity, and its beneficial consequences are more than enough justification. Hume and especially Bentham likewise managed to free themselves of natural rights and its associated theological yoke – a yoke that still hung from Locke’s head, despite the fact that he sought, above all, to reconcile natural law and utility, which, according to him, have gone hand in hand since the beginning of the world.75 Indeed, Bentham’s fight with William Blackstone – one of the great defenders of absolute property rights – was motivated by Bentham’s desire to purge the legal system of any basis other than utility. For Bentham, all law is an “imaginary creation,” a “fictive entity” that ought to be entirely shaped by political authority and established with a view to the effects it is capable of yielding in terms of human motivation and action. What is still described by Locke as a natural right, a right grounded in the Almighty Being who is its absolute origin, is for Bentham something to be imputed by terrestrial authority alone – and all as a result of philosophical arguments that are remarkably similar to those which Locke develops in his Essay Concerning Human Understanding.
Bentham developed a close connection between the definition of juridical and political legal fictions and the possibility of the “greatest happiness for the greatest number.”76 Bentham’s doctrine is concerned with explaining how the individual proprietor is not at all some generic being who follows a God-given drive for self-preservation, but is rather an effect of political constructs that correspond to human activity governed by the impulse to seek out pleasure and avoid pain. For Bentham, the institution of property is only justifiable through reference to its utility, which alarmed many liberals who were especially attached to the sanctity of property rights. For, as Karl Polanyi demonstrated, it was precisely on the basis of these utilitarian arguments that numerous limitations on property rights were established as early as the mid-nineteenth century, limitations that have henceforth given rise to welfare-state initiatives, such as the taxation of inheritance and labor law. The same arguments were made by certain economists who wanted to restrict agricultural rents in order to promote industry and trade, even to the point of envisaging the nationalization of land in order to abolish the nefarious and even parasitic influence of the landed aristocracy.77
There is little doubt that the utilitarian approach, especially as the field of political economy developed, ultimately prevailed over the theological and juridical discourse on natural property rights, and property has subsequently been defended primarily on the basis of economic efficiency. Private property is an institution that is inseparable from the market, and the latter is viewed as the best system of resource allocation ever invented. Personal possession generates more productivity than any other form of property – especially collective or communal property – because the individual devotes himself to it more attentively; he puts more of himself into it, and expects to keep the results from himself. This is why Locke, and then Condillac, argued that while America might have the most fertile lands, they could only become fruitful if a real regime of property rights was introduced. Utilitarianism thus divorced natural notions of morality, based on fraternity and compassion, from the proprietary, market economy.
One of the most significant outcomes of this nineteenth-century intellectual transformation is the treatment given to the notion of res communes by juridical defenders of absolute and exclusive property rights. Amongst those who viewed primitive communities as “negative communities” – i.e., a lack of ownership as opposed to co-ownership – we see, right away, an attempt to reconcile this notion of the negative common with those goods or resources that Roman law considered naturally common in themselves. An illustrative example of this can be found in Robert-Joseph Pothier’s Traité du droit de domaine de propriété (1777):
The first men held all those things God gave to mankind in common. But this community was not a positive community, such as that which is established between several persons who partake, in common, the dominion of a thing by each having a share; rather it was a community that, according to those who have studied these matters, is called a negative community, because it consists of a resource that is common to all but which belongs no more to one of them than to any of the others … But as the human race has since multiplied, men divided the earth amongst themselves and most of the things on its surface; and what befell each of them began to belong to them privately … this is the origin of the right to property. Yet everything was not divided, and many things remained, and many things remain still to this day, in their former state of negative community. These things are referred to by the jurists as “res communes.”78
The question that persists, however, is why certain things remained, and must remain, outside this great division that established private property. As Mikhaïl Xifaras observes concerning the argument put forth by Jean-Baptiste-Victor Proudhon, the notion of res communes “is weakened by the adoption of the theological premise of the negative community.”79 For the very notion of the negative community does not mean that everyone co-possesses some undivided content, but rather that nothing yet belongs to anyone: the objects or resources in question, then, are, strictly speaking, res nullius (without master) and not res communes. These objects or resources are merely vacant and awaiting a master, which of course poses no problem whatsoever for the subsequent establishment of private property. But from this perspective, the domain abandoned to mankind from God should logically include the sea, the air, and fire, as well as all things material, since the four elements cannot, in this view, be considered superior to man. “In other words, it is difficult to see why the rationale that moves us from the unappropriability of the four elements – i.e., earth, water, air, and fire – to the appropriability of one of them – i.e., the earth – cannot be reproduced for the other three.”80 Put differently, why is it only the water, air, and fire that remain “common” under the presupposition that their status is consistent with the negative community thesis?
In the work of Charles-Bonaventure-Marie Toullier, however, the category res communes encompasses not only that which is unappropriable by nature, “but also that which is appropriable but not yet appropriated, such as fish, for example, whose status is held in abeyance until they are actually fished.”81 And according to Charles Demolombe, the otherwise rigid distinction between res communes and res nullius is significantly relativized by the prospect of the indefinite augmentation of mankind’s power; the only real difference between the two categories is that, while the former “also belongs to the negative community, its unappropriability is only due to the current status of mankind’s power,” while the latter is immediately and directly unappropriable.82 But it is above all in the work of Augustin-Charles Renouard that the reversal of the classical approach to this distinction is most successful: since, according to purely human law, all that is appropriated is (by definition) appropriable, res communes are considered appropriable up “until the factual evidence to the contrary is provided; that is to say, until they are no longer so.”83 To gauge the extent of this reversal, one need only recall Domat’s position on res communes (the heavens, the stars, light, air, and the sea).84 Renouard writes as follows:
This passage exposes the final cause behind the great fact of unappropriability [Domat] observes. The sovereign harmony presiding over creation has placed out of apprehension, in particular domains, principle things without which the enjoyment of life would be impossible for those excluded, whenever such things are appropriated. It essential that everyone breathes air, and that the sun shines for everyone. We must therefore reverse the terms of Domat’s proposition if we want to shore up his legal explanation. It is not because some goods are common that no one is able to master them; it is because no one is able to master them that they are common to all. The community of their use, if it is, according to the providential laws, the cause of their unappropriability, is the result of human law.”85
The conclusion is obvious: the day on which mankind is able to appropriate these goods, they will ipso facto cease to be commons.
The erasure of the common and its restriction to certain “naturally common goods” is also connected to the bifurcation in legal doctrine and political thought concerning the “public” and the “private,” which was then extended into the field of political economy in the form of the opposition between the state and the market.
If the division of law into public and private is a relatively recent occurrence in the West, it is precisely because this division is based on the fundamental presupposition of possessive individualism. It is often asserted that the distinction between public property and private property already existed in ancient Rome. The question we are concerned with, however, is whether this distinction already involved the partition of law as such into separate public and private domains. What is most characteristic of Roman law, as we saw in Marx’s comparison between the Germanic and Roman systems, is a very particular articulation between private family property and public property. Public property is state property insofar as it is identified with the populous romanus. It is this legal fiction that legitimates both the distribution of the ager publicus amongst the plebeians and the exclusion of patricians (who already have their own private land). Public property, in the Roman system, thus has a double relation with the “private”: it guarantees private “possession” for the plebeians while negatively externalizing the exclusive private property of the patricians. But what should we make of the public itself? For the notion of an inalienable and imprescriptible public domain, comprised of land parcels allocated to individuals, in no way exhausts the content of the term. Since this public domain is the property of the state, should we conclude, then, that the publicum and the state are, in general, identical? Should we be satisfied with a conception of the public as the pure negation of the private property of the dominus? And if so, do we not run the risk of reifying a strictly legal opposition? And must we understand this legal partition, this legal summa divisio (supreme distinction), as extending beyond Roman law, as is characteristic of modern Western legal discourse?
The reason why this reductive and simplified definition of the category “public” in Roman law became so prominent is doubtless due to the fact that juridical attention in the West, over the years, has been disproportionately focused on the figure of the individual proprietor (dominus), and the absolute power he exercises over the things he possesses (res), particularly when it comes to alienating objects in the course of mercantile exchange. In other words, the irreplaceable value of Roman law was its ability to anticipate the development of market exchange in Western modernity. Marx’s attitude in this respect is representative of widespread opinion in the nineteenth century. What explains the relative continuity and persistent vivacity of Roman law outside the society in which it was born was the fact that Roman law was the first legal system to formalize equality and freedom as the basic “presuppositions” that orient exchange between proprietary subjects. For instance, a servus (slave) is defined as someone who cannot acquire goods through exchange, which negatively verifies that one must be free in order to engage in exchange.86 In other words, this right was able to isolate the abstract determinations of the “juridical person” insofar as they correspond precisely to the “individual of exchange.” This is why Roman law “anticipates” the legal framework of industrial society despite the fact that it was born out of conditions in which trade was very rudimentary.87 Teleological criticisms of this interpretation aside, Roman law, for Marx in any case, was at the very least notable for its unusual degree of autonomy in relation to an economic infrastructure dominated by forced labor rather than exchange value.
More generally, however, our concern here lies rather in the “uses” of Roman law, or rather the “different uses” that have been made of it, and can still be made of it, today. In the present context of globalization, the insistence on the atemporal continuity of Roman law is used to justify the current revival of “pandectism” in the form of a usus modernus pandectarum.88 It is the high degree of categorical abstraction that is typical of Roman law that, above all, allows the latter to be transposed onto contemporary legal systems, regardless of national context. According to Reinhard Zimmerman, for example, the latent principle of European contract law, which delineates how contracts based on informal consent have binding force, is nothing more than “Roman law in modern clothing.”89 The revival of Roman law was, essentially, all about establishing a “common European law” to be developed by legal scholars (professors, judges, lawyers). For instance, the expression “common law” (jus commune) was previously used to describe the canon law of the Roman Catholic Church that arose after the papal revolution of the eleventh and twelfth centuries. It was the legal framework of a pan-European organization that, in effect, became the “first modern state.”90 Many of the rules of this “new” European common law were borrowed from Roman law as recorded in a series of texts compiled between 529 and 534 on the order of Byzantine Emperor Justinian (and heavily glossed by subsequent academic jurists since the end of the eleventh century).91 But, to confuse matters, this revived Roman law was often referred to as jus commune insofar as it was applied by the Church across Western Europe.92 Canon law and Roman law thus constituted two legal codes operating under the common denominator jus commune – they were sometimes designated by the expression utrumque jus (“the one and the other law”).93 Viewed from this historical perspective, Zimmerman argues that the subsequent articulation of Roman law as jus commune constituted an “analogical precedent of globalization,”94 a view which is further bolstered by the retrospective connection made between the renaissance of Roman law in the twelfth century and the renaissance of imperial politics. While this analogical reasoning purports to strive after a merely technical and ahistorical conception of law, what we are really dealing with here is an “exercise of power” whose purpose is clear: the valorization of the contractual form inherited from Roman law corresponds perfectly to the logic of globalized markets, which similarly tends to contractualize social relations at the expense of the rigidity of the “law.”95
We should also note how this “neopandectist” endeavor very precisely privileges the categories of Roman private law. This shows the extent to which neopandectist ideas have influenced the division between public and private law, or rather, the extent to which it privileges, in its own way, the primacy of private law under conditions of globalization, and thereby actively reinforces the latter. As it turns out, however, the division between public and private law is actually a rather recent creation, and is by no means a principle derived directly from Roman law itself (contrary to the claims of this well-established tradition). One of the first jurists to use the expression “civil law” in reference to property law, contracts, and, more generally, all the branches of law that deal with relations between individuals, was Johann Apel in his book Methodica (1534), a work that effectively founded German legal science. Originally, Roman jus civile included all the rules that governed Roman citizens, and not merely what we have referred to as “private law” since the sixteenth century; it also included constitutional law, administrative law, criminal law, ecclesiastical law, and every other branch of “public law.” As Harold Berman puts it, “a sharp division between public law and private law … and the treatment of jus civile chiefly (though not exclusively) as private law, became characteristic of Western legal thought only in the sixteenth and succeeding centuries.”96
The work of Apel was further deepened and systematized by his colleague Konrad Lagus, who published his own Methodica in 1543. Lagus’s text parsed multiple legal classifications based on Aristotle’s delineation of four “causes.” According to the criterion of “material causes” – which in this context refers to the object of each type of law – Lagus subdivides “civil law” into “public law” and “private law.” This division between public and private is essential for determining “final causes,” which is to say the purpose or the end of the law as such: public law is said to relate to public interests (res publicae) and private law is said to relate to private interests (such as contracts or injuries).97
In the final decades of the sixteenth century, Nicolas Vigelius and Johannes Althusius were determined to systematize the legal codes they had inherited from their predecessors. In his Methodus universi iuris civilis (1561), Vigelius completely emancipated civil law from the order imposed on it by the various collections of Roman law, such that “the entirety of civil law” was no longer identified with “Roman law as such” but with “law as such,” which is to say the totality of law in force in the Empire, and in the cities and territories of Germany. He then divided civil law into two categories – public law and private law – and then subdivided each of these two categories further: public law was divided into legislative, executive, and judicial functions, and private law divided into personal law, property law, inheritance law, law of obligations, etc. Althusius, who worked within the tradition of both Lagus and Vigelius, in turn divided the entire legal code into public and private law in Jurisprudentia romana (1586) and Dicaelogica (1603). This new legal science, the foundation of which was built by these German Protestant legal scholars in the sixteenth century, “constituted the basis of the new European jus commune of the sixteenth to eighteenth centuries.”98 This new legal system was something like a third jus commune that was distinctive from both canonical law and Roman law according to the Justinian Code, but which borrowed from these two legal systems as well as from royal and princely law, feudal law, city law, and commercial law. As we can see from this account, the division of the totality of law into public and private law is not at all the supreme division within Roman law itself, but rather dates back to the middle of the sixteenth century. Civil law was either drawn into private law without being entirely assimilated into it – as in Apel – or extended to the entirety of law under the designation “civil law as a whole,” as in Lagus and Vigelius.99
We have seen above how terms such as utilitas publica, utilitas rei publicae or utilitas communis co-existed within the works of classical Latin authors and later legal theorists for quite a long time.100 What, then, are we to make of this notion of publicum within the context of a legal system that had not yet established the division between public and private as its guiding legal principle? We are indebted to Yan Thomas in this endeavor, insofar as his article “La valeur des choses. Le droit romain hors la religion” (“The Value of Things: Roman Law Outside Religion”) sheds important light on this question.101 By viewing the sovereignty of the individual proprietor over his possessions as the foundation of Roman law, Thomas emphasizes the derivative and completely unoriginal character of [modern] private law: the categorization of “things” (res) within the sphere of appropriation and exchange was accomplished by means of a “detour” which allowed certain objects that had been previously “entrenched” within the sphere of appropriation to be removed and “assigned to the gods or to the city.” The jurisprudence of the Imperial epoch designates these things as “res nullius in bonis.”102 This compound expression may sound rather strange if one accepts the notion that goods transmitted from parents to their descendants – i.e., an “inheritance” – must be something that belongs to someone (alicuius in bonis) and cannot be something that belongs to no one (nullius in bonis). The difficulty, then, lies in understanding how something that is inherited (in bonis) can, at the same time, be devoid of a property title (nullius), but this is precisely the case when it comes to the gods and the city. Concerning such things, the law expressly states that alienation is prohibited and trade is not allowed. In Paolo Napoli’s view, Yan Thomas showed us that the distinction between that which is “appropriable” and “unappropriable” is “not by virtue of their objective nature, but as a result of institutional decision.”103 We could not put it better ourselves. The institution of the unappropriable occupies a central place “in the general economy of Roman law” by negatively carving out a set of common objects or things (res) that were previously accessible, measurable, and appropriable. “It is through contrast, then, that the institution of sacred and reserved objects, transforms everything else into objects of private law. In this domain, everything is appropriate, alienable, and subject to various measures of civil procedure.”104 In short, this “reservation” of sacred objects had the side effect of “freeing everything else.”105
But what exactly are these “things” (res) that the law inscribes within the realm of the “sacred,” the “religious,” or the “public” as a means of allowing the former to escape the juridical space of market exchange? One Roman source cited by Thomas states that no one could buy a thing whose “alienation is forbidden, as with sacred and religious places or things that cannot be traded, not because they belong to the city, but because they are destined for public use, like the Champ du Mars.”106 The Roman text thus clearly distinguishes between the “property of the city” and that which is for “public use” only. This distinction penetrates into the very interior of public space, and this is where its importance lies: there is, on the one hand, “a public domain in which the state disposes of objects freely, by allocating or selling public land, for example.” And on the other hand, there is a “zone of ‘public use’ (squares, theaters, markets, porticos, roads, rivers, waterways, etc.) whose unappropriability was absolutely necessary”; the objects subject to this custom were exempt from all forms of private appropriation, “not as a result of state ownership, but because of their institutional assignment.”107 It was precisely through this assignment or designation that such objects or resources were made “freely accessible to all,” as if each member of the populous enjoyed a right of use as a very condition of their status as citizens. Of these things – which also included basilicas and temples – jurists said they were res usibus publicus relictae, which is to say “things left to public use,” and they often went so far as to say they were to remain public “in perpetuity.”108 On the other hand, property that merely belonged to a city could be alienated in the event of indebtedness. In other words, “public” should not be understood in the strict sense of those things intended for public use, but rather “in the sense of what belongs to the patrimony, so to speak, of the cities (si qua civitatium sunt velut bona).” What makes this distinction interesting is that it shows us how there were two very different concepts of “public” operating simultaneously within Roman law: “public” in the sense of public use and “public” in the sense of state property. Indeed, the city or the state was not permitted to appropriate the first type, while the second type was explicitly viewed as part of the state’s holdings. Recall, for example, what was said above about the lands belonging to the ager publicus: if the state could allocate these lands to individuals as private possessions, it was precisely because they were not intended for public use, but were rather public property intended for private use, which is a very different matter. Official documents even go so far as to differentiate between a consecrated place – such as a temple – and the landed estate attributed to it (i.e., the lands upon which a temple sits). Whereas the consecrated place is absolutely unappropriable, the property attached to it is. So definite was this distinction that the combination of these two properties did not alter the original legal structure of the sacred space: “the thing constituted as sacred, and to which other property was subsequently added, remains the only part of the whole that is perpetually unappropriable. It is, one might say, legally immortal.”109 The thing or space is inherently unappropriable and is “represented by the public administrators of the sacred.”110
We must therefore be careful not to confuse these two kinds of res nullius: on the one hand, res nullius in bonis designates that which is unappropriable and inalienable. And on the other hand, there is the category of “things without a master,” “which is also designated by the term res nullius.” Despite their similarities, this latter expression refers to a “strictly inverse” juridical regime insofar as it “designates a state of things that are factually vacant but can be possessed by the first occupier.” The latter, in other words, “has not yet become the property of anyone,” but can be appropriated by the first master, who is also the first occupant. It is with respect to this category that the law refers to the qualities of the natural world. It speaks of “wild animals that hunt and fish, stones or pearls picked up along the beach, found treasures, islands that are born in the sea or in river beds.”111 Conversely, the seabed itself is absolutely unappropriable, and the regime with which it is associated is “compared with public roads or religious or sacred places.”112 The difference between these two kinds of res nullius is that the res nullius in bonis is institutionally subtracted from the private sphere, which implies “a suspension of the subject – object relation involving complete mastery of the latter by the former,” where res nullius as such is intended to enter this same sphere, thereby becoming objects in a relationship of mastery.113 But whether an object is able to “exit forever” from the sphere of appropriation (res nullius in bonis) or initially enter the sphere of appropriation (res nullius), “these objects are only ever considered from the point of view of their legal constitution, which is to say the fundamentally political manner in which these goods are categorized.”114
These “things” are not, therefore, inscribed in a discourse that concerns their being, which is to say their ontology. The question “what is a thing?” is simply not applicable here. Generally speaking, Roman law says nothing about what things are – i.e., in themselves, or based on their intrinsic nature prior to and independent of the law – but is rather almost exclusively concerned with their qualification in law and by the law. The term res must not be understood, then, in the sense of a “designation” that extends to everything in the “external world, both natural and social”; rather, the term is, from the outset, a kind of “qualification” that implies a whole series of procedures by which things themselves are evaluated. We should recall, here, that the original meaning of the term res is derived from the procedural trial or debate surrounding the object, or the dispute qua object: “the Roman res was not conceived as a Sache nor as a Gegenstand, but more precisely as an ‘affair’ (res corresponds in this sense to the Greek ta pragmata) or a process involving the qualification or the evaluation of the litigated object (res).”115 It is only on the basis of this conception that we can understand the difference between patrimonial objects and commercial objects: such litigious processes either determined the value of an object (in terms of its price) or determined the uses of objects that were not appropriable and hence not property.116 For the latter objects, no fine would be able to compensate the city for its loss; even if penalties were demanded in criminal proceedings, what prevailed in civil court was a compulsion for restitution in kind, or the replacement of “the same thing” (res ipsa).117
But how does this internal distinction between public “use” and public “property” help us theorize the specificity and irreducibility of the common? Simply put, the Roman designation concerning the public use of an object or resource is perhaps the closest historical precedent for our conception of the “institution of the common.” For anything that falls under this designation is not at the free disposal of the state, because such objects or resources are not susceptible to appropriation as such, state-based or private, and this is the essential point. As we have already described in the context of the ostensible “communal property” of Germanic tribes, the common is nothing other than a non-state public – along with the additional condition that the object or resource is not an object of property, but is absolutely outside the realm of property as such. What makes the Roman precedent so interesting is that it achieves a singular “combination between an institutional designation and its use by the many, which is to say the multitude of citizens,” to borrow Paolo Napoli’s apt phrase.118
While this prohibition – which applies equally to the city and to private individuals – “does not mark the victory of the state over the individual,” it is more debatable whether this combination of a non-state public successfully liberates a “sovereignty of praxis.”119 Indeed, this question raises the further necessity of clarifying the often confused and generic notion of “praxis” itself: for while a “non-state public” can be used by all, its institutional designation is only ever made by a relatively small and restricted caste of legal professionals. While this legal designation is undoubtedly the pre-condition for collective use, should we not also demand that the designating act be itself collective? Is the collective use of the common not compromised when the manner of its institutionalization is reserved for a minority of experts and specialists? We readily agree that the opening of a public space that can be used by all has the advantage of “displacing the transcendental problem of subjective ownership” “through the force of institutional designation”:120 by opening up such a space, no subject is able to claim a right of ownership over the space, whether the state or the individual, and the citizens who collectively enjoy a right of use over the common are also deprived of any rights of ownership. In this sense, then, the predominance of a “right of use” cancels out the possibility of a rights-holding proprietary subject. But what about the designating act itself? Should it continue to be the prerogative of a narrow caste of lawyers, legal experts, and judges, rather than the community of users themselves? And what about the status of the “administrators of the sacred” who are responsible for administering objects deemed unappropriable? Can we dissociate the act of designating or institutionalizing the common from its collective use without re-introducing relations of mastery?
Paolo Napoli suggests a promising way of surmounting this difficulty by sparing us from having to theorize a subject of the common who enjoys particular rights within common. This is because there is not, and cannot be, a subject of the common. More specifically, if the use of the common, as a form of collective practice, produces its own kind of subject, it stands to reason that this subject is not the subject of the common since it did not pre-exist the very practice that produces it. It is not, therefore, a question of opposing a “good” subject (of collective use) from a “bad” subject (of proprietary mastery). To fully grasp this notion, we must first re-consider the old and oft-decried concept of “administration” and properly articulate its relation to the concept of “use” we have been discussing up to this point. By doing so, we hope to arrive at a concept of “administrative use” or even “common administrative use” that would not only “displace” but would more radically “transcend” the “abstract, rights-bearing subject.”121
There are two main ways of defining the concept of administration in the modern Western philosophical tradition, and each articulates administration alongside the notion of government, albeit in opposite ways. One such definition comes from Rousseau’s article “Political Economy” from the Encyclopédie. Rousseau’s central concern is to demarcate the family or domestic economy from political or public economy. “Government” is the name Rousseau gives to the public economy. It belongs to the “executive power” and must be subordinated to the “supreme authority,” known as “sovereignty,” because it is the “owner” or “rights holder,” so to speak, of “legislative law.” The principle of this form of governmental power is outlined under the first rule of political economy: “to follow in everything the general will” and “ensure the observance of the laws” is the rule that must be imposed by the public administration, which is to say the “executive power.” The second rule, which deals with the “government of persons” is to “establish the reign of virtue” – especially as regards public education – and the third, which concerns the “administration of property,” is to provide for public needs and ensure the subsistence of citizens.
Rousseau thus gives us a classical exposition of the way in which administration is identified, pure and simple, with government or executive power, such that the “ministers” are merely the “servants” of the sovereign.122 The second, and antithetical, way of conceptualizing administration in the Western philosophical tradition comes from Saint-Simon, for whom administration is defined through its opposition to government in the classical political sense. Saint-Simon principally sketched out his conception of administration in L’Organisateur (1819–1820), and it revolves around a few key ideas: in an industrial society, politics is nothing more than the “science of production,” and industrialists and scientists are correspondingly the only qualified political representatives. The regulating organs of the society must, therefore, be composed entirely of industrialists and scientists, since all collective affairs require as much specialized skill as does private enterprise. In a completely industrialized society, then, questions about the form of government will simply fade away: the reason for this is that governmental action, for Saint-Simon, is necessarily arbitrary in that it always consists in exercising command over others. This is the opposite of the form of control exercised by the boards of directors of the great industrial companies: here you have administration, not government. Humanity, for Saint-Simon, is destined to pass from a “governmental or military” regime to an “administrative or industrial” regime. The “government of men” will thus irrevocably give way to an “administration of things.”
In the first instance, then, administration is government: it is the activity that applies and enforces the law. In the second instance, however, administration is antithetical to government: if the essence of government is command and control, administration consists in strict rational management on the basis of scientific truth. In short, administration consists either in the execution of the general will (which is a form of command) or in the scientific management of production. Giorgio Agamben’s genealogy of these modes of governmentality in the West unfortunately does little to clarify this distinction (to the extent that it is concerned with this distinction at all). In fact, Agamben’s “genealogy” only minimally resembles Foucault’s methodology, despite Agamben’s claim to “understand the internal reasons why [Foucault’s genealogy of governmentality] failed to be completed.”123 Agamben’s objective is to trace two branches of political modernity back to their roots in the two great paradigms of first-century Christian theology: the modern theory of sovereignty, for Agamben, is derived from the paradigm of the “political theology” of the unique and transcendent God, and modern biopolitics is derived from the “economic theology” of the Trinitarian God.124 Agamben’s analysis at least has the merit of clarity: it is part of his overall project to advance, once again, the so-called “theory of secularization,” according to which all modern innovations are really nothing more than transpositions of older theological frameworks.125 Within this framework, it does not really matter much whether the government of men was thought at one point to be either a matter of execution (of laws) or management (of industry): the theological origin of the concept of government prevents this kind of dissociation by more powerfully reducing both the “administration” and “efficient management” of men and the world to the same theological concept. This operation traces every school of “modern economics” (the physiocrats, Smith, etc.) back to the “theological model of the government of the world,”126 and reproaches Rousseau for mistakenly conceiving of government as executive power without realizing that the real problem of politics is not that of sovereignty but of government.127 And despite all Saint-Simon’s efforts to overcome the alternative between the “legalists” (Rousseau) and the “economists” (Smith), the “administration of things” is really little more than the best-kept secret of the Trinitarian mystery.
In contrast to Agamben’s theological interpretation of governmentality, we argue that the “real problem” of politics lies in subtracting the concept of administration from this genealogical opposition and thereby freeing it from all these various historical instantiations. In the first instance, technocratic modes of representation tend to correspond to both sides of this opposition. The Weberian concept of instrumental rationality, for instance, which involves the careful calculation of the necessary means to achieve a certain end, is clearly a form of administration that has next to nothing to do with active and participatory deliberation. For it is precisely ends-oriented deliberation, which is absolutely essential to any real form of political activity, that both sides of this opposition a priori exclude: either the ends are always prescribed from outside and from above – as in the case of sovereign legislative power – or because ends are already neutralized by scientific and statistical evidence – as in administration as the mere management of production.
Instead of relating the “servitude” of a ministrare to an external will (ad-ministrare, or “working under someone’s orders”) or the impersonal necessity of science (ad-ministrare as “serving scientific truth”), we want to think of administration in terms of a collective practice linked to the uses of unappropriable objects or resources. Administration, for us, is neither a form of sovereign governance nor scientific management, but rather the active and collective “co-production of non-state juridical norms.”128 The common, as that which is defined by its unappropriability, is fundamentally a “practical category” for us,129 which is the very antithesis of a “theologico-political” category. On this condition, and only on this condition, would it be possible to turn to Christian theology to help theorize something like the “administrative use” of the common. Indeed, as Napoli points out,130 Christian theology has, from its origins, been based on the need to think about the specific kind of relation that each Christian has to maintain with the so-called “deposit of faith” entrusted to his custody: for this act of maintenance is precisely an “administrative” activity as opposed to a “proprietary” relation, since it is a matter of preserving this theological deposit, not appropriating it. This custodial practice is thus homologous to the definition of “depositary” in civil law131: as an administrative practice, it authorizes all uses intended to preserve the integrity of the deposit, “excluding acts of proprietary availability.” Such a fundamental exclusion suggests a re-reading of the history of the Church as “a series of struggles to safeguard the collective indivisibility of the common deposit over which no one can have control” by aiming for a “cooperative use of the deposit.”132 We are still in theological terrain here, but are now talking about the “theologico-administrative,” rather than the “theologico-political” as in Agamben. The use of the unappropriable and the administration of the unappropriable may, however, be confused insofar as they both exclude any relation to a proprietary subject and, in some cases, can even produce a radical “de-personalization of belonging” at the level of the juridical.133
In order to dispel this kind of misunderstanding, we must additionally insist that the administrative use of that which is unappropriable formally excludes appropriation only according to one of the two principle meanings of the term “appropriation.” Our discussion of appropriation has, thus far, only been concerned with one – though undoubtedly the most widespread – of two meanings of the term: namely, appropriation as property or possession – either property that already belongs to one or several persons (which implies ownership by expropriation or through exchange) or property that is vacant, available, and belongs to no one (i.e., terra nullius). This is the meaning that is manifest in the term’s etymology, in which proprius is derived from pro privo, or “a specific title.” But we have neglected the second meaning of the term, even though it is often linked to the first, especially in the discourse justifying ownership or possession. For a thing can also be appropriated for the purposes of meeting a certain end; for example, appropriating land in order to satisfy certain human needs through its cultivation. What is central to this meaning of the term is, of course, its purpose or “end.” Each of these meanings thus involve two very distinctive relationships: In the first sense, the relation involved is a relation of belonging that links an object to one or many people while excluding all others: that which I possess cannot belong to someone else insofar as it is mine alone. In the second sense, however, the relationship in question is not one of belonging but of purpose: it is about the correspondence between an object or resource and its uses by one or many persons.134 We can, of course, combine the two senses of the term without much difficulty by, for example, arguing that it is ultimately the specific form of the relationship of belonging that, in the final analysis, determines its purpose. For instance, it is only because a collective of peasants owns the land that the latter can be used for specific collective ends (whereas private ownership of the same land would likely yield different ends as far as the land is concerned).
It is more or less implicitly assumed that an object’s purpose is a function of its natural properties, and that certain forms of property hinder the ability of the object to fulfill its natural end. This type of rationale opens a whole Pandora’s box of quarrels about the best form of property (private, statist, cooperative, communal, etc.). On the other hand, however, we could also radically dissociate these two forms of relation by approaching the question of appropriation (in the sense of suitability or purpose) obliquely. Instead of speaking of unappropriation directly (in the sense of those things that cannot enter into proprietary space), we could pose the question in terms of the forms of human activity that unappropriation is designed to fulfill, in which case the end in question is resolutely social rather than “natural.” This approach has the merit of shifting our attention toward questions of use as a collective practice: once a thing (res) has been removed from proprietary space, whether private or state-based, how might it be collectively used so that everyone benefits? In particular, what are the rules this kind of subtraction must then invent in order to prevent such goods from being diverted from their social purposes by predatory forms of appropriation? The rules of collective use, in this case, thus become rules that regulate behavior in relation to the unappropriable object or resource. It is therefore toward the legal and normative dimension of productive use, and not the dimension of subjective belonging, that this dissociation of the term directs our inquiry. Focusing our attention on the dimension of productivity (rather than belonging) has, in fact, other implications in terms of the relationship between use and the institution itself: by focusing our attention on the end or purpose of the equation, use or administration takes on an essential instituting function. We would even say that focusing on practices of common use is that which most fundamentally ensures the continued institutionalization of the common.
This “practical” conception of the institution of the common, or rather this conception of practices as institutionalization itself, radically differs from the concept of “institutionalization” developed by Pierre Legendre. For Legendre, symbolic or “dogmatic” apparatuses – i.e., “institutions” – bind societies together through a specular-type logic in which institutions function as “mirrors” in which subjects are able to recognize themselves according to the status reserved for them. And it is ultimately through this process that subjects reciprocally interpellate the legitimacy of the institutions to which they belong. This form of institution is founded on a mythological “founding referent” that generates a certain “image” of humanity that is not fundamentally mimetic (in the sense of reproducing an image of something already found in nature). Through the construction of a normative mirror that is indispensable for humanizing the subject, the institution, for Legendre, belongs to the realm of the “imaginary” rather than the “imagination.” Legendre forcefully insists on the fictional character of the great social subject, a mythical figure and the great Author of the Text: these symbolic institutions literally make society “speak” and, as such, rely on a series of rites, arts, and other commemorations designed to maintain belief.135 This fiction of a great Subject that speaks, an imaginary Author of the spoken word who is the absolute Other for every particular subject, guarantees subjective identification by grounding the legitimacy of places and names, insofar as this fictional Author is understood to be the custodian of all the constituent categories of social and political life.
In modern Western societies, it is the state (supported by the discourse of science) that serves this logical function insofar as it is the entity that legitimately “speaks” as both the origin and guarantee of the juridical system. It is the system that distributes and classifies things and people in civil law, and it is the state that functions as the actor and director of a “theater” aesthetically staging the foundation of this normative discourse. In this respect, the state undoubtedly serves a subjective function. “Institutionality” – the state being merely its Western instantiation – is a fundamental anthropological dimension of social life. It is the material manifestation of the human animal’s capacity for complex speech. From this perspective, institutionality appears to be both a pre-condition and the result of an operation designed to “institute life” (vitam instituere), in the sense of the phrase Legendre borrows from the Roman canonical tradition used to designate the city codes that organized the lives of city residents (the phrase originates with Demothenes, but Legendre uses the third-century jurist Marcian’s translation, which the latter inserted into the Justinian Digest of the sixth century).136 The principle effect of this “institutionality” – in terms of institutions that construct identity on a specular or “mirror-like” basis – was its ability to render the Western normative tradition seemingly immune from practice-based transformations, insofar as practices are themselves already derived from the basic juridical frameworks that make up this institutional tradition. Legendre is, on the one hand, careful to note the divergence of theology and the law in the twelfth century, which he views, alongside Harold J. Berman, as the fundamental bifurcation that eventually led to secularization in the West. But it cannot have been the sole purview of lawyers to realize this kind of transformation of tradition; one of the most remarkable traits of the West was the transfer of the power of legitimation from theology to the sciences in general, and the humanities in particular, such that it simply will not do to reduce the advent of modernity to scientism, economism, or even capitalist management, as is often the case. Far from constituting a homogenous mass, the Western normative tradition has always been pulled in two directions at once, given its simultaneous commitment to capitalist efficiency and the ideal of juridical (nomos) autonomy – and this is only one of the major fault lines. This and other innumerable fault lines continually threaten to capture practices that strive toward social transformation and juridical innovation (fictio legis).
We have seen how Roman law was not, in fact, based on a supreme partition between private law and public law. Rather, Roman law produced an internal public space that escaped the influence of both the state and the market, and it was through the creation of this non-statist public space that an autonomous sphere of commerce was first brought into relief. We then argued that the positive feature of this non-state public (its negative feature being its exclusion from the sphere of commercial trade) was its orientation around the right of use. And lastly, we pointed out that the exercise of these rights were based on social practices, and only those practices that were independent of the state were capable of generating laws. We must now ask ourselves to what extent the primacy accorded to these practices that create and orient the common are still frustratingly tethered to a persistent discourse of “being-common” or “being-in-common” – in other words, an ontological discourse of the common at work in a number of different approaches to the common today.
One of the most valuable lessons of Yan Thomas’s account of the Roman jurists, in this regard, is to have shown that the Roman political and legal construction of res leaves no room for ontology. Contrary to the claims of the Catholic Neothomistics, the institutional designation of an object or resource for public use was not derived from the supposed natural or inherent nature of the object or resource, as if the nature of things simply spoke for themselves. The legal designation of something as public was always based on procedures implemented by magistrates. Insofar as the common is exclusively based on practices of collective use, we likewise insist that the common categorically excludes ontological considerations as the basis for its institutionalization.
One example of this ontology of the commons is of course the familiar discourse that grounds the latter in the being or ontology of spontaneous social production.137 But the ontological dimension of the commons is even more prominent in that contemporary discourse which, under the guise of exempting the “being-in-common” from any form of substantialization or community reification, actually achieves a “decoupling of the political from being-in-common,”138 the effect of which is to discourage any politics of the common whatsoever. In his genealogy of the word “communism,” Jean-Luc Nancy places special emphasis on the “I”:
[Communism] does not belong to the political. It comes before any politics. It is what gives to politics an absolute prerequisite to open the common space to the common itself – neither to the private or the collective, neither to separation or totality – without permitting the political achievement of the common itself or an attempt to turn it into a substance. Communism is a principle of activation and limitation of politics.139
The common as “being-in-common” is here turned against the common as “being-common” – the latter of which “communism” had justly assumed to be its political project, which led to all the consequences we need not repeat here. This communism of “being-in-common” is made up of two complimentary aspects: on the one hand, it is the “principle of the activation of politics” insofar as being-in-common is that which makes politics itself possible; on the other hand, it is the “principle of the limitation of the political” in that it defines the limit beyond which politics denies itself as politics by denying the “being-in-common.”140 What, exactly, is the ontological dimension of being-in-common? For Nancy, the “with” (the co- or the com- of communism) does not designate a property that is superimposed into the individual being, but rather constitutes the very existence of the latter as a form of “co-existence,” “being-with,” or “being-together”: “Communism is togetherness – the Mitsein, the being-with – understood as pertaining to the existence of individuals, which means, in the existential sense, to their essence.”141
Is there any originality in Jean-Luc Nancy’s ontology of “being-in-common” in relation to that of Heidegger? The term Mitsein (“being-with”) appears in Chapter IV, §26, of Being and Time, following Heidegger’s analysis of “world” in Chapter III. Heidegger’s consideration of “being-with-another” is thus an extension of his analysis of world. For Heidegger, it is because I am in the world that I share the world with others, not the other way around: if I were not first and foremost in the world, the world would not be a “with-world” (Mitwelt) for me.142 As Pierre Sauvêtre clearly observes,143 Nancy radicalizes Heidegger here insofar as the determination of “being-with” no longer proceeds from the “being-in-the-world” of Dasein, but rather constitutes the fundamental determination of being itself: “‘with’ as the essential trait of Being,”144 or “Being is to be cum.”145 “Being-in-the-world” no longer precedes “being-with,” but rather the latter is recognized as coming absolutely first. In communism, then, neither -ism nor commun- are worthy in themselves: all that remains is “cum: the Latin preposition cum taken as universal preposition, the preposition of any existence.”146 We can see then how Nancy grounds his project in a “co-ontology” or a “co-existential analytic.” It is precisely for existential reasons that the co- of communism has a completely different meaning than the co- of collective:
The with is no external link, it is no link at all. It is togetherness [être-ensemble] … The with has nothing to do with what is called collective … The co- of collective is not the same as that of communism. This is not only a matter of etymology (munire versus ligare). It is a matter of ontology: the co- of collective is a mere external “side by side” which implies no relationship between the sides or between the parts of his “partes extra partes.”147
The emphasis Nancy puts on the cum, independent of any relation to the world, logically leads toward the quasi-essentialism of the Heideggerian existential. This explains why, as we have seen above, “being-with” must be understood “as pertaining to the existence of individuals, which means, in the existential sense, to their essence,” and thus communism, for Nancy, is ultimately about coming into contact with the essential-existential.
In the work of Roberto Esposito, we find a very similar emphasis placed on “being-with” in the sense of “being of cum and as cum,” which is to say being “between” or “in relation,” but with the distinction that the community is theorized on the basis of an opposition between “proper” and “immunity.”148 In contrast to the “proper,” in the sense of “authentic” or “belonging,” the common is “improper.”149 As opposed to “immunity,” in the sense of a form of exemption or exoneration, the common is understood as a “task,” “duty,” or “law” that is imposed on all.150 The result is that the community is not based on the sharing of property, but is based on a shared “duty” or “obligation.” This munus is therefore understood as an “original debt” that references our existence as mortal beings, i.e., our finitude: the community it founds is not a fated community or a complete community, but it is a “flawed community,” inasmuch as it is only our mortal finitude that makes us beings-in-common or beings-with.151 In this sense, finitude is a lack that is common to us, in such a way that this “lack-in-common,” far from undermining our togetherness, is “what holds us together, what constitutes us as beings-in-common.”152
In contrast with this unilateral conception of “being-with” independent of any relation to the world, Hannah Arendt’s reading appears to be more faithful to Heidegger’s thesis on the primacy of “being-in-the word”: the world, which Arendt refers to as the “public realm” or “common world,” is “related … to the human artifact, the fabrications of human hands.” It is “a world of things” existing “between those who have it in common,” an “in-between” that “relates and separates men at the same time.”153 As such, “it is what we have in common not only with those who live with us, but also with those who were here before and with those who will come after us.”154 While the world is made up of fabricated objects, on the one hand, its status as a “public realm” is not merely a function of the temporal duration of these objects, but is based on the plurality of perspectives through which the public realm is conceived by people living in different circumstances, a plurality that is irreducible to a “common measure” or “common denominator.” For Arendt, this plurality of perspectives is the essential condition of politics as such: politics is man’s recognition of the fact that he must deal with the same world seen from different points of view. It is precisely when this plurality is effaced that humans are threatened with the “worldlessness” that gives rise to totalitarianism. And no specious reference to some “human nature” can guarantee against the destruction of the common world: “under the conditions of a common world, reality is not guaranteed primarily by the ‘common nature’ of all men who constitute it, but rather by the fact that, differences of position and the resulting variety of perspectives notwithstanding, everybody is always concerned with the same object.”155 What carries away the common world and, with it, politics itself, is a normative uniformity of perspectives that destroys the identity of the object by destroying the plurality of perspectives from which this object is grasped.
There is no “being-in-common” inscribed into the very constitution of existence itself. Only man’s active interest in that which lies “in between” them endows the world with its simultaneously precarious and precious commonality.
There seems to be an undeniable coherence, from this point of view, between Arendt’s ostensible Heideggerian “anti-biologistic prejudice” or “anti-naturalism” and the necessity of re-thinking the notion of human nature, or man’s humanitias, beginning with the base “natural reality” of the bios.156 The entire question is a matter of knowing whether politics is ultimately derived from an ontology of “being-in-common” or from “life” as such. To pose the question rather abruptly: is there a politics of “being-with” or a politics of “being-in-common”? In Nancy we find an allusive reference to the kind of “praxis” that emphasizes the exigency of “being-in-common” on the basis of the “inequality” of the singularities that are “with,” as opposed to the equality of the market as universal equivalence. However, this assertion is expressly accompanied by an essential proviso: the affirmation of the inequality of the singularities “can be almost anything you like – existential, artistic, literary, dreamy, amorous, scientific, thoughtful, leisurely, playful, friendly, gastronomic, urban, and so on: politics subsumes none of these registers.”157 In other words, the sole function of politics is to open a space in which the affirmation of the common of “inequivalence” can take place. According to this definition, there is no space of political praxis of the common. We could make an analogous claim about the work of Roberto Esposito, for whom the community by default is an “impolitical form” of community. The im- of “impolitical” is not meant to designate negation, as in the sense of apolitical, but rather suggests the inverse of the complete form of political community. The question that arises, then, is how a form of politics could be derived from a conception of the community as a kind of defect? Once again, Esposito’s thoughts on the matter are allusive, if not discordant. In the third section of Terms of the Political we find Esposito’s most precise formulations on the matter. Beginning with a discussion of the “reversal,” whereby Nazism represents the complete inversion of biopolitics into “thanato-politics,” Esposito suggests the possibility of another biopolitics, an “affirmative biopolitics” that is “no longer a politics over life, but a politics of life.”158 He does, however, also recognize that knowing “where to look for, how to think, what a biopolitical democracy, or a democratic biopolitics, that is capable of exercising itself not on bodies but in favor of them might mean today is quite difficult to identify conclusively.”159 We must emphasize here the difficulty involved in squaring this affirmation of the positivity of life with the existential “being-with” Esposito initially invoked in order to ground his concept of the communitas. How, indeed, are we to pass from a condition of “being-with” which “determines us at a distance and in difference from our very selves” as an “infinite lack,” an “unpayable debt” or even an “irredeemable fault,”160 to a life that is “the indivisible point at which man’s being corresponds perfectly with the way in which the form (life) takes the shape of its own content”?161
All these efforts effectively run up against the same principle difficulty: once one affirms the primacy of ontology, the passage from ontology to politics can only ever be a leap of faith, simply because deducing a form of politics from an ontology is an impossible wager.162 And on this point, it will not do to simply cite Deleuze and Guattari’s assertion that “politics precedes being.”163 We must go further and assert that the only ontology that is possible is what Foucault referred to as the “ontology of the actuality.”164 Such a task demands grasping the historical character of our “today” in terms of the points of support it offers for an emancipatory praxis. There is no “existential” dimension that exempts us from the work required to constitute the common as an instituting activity: as a determinate of action, the common cannot be instituted on the basis of a misleading alternative between being and having, between being-in-common (in the sense of being-with others) and having-in-common (in the sense of “property” as both “possession” and “characteristic”).
In accordance with our terminology from the preceding chapters, “common activity” is the term we use to designate the forms of action that institute the common and support it. “Common activity” is not merely “acting in common”: it is not in fact a matter of what is done together, whether in terms of a journey or an act of protest, but rather it designates that specific mode of action that is based on the form of co-obligation signified by the Latin munus. The notion of a “task” or an “activity” contained within this term – and which Esposito erroneously subordinates to the imperative of a “law” or “duty” – is especially applicable here. In this respect, the primary meaning of communis warrants priority, insofar as it privileges humans over things, and it does so to the extent that human agents share common duties and tasks: communis was, first of all, the name used to describe a shared task between subjects (communis as the “sharing of duties”) before designating those things that are shared by all (res communes). It is therefore necessary to posit the principle that co-obligation arises from the sharing of tasks or activities; co-obligation is not primary or foundational because it is inherent in our “existence,” our “condition,” or even our “life.” If common activity is a form of action that “institutes,” it is precisely because it consists in the co-production of legal norms and obliges all co-producers as co-producers in the course of their work. This is why the activity of instituting the common can only be done in common, such that the common is both a qualitative form of human activity and the result of this activity itself. In this respect, the model of the ancient legislator, who is a foreigner to the city over which he endows its inhabitants with a constitution created from whole cloth, is in fact a “counter-model”; so too is the model of a separate body in charge of auctoritas to which the task of perpetuating the foundational act necessarily reverts.165 And since the central aspect of the common to be instituted is its unappropriability – rather than its “inequality,” its “improperness,” or its “impersonality” – the co-obligation of “actors of the common”166 is that which compels them to manage the unappropriable object or resource in such a manner that it is preserved and transmitted into the future. In these terms, then, common activity is nothing but the “common use of the common” of which we have already spoken.