Académique Documents
Professionnel Documents
Culture Documents
by
YIFAT HACHAMOVITCH
The Colorado College
Introduction
After Legendre, there is no human bone that does not also support
a dogma, no mouth through which the law does not speak, no kiss
that does not also enfeoff. The b o d y is a medieval compilation
w h i c h w e have inherited alongside the Corpus Juris and the
barbarian codes. It is a Roman institution hammered together with
Christian nails. From the llth to the 13th centuries it is assembled
and dissembled b y medieval lawyers, alongside the pages of the
legal text; it is compiled along with the political and juridical
concepts of the Justinian compilation, it accumulates a history
through the sedimentation of legal signs.
The b o d y remains a medieval space, which, like all medieval
space, is held in fee, that is to say, faithfully. We do not believe
the body, we believe in the body. To believe in the b o d y as a litur-
gical structure, in the Augustinian sense of structure as structura
caritatis, that is to say, a structure of political love, is a semiotic
labour: it is to believe in a b o d y that begins and ends in signs. To
believe in. What does this mean? It is to believe in a law that has
converted and fascinated biology, to believe in a law which accumu-
lates a b o d y as its servant and its scribe.
Ecrits juridiques du Moyen Age occidentaP comes to recover the
M i d d l e Ages as that period 2 which began the long w o r k of
century and the mid 13th c e n t u r y - that "Western Europe ... laid the
foundations of its institutional and industrial habitat." See "The Lost
Temporality of Law: Interview with Pierre Legendre", Law and Critique I/1
(1990), 7.
3 For a more detailed analysis of the dogmatic function in Legendre's
magisterial Lemons, see "Law's Emotional Body: Images of the Body in the
work of Pierre Legendre", in P. Goodrich, Languages of Law: From the
Logics of Memory to Nomadic Masks (London: Weidenfeld & Nicholson,
1990).
4 L Crime du caporal Lortie: Trait~ sur le P~re, Lemons VHI (Paris:
Fayard, 1989), 127.
ONE LAW ON THE OTHER 189
Utrumque ius
itself, the model of a God who gives the law through the mouth of
the princeps: the final witness of a Law which descends from only
begettor to only begotten. The model of Roman law reflected back an
ideal image of a civil law tradition for the canonists.
By the 13th century, "the canonists had, finally, amalgamated,
so to speak, most of the representations of Roman law" (VIII.923).
Yet a sociology of the Utrumque Ius must have as its subject the mask
itself, the representation itself; it must P... yield to the succession of
appearances, collecting true or deformed images and seeing them for
what they are. All these doctrines in effect are often mirror plays;
the authors of the Middle Ages turn away from us and we are hardly
a r m e d to c o m p r e h e n d them" (VIII.921). But it is not enough to
wander among symbols, For Legendre the fundamental question is:
what are the two laws for each other? (VIII.921) Each law must be
read through its efforts to separate itself from the other, to define
itself against the other or to reflect itself in its image.
The canons imitate the laws, and then the laws must be m a d e to
imitate the canons. There is no simple reception of one law by the
other; there is a double dependance (ius ecclesiasticum mixtum) a
confusion, a confounding, a failure to link concepts borrowed from
Roman law with imperiai reality, a failure to distinguish between
the sources of the two laws, a failure, too, to domesticate and
integrate the Roman law without at the same time resenting it as an
adversary and an interruption. "The canonists were worried by the
dissidence of the Roman texts on innumerable points and topics
which did not all have an appropriately theological resonance"
(VIII.923). Could the Pope destroy the Roman law? Very possibly.
Still, it is impossible for the Roman system to destroy itself at the
interior, to dissolve its hold over the social imagination, as m y t h
and as dream. But mostly it is necessary to see in this obsessive
contact of the two laws "... irrefutable proof of the ambivalence of
the relations of imitation: Justinian's law must be at the same time
used and disqualified, it must be assimilated, but simultaneously
shown to be contradictory and therefore to be dominated" (VIII.923).
It is precisely in the medieval experience of a failed reconcili-
ation of the two laws that Legendre seeks a Law that mobilises
myth, a Law which descends at once both as a myth and as a system,
a Law from which the unconscious cannot be excluded. "The canon
law does not absorb the rules of Roman law, rather it continues and
192 YIFAT HACHAMOVITCH
extends itself (se prolonge) through them" (VIII.923). The canon law
tradition develops slowly, from myths and ideas of slower and
longer duration: imperial Majesty, written reason, God as legislator,
and the like. The emperor gives way to the pope, the oracular
mouth to the Christian mouth, to the mouth of Parliament, to the
mouth of the judge that declares the law, to the mouth of conscience;
each image is repressed for the sake of the next, but what remains is
the positive unconscious of a Law which continues to terrorise and
grace us, to carpenter our desires and our logic from within, so to
speak: "... the justificatory knowledge of law ... constitutes a
strategy, because politically the law mobilises beliefs. With regard
to the legal system we are not reasoning believers, but subjugated
believers, in the sense of the following orthography: of resonances.
We reverberate or echo legitimacy ..." (XI.508).
T h e Dogma of T h i n g s
Peter, but place holder or vice regent on earth for Christ himself. 1
The law is a place, with a mythical genealogy, a place d e p l o y e d
again and again to signify the descent of truth. Industrial life only
ever comes to know itself b y reference back to this absolute space
which knows, a sanguine space with an imperial figure at its center,
a theatre of truth which "... designates the logical place of a
discourse, a discourse which contains the oracle of power. "11
The divinity of the body which is alienated-for-power is a feigned
divinity, a theatrical staging, a sacred, that is to say, non-psychotic,
folly. As was very well understood by the glossators, this doctrine, which
has been well elaborated by Ernst Kantorowicz and Gaines Post, takes
us into the domain of fictions which figuratively represent the truth
[fictio, figura veritatis]. (XI.513-514)
The mouth of the law speaks "... a ready to wear (pr~t-d-porter)
fantasy, it operates b y the transmission of institutional speech in
the space of public law" (XI.527). It is in the ecstatic character of
the l a w that w e seek its destiny, in its ability to " m o b i l i s e
unconscious beliefs in relation to a discourse inspired b y the mystical
truth of the all powerful signifier..." (XI.520).
What can we learn from this fiction, from the perspective of a mark of
the dogmatic function for industrial culture? Very exactly this: we
belong to a culture in which the mystically alienated human body holds
the place of an absolute book. The State is issued from this image.
(XI.513-514)
"Roman law puts inexorably into play what Bachofen has justly
designated as 'the triumph of Roman paternity'" (XI.518). It was for
d e c o r u m , for the honour and the dignity of their country (patria)
that Romans w o u l d die most readily: thus for Cicero dulce et
10 Gerhardt Ladner, "The Life of the Mind Around 1200", in Images and
Ideas in the Middle Ages H (Roma: Edizioni di Storia e Letteratura, 1983),
~)3.
11 Legendre comments further on this point that "... science, in this
context, designates the logical place of a discourse, a discourse which
contains the oracle of power; a text of the Theodosian code revived in the
Justinian compiliation and in this title, for a long time glossed on the part of
the Bolognese Renaissance in the 12th century, is set a remarkable
expression for identifying this uncommon discourse: digna vox maiestate;
translated literally: the dignified voice of majesty" (XI. 510).
ONE LAW ON THE OTHER 195
12 See Peter Goodrich, "Pro Lectione Pictura Est: Images of the Legal Body
in the work of Pierre Legendre," in R. Kevelson, ed. Semiotics and Law III
(New York: Plenum Press, 1990), 3-5.
13 Kenneth M. Setton, Christian Attitude Towards the Emperor in the
Fourth Century (New York: Columbia University Press, 1941), 196.
14 See Gerhart B. Ladner, "The Byzantine Iconoclastic Controversy," in
Images and Ideas in the Middle Ages: Selected Studies in History and Art I
(Roma: Edizioni di Storia e Letteratura, 1983), 66.
196 YIFAT HACHAMOVITCH
15 "Images of the Emperors were displayed the length and breadth of the
Empire in almost every place where it was proper to put them. Their setting,
however, had to be one worthy of them. A law of 394 A.D. for example,
orders that pictures apparently advertisements of actors, charioteers and
the like should be removed from public porticoes and other places in which
(imperial) images are wont to be consecrated." See Setton, supra n.14.
ONE LAW ON THE OTHER 197
21 ,,...a knowledge which has to be understood as the place which knows ...
one which we understand perfectly, because we are also savages, meat
carvers of the imaginary body of an imaginary Other" (XL510).
22 "Les Maitres de la Loi: ~tude sur la fonction dogmatique en r~gime
industriel," was originally published in Annales. Economies. Soci~t~s.
Civilisations, the journal founded by Lucien Febvre and Marc Bloch in 1929
and directed since 1956 by Fernand Braudel. The Annales historians are
devoted to honouring Hermes, "... a messenger god: mediator between gods
and men; god of communication with the dead and of access to the earth's
underground mineral wealth; god of eloquence and conversation and
inventor of the flute and lyre, thus of rational and aesthetic communication
alike; inventor of laws and letters and especially of insignia denoting
property; god of ambassadors, merchants, shepherds, wanderers and
thieves; god of exchange and of the redistribution of goods; guardian of
routes, creeks, passes, gates, public places, palestras, and frontiers;
mediator god between collectivities and individuals"m Stoian Traian
Stoianovich, French Historical Method: The Annales Paradigm (Ithaca:
Cornell University Press, 1976, 61). All these structures are the possible
objects of history m of a "history of all possible histories" w as practiced by
the Annales school.
200 YIFAT HACHAMOVITCH