If you eliminate from nature the tie of affection, there will be an end of house and city, nor will so much as the cultivation of the soil be left. Cicero, On Friendship

No matter what society you look at today, both our closest affiliations – the where and when and why and how and to whom we have the strongest sense of belonging—and our most distant are cast in the language of law. Every identity that affirms itself, every community that defends itself ends up calling upon law, the Constitution, or the ruling of a court. We have seen this trend developing in Canada, the country of the Charter of Rights and Freedoms, which, since the reforms inspired by Pierre Elliott Trudeau in 1982, has defined itself as a just society advancing step by step in social and political progress thanks to the means of the judicial system. The reasons for this trend are complex and varied. Let us look at the most striking of them.

The first reason is the triumph of liberalism—as much a social as a political doctrine—in contemporary society. Liberalism promotes the autonomy of the individual, to the point of seeing in the individual a being capable of self-determination, leading life as he or she pleases, without suffering the excessive constraints of communities or the environment. Liberalism celebrates individual freedom as a wrenching away from the hold of communities, family, and even the nation, who are suspected of oppression, of tyranny, of being closed, or of operating by some trick. In sum, liberalism places the freedom of the individual against what philosopher Michael Walzer calls “involuntary associations,” that is, communities one is a part of without deciding to join them, because of the facts of one’s birth, or of one’s familial or professional journey. [1] As legal rights theorist Ronald Dworkin emphasizes, we inherit many moral obligations with respect to communities that we do not choose, even if there is no contract that stipulates them. [2] Individual freedoms guaranteed by the Constitution and the law have precisely this goal—to offer individuals the means by which they can extricate themselves from these communities, or to limit their power over him or her. To paraphrase writer André Gide: “Families, I know you! Stifling hallways, closed doors, possessions jealous of happiness.” We have only to replace the word “family” by the words “village,” “parish,” “tribe,” “majority,” “faction,” and “nation” to see the whole spectrum of suspicion that liberals have towards bonds that arise from communities.

This allergic reaction of liberalism toward communities that are too confining elicits in some of them a defensive reaction that, in its turn, mobilizes legal discourse and proceedings. In the face of the individual’s appeal to the law to free him or herself from religion, religious communities in their turn likewise invoke the freedom of belief to assert their existence, their legitimacy, indeed, their influence on society. The proliferation of religions, in a state constrained by liberalism to neutrality and tolerance, creates innumerable conflicts among believers, as well as among believers and unbelievers. The solution to such conflicts seems to be sought more and more often in recourse to the law.

Another factor is the growth in what we might call broader social communities. In contemporary societies, even though we still find communities rooted in a common history and territory, many individuals nevertheless feel they belong to larger communities that have not precise “territory,” as it were. One thinks immediately of immigrants, of people with disabilities, or of sexual minorities, who form at one and the same time social groups, statistical categories, and communities of belonging. Many people in these groups do not live near one another, even though some do attempt to create community for themselves in urban neighbourhoods. In addition to being a source of protection of their rights, the law and the Constitution— by the very fact that they accord recognition and status to the members of these social categories—unite these individuals in imagined communities and reinforce their feeling of identity.

Some national minorities have clearly circumscribed territorial seats, such as the aboriginal people and the Québecois in Canada, the Catalans and Basques in Spain, etc. Historically imperilled by the central state’s wish to assimilate them, these minorities have succeeded, to different degrees, in acquiring some form of political autonomy, requiring at the same time that the central state recognize, more or less explicitly in the law of the land, the diversity of nations within the country.

The critique of capitalism has also contributed in bringing the community of workers under the protection of the law. Decades of union battles have resulted in the institution of sophisticated systems of labour relations. Interdependence and solidarity among the workers in the same company or in the same line of work developed through these
battles, often finding expression in carefully worked-out collective agreements. These agreements as a rule impose union membership on workers, and set out the conditions under which new workers may be admitted into the accredited union of the business or industry.

Finally, in an era of hypercapitalism, it is the prophets of the new economy who hail access to services—and no longer ownership of goods—as the key to exchange in the economic and social spheres. In sum, it is the many contracts we negotiate in order to have access to all sorts of services that determine the vector of our belongings, which are continually reconstituting themselves. Today’s economy, which is becoming ever more ethereal, would thus continually abandon ownership of material goods, especially real estate, as a principal source of wealth. As Jeremy Rifkin puts it, a growing number of everyday human relationships are falling under the influence of the logic of the market, that is, the logic of contracts.

How do we make sense of this expansion of law in all directions to define our various affiliations—the where and when and why and how and to whom we belong? We have to return to liberalism’s suspicion of every attachment that is not intentionally assumed by the individual. This mistrust is particularly acute as regards national communities. Ronald Dworkin writes: “The idea of special communal responsibilities holding within a large, anonymous community smacks of nationalism, or even racism, both of which have been sources of very great suffering and injustice.” [4] This suspicion can also be found in the distinction that a number of theorists of nationalism make between its ethnic and civic variants. In truth, this distinction goes back to German scholar Hans Kohn, elaborated in a work published in 1944, in which he distinguished between “oriental” and “occidental” types of nationalism. [5] While the first promotes a community of blood that incarnates its mystical unity around an irrational and pre-civilized notion of a “people,” the second conceives of the nation as a community of citizens united around a political ideal and a project. [6] In short, occidental nationalism, necessarily rational and universal, confronts oriental “barbarism.”

This dichotomy reveals an ancient source of tenacious beliefs, rightly identified as constitutive of the West. One of these is the widely shared conviction that law is identical to reason, that law is the very expression of reason. In the opening of his major work, L’esprit des lois, Montesquieu writes that “Laws, in their broadest connotation, are the necessary relationships that derive from the nature of things and, in this sense, all beings have their laws, divinity has its laws, the material world has its laws … mankind has its laws.” Today’s jurists no longer assign to law the meaning that Montesquieu once did, but they are no less convinced that they possess, through law, a science capable of the rational organization of power and human relationships. Thus, when Michael Ignatieff writes that civic nationalisms erects “national belonging in a form of rational attachment,” [7] he reiterates the belief that national belonging, in espousing the language of the law, would become, by this very fact, a controlled passion capable of becoming universal. In making the conditions of national belonging flow from juridical principles and procedures, civic nationalism allegedly evades the dangers of arbitrariness and exclusion, and so doing allows the individual to be master of his or her belongings, instead of allowing “inherited” communities to dictate to him or her. Even if Ignatieff does not use the vocabulary of Kohn, it is clear that he tends toward a certain conception of the West, as a civilization made rational through law.

Anthropologist Bruno Latour has emphasized how Western culture convinces itself it is different from other cultures, because of its capacity to dissociate society from nature and to conceptualize the latter by symbols and concepts that identify in it constraining laws. [8] Pre-modern societies are those which do not yet know how to make a distinction between the natural world and human devices. To the Westerner, pre-modern man is still a prisoner of nature, as he is of society and of language, which is but pure convention, without underlying reality. Only the Westerner knows how to make these distinctions, and thus reaches the reality of things, as such, by way of scientific knowledge. Apart from science, there is only the human, that is to say the relative, the subjective, the capricious waltz of wills. The Westerner recognizes therefore only two types of law: the laws of science, which compel recognition because of evidence and the force of logical reasoning; and political law, which acts mechanically upon the will of human beings, as Thomas Hobbes describes in Leviathan, and orients them toward the lesser evil.

In this vision of the world, everything that belongs to perception, to affect, to empathy, to the rooted dimension of life, to patriotism, to the passions and to involuntary social bonds is therefore foreign to reason and is actually fatal to it. Humanity born of this vision is a being divided at its very heart, torn between an impersonal and legal reason, and affect or emotion doomed to fall into the realm of idiocy. Modern man, to his utter confusion, cannot hope to nourish himself with true values, unless they are founded on demonstrable truths. Values are therefore irrational, variable, and numerous, confronting one another in a war without mercy or truce. Writer Louis-Ferdinand Céline has expressed this feeling of helplessness crudely: “Between the penis and mathematics … there is nothing. Nothing! Only emptiness!”

The legal rationalism that grounds the theories of Michael Ignatieff, and many other liberal thinkers, leads therefore to insurmountable difficulties. If the liberal concept of human belonging has power to seduce the minds of people, it is because it postulates that mankind, in the name of his freedom, “must” be able to choose where he belongs, without any obstacle at all. Every membership to which he has not consented and which would seem to tie him—for the simple reason that it is inherited, the legacy of history or a community which pre-exists him—is a chain that he must, at all costs, break. Michael Walzer observes with just cause that this is a sterile utopia. To convince us, he invites us to participate in a thought-experiment. Imagine a society in which, from infancy, the individual learns the liberal creed of freedom of choice of belonging. “Be a free being, dare to assert yourself, choose your destiny!” Such would be the injunctions that school, family, and all of society would inculcate in these cadets of freedom. Walzer’s conclusion? Even a society of free individuals cannot avoid recruiting its young members through a process of socialization, a culture of individualism, and with the aid of the state. In other words, even this society of free individuals, for most of its members, would constitute an involuntary association. [9]

The most essential of our memberships are not always those that we choose, in a contract or by a vote, although these are also important. It is often these, beyond pure rational calculation, which engage our heart, our passion, interrogate our moral being, awaken our caring, fulfill our visceral attachment to others, to a place, to a history, or a language. It is frankly astonishing to think that, even today, our intellectuals, among the most brilliant, are searching for the chimera of a demiurgic freedom, blind to the substance of our principal moral and social obligations. “The heart has its reasons, which reason knows not of,” in the words of Pascal. The same is true of our emotional ties, which have their own reasons, often ignored by liberals, who esteem too highly an abstract freedom disconnected from the moral fibre of individuals. In fact, if we could only apply the logic of an unlimited freedom circumscribed by the law to our most intimate affections—friendship, love, being good neighbours, the camaraderie among colleagues—they would quickly be destroyed. An unrestrained, unbridled rationalism is, in itself, a lack of reason, the sign of an inability to capture the richness and the complexity of existence. In On Friendship, Cicero writes: “If you eliminate from nature the tie of affection, there will be an end of house and city, nor will so much as the cultivation of the soil be left.”

For benevolence cannot be demanded, still less does it result from law or contract: it rather precedes them, it implies and gives birth to them in the heart of inherited communities, from which the individual seeks to extract himself or herself, at the very moment when the benevolence that should unite the community fails.

In spite of the criticisms suffered by the liberal vision of humanity, it is still to this vision that many economists and social science analysts appeal for their understanding of human interactions. They still see them regulated by the rational choices of individuals, swift to pursue their advantage, in whatever activity they are pursuing, by the most efficient means. This narrow anthropology keeps us from seeing that people act under the influence of many motives, and that reason is not a bald eagle soaring over base, repressed passions. In the creature of passions that is man, the most noble rub shoulders with the most vile: jealousy, hatred, resentment, cowardice, and greed, on the one hand; and benevolence, friendship, self-sacrifice, courage, love of justice, on the other. What forces attract people to one or the other of these poles? This is what we still do not understand.

The metamorphoses of capitalism may, however, distance us further from an understanding: the belief that market relationships and relationships within networks are going to supplant inherited community ties is visible in the media, among youth and in the voices of the bards of the new, non-material, ethereal economy. According to Jeremy Rifkin, this belief commits a grave error in confusing traditional relationships founded on reciprocity and market-type relationships, the latter being necessarily instrumental—i.e., related to means and ends—and based in a contract. He writes that traditional relationships “… are the reflection of phenomena such as family, ethnicity, being rooted in a territory, and a common spirituality. Their cohesion rests on the notions of reciprocal obligations and a collective destiny.” [10]

These two types of relationships surely benefit from being distinguished, but the fact remains that the generalization of market relationships harms traditional community ties, since globalized capitalism tends toward an ever more frenetic movement of goods and people across territories without borders. To this dynamic, which weakens these links, we must add the triumph of the democratic principle in our societies, a principle proclaiming the equality of individuals. It follows then that the Other is an equal, not to say a potential rival, since he aspires to the same things I do. In this way, capitalist democracies institute a type of sociability that regulates human relationships according to the idea of equivalence and of the mobility of individuals forming contractual relationships with one another. Nonetheless, given the extensive intermixing of people that results, accentuated further by immigration, human relationships, notably in big cities, may well no longer be able to rely on empathy, hospitality, and the more spontaneous mutual support of smaller, traditional communities. The anonymity of urban relationships certainly protects the individual against the intrusive gossip of neighbours, but without in return assuring him or her of the comfort of this benevolence without which one cannot conceive of a society. And from this springs the belief that only the law, placed above a crowd without a common ethic, may guarantee the civility of human relationships.

After positing that laws govern nature and human societies, Montesquieu warns us against the fallacious idea that we can know no other justice than the kind which human beings have voluntarily established. He reminds us that there may have been just relationships in societies even before the rules of justice were crafted by the legal system. Here is a reality we tend, too often, to forget.

Notes

1. Michael Walzer, Politics and Passion. Toward a More Egalitarian Liberalism, (New Haven and London: Yale University Press, 2004).
2. Ronald Dworkin, Law’s Empire, (London: Fontana Press, 1986), pp. 195-202.
3. Jeremy Rifkin, The Age of Access (New York: Putnam Publishing Group, 2000).
4. Ronald Dworkin, supra, p. 196.
5. Hans Kohn, The Idea of Nationalism : A Study in Its Origins and Background, (New York: MacMillan, 1944).
6. See also Elaine R. Thomas, “Who Belongs ? Competing Conceptions of Political Membership,” European Journal of Social Theory, vol. 5, No. 3 (2002), pp. 323-349.
7. Michael Ignatieff, Blood and Belonging: Journeys into the New Nationalism, (New York : Farrar, Straus and Giroux, 1994).
8. Bruno Latour, Nous n’avons jamais été modernes. Essai d’anthropologie symétrique, (Paris: La découverte, 1997).
9. Michael Walzer, supra, p. 17.
10. Jeremy Rifkin, supra, p. 311.