8th Annual Jurisprudence Lecture: A Review
The University of Glasgow Legal Theory Research Group recently had the honour of hosting the 8th Annual Jurisprudence Lecture given by Alain Supiot on Friday 19 October. Professor Supiot in addition to holding a Chair at the Collège de France, is a Fellow and Founder of the Nantes Institute for Advanced Study (IEA), Fellow of the British Academy, and a member of the International Labour Organisation’s Global Commission on the Future of Work. His lecture, titled “Democracy laid low by the market”, was a tour de force which wove together insights from such diverse minds as those of poet Jacques Prévert, philosopher Giambattista Vico and economist Ronald Coase. Doing so, Supiot built a picture of the conditions under which democracy has come under attack, as well as the nature and value of democracy as a source of meaning and guarantee of the trustworthiness not only of our shared political institutions but also of the spoken word itself.
Following on from this very successful event, Professor Supiot joined a group of eminent scholars to discuss his recent book Governance by Numbers. The workshop, titled Utopia and Ecoumence, was chaired by Glasgow’s own Emilios Christodoulidis and involved insightful and engaging contributions by Samuel Jubé (IEA Nantes), Simon Deakin (University of Cambridge), Poul Kjaer (Copenhagen Business School), Nicola Countouris (University College London), Kerry Rittich (University of Toronto), as well as Toni Marzal, who has recently joined us from the Sorbonne Law School.
The day began with a paper from Samuel Jubé, who provided a fascinating insight into the history of accounting from its roots in the sacred rites of sacrifice in ancient Mesopotamia, through the gradual development of coinage, currency and double-entry book-keeping, to the present day of global capital organised according to the logic of shared international standards set by unelected committees of accountants and economists. This ‘geneaology of the economy’, which tracked the entropic shift from legal reasoning and accountability to mathematical reasoning and technical governance, highlighted a key aspect of the problems of ‘governance by numbers’.
Simon Deakin continued with the themes of genealogies and mathematical reasoning in a paper which placed the contemporary trend towards the automation of adjudication and legal practice (what we might term ‘algorithmic law’) within its wider historical and theoretical context. Highlights included an account of how capital turned weavers into wage-labourers through the capture of their shared social knowledge and embedding of it in mechanical processes, an analysis of the limits and pathologies of the Leibnizian idea that we can ever fully encode and understand the social world through scientific/statistical rationality, and a call to question claims of scientific objectivity when those making them seek to condense social facts into formulae and replace law with governance.
After a short break for coffee, the second session began with Poul Kjaer, whose paper expanded upon Supiot’s analysis of the similarities between the USSR and EU to provide an interesting and highly detailed account of the co-evolution of transnational governance and the modern nation state which addressed the changing relationship between hierarchy and spontaneity in modern social processes. This historicised account ended on a cautionary note, reminding us that we cannot simply ‘get rid of’ governance by numbers without either replacing it or altering the conditions which gave rise to the (real or perceived) need for it.
Next, Nicola Countouris led us through the social and legal changes which have accompanied the seismic and well-documented shifts in the dominant mode of capitalist production from Fordism, through Toyotaism, to might be termed contemporary ‘Uberism’. He explained how Fordism, enabled by a legal framework which permitted the division of the workforce into those within the stable core and precarious periphery, not only changed working practices but also changed patterns of consumption and set the terms of our understanding of how social security should function; ‘Uberism’ goes even further, blurring the distinction between core and periphery so that precariousness seeps into all labour relations, giving rise to new methods of extracting value from labour. Linked to Uberism, and taking the idea of ‘governance by numbers’ one step further, his paper explored what we might call ‘governance by algorithm’. Only now emerging as the necessary conditions of technical capacity, institutional reform and cultural acceptance are met, this new governance not only attempts to make workers into self-employed contactors, but tries to define labour entirely out of existence, so that workers become seen as the ‘users’ or consumers of the app-based services by which they are controlled.
After lunch, the attendees returned to hear Kerry Rittich start off the afternoon session with a thought-provoking paper that engaged with what was described as Supiot’s ‘genealogy of the pathologies of the present’ and complemented Supiot’s civil-law grounded and public-law focused account with insights from common-law jurisdictions and how private law institutions operate within them. In a moment which drew nods from many of the participants, we were called upon as critical scholars to recognise and explore the complicated middle ground between government through law and governance by objective-setting (i.e. where calculation meets judgement in the day-to-day operation of law). In doing so, we might thus avoid falling into the trap, when criticising current developments which sideline law through rendering it instrumental and calculable, of repeating the deeply un-critical claims of legal formalists that law is neutral and apolitical rather than a facilitative force in the very changes Supiot warns us about in his book.
Toni Marzal, building on the question of what it is to be properly critical, shared with us his reflections on the ‘existential anguish’ of our position as legal scholars debating such important issues. With the retreat into positivism and the oft-stated alternative of seeing everything as politics and power both having the capacity of being demoralising forces, we were told that Supiot’s work, as pessimistic as it may seem at times, can act as an injection of self-esteem. It reminds us – with its focus on narratives and counternarratives, on the grounding of the social in the material – that it is possible to say something meaningful about the law in a complex moment which requires not only critique and deconstruction but also the building of new accounts of law which rethink even our most basic linguistic and theoretical categories.
With such a suite of excellent papers engaging with his work, those present were keen to hear Supiot’s reflections on the day, and he did not disappoint. In answer to the questions raised about the role of law, and of ourselves as legal scholars, he turned to the work of Franz Kafka to present an image of the lawyer as having one foot in the reality of society, and one in what society is dreaming or, perhaps in the current moment ‘nightmaring’. With this, we can either simply reflect life as it is or stand ahead of it and drag it forwards, out of the darkness, as we do when we campaign for and enshire equality protections in law long before we manage to eliminate discrimination as a society.
Emilios Christodoulidis, in his closing remarks, drew out the connecting themes of the day and tied them back to the core theses of Supiot’s wok: the relationship between law and politics, the allocation of individual and collective risk, and the central place for solidarity in our social world.