Actores sociales

A philosophical problem underlies this thesis: how to respond to the dialectic of subject and object, that is, their simultaneous separation and inseparability. In short, the problem arises out of the confusion of ‘being’ (subjectively) and ‘existing’ (objectively), where the two are never completely separate (a subject being always informed by an objective existence), but also never in perfect harmony or unity (objective existence always being made sense of subjectively).50

This dialectic, whereby subject and object inform each other without becoming identical, is not problematic in itself.51 _{The problem arises when there is}

an insistence on identity. This can happen in two ways: (1) by separating subject and object and making them identical with themselves; and (2) by collapsing subject and object and making them identical with each other. At its extreme, postmodernism slips into the first conceit, in its radical critique of objectivity. By emphasising the indeterminacy of every posited identity, subject and object are held in total non-identity, which loses sight of the inseparability of the two. In effect this total non-identity, which turns the chasm into a black hole, becomes another form of identification, the two that are never one (as subject-object) becoming two ones (as subject / object). At another extreme, analytical-positivism slips into the second conceit, in its pursuit of objectivity.52 _{In the desire to be at one}

49 _{I do not mean domestic as opposed to international or transnational. I mean domestic as the}

locale of the institution, which might be international or transnational at the same time. In this sense, a ‘domestic institution’ operates as a site or medium of inter-normativity, that is, as a site where what is international or transnational becomes also domestic. For discussion of ‘sites of inter-normativity’, see Jutras, ‘Legal Dimensions of Everyday Life’.

50 _{On this problem, see Adorno, Negative Dialectics, in general, and in particular Part I, Section II:}

Being and Existence at 104-136. See also Theodor W Adorno, ‘The Actuality of Philosophy’, Telos, vol 31 (1977). I also discuss the subject-object dialectic in Part 2 of Chapter 1.

51 _{On the concepts of subject/ivity and object/ivity, and their negative-dialectical relation, see, eg,}

Adorno, Negative Dialectics, 18-19, 21-22, 144-146, 176-177. See also Theodor W Adorno, Hegel: Three Studies, trans Shierry Weber Nicholsen (Cambridge: MIT Press, 1963), 4, 63.

52 _{By ‘analytical-positivism’ I mean broadly the tendency to equate what is with what is posited as}

with existence, positivism loses sight of the separation of subject and object, collapsing the two, being and existence, which are irreducible to the one.

Neither position holds on its own, because each fails to maintain the truth of the other within it. This is where poststructuralism offered a way forward, by maintaining both positions in an irresolute dialectic that provides a response to the ‘double demand of modernity’ (as Peter Fitzpatrick puts it): ‘the demand for assured position integrated with a responsiveness to all that is beyond position, a demand to be met now without resort to erstwhile solutions of a transcendent kind.’53 _{Manderson has summarised the poststructuralist response to this demand}

as ‘[t]he search for mobile signifieds beneath constant and iterable signifiers’.54 _In

other words, a poststructuralist (re)search agenda is critically attentive to the subjects that enliven the structures that take their name whilst remaining non- identical to them. Thus what is signified remains mobile in that it is always more and always other than its identifying marks, which remain constant and iterable because they are not empirically fixed to what they signify.

This returns to the problem of institutionalisation. Never identical with its subjects, an institution can persist in the absence of the empirical individuals who come and go from time to time. Indeed, its integrity as an institution depends on this separation. Thus as a social structure an institution might remain constant and iterable whilst the empirical individuals that enliven it remain mobile; and yet an institution is never absolutely separate from these individuals, who, as subjects and not as mere bodies, constitute its grounds as an entity. Thus the integrity of an institution also depends on it maintaining within it the subjectivity of the individuals who are of its essence, without becoming identical with them.55

what is law with what is posited as ‘the law’. Similarly, scientific methodologies are marked by the equation of what is with what is apparent to observation.

53 _{Fitzpatrick, Modernism and the Grounds of Law, 2.}

54 _{Manderson contrasts this with structuralism, which he characterises as ‘[t]he search for constant}

signifieds beneath mobile signifiers’. Desmond Manderson, ‘The Metastases of Myth: Legal Images as Transitional Phenomena’, Law Critique, vol 26 (2015): 208-209.

55 _{To reiterate another image to signify this point, an image evoked by ‘Proust’s narrator’ and}

reiterated by Spivak in her ‘Translator’s Preface’ to Derrida’s Of Grammatology: ‘I was not one man only […] but the steady advance hour after hour of an army in close formation, in which there appeared, according to the moment, impassioned men, indifferent men, jealous men… In a composite mass, these elements may, one by one, without our noticing it, be replaced by others, which others again eliminate or reinforce, until in the end a change has been brought about which it would be impossible to conceive if we were a single person’. ‘What, then’, Spivak asks, ‘is the […] identity?’ Gayatri Chakravorty Spivak, ‘Translator’s Preface’, in Jacques Derrida, Of Grammatology

The subject-object dialectic is the constitutive logic of the institution. It is also the constitutive logic of law, and its rule, as I turn to discuss in a moment. A thesis that is concerned with the problem of the rule of law must therefore consider how it approaches this philosophical problem, and how its approach addresses both of the ‘double demands of modernity’ at the same time.56