Abstract
In this cross-cultural exploration of political and legal thought, Laurent de Sutter provides a conceptual-genealogical analysis of law’s emergence as the dominant structure for organizing society. Examining ten different pre-modern traditions around the globe, de Sutter locates parallel developments in different societies as they organize themselves based on some form of Law as opposed to Right. In these societies, including ancient Egyptian, Mesopotamian, Islamic, Judaic, Japanese, Chinese, and Indian ones, Right (inventive and juridical) is overtaken by some form of Law (rule- or norm-based and deontic). De Sutter’s proposal to his readers could be stated as follows: to displace the dominance of Law’s strictures in contemporary society, what if we were to think about the topics of Law and Right in a more historically and cross-culturally expansive manner? The book’s theoretical argument is largely successful, even if historical aspects of it are not convincing. In de Sutter’s analysis, Right signals an open-ended, experimental, and case-based approach that leaves room for ingenuity, indeterminacy, and anarchic juridical creativity. In contrast, Law signals a closed system based on norms and principles that politically and morally normalize people in order to contain any disorder that might disrupt its operation. De Sutter argues that, historically, Right came before Law, and he suggests that in tracing Law’s ascendence we can “relearn” how to live without Law’s tyrannical restrictions. To advance the argument, the book is divided into ten chapters focusing on lost traditions of Right represented by specific terms—for example, ius (Roman), li (Chinese), giri (Japanese), and dharma (Indian). A Prelude, Postlude, and nine Interludes separate each of the chapters. The chapters are short, with one-page sections that focus on unpacking a single term or concept. The section divisions and shorter chapters provide conceptual parsimony and structural clarity, however analytic depth in each tradition is often sacrificed.
In his Prelude, de Sutter argues that the West has regrettably lived under the rule of Law for over two thousand years and that this rule began in ancient Greece, driven by an embrace of philosophy’s (purportedly) special access to Law. The stakes of this development involve a deep socio-political loss, wherein “the most precious juridical treasures were forgotten, and with them countless inventions allowing for the imagination of unregulated lives and societies that would yearn for movement” (3). The primary purpose of the book is to recover these juridical treasures and reveal their value for human society. Accordingly, the treasures presented by Right center around a series of valences that distinguish Right from Law. They include the following: Greeks positing decisions (thesmoi) based on variable, emergent circumstances rather than on an invariable, transcendental order accessed through philosophy as a basis for legal order (nomos) (8, 10-14); Mesopotamian recourse to methods of juridical variation in the absence of a deontic operator (34); Roman, Egyptian, and Judaic case-based judgment, prudential expertise, and hypothetical reasoning that resisted systemization, versus principle-based laws and sanctions that were impersonal in nature (55; 156-7; 170-2, 175); Islamic space left for doubt (fiqh) and hypothetic reasoning as a science of Right based on acknowledgement of ignorance (83, 86-7); in China and Japan, harmonic patterns of relationality or affective relations and emotions, conditioned by rites (li), which did not require legal sanctions (97-8; 115, 117-18). According to de Sutter, each tradition’s conception of Right ably adapted to the inherent senselessness, unpredictability, diversity, and disorder that human beings face in the world. At the same time, these various conceptions of Right enabled different traditions to construct collective unity in conditions of inexhaustible plurality. Right thus provided creative avenues for the ongoing construction of communal relations outside the tyrannical control of invariable principles, orders, or norms enacted through Law. Rejecting the arrest of a world of becoming with Law that instantiates the world as one of Being, de Sutter refreshingly encourages an exploratory and hypothetic approach to operating in a world that emerges and unfolds—one in which sufficient casuistic attention can be paid to the world and its unbounded becoming.
After Law splits into two general areas, theoretical and historical, and this reviewer finds the book’s greatest strengths in the former. Theoretically, de Sutter’s analysis channels numerous post-positivist and post-modern insights in examining a variety of both western and non-western traditions in a highly informative and innovative fashion. The greatest strength of the book is found in the sophisticated application of political theory to numerous non-western traditions while allowing each tradition to speak “on its own terms,” which helps open productive gateways between different fields of study and enhances intercultural knowledge for scholars who might otherwise be unfamiliar with traditions and concepts outside western canons.
From a political theorist’s perspective, readers will notice strong notes of Nietzsche, Deleuze, Rancière, and Arendt. Even if he does not always make it explicit in the text, de Sutter does an excellent job of leveraging political theory to unearth fascinating (dis)similarities in the ways that human communities have operated and flourished without Law. For this reviewer, After Law’s most convincing anti-foundationalist readings of Right can be found in Chapter 1 (Greece), Chapters 3 and 4 (Rome), Chapter 6 (China), and Chapter 7 (Japan). The author’s Interludes following each chapter also do a nice job of communicating the critical bite and argument of the book, advancing strong critiques of Law and many eloquent defenses of Right.
Nevertheless, sufficient scholarly and historical context is necessary to make the theoretical argument fully convincing, and this is where the book’s analysis can falter. In ambitiously examining ten different traditions, de Sutter does not leave sufficient space to clarify disagreements with specific scholars or bodies of scholarship, which can obscure the book’s contributions. De Sutter’s wide-ranging analytic approach, while erudite, sometimes places a strain on the cases he examines, as the limited space and brevity of analysis prevent sufficient attention to historical context that might otherwise allow readers to challenge some of his interpretations. The basic shift he locates in each tradition signaling a transition from Right to Law can feel “cooked” at times, since concepts he emphasizes neatly fit the genealogical story he seeks to construct. His analytic structure portrays Right as “hero” pitted against Law as “villain,” with the hero(es) of each tradition being identified with open-ended, discursive activities of Right that do not attempt to reject the anarchy, chaos, or disorder of the world. De Sutter emphasizes advantages of Right without highlighting its potential disadvantages in comparison to Law, and vice versa, raising questions as to whether they are mutually exclusive in their (dis)advantageous nature. Finally, de Sutter’s use of the categories of Right and Law (especially when capitalized in translation) feels quasi-metaphysical, which sits in tension with his more pluralistic conception of each category and his contingent, anti-metaphysical conception of Right as “always being revolutionary . . . endlessly diverging from what was before . . . the chaotic organization of the aberrant becomings of the individual” (177-78).
To de Sutter’s credit, it would take numerous specialists to determine whether he projects a critique of early western legal and political thought from early Greece to Rome onto other traditions where the critique may be less well-suited. To assess fairly whether de Sutter’s analysis is Procrustean in nature, one would need to delve deeper into each tradition he examines. While the historical context and evidence may not always justify the proportionate weight of the theoretical claims being made, these claims are undoubtedly thought-provoking and cross-culturally relevant to fields as diverse as political theory, legal studies, and the global history of political thought. Although the book may face objections from a historical-contextual perspective, the theoretical component of his argument remains philosophically fruitful in providing a multi-perspectival view of Law that allows readers to view the concept anew. This is no small achievement and for this After Law will be of special interest to interdisciplinary audiences in the history of political and legal thought, contemporary philosophy, and cross-cultural political theory.