Governance by Numbers. The Making of a Legal Model of Allegiance

Abstract

Alain Supiot’s contribution to labor law and legal anthropology is well known. This volume expands his previous research to the domain of comparative constitutional law by addressing the question of what kind of government shapes our contemporary societies. The division of the volume in two parts resonates with the core argument put forward by the author who states that in the last few decades the organization of human action has become increasingly governed by numbers and quantification rather than law. In a nutshell, the main function of constitutional orders has moved from government to governance. Supiot capitalizes on this point in order to show that this move has transformed the role and the status of law in contemporary societies. Accordingly, constitutional orders have been captured by the logic of quantification and constitutional politics has been reduced to the introjection and implementation of economic and statistical indicators. The consequences for how constitutional law operates cannot be overestimated. Supiot intends to show how such a logic has penetrated into domestic constitutional law initially in virtue of the model adopted by international economic organizations (World Bank and International Monetary Fund) and the EU, but later by states as well. In the first part of the volume, Supiot traces the trajectory of the idea of impersonal government and its appropriation by constitutional scholars in modern times. Originally, the value of an impersonal way of governing men by law was associated with the limitation of arbitrary power. A key moment of this development occurred when the constitutional order of states came to be organized around the principle of sovereignty. The coupling of the latter with the modern form of law (the emergence of the sovereignty of law) was intended to subordinate the subject but at the same time to enable its individual autonomy. What is characteristic of Supiot’s analysis is that it is never abstract, as the various embodiments of the ideal of the rule by law are always tied to a specific conception of the social order and political form. The advantage point is given, in light of his expertise, by the organization and regulation of labor and its translation into the constitutional order. However, unlike determinist conceptions of the constitutional order, Supiot views state-based constitutional law as an achievement precisely because it maintains a normative core which puts it in a state of tension with the instrumental requirements of the organization of production and division of labor. This is why the idea of government by law can still be deemed to be valuable. Ultimately, through its manifestation in the political form of the state, law maintains its heteronomy. In fact, “when the law is the sovereign ruler, its heteronomous authority, to which all are subject, is the primary condition for the autonomy of the individuals it governs” (at 167). Governing by law, therefore, meant subordinating individuals and providing them with a system of norms which would allow them to think reflexively about their own rules (in this sense, law is like language, as it permits to reflect about itself by providing the coordinates for the reflection). The shift from an impersonal government to governance by numbers is mostly the outcome of an undergirding change in the modes and organization of production, but it cannot be deemed to be an abrupt change. The point is that the scientific organization of labor, as formalized by the Taylorist approach, has now become a system “of self-adjusting interacting units automatically responding to signal inputs and feedback, as programmed by computer algorithms” (at 145). Accordingly, whereas government by law was driven by an authority (often required to be legitimate) which would enact rules for action and leave open to the subordinate the possibility of obeying or disobeying, governance demands programming and it reduces drastically the margin of maneuver of political action (and labor, of course) as it asks the involved agent only to react to various inputs. This mode of governance has also produced more intrusive shaping effects upon society as it is exercised not only at the level of public law but all across the board: from the individual to the corporation, from the state to the transnational. Hence, the second part of the volume is devoted to the reconstruction of the impact on law and society of the new ideal of governance by numbers. Governance, unlike government, allows science and quantitative methods to organize and shapes many legal and social relations. In brief, as a mode of regulating human action, governance changes the nature of the social bond. Solidarity, whose institutionalization was, according to Supiot, one of the greatest achievements of the welfare state, is eroded and new ties of allegiance are either created or brought back from pre-modern times. The end result of the rise of governance is the creation of a different type of social bond which generates legal orders more similar to a medieval type. Constitutional fragments are generated and dispersed across a society that looks more and more like a series of “fiefdoms” organized in a series of distinctive networks of relations of allegiance. This new condition is critical even for the sustainability of the legal order itself. More precisely, the ties of institutionalized solidarity are taken over by market rationality while relations of authority are now substituted by a series of new rights that are functional to the embedding of society into the economy (i.e. the opposite of the classic Polanyian movement). According to Supiot, this is a worrying scenario as legal bonds ought to be guaranteed by the existence of a third external to the bond itself, which in his view is still the state. Yet, the ideal of governance by numbers grounds obligations on quantification and the market paradigm, undermining in this way the capacity of the law to regulate institutions and reducing drastically the space for a potential countermovement (i.e. a re-embedding of the economy into society). Overall, the volume is an impressive tour de force which engages many disciplines in order to explain the main tenets of the model of governance by numbers. Its contribution to constitutional studies is remarkable as it links the rise of governance to a pervasive model of organization of many social and legal institutions. If the employment relation is central in the reconstructive chapters of the book, this is the case because it shapes key aspects of the social order and this aspect has an impact on the constitutional order. In brief, methodologically this means that constitutional orders are not external to social organization. Perhaps, the main concern remains Supiot’s adoption of the state and the workplace as the main fields of battle for the protection of the principle of solidarity. In fact, one is left wondering whether both transnational forms of political unity and of work organization could be conceived as relatively autonomous from the rule of quantification.

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