Tag Archives: Biopolitics

Eligio Resta, Diritto Vivente (Bari: Editori Laterza, 2008)

The book tackles these two aspects of the living law in seven chapters – entitled respectively “Life”, “Body”, “Technique”, “Archives”, “Truth”, “Trial” and “Time” – and through different paths of analysis, most of which relate to issues that are hotly debated today within academe as well as outside it, e.g. living wills, biological damage, life’s dignity.

The former aspect constitutes a fairly traditional way of thinking about the relationship between life and law. In it, the law is seen as an instrument through which someone’s life disciplines, in the Foucauldian sense, another’s. On the contrary, the latter aspect, i.e. speaking of law’s own life, represents Resta’s original attempt to consider the law as an evolving natural “corpus” – which in classic antiquity was understood as the experiences of a living organism shaped by many different forces – and not as a static “positive” body. This attempt rests upon an intellectual shift from exegesis to hermeneutics, which can only be achieved by a philosophy of praxis that has in the interpretation of the living text its focal point of acting.

Resta’s main references, cited more or less explicitly throughout his book, are some amongst the most important philosophers of the last two centuries: Michel Foucault, Friedrich Nietzsche, Jacques Derrida and Walter Benjamin. Yet these are not the only philosophers to be mentioned in the book.

In the first two chapters, for instance, there appear lengthy reviews of classic thinkers such as Socrates, Plato, and Aristotle, and of their definitions of soma, psychè, nomos, dìkaion, and much else. In this manner, the ancient roots of Western legal and philosophical culture are revealed and investigated.

In the third chapter, the relationship between technique and law is scrutinised as judicial nihilism. On the one hand, “technique” means the human ability to create new possibilities, thus even a post-human model of life. On the other hand, the law is the social request for normative limits that should be applied onto this human ability. In this context, the term “nihilism” means the technique’s potential and will to destroy the existing normative limits imposed by law, so as to extend the technique’s power as much as possible. This ambivalence between technique and law should not be opposed, however. Resta believes the law to benefit from keeping alive this ambivalence within its own corpus, for it spurs creativity and adaptability.

In the fourth chapter this comparison is scrutinised further, starting with the analysis of modern archive technologies, first of all information technologies. Even if they do enable life and law to express in new ways, information technologies also try to gain power to the detriment of life’s and law’s traditional expressions and regulatory functions. The ambivalence between technique and law thus persists.

The fifth chapter explains how the notion of truth is not the consequence of the principle of non-contradiction, but is a process-generated result bound to a specific context, that is to say, a truth that is conventional, conditional, and that implicates the passage from “truth” to “charity”: we do not agree when we find the truth, but we find the truth when we agree.

In the sixth and seventh chapters Resta writes about the history of modern legal life, e.g. the history of trials, and how life’s time and law’s time are continuously out of sync. Thus, the living law regulates time being regulated itself by life’s needs; whilst life’s exceptions, the most important of which being war, threaten to reduce the law to a particular form of conflict, thus turning it from being that which aims to preserve life into something that kills life. This way, the book closes with a warning about the “rectilinearity” of progress, which will not save humanity from violence, and with a call to take seriously Plato’s notion of law as phàrmakon, i.e. as poison and antidote at the same time.

I genuinely commend and recommend this book, as well as Resta’s work in general. Living Law deals with a very difficult subject, across diverse disciplines and technical jargons, and in so doing it links important authors from different ages and different areas of inquiry, offering infra alia highly original and insightful comments, also with regard to concrete contemporary issues.