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The public–private relation in the

context of today’s refeudalization
Alain Supiot*

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For relations among individuals to be governed by the rule of law and not by the “law” of the
strongest, the “res publica” must stand tall. This subordination of private to public is what
makes the structure of law intelligible and dependable. It is the West’s response to an anthro-
pological situation experienced by all human civilizations in their vital need to metabolize
society’s potential for violence by referring power to an origin which both legitimates and
limits it. The containment of individual interests thus necessarily depends on the condition
of the res publica which is the bearer of what Ulpian calls “sacred things.” This dogmatic
framework has been taken up across the world, in step with Western domination. But this
model is being undermined by Western countries themselves in their aspiration to free legal
systems from their dogmatic foundations and invert the public–private relation. Ignorance
of the organization of powers underpinning government by laws is taking us back to govern-
ment by men, that is, to feudal ways of hybridizing the public and the private.

Far from originating with the Enlightenment, the West’s public–private distinction
comes down to us from the very matrix of both continental and common law tradi-
tions: the Code of Justinian (Corpus iuris civilis). In the Code’s best known formulation,
penned by Ulpian, “there are two branches [positiones] of legal study: public and pri-
vate law. Public law is that which respects the establishment [statum] of the Roman
commonwealth, private that which respects individuals’ interests.”1 Today this dis-
tinction is understood as an opposition between two different bodies of rules, whereas
it actually rests on the idea of different positions of the same corpus of rules.2

*
Professor at the Collège de France. Email: [email protected].
1
“Hujus studii duæ sunt positiones, publicum et privatum. Publicum ius est quod ad statum rei romanæ spectat.
Privatum quod ad singulorum utilitatem,” quoted in The Digest of Justinian 1, 1 §2 (Alan Watson ed. [Latin
texts, T. Mommsen and P. Krüger eds], 1985) [hereinafter Digest].
2
See on this point Pierre Legendre’s remarks in Le désir politique de Dieu. Étude sur les montages de l’État et
du Droit [The Political Desire of God. A Study on the Arrangements of State and Law] 237 et seq. (2d
ed. 2005). For the way in which the notion of “position” has gradually given way to the “opposition”
between public and private, see Georges Chevrier, Remarques sur l’introduction et les vicissitudes de la dis-
tinction du jus privatum et du jus publicum dans les œuvres des anciens juristes français [Remarks on the
Introduction and the Vicissitudes of the Distinction between Jus Privatum and Jus Publicum in the works
of ancien regime French Jurists], 1 Archives de philosophie du droit 5 (1952).

I•CON (2013), Vol. 11 No. 1, 129–145 doi:10.1093/icon/mos050

130 I•CON 11 (2013), 129–145

The body of law (corpus iuris) can adopt two positions because the mutual
adjustment of private interests in the horizontal plane is dependent on the sta-
bility (status) of the public institutions in the vertical one. For relations between
individuals to be governed by the rule of law and not by the “law” of the stron-
gest, the res publica must stand tall. This subordination of private to public is what
makes the structure of law intelligible and dependable. It is the West’s response to
an anthropological situation experienced by all human civilizations in their vital
need to metabolize society’s potential for violence by referring power to an origin
which both legitimates and limits it.3 The containment of individual interests thus

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necessarily depends on the condition of the res publica, which is the bearer of what
Ulpian calls “sacred things.”4 Today we would call these the “founding prohibi-
tions” through which each legal system expresses its own particular axiological
principles.
This dogmatic framework has underpinned legal systems as varied as those of
classical Rome, the monarchies of the ancien régime, nation states, and colonial
empires. In a little over two hundred years, it has been taken up in a spectacular
fashion across the whole world, in step with Western domination, and it has forced
onto the defensive other ways of civilizing power, such as Asian or African ritual-
ism,5 or Jewish or Muslim religious legalism.6 But this model is being undermined
by Western countries themselves, in their aspiration to free legal systems from
their dogmatic foundations and invert the public–private relation. Ignorance of the
organization of powers underpinning government by laws has returned us to gov-
ernment by men, that is, to feudal ways of hybridizing the public and the private
(section 2).

1.  The inversion of the hierarchy between public and private

The modern state was first conceived as heir to the Roman res publica, that is, as an
immortal Being which ensured the perpetuity of a people across the generations, and

3
See Legendre, supra note 2, at 237 et seq.
4
“. . . some matters being of public, others of private interest. Public law covers sacred things, the priest-
hood, and offices of the state.” [translation modified] (“Sunt enim quædam publice utilia, quædam privatim.
Publicum jus in sacris, in sacerdotibus, in magistratibus consistit”), see Digest, supra note 1, at 1 §2.
5
For the former, see Léon Vandermeersch, Ritualisme et juridisme [Ritualism and Legalism], in Études
sinologiques 209 (1994); for the latter, 6 Incidences (Special Issue: Le Chemin du rite. Autour de l’œuvre
de Michel Cartry [The Path of Rites. Around the work of Michel Cartry] (2010) (esp. the contribution of
Alfred Adler, Logique sacrificielle et ordre politique: le statut de la personne du chef en relation avec son statut de
sacrifiant [Sacrificial Logic and Political Order: The Status of the Person of the Chieftain in Relation to his
Status as the Sacrificant], id. at 149).
6
For the former, see Joseph Mélèze Modrzejewski, Tora et Nomos [Tora and Nomos], in Un peuple de philos-
ophes. Aux origines de la condition juive [A Nation of Philosophers. At the Origins of the Jewish Condition] 193
(2011); for the latter, Jacques Berque, La norme dans le Coran, in Relire le Coran 79 (1993) and Jacques
Berque, Opera minora. Vol. 1: Anthropologie juridique du Maghreb [Legal Anthropology of the Maghreb]
(2001).
 The public–private relation in the context of today’s refeudalization 131

guaranteed respect for “self-evident” truths and “unalienable and sacred rights.”7
However, since the Enlightenment, a whole swathe of Western thought has claimed to
be able to eradicate the dogmatic dimension of these legal and socio-political arrange-
ments. Any consideration of “sacred things,” that is, of the founding prohibitions based
on “self-evident truths” which are the source of “unalienable and sacred rights,” has
been relegated to the private sphere of “religious feeling,” leaving a purely instrumen-
tal conception of law. The abandonment of any heteronomic dimension has reduced
law to a simple tool, an instrument at man’s disposal (section 1.1). This has led to the
phenomenon of the privatization of legal rules and their transformation into just so

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many arms to be taken up in the struggle for individual self-assertion (section 1.2).

1.1.  Instrumentalization of  law

The totalitarian regimes which flourished in the 20th century were the first to claim
that they had freed law and institutions from any trace of metaphysics, anchoring
them in the “true laws” discovered by racial biology or scientific socialism. From this
scientistic perspective, relations between individuals are not subject to a public law
which itself refers back to “sacred things,” but rather are dictated by a Truth inherent
in the power relations between races or classes. Thus Marxism-Leninism believed in
laws of history which were to bring about a classless society without law. In order to
hasten this end of history and do away with a “bourgeois legality” which was no more
than a superstructural emanation of class interests, it was imperative to make the
legal form itself wither away, and to eliminate all legal guarantees that might enable
individuals to escape the dictatorship of the proletariat. The Maoist regime took this
further than most, especially during the Cultural Revolution. Many of its former fol-
lowers can now be found among the theorists of anarcho-capitalist “deregulation,”
in China and the West alike. As for Nazism, in its enterprise of bringing into being a
“master race” destined to dominate all others, it referred to laws derived from the biol-
ogy of its time.8 “We shape the life of our people and our legislation in accordance with
the verdicts of genetics,” the Hitler Youth Manual proclaimed.9 For Hitler, “[t]he state is
only the means to an end. The end is: conservation of the race.”10 Law is here entirely
conflated with the will of the strongest or, in Goering’s hedonist version, “Recht ist das,
was uns gefällt.”11 Instead of simply obeying laws as laid down, the “healthy” citizen’s

7
Compare the American Declaration of Independence, in which an immortal people speaks (“We hold
these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with
certain unalienable Rights”), the famous Preamble to the American Constitution (“We the People of the
United States, in Order to form a more perfect Union, establish Justice . . .”), and the Preamble—which is
still in force—to the French Constitution of the Fourth Republic (“the people of France proclaim anew
that each human being, without distinction of race, religion or creed, possesses sacred and inalienable
rights”).
8
See André Pichot, Pure Society: From Darwin to Hitler (2009) and André Pichot, Aux origines des théories
raciales. De la Bible à Darwin [The Origins of Racial Theories. From the Bible to Darwin] (200).
9
Nazi Primer, quoted in Hannah Arendt, The Origins of Totalitarianism 350 (1967).
10
Quoted in id. at 357.
11
“Law is what it pleases us to dispose,” quoted in Rush Rhees, Discussions of Wittgenstein (1996).
132 I•CON 11 (2013), 129–145

duty was to examine, and even anticipate, the will of the Führer, who set the goals to
be attained rather than the rules to be observed.12 Loyalty to a person thus supplanted
obedience to the law.
In the end, human laws managed nevertheless to prevail over the super-human
ones these systems claimed to embody. In order to be treated on an equal legal foot-
ing with their colonizers, colonized peoples successfully turned the weapons of law
back against their oppressors. And at the end of World War II, Western nations set
about rehabilitating the role of states, by binding them to the categorical imperative
of respect for human dignity. This imperative also underpinned the new worldwide

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legal order which they sought to establish in the same period, with a view to further-
ing social justice, and which entailed the proclamation of new areas of human rights:
economic, social, and cultural rights.13 Since these could not be effective without
state intervention, Western European welfare state systems underwent a period of
un­precedented growth.
However, the subordination of economic transactions to principles of social justice
did not survive the upheavals of the last three decades. The neo-conservative revolu-
tion brought back a belief in super-human forces—market forces this time—capable
of generating a self-regulating “spontaneous order,” in which government and law
would give way to governance and contract. This spontaneous order was meant to
stem from what Hume called the “three fundamental laws of nature”: “stability of
possession, its transference by consent, and performance of promises”14—in other
words, from three principles of private law: the freedom to contract, ownership, and
fault-based liability. To concretize this self-regulating system, priority would have to
be given, in the hierarchy of positive law, to private law, which expresses natural laws,
over public law. Like human law in relation to divine law in a previous era, public
law would be simply an “organizational law,” a necessary evil whose role should be to
“reinforce” and not obstruct the action of the “invisible hand” of the market.15

12
The National Socialist regime’s only “constitution” was martial law (by a decree of Feb. 28, 1933, which
suspended the fundamental rights guaranteed by the Weimar Constitution). A state of exception was
thus transformed into the very foundation of the legal system, in conformity with the theories of Carl
Schmitt, who was an authority for Nazism on constitutional matters (see William Ebenstein, The Nazi State
3 et seq. (1943)). These theories have in common with a certain kind of positivism their disregard for
whether political power is bound by a founding norm or not, which leads to tarring with the same legal
brush the totalitarian state and a state governed by the rule of law. This lack of differentiation is similar
to the refusal to distinguish between reason and madness; and the totalitarian state is indeed a state of
madness, as writers as divergent as Orwell and Ionesco have shown us.
13
On this sharp shift in dogma post-war, see Alain Supiot, Spirit of Philadelphia. Social Justice vs. the Total
Market (Saskia Brown trans., 2012).
14
David Hume, Treatise of Human Nature 526 (Clarendon, 1965), quoted in F.A. Hayek, Law, Legislation and
Liberty: A New Statement of the Liberal Principles of Justice and Political Economy. Vol. 2: The Mirage of Social
Justice p. 40 (1976) [hereinafter Law, Legislation and Liberty II].
15
See F.A. Hayek, Law, Legislation and Liberty: A New Statement of the Liberal Principles of Justice and Political
Economy. Vol. 1: Rules and Order (1973). The idea that law is a necessary evil is particularly ingrained in
Protestant culture. See Jean Carbonnier, Toute loi est en soi un mal?, in Essais sur les lois 281 (1979).
 The public–private relation in the context of today’s refeudalization 133

This is the ideology which has carried the day since the 1980s. Economic and social
rights are decried as false rights, and the privatization of the institutions of the wel-
fare state tops national and international political agendas. The utopia of a world-
wide legal order which would no longer be a patchwork of states but rather a “Great
Open Society” peopled by clouds of contracting particles pursuing their private inter-
ests, has given rise to a financial, technological, and economic space which ignores
national frontiers. The abolition of barriers to the free circulation of goods and capital,
along with the new information and communication technologies, has struck at the
sovereignty of states and reduced their legislative efficacy. According to one of the

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most influential prophets of this neo-liberal utopia,
the only ties which hold the whole of a Great Society together are purely economic . . . it is the
. . . ‘cash-nexus’ which holds the great Society together, [and] the great ideal of the unity of
mankind in the last resort depends on the relations between the parts being governed by the
striving for the better satisfaction of their material needs.16

This promise of a “Great Society” is true to the West’s philosophy of history, which
is essentially a secular adaptation of an eschatology of salvation.17 Marxism was only
a rival version of this eschatological vision of history. That is why the collapse of the
Soviet Union, while it clearly demonstrated the inanity of believing in “laws of his-
tory,” was nevertheless interpreted as the sign of the universal and lasting triumph of
market forces, that is, again, as an expression of the laws of history, and even, for the
most enthusiastic, as the “end of history.”18
No longer, then, should individual interests be subordinated to the general good,
but on the contrary, the state should be transformed into a means of maximizing one’s
individual utilities. This idea, which is central to today’s economic ideology, actually
has religious roots. The notion that a divine plan would convert private vices into pub-
lic prosperity began to take shape in the 17th century,19 before coming into its own
in the 18th century, first in the provocative form of Mandeville’s fable of the bees,20
and then in Adam Smith’s “invisible hand” which thereafter came to play the role of
divine providence in economic theory.21 This faith in a spontaneous order resulting
from the free play of individual egoisms was the particular hallmark of the British
Enlightenment, in contrast to the German Enlightenment’s faith in the Kantian cat-
egorical imperative.22 It still has considerable influence, since it is integral to the ideal

16
Hayek, Law, Legislation and Liberty II, supra note 14, at 112.
17
See Karl Löwith, Meaning in History: The Theological Implications of the Philosophy of History (University of
Chicago Press, 1957) (1983).
18
Francis Fukuyama, The End of History and the Last Man (1993).
19
See Dany-Robert Dufour’s refreshing rereading of Pascal and Jansenist authors in La Cité perverse:
Libéralisme et pornographie 58–59 (2009).
20
Bernard de Mandeville, The Fable of the Bees or Private Vices, Public Benefits (Penguin, 2011) (1714); Louis
Dumont, From Mandeville to Marx. The Genesis and Triumph of Economic Ideology (1977).
21
On this filiation, see Tzvetan Todorov, Le siècle des totalitarismes [A Century of Totalitarianisms] 31 (2010).
22
Dufour, supra note 19, at 138–139. Saint Augustine was the first to conceive human history as a confron-
tation between love of God taken to the extreme of self-contempt (Amor Dei usque ad contemptum sui) and
self-love taken to the extreme of contempt for God (Amor sui usque ad contemptum Dei). See St. Augustine of
Hippo, Civitas Dei, XV, 28.
134 I•CON 11 (2013), 129–145

of the “American way of life,” which is pursued in all four corners of the globe.23 In
a recent book, the philosopher Dany-Robert Dufour has convincingly demonstrated
that today’s overriding belief in the virtues of self-love and the concomitant dismissal
of any categorical imperative lead to a Sadean “perverse society.”24 Indeed, as the title
alone of the Marquis de Sade’s best known philosophical romance indicates, in its two
parts—Justine; or, The misfortunes of virtue. Followed by the story of Juliette her sister, or
Vice amply rewarded25—what Sade’s work shows is the true face of a world governed by
the maximization of individual utilities.26

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1.2.  Privatization of  law
In the field of law, one of the effects of inverting the relation between public and pri-
vate has been a privatization of legal rules. The shrinking of government in favor of
the private sphere, as advocated by neo-liberalism, is the primary cause of this trend
and a direct consequence of attributing to private operators tasks formerly ensured by
the state (tasks which include not only welfare state services, but even certain sover-
eign functions such as prison management and airport surveillance). But the priva-
tization of legal rules is also, indirectly, a consequence of the doctrine of “new public
management,” introduced with a view to applying private sector management meth-
ods to the public sector.27 Its goal is to subject the whole of society to a single science
of organization, based on criteria of efficiency alone. There is nothing new about this,
if we recall that Lenin had already sought to fuse state and factory into one, through
a scientific organization of labor inspired by Taylorism.28 The ecstatic reunion of capi-
talism and communism—those twin forces of Westernization of the globe—spawned
the utopia of a world in which everything could be calculated and managed, in which
governance by numbers would replace government by laws, and societies could sur-
vive independently of the res publica, that is, independently of the heteronomy which
has always defined the state in the Western legal tradition. In this universe, the law
is no longer conceived as a norm transcending the individual’s interests, but as an
instrument at the latter’s disposal. Where the individual will has been elevated into

23
See, e.g., the spectacular publishing successes of Ayn Rand, including the unambiguously titled The Virtue
of Selfishness. A New Concept of Egoism (1964). To date, her books have sold more than 25 million copies,
and Atlas Shrugged, at more than 7 million copies sold, is the most popular novel in the U.S. after J.D.
Salinger’s The Catcher in the Rye (1951).
24
Dufour, supra note 19.
25
Marquis de Sade, The Complete Justine, Philosophy in the Bedroom and Other Writings (Richard Seaver and
Austryn Wainhouse trans., Grove Press 1965) (1795).
26
Dufour, supra note 19, at 150, compares Adam Smith’s maxim, “Give me that which I want, and you shall
have this which you want” (The Wealth of Nations, I) with Sade’s: “Lend me the part of your body that can
satisfy me for a moment, and if it pleases you, enjoy that part of my body that can be gratifying to you”
(Juliette, Part I).
27
In France, this policy found expression particularly in the Organic Law Relating to the Finance Laws
(LOLF) of Aug. 1, 2001 and in the General Review of Public Policy (RGPP). See La Révision générale des
politiques publiques, 136 Revue française d’administration publique 751 (Oct. 2010).
28
See Jean Querzola, Le chef d’orchestre à la main de fer. Léninisme et taylorisme [The Conductor with an Iron
Fist. Leninism and Taylorism], in 32–33 Recherches (Special Issue: Le soldat du travail) 58 (Sept. 1978).
 The public–private relation in the context of today’s refeudalization 135

the necessary and sufficient condition of the legal bond, every person should logically
be able to choose the law which suits him or her best (having the law for oneself) and
be able to lay it down (having oneself as law). These two tendencies are abundantly
visible in positive law today.
The formula “a law for oneself ” aptly describes the increasing number of cases in
which people have the right to choose the law that is to be applied to them, and can
thus elude the common rule which applies equally to all. This was an idea which real-
communism had already made its own. In the words of Todorov:

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the Constitution and laws are not held in high esteem by the security forces or the other power-
ful figures of the regime . . . for whom the individual will always win out over the law binding
on all. . . . Here, everything can be arranged, negotiated, paid for: the exception has replaced
the rule.29

That is why communist countries could so easily embrace the neo-liberal credo
of subordinating the public to the private, which, in our present globalized context,
has led to treating national legal systems as though they were “legislative products”
competing on an international market of legal rules.30 This competition is meant to
bring about the “selection of rules” which can best maximize individual utilities.31
The World Bank’s “Doing Business” program, designed to ensure transparency con-
cerning this market, is inspired by just such Darwinian principles of legal selection.
For the benefit of “consumers of legal rules” seeking to boost their profits, it ranks
the constraints presented by different national legislations,32 and in so doing, clearly
fulfills one of its primary objectives: to work towards abolishing the legal protections
attached to employee status.33
Certain principles of international law have also been revived by the free mar-
ket economy, in particular the freedom of contracting parties to choose the law to
be applied to them. The objective criteria for determining the relevant jurisdiction

29
Todorov, supra note 21, at 19.
30
On this unholy union of capitalism and communism, and the emergence of what the Chinese Constitution
calls the “Communist market economy,” see Supiot, supra note 13, at ch. 1.
31
In Hayek’s view, Social Darwinism was wrong to focus on the selection of congenitally fitter individuals,
because the time scale involved was too long, and this approach neglected “the decisively important selec-
tive evolution of rules and practices”; see F.A. Hayek, Law, Legislation and Liberty: A New Statement of the
Liberal Principles of Justice and Political Economy. Vol. 3: The Political Order of a Free People 154 (1979)
[hereinafter Law, Legislation and Liberty III).
32
See the Doing Business program, at http://www.doingbusiness.org, and its annual ranking of legislation,
where you can find a representation of the earth as a sphere of legislative areas in competition: “Business
planet mapping the business environment.”
33
See Doing Business in 2005, Removing Obstacles to Growth (2005), copublication of the World Bank, the
International Finance Corporation, and Oxford University Press. The World Bank uses a methodol-
ogy developed by Harvard and Yale economists. See Juan Botero, Simeon Djankov, Rafael La Porta,
Florencio Lopez-de-Silanes, & Andrei Shleifer, The Regulation of Labor, Q. J. Econ. (Nov. 2004), available
at http://www.economics.harvard.edu/faculty/shleifer/files/reg_labor.pdf. The “Employing Workers”
indicator was removed under the combined pressure of the International Labour Organization and the
Global Unions. For a critique of these indicators, see Janine Berg & Sandrine Cazes, Policymaking Gone
Awry: The Labor Market Regulations of the Doing Business Indicators, 29(4) Comp. Labor L. & Poly J. 349
(2008).
136 I•CON 11 (2013), 129–145

governing a particular legal operation, and the principle whereby the mandatory
rules in force are inexorably applicable in that jurisdiction have limited purchase in a
world in which economic operators are free to move their products, production sites,
and profits wherever they please. The old principle of the autonomy of the will, which
international private law elaborated some 150 years ago, has been resurrected in
order to justify an international market of legal rules where different national legisla-
tions compete like commercial products for the favor of the customer who is out to
get the best value for money. Such legal forum shopping, facilitated by the removal of
trade barriers, allows private persons to choose the public framework most likely to

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maximize their individual utilities.34
Law shopping is of course incompatible with the rule of law, but it has its place in a
system based on rule by laws.35 The maxim “no contract without law” has been turned
into its opposite: there is no law without contract, that is, without contracting parties
who agree to apply whatever law they have chosen. Ultimately, the only law which
holds is that of the pursuit of individual interest. The theory of the efficient breach of
contract, promoted by part of the Law and Economics school, makes perfect sense in
this context: a promise is binding on the person who makes it only if it is in his interests
to keep it; otherwise he should be free to break it, as long as he compensates the other
contracting party who had placed their trust in it.36 This theory takes to its logical
conclusion today’s thorough-going challenge to heteronomy, which strips even the
spoken word of its binding force between people.
Darwinian legal selection is henceforth promoted within the European Union itself.
Already in 1999, the European Court of Justice had upheld a company’s right to
dodge the rules of the country in which it was operating by registering in a country
with less restrictive ones.37 Since the accession of post-communist countries, competi-
tion between the welfare and fiscal regimes of member states has been introduced, as
recommended by the open method of coordination (OMC).38 This “soft” pressure to
compete, which does not take the form of legislation, operates in conjunction with
the pressures applied by the Court of Justice of the European Communities (CJEC).
The European Treaty’s aim of “harmonisation [of conditions] while [the] improve-
ment is being maintained,” which informed the Court’s previous case law, has been

34
See Horatia Muir Watt, Aspects économiques du droit international privé (Réflexions sur l’impact de la globalisa-
tion économique sur les fondements des conflits de lois et de juridictions), Recueil des cours de l’Académie de droit
international de La Haye. Vol. 307/2004 (2005), available at http://www.nijhoffonline.nl/book?id=er307_
er307_025-383; Alain Supiot, Le droit du travail bradé sur le marché des normes [Labor Law Traded on the
Market of Norms], 12 Droit Social 1087 (Dec. 2005), p. 1087f.
35
On this opposition, see Harold Berman, Law and Revolution, vol. II 19 (2003).
36
See Richard Posner, Economic Analysis of Law (5th edn. 1998). The theory of the “efficient breach of con-
tract” has been criticized by several authors, particularly Daniel Friedmann, The efficient breach fallacy, 18
J. Legal Stud. 1 (1989).
37
Case C-212/97, Centros Ltd v. Erhvervs- og Selskabsstyrelsen, 1999 E.C.R. I-1459 (Mar. 9, 1999),
Opinion of Advocate General La Pergola.
38
TFEU, arts. 145 et seq. See Patricia Pochet, La stratégie européenne pour l’emploi en 2001 [European Strategy
for Employment in 2001], 12 Droit social 1090 (2001); Stéphane de la Rosa, Stratégie européenne pour
l’emploi: les nouvelles orientations, 12 Droit social 1210 (2005).
 The public–private relation in the context of today’s refeudalization 137

abandoned in favor of allowing companies established in member states with low

wages and weak social protection to exploit their “comparative advantages” to the full.
It has done this by allowing companies to ignore collective agreements39 and the laws
which index salaries to the cost of living;40 it has dismissed the presumption of sal­
aried status enshrined in the laws of the foreign countries in which these companies
operate;41 it has condemned legal measures which ensure that the rights of workers in
host countries can be adequately monitored;42 it has claimed that flags of convenience
are a question of freedom of establishment;43 and, in principle, it has outlawed strike
action against relocations.44 In one of its recent judgments along these lines, the CJEC

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decided that the goal of protecting social harmony and the purchasing power of work-
ers did not constitute public imperatives sufficiently important to justify infringing the
principle of the unrestricted provision of services.45
The formula “oneself as law” best summarizes this inversion of the hierarchy of
public and private, since it evokes a universe in which legal rules find their ultimate
source in the individual will and every individual is deemed a “mini-state.”46 Under
its influence, rules which appeared beyond question, such as the fact that violating
another person’s physical integrity is unlawful, have been challenged, as the European
Court of Human Rights’s (ECtHR) recent judgments on torture show. In 1997, it had
ruled that “one of the roles which the State is unquestionably entitled to undertake is
to seek to regulate, through the operation of the criminal law, activities which involve
the infliction of physical harm. This is so whether the activities in question occur in
the course of sexual conduct or otherwise.”47 By 2005, however, it had dismissed this
“unquestionable” principle in the case of a woman savagely tortured by her husband
and by third parties to whom the husband proposed the spectacle of his wife’s torment
in return for a fee. The ECtHR overturned its 1997 ruling in deciding that “the crimi-
nal law could not in principle be applied in the case of consensual sexual practices,
which were a matter of individual free will.”48 To make enjoyment of someone else’s
suffering into the source of a right, and moreover a human right which no national
law can infringe, is a perversion of the anthropological function of the law: instead of

39
Case C-341/05, Laval [2008] IRLR 160 (Dec. 18, 2007); Case C-346/06, Rüffert v. Land Niedersachsen
[2008] IRLR 467 (Apr. 3, 2008).
40
Case C-319/06, Commission v. Grand Duchy of Luxembourg [2009] IRLR 388 (June 19, 2008).
41
Case C-255/04, Commission v. France [2006] E.C.R. I-5251 (June 15, 2006).
42
Case C-319/06, supra note 40.
43
C-438/05 Viking Line [2007] ECR I-10779 (Dec. 6, 2007).
44
Id.
45
Case C-319/06, supra note 40.
46
“The German people has splintered into as many mini-States . . . as there are individuals” (inner mono-
logue of a driver in Der Himmel über Berlin [Wings of Desire], a film by Wim Wenders, 1987).
47
Laskey, Jaggard and Brown v. The United Kingdom (109/1995/615/703) Eur. Ct. Hum. Rts. (Feb. 19,
1997).
48
K.A. and A.D. v. Belgium, App. nos. 42758/98 & 45558/99, Eur. Ct. Hum. Rts (Feb. 17, 2005). See Muriel
Fabre-Magnan, Le sadisme n’est pas un droit de l’homme [Sadism is not a Human Right], Recueil Dalloz
2973 (2005).
138 I•CON 11 (2013), 129–145

channeling human passions and keeping at bay the darker side of our nature, which
lurks within each of us, the law here serves to give it free rein.49
This perversion is nothing new. The consent of the weak to the total domination
of the strong was already used in the nineteenth century to justify inhuman work-
ing conditions. And Goering’s definition of law as “what it pleases us to dispose” (was
uns gefällt) was also exalting the omnipotence of the individual will. It is noteworthy
that none of these perverted uses of law lasted very long. They led to deadly stale-
mates for which some solution had to be found. This explains the radical change in
dogma after World War II and the rejection of pre-war scientisms. In recognition of

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the fact that law is not there to pander to the egoism, violence, greed, and madness
of human beings, but on the contrary to channel these and keep their lethal power
at bay, new legal instruments enshrining the imperative of humanity’s survival were
developed. It is indeed necessary, time after time, to submit the whims of the strong to
something which is binding on everyone and which is even stronger than they are, to
prevent human society from turning into a jungle. A close analysis of contemporary
legal developments will help us identify the immune reaction of today’s societies to the
deconstruction of institutions of the state and the subordination of the public to the
private.

2.  The neo-feudal hybridization of public and private

We must attempt to dispel any misunderstanding at the outset. The notion of a
“re­feudalization of law,” which several authors have put forward,50 does not mean a
return to the Middle Ages, but the reemergence of a legal structure which the birth
of the nation state had rendered obsolete. We can grasp this better if we recall the
sedimentary character of the history of law. As Aziz Al Azmeh has shown for Islam51
and Pierre Legendre for the West, the dogmatic categories of the past do not fit neatly
into a linear history but constitute a reservoir of sense which can always reemerge
and produce new normative effects. As is the case for any system based on dogma, law
cannot be situated in a continuum of chronological time but takes place in a sequen-
tial time frame in which any new law both repeats a founding discourse and generates
new cognitive effects. That is why old categories of thought can take on new forms,

49
François Ost rightly notes that the Sadean hero’s pleasure stems in part from the fact that he substitutes
for the law shared in common by all a “law of exception, of which he alone is the author, thus depriving
his victims of the right to seek society’s protection.” See François Ost, Sade et la loi 194 (2005).
50
See particularly Alain Supiot, Actualité de Durkheim. Notes sur le néo-corporatisme en France. 6 Droit et
Société 177 (1987); Alain Supiot, La contractualisation de la société [Contractualization in Society], in
Université de tous les savoirs, Vol. 2: Qu’est-ce que l’humain? 156 (Yves Michaux ed., 2000); Pierre Legendre,
Remarques sur la re-féodalisation de la France [Remarks on the re-feudalization of France], in Études en
l’honeur de Georges Dupuis 201 (1997) (reprinted in Pierre Legendre, Sur la question dogmatique en Occident,
vol. 2: Nomenclator 271 (2006)); L’hypothèse du néo-féodalisme. Le droit à une nouvelle croisée des chemins
[The Hypothesis of Neo-feudalism. Law at a New Crossroads] (José Lefebvre ed., 2006).
51
Aziz Al Azmeh, Chronophagous Discourse: A Study of Clerico-Legal Appropriation of the World in an Islamic
Tradition, in Religion and Practical Reason 163 (Frank E. Reynolds & David Tracy eds., 1994).
 The public–private relation in the context of today’s refeudalization 139

for example the concept of citizenship, which regularly reemerges, from the Athenian
republic to the Treaty of Maastricht’s European citizenship via citizenship in Roman
law or the French Revolution.
One of the reasons why legal dogma accumulates like sediment is that there are
a finite number of types of legal structure, and only variations within each type are
affected by historical change. Borrowing from Chinese political philosophy, one can
distinguish broadly between two systems of government: government by laws and
government by men. In a system of government by laws, the condition of each person’s
freedom is that all are subject to the same general and abstract laws. This structure

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supposes the presence of a third-party guarantor of laws, who transcends the will
and interests of individuals. Two distinct legal realms can be articulated in this dog-
matic configuration: that of rules bearing on objects transcending any calculation of
individual utility (the realm of deliberation and the law) and that of rules bearing on
objects subject to the calculation of individual utility (the realm of negotiation and
contract). This kind of arrangement alone can allow men and things to be treated in
the contractual sphere as abstract exchangeable entities, whose value can be deter-
mined by a shared monetary standard, since their qualitative differences are mean-
while enshrined in the domain of the law, beyond calculation.
In a system of government by men, by contrast, people are placed in a network
of relations of dependence. The guiding idea is not that all should be subject to the
same abstract law, but that each person should behave in accordance with his or her
place in the network. Each must do his best to serve the interests of those on whom
he depends, and be able to count on the loyalty of those who are dependent on him.
People’s legal status in their mutual relations and their relations to things is defined
not by subordination to the same impersonal law, but by personal ties. While the fig-
ure of the third party guarantor does not disappear altogether, it becomes a guarantor
of bonds rather than of laws. This type of configuration has no need for the figure of
the sovereign state, but this is at the cost of amalgamating the realm of the calculable
and the incalculable. Since there is no third party to take charge of the latter, the dis-
tinctions between public and private become blurred.52
Few political systems have really managed to hybridize these two models in the way
that Imperial China did (which perhaps explains in part its exceptional longevity).53
More often than not, one of the models is dominant, even if elements of the other are
always also present. In feudal systems, which are one of the principal types of govern-
ment by men, it is the idea of personal bond which is dominant. Such systems have
always resurfaced in periods when centralized power receded, but each time they have
taken on a different form. Japanese feudalism, for example, while it too grew out of the
collapse of imperial power, is in many respects different from the feudal systems which
arose in the West during the Middle Ages, on the ruins of the Carolingian empire. One

52
On this point, see Chevrier, supra note 2, at 16 et seq.
53
See Léon Vandermeersch, La formation du légisme. Recherche sur la constitution d’une philosophie politique
caractéristique de la Chine ancienne [The Formation of Legalism. An Exploration of the Constitution of a
Political Philosophy Characteristic of Ancient China] 271 et seq., esp. Conclusion (1965).
140 I•CON 11 (2013), 129–145

of the distinctive features of Western feudalism is precisely that the ties of dependence
between people have a legal character.54 The most fundamental bond, and the back-
bone of the social order, is vassalage, which is a contract of a very particular type.
Vassalage combines a personal and a real element. The personal element consists in
one person being made dependent on another. The form this takes varies with the
status of the parties concerned, and may be homage or serfdom. The real element
consists of the fact that the dependent party is granted a possession burdened with
obligations to the benefit of the grantor. The obligations are acquitted through ser-
vices rendered, determined by the status—vassal or serf—of the grantee. One has only

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to look beneath the surface of today’s contractualism to discover these two dimen-
sions—personal and real—in contemporary law, and the techniques regarding people
and things which characterize feudal legal structures.

2.1  Feudal rights over people

The techniques whereby people are infeudalized today go by the name of what jurists
and sociologists call “networks.”55 The representation of the world as a network of
communicating particles was championed by cybernetics in the post-war years, before
being acclaimed by post-modern philosophy.56 And today participatory management
puts it into practice, in the way it subjects people to fulfilling objectives rather than
observing rules. If we recall that networks are a feudal invention, we will easily appre-
ciate that their legal character is not exhausted by the battery of contracts devised to
put them into play today, and that the network society does not mark the culmination
of individual freedom, but rather the reemergence of feudalism. This reemergence is
signaled by a double displacement: from sovereign to suzerain and from law to bond.

a)  The shift from sovereign to suzerain power

The shift from sovereign to suzerain power is the most visible sign of the extension of
vassalage in Europe today. The suzerain has immediate authority over his vassals, but
not over his vassals’ vassals, whereas the sovereign’s power is supreme—self-positing
and bearing its cause within itself—and can be exercised directly over all his subjects.
That is why, ever since Bodin, sovereignty has been the cornerstone of the theory of
the state. However, this concept can no longer account for the state’s contemporary
transformations, due to which the state increasingly resembles a suzerain rather than
a sovereign power.

54
See Marc Bloch, Feudal Society, 2 vols. (L. A. Manyon trans., Routledge & Kegan Paul 1961) (1939).
55
Manuel Castells, The Rise of the Network Society (1996); Gunther Teubner, The Many-Headed Hydra:
Networks as Higher-Order Collective Actors, in Corporate Control and Accountability 41, 41–42 (J. McCahery,
S. Picciotto & C. Scott eds., 1993); and Gunther Teubner, Netzwerk als Vertragsverbund [Networks as
Connected Contracts] (2004); François Ost and Michel van de Kerchove, De la pyramide au réseau? Pour une
théorie dialectique du droit [From the Pyramid to the Network? Towards a Dialectic Theory of Law] (2002).
56
See especially Gilles Deleuze, Capitalism and Schizophrenia. Vol. 2: A  Thousand Plateaus (Brian Massumi
trans., Continuum 2004) (1980).
 The public–private relation in the context of today’s refeudalization 141

The European Union provides the best illustration of this revival of relations of
suzerainty. European political institutions are clearly not sovereign. Member states
have the position of vassals of a European Union which is itself deprived of most of
the attributes of sovereignty over its citizens. In other words, the EU has only in­direct
power over its populations, and requires the mediation of those vassal states which
acknowledge its dominium. Similar relations pertain to certain international eco-
nomic organizations like the International Monetary Fund (IMF), which can only
wield effective power if states swear allegiance to it and accept its structural adjust-
ment programs in return for a portion of their sovereignty. There is no contractual

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agreement, in the strict sense, but an act of allegiance is performed, which takes the
form of a letter addressed by the country concerned to the IMF.57 While the ostensible
goal of such institutions is “economic governance,” the techniques employed clearly
create bonds of vassalage, which in the long run cannot but compromise the national
sovereignty of the populations in question. Since the collapse of the financial mar-
kets in 2008, this trend has gained significant momentum. No sooner had the banks
been bailed out by the public purse than their representatives were given leadership
positions in the most indebted European countries. Whereupon the countries which
had footed the bill for the collapse of the financial markets were forced, precisely
in the name of the debts thus contracted, to privatize what was left of their public
services and entirely deregulate their labor markets. As the “Greek crisis” perfectly
illustrates, there is much more at stake here than the familiar practice of privatizing
profits and having taxpayers bear the losses. What we are witnessing, rather, is an
undisguised challenge to a people’s right to self-government. Friedrich Hayek’s battle
cry of “dethroning politics” and introducing a “limited democracy,” which would put
the distribution of wealth58 beyond the reach of the ballot box, is close to becoming a
reality in Europe today.

b)  The shift from law to bond

The shift from law to bond characterizes the plethora of new contracts which not only
oblige the parties to give, do, or refrain from doing something specific, but additionally
create between them a bond which obliges one party to behave according to the expec-
tations of the other. This is the type of contract generally used to establish a bond of
economic dependence between one (physical or legal) person and another. Such con-
tracts, which integrate one person into another’s economic activity, affect the status
of the parties retroactively and oblige them to create relatively stable bonds between
them.59 The same techniques are employed in the contractualization of public action.

57
These letters have been made available on the IMF’s website: http://imf.org/external/index.htm.
58
See F.A. Hayek, The Containment of Power and the Dethronement of Politics, in Law, Legislation and Liberty III,
supra note 31, 128.
59
From a similar perspective, see the work of Ian R. MacNeil, which highlights the increase in “relational
contracts” in the U.S.: Contracts: Adjustments of Long-term Economic Relations under Classical, Neoclassical
and Relational Contract Law, 72 Nw. U. L. Rev. 854 (1978); Relational Contract: What We Do and Do Not
Know, 3 Wis. L. Rev. 483 (1985); Reflections on relational contract, 144 J. Institutional & Theoretical
Economics 541 (1985); and The New Social Contract: An Inquiry into Modern Contractual Relations (1980).
142 I•CON 11 (2013), 129–145

Instead of submitting the activities of private persons to rules, the state entrusts them
with defining how the objectives it sets should be realized, while reserving the possibil-
ity of monitoring the outcome and intervening if failings are observed. In domestic
law, these techniques go by the name of the “contractualization of public action.”60
In labor law, they have taken the form of what is called negotiated law, which seeks to
condition legislative reform on prior negotiation between social partners.61 In EU law,
these techniques are employed in the area of economic governance, in order to estab-
lish mechanisms whereby a state’s fulfillment of the obligations it has undertaken
regarding its public finances may be monitored on a permanent basis. If the Treaty

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on Stability, Coordination and Governance in the Economic and Monetary Union, which
was signed on 2 March 2012 by 25 Eurozone governments, is ratified, a decisive step
will have been taken along this path. The Treaty envisages quantified objectives for
rebalancing a country’s budget, along with a “correction mechanism” which “shall
be triggered automatically in the event of significant observed deviations from the
medium-term objective or the adjustment path towards it” (art. 3(e)). States are thus
no longer expected to comply with European legislation but to react in real time to
quantitative data. But what this cybernetic dream of putting human affairs on auto-
matic pilot really conceals is the establishment of legal bonds of allegiance.62

2.2.  Feudal rights in things

The proliferation of techniques for transferring things is the other symptom of this
feudal revival. Under feudalism, where wealth was essentially vested in land, men
were considered simply as custodians of worldly goods, which ultimately belonged to
God. Land always came from someone else, and it was rare for rights in land not to
derive from a bond of dependence with another person (the exception being allodial
land). Hence the Medieval distinction between the dominium utile of the vassal or ten-
ant, and the lord’s dominium eminens over the land granted in fief or on the basis of
the peasant’s dues or his serfdom. The granting of land was indissociable from certain
personal bonds between grantor and grantee, which could take the form of acts of
loyalty (owed by the vassal to his suzerain) or of economic contributions (owed by
peasants or villeins to their lord). In English law, the idea still holds that no subject
can, strictly speaking, be “owner” of his land, even if he has exclusive enjoyment of it,
since all people receive their land from the Sovereign.63 In feudal law, public office or
ecclesiastical office were subjected to the same system of transfer and to revenue from

60
See Conseil d’Etat, Le contrat, mode d’action publique et de production de normes, Rapport public [The Contract,
a Mode of Government Action and of Production of Norms. Public Report] (2008).
61
The requirement for this preliminary negotiation was first introduced into European law in 1992 by
the Maastricht Treaty (consolidated provisions in arts. 154–155 of the Treaty on the Functioning of
the European Union (TFEU)). In France it became mandatory through a law of Jan. 31, 2007. See Alain
Supiot, La loi Larcher ou les avatars de la démocratie representative [The Larcher Law or the Avatars of
Representative Democracy], 5 Droit Social 525 (2010).
62
See art. 8 of the Draft Treaty, which gives the Court of Justice the power to impose financial penalties on
non-compliant countries.
63
F.H. Lawson & Bernard Rudden, The Law of Property 80 (2d ed. 1995).
 The public–private relation in the context of today’s refeudalization 143

goods attached to the office constituted the office holder’s remuneration (or benefice).
This link between officium and beneficium was at the origin of the venality of offices
and charges which lasted until the end of the ancien régime.64 The relations between
people and things thus always preserved the imprint of relations between people.65 As
Louis Dumont has shown, an economic ideology implies quite the reverse: that rela-
tions between people are secondary to relations between people and things.66 This is
because the market economy requires goods for exchange, which must consequently
be stripped of any trace of personal bonds. Here again, an analysis of positive law
shows how feudal motifs have reemerged, in the form of the fragmentation of owner-

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ship and the farming-out of practical functions.
The fragmentation of ownership is clearly a consequence of the extension and
consecration of intellectual property rights. But it also affects tangible property.
Intellectual property rights imply that one person may have rights over something
which is the physical property of another. The bearer of intellectual property rights
has prerogatives which vary from case to case, but they always entail a restriction
of the otherwise absolute rights of material ownership. This is because intellectual
property rights are attached to the object regardless of its physical owner. As Mauss
noted, intellectual property brings back into the modern world something we thought
was confined to “archaic” societies, namely the spirit of the thing, which follows the
thing wherever it goes, and must always circle back to whoever put it into circula-
tion.67 This is precisely what the Agreement on Trade Related Aspects of Intellectual
Property Rights (TRIPS) signed in the framework of the World Trade Organization
enshrines: freedom of circulation and the obligation on every custodian of the thing
throughout the world to honor his debt to the owner of the spirit of the thing.68 The
revival of the old feudal distinction between dominium utile and dominium eminens is
here unmistakeable.
However, intellectual property is not the only factor in the fragmentation of owner-
ship. The legal concept of ownership is today incapable of encompassing the actual
economic control over certain goods, a control which may be spread between many
title holders, from private persons to public authorities. This insufficiency should come
as no surprise regarding “things” which can only be traded on the basis of a fiction,
such as labor, natural resources, and money.69 Fictitious commodities such as human
or natural resources can only be traded if we limit the rights of those who appropriate

64
See Adhémar Esmein, Cours élémentaire d’histoire du droit français [Introductory Course in the History of
French Law] 139 et seq., 271 et seq., 411 et seq. (1898).
65
For a clear and concise overview, see Paul Ourliac & Jehan de Malafosse, Histoire du droit privé. Vol. 2: Les
biens [History of Private Law. Vol. 2: Property] 148 (2d ed. 1971).
66
Dumont, supra note 20.
67
Marcel Mauss, The Gift. The Form and Reason for Exchange in Archaic Societies 10 (W.D. Halls trans.,
Routledge 1990) (1923).
68
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), signed at Marrakesh, Apr.
15, 1994.
69
See Karl Polanyi, The Self-Regulating Market and the Fictitious Commodities: Labor, Land, and Money, in The
Great Transformation: The Political and Economic Origins of Our Time 71 (1944).
144 I•CON 11 (2013), 129–145

them, since their preservation and renewal affect the common good. It is because labor
law and environmental legislation set reasonable limits on the exploitation of these
resources that they also allow labor and nature to be treated as though they were com-
modities. These legal constraints, recently labeled “sustainable development,” show
the limited purchase of private property rights over these types of resources, which
belong to the dominium eminens of transcendent beings such as the common heritage
of the nation or of humanity,70 including the human body, for the purposes of limiting
its exploitation and commercialization.71
But the loss of an exclusive bond between people and their property also concerns

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non-fictitious commodities. In the regime of liability for damage caused by things in
one’s care, there had already resurfaced the notion of a guardian, who was not neces-
sarily the owner of the thing and whose relation to the thing depended on his relation
to the owner. The loss of exclusivity is even clearer in the regime of liability for defective
products.72 It is the producer of the thing—the manufacturer or whoever put the object
into circulation on a market—who remains responsible for the damage caused by its
defects, whether or not the producer is bound by contract with the injured party. As in
the case of intellectual property, the producer’s liability follows the product and leads
to the need for systems of product traceability to be set up. The difference here is that
what circulates with the product is the producer’s obligation and not the author’s debt-
claim. The producer continues to be answerable for the safety of the product, regardless
of its temporary guardians, with the result that the liability for damage doubles up into,
on the one hand, what could be called a liability utile, incumbent upon the product’s
custodian, and a liability eminens, which the producer cannot evade.
The farming-out of responsibilities occurs in both the public and the private sector,
and blurs the distinction between the two. It first came to prominence in the man-
agement of private companies. Under pressure from the financialization of the econ-
omy, companies divided up their business into cost and profit centers, and set them

70
See The Universal Declaration on the Human Genome and Human Rights of Nov. 11, 1997, art. 1.
71
The notion of Common Heritage of Humanity first appeared in maritime law (see the Montego Bay
Convention of Dec. 10, 1982) before being extended to celestial bodies and land-based property (see
Ph. Kahn, Les patrimoines communs de l’humanité: quelques réflexions [Humanity’s Shared Patrimony:
Reflections], in Études en hommage à A. Kiss, Les hommes et l’environnement, quels droits pour le vingt-et-unième
siècle? 307 (1998); F. Terré, L’humanité, un patrimoine sans personne [Humanity—No Person’s Patrimony],
in Mélanges Ph. Ardant 339 (1999); G.B. Kutukdjian, Le génome humain: patrimoine commun de l’humanité
[The Human Genome: Humanity’s Shared Patrimony], in Hector Gros Espiel, Amicorum Liber. Theory of
International Law at the threshold of the 21st century. Personne humaine et droit international 601 (1997);
and more generally François Ost, La nature hors la loi (1995); David Hiez, Étude critique de la notion de patri-
moine en droit privé actuel (2003); Alain Sériaux, La notion juridique de patrimoine. Brèves notations civilistes
sur le verbe avoir, RTD civ. 801 (1994).
72
This regime was established by the Council Directive 85/374/EEC of July 25, 1985 on the approxima-
tion of the laws, regulations and administrative provisions of the Member States concerning liability for
defective products. See Y. Markovits, La directive C.E.E.  du 25 juillet 1985 sur la responsabilité du fait des
produits défectueux [The E.C. Directive of July 25, 1985 Concerning the Liability for Defective Products]
(1990); Simon Taylor, L’harmonisation communautaire de la responsabilité du fait des produits défectueux. Étude
comparative du droit anglais et du droit français [EU Harmonization on the Liability for Defective Products.
A Comparative Study of English Law and French Law] (1999).
 The public–private relation in the context of today’s refeudalization 145

ever more stringent performance targets. This move towards ever greater autonomy
went hand in hand with out-sourcing the least profitable processes and focusing on
what was called a company’s “core business,” that is, whatever operation appeared
at the time most competitive to the financial markets. The business enterprise model
changed accordingly in ways which are familiar to us today: the “Fordist” model of
an integrated and highly hierarchical organization gave way to a network model in
which the company contracts out an increasing proportion of the operations needed
to manufacture its products.
As for the farming-out of public assignments, it is inherent in the contractualization

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of state action. In imitation of private sector management, the state has on the one
hand divided up its different operations, and on the other out-sourced those not con-
sidered integral to its “core business.” In the first case, its activities are made auton-
omously self-contained, on condition that certain objectives are pursued, and their
attainment measured by quantifiable indicators. In the second case, its activities are
privatized on condition that companies accept regulation by the regulatory authori-
ties designated to ensure the general interest for a product or a particular service (elec-
tricity, highways, telecommunications, the stock exchange, the railroads, prisons, and
so forth).73 A panoply of feudal legal mechanisms resurface here in a new guise. The
venality of offices and charges, which a century ago Esmein deemed a “monstrous
organization,”74 returns in force, in the name of dismantling the monopolies enjoyed
by public companies. In the provisions of what the Treaty on the Functioning of the
European Union calls “services of general economic interest” (art.14 and Protocol
no. 26) relations of “tenure–service” once again become the norm. And what the
principle of the separation of economic operators and regulators conceals is the much
older distinction between power (potestas) and authority (auctoritas) by which the feu-
dal system bound powers in order to stem any absolutist tendencies. More generally,
the privatization of public assignments gradually erodes the hard-won distinction,
established at the dawn of the modern age,75 between a public role endowed with a
timeless dignity, and the mortal being who temporarily occupies it.

73
Marie-Anne Frison-Roche, Les régulations économiques: légitimité et efficacité [Economic Regulations:
Legitimacy and Efficiency] (2004).
74
Esmein, supra note 64, at 403.
75
For a history of this process, see Ernst Kantorowicz, The King’s Two Bodies: a Study in Medieval Political
Theory (1957).