I
Appropriation

1. Ius proprium

The immune function that the law performs for the community is immediately obvious, and as such is universally recognized even outside the legal literature. From the outset, it was prescribed to preserve peaceful cohabitation among people naturally exposed to the risk of destructive conflict. Even before being put into codified forms, therefore, law is necessary to the very life of the community. This is the primal, radical sense of the immunizing role it performs: just as the immune system functions for the human organism, law ensures the survival of the community in a life-threatening situation. It protects and prolongs life, snatching it from the jaws of death. This comparison with the biomedical lexicon reveals a more complex and disturbing meaning of legal immunization, however. The immunity created by law for the community, just like the immunity created by the human body, does not operate directly and affirmatively, so to speak, in attaining its goal. On the contrary, it is forced to adopt an indirect, twisted, or even, literally, perverse method to reach its objective, one that is only attainable through an instrument that contradicts it (albeit only partially or temporarily). This is because it contains an element of the same substance it is intended to defend against.

There is an antinomy implied in the very wording we began with: when it is stated that the primary goal of law is to immunize the community, its negative character is assumed in advance. As becomes apparent from the contrastive coimplication of the two terms, law does not seek to shelter the community from a risk external to it, but rather from something that is originally inherent to it, which constitutes it as such. To grasp this point, we need only turn our attention to the most radical significance of munus from which "community" derives its own meaning:1 law seeks to protect the common life from a danger that can be seen in the relation that makes it what it is. Common life is what breaks the identity-making boundaries of individuals, exposing them to alteration-and thus potential conflict-from others. Also, because the community brings its members together in a common relationship that is necessarily one of reciprocity, it tends to confuse the boundaries between what is proper to each individual and what belongs to everybody and hence to nobody.

The law responds to this unsustainable contamination by reconstituting the limits threatened by the connective power of the munus. This is where the aporia we spoke about earlier is to be found. Since the relationship and the alteration are not pathological possibilities but the originary forms of community, by immunizing it, law turns community into its opposite. From this perspective, the negative connection that binds community and law together is finally clarified. Although, as we have seen, law is absolutely necessary for the community to survive, it actually relates to the community through its inverse side: to keep community alive, it tears it away from its most profound meaning. By protecting it from the risk of expropriation-expropriation being community's most intrinsic, natural inclination-law empties community of its core meaning. One could even go so far as to say that law preserves community by making it destitute. Law constitutes community through its destitution. It does so, by extreme paradox, exactly insofar as it seeks to strengthen its identity, to ensure its mastery over its own identity, to return the community to what is "proper" to it-assuming that what is "proper" is exactly what is not "common." By striving to make community more proper to itself, law necessarily makes it less common.

This aporetic dialectic between common and proper, implicit in the legal form, is central to the work of Simone Weil. When she juxtaposes "rights" to "obligations," she is actually reasserting an idea of community that is entirely faithful to its original meaning of "law in common." The obligation she speaks of is none other than the munus that the members of the communitas share, moving in a direction from inside to outside, from the one to the other, and from the proper to the common. This is not to exclude the possibility of using the notion of rights, but in a form that is complementary and subordinate to the notion of obligation, that is, regarding those to whom each individual is obligated: "A man, considered in isolation, only has duties, amongst which are certain duties towards himself. Other men, seen from his point of view, only have rights. He, in his turn, has rights, when seen from the point of view of other men, who recognize that they have obligations towards him. A man left alone in the universe would have no rights whatever, but he would have obligations." 2 What Weil seeks, in short, and what she means by "justice," is to end the nonreflexive relationship between subjectivity and rights. No one is a direct subject of rights, in first person; solely of obligations, which only indirectly transmute themselves objectively into rights for those who are benefited by them. But to say that we are subjects of an obligation-or, more precisely, that we are subject to an obligation-means that we are subjects of nothing but our own expropriation: an expropriation of what is proper to us, beginning with the subjective essence. This is ultimately the fulfillment of one's own obligation: its translation into a common benefit. This expropriative dynamic, in which the community recognizes the deep sense of its munus, is what legal immunization responds to by way of contrast. It re-establishes the direct passage between rights and subject that is cut off by the ridge of obligation: rather than "seeing as I have obligations, then others must have rights," "seeing as I have rights, others must have obligations." This passage takes place through the idea of the "legal person." If the communitas necessarily refers to something "impersonal," or even "anonymous," as Weil specifies, the immunitary principle of law places the person as the sole bearer of rights back into the picture: "The notion of rights, by its very mediocrity, leads on naturally to that of the person, for rights are related to personal things. They are on that level."3 If we recall that in the same years she was writing her Prelude à une declaration des devoirs envers l'être humain, Maritain's Declaration des Droits de l'homme appeared in New York, and Mounier prepared a Declaration des Droits des personnes et des communautes, the terms of the alternative become crystal clear. On the one hand, there is the absolute impersonality, the subjective anonymity, the constitutive impropriety of the "human being" to whom the infinite obligation of each finite existence is addressed: "The object of any obligation, in the realm of human affairs, is always the human being as such. There exists an obligation towards every human being for the sole reason that he or she is a human being, without any other condition requiring to be fulfilled." 4 On the other, there is the individuality of a subject-man or woman, person, community-who is only granted the enjoyment, or even better, the property/propriety [proprietà] of certain rights. This is because in its immunizing function, the law-of the community and from the community-takes on the same form as the proprium, regardless of whether we are talking about private or public law: in either case it is proper, in the sense that it "belongs" to the subject, public or private, who claims to be its bearer.

This is a truism that has characterized the legal form since its origins: even when the law is general or a generalization is called for, it always remains essentially particular, or even personal, because it concerns a legal person. The dimensions of this person may vary, from the discrete entity of a single individual to the institutional magnitude of a state, but the way it deals with all other legal persons does not: always and forever through comparison, negotiation, and contention. What this implies, in addition to its mercantile qualities, is its opposition in principle to the concept of community. Laws are always partial, never for everyone: the all, like nothingness, is a matter of justice. It is logically impossible to extend a right to all without emptying it of meaning as a right. If it were extended to everyone, it would no longer even be perceived as such. Not being proper to anyone, it would no longer be a right, but perhaps, at most, a fact [fatto]. It would lose the faculty that differentiates those who possess it from the status of those who are deprived of it, namely, its immunitary sense of privilege or privation. How can something be made common that is in essence private? Or how can a privilege be shared without losing it? "To the dimmed understanding of our age," writes Weil, "there seems nothing odd in claiming an equal share of privilege for everybody-an equal share in things whose essence is privilege. The claim is both absurd and base; absurd because privilege is, by definition, inequality; base, because it is not worth claiming."5

Yet it is precisely in this contradictory demand-the generalization of what is particular-that the law...