INTRODUCTION

Marcel Mauss’ The Gift is an original and unique anthropology of law. Law is the object and medium of the analysis, and the conceptual and political strategies of the text are closely adapted to the symptomatic tensions that Mauss elicits from law. And for Mauss these tensions were concentrated in one particular legal institution – the archaic Roman institution of nexum. In the early twentieth century, the legal-historical debate about the technicalities of nexum was sufficiently intense as to be described as ‘volcanic’. Events that qualify as seismic in the field of legal history may not have such effects elsewhere, so it is interesting that the question of nexum became a central concern of sociology and ethnography in early twentiethcentury France. Ludwig Mitteis had set off the legal-historical debate in a text published in 1901, which was followed in the next decade or so by a number of responses and syntheses. Many of these accounts of nexum were noticed in L’Année sociologique, the house journal of the Durkheimians, and the journal in which the text of The Gift first appeared. Most of these notices were written by Mauss’ collaborator Paul Huvelin, who also published his own brief essay on nexum; these, together with the studies of Georges Davy, had familiarised Mauss with the intricacies of nexum. The interest of Mauss and his collaborators emerged from a broader comparative investigation of the institution of contract, which drew together the study of law, magic, and religion. In The Gift, Mauss reframed the terms of this investigation quite radically: first, by hybridising history and ethnography to generate a novel apprehension of ‘the archaic’; second, and more importantly, by turning this relation to the archaic into the medium of a critical political project, which held European society up to a still vital legacy of its own past.

Nexum was originally the form taken by a loan made by patrician to plebeian. A quantity of bronze bullion representing the sum borrowed was weighed out in the presence of a libripens and five witnesses, and this ritual, together with the verbal formulae uttered by the parties, created a bond under which the borrower effectively pledged himself as security for the loan.

Each of the contributions to this book addresses the question of how legal techniques fabricate persons and things. In exploring that question, and in asking just what ‘fabrication’ means, each chapter focuses on a specific historical, social, or ethnographic context. Given that these contexts, and the modes of institutional or ritual action which they disclose, are quite varied, this book does not aim to provide a general theoretical account of the fabrication of persons and things in law. Indeed, the term ‘fabrication’ is chosen precisely because it suggests modes of action which are lodged in rich, culturally-specific, layers of texts, practices, instruments, technical devices, aesthetic forms, stylised gestures, semantic artefacts, and bodily dispositions. Each contribution shows how, in a given social, historical, or ethnographic context, elements of this repertoire are mobilised by legal techniques of personification and reification. The specific character of these modes of action would be lost in a general theory of law as an agent of ‘social construction’. Yet, diverse as they may be, our approaches to the question of legal fabrication are brought together as resources for reflection upon a specific institutional predicament. In Western legal systems, persons and things are now problems rather than presuppositions. One could point to technology, and biotechnology in particular, as the main factor here, but there are other reasons for the implosion of the old legal division between persons and things.

In May 2000, two parliamentary members of the Council of Europe, Jean-François Mattei and Wolfgang Wodarg, organised an Internet petition which invited concerned individuals to protest against the implementation of the European Union's 1998 Directive on the Legal Protection of Biotechnological Inventions. This was the Directive which, according to its critics, effectively authorised the patenting of ‘human’ gene sequences. Signatories were asked to write to Romano Prodi, then the President of the European Union, affirming the proposition that ‘the human genome is the common patrimony of humanity’, and requesting that ‘the granting of patents on the genome be suspended’. By the time it was submitted, in November 2000, the petition had apparently attracted some 10,000 signatures, mainly from France. It included the names of prominent geneticists such as the Nobel laureates Jean Dausset and François Jacob. President Chirac also expressed his adherence to the petition, but his support was somewhat equivocal, being based less on the recognition of the special prestige of life or biology than on the pragmatic argument that the patents system might be stifled: ‘trop de brevets tuent le brevet’.

The theme of genetic inheritance now infuses so many dimensions of life, from the personal experience of health to the functioning of social institutions such as employment and insurance, that it has become essential to many contemporary forms of self-understanding.