Luc Foisneau – Do you remember your first encounter with philosophy? Was it in a school setting? Was it in relation to a problem or a question?

Jean-François Kervégan – As a secondary school student in the years leading up to 1968, I had little contact with philosophy before my final year; at most, I made a few inconclusive attempts to read Marx and Freud (but also Discourse on Method...). In my final year, I was struck by the teaching of a young teacher who was shy and endearing in his uncertainty (he never looked at his pupils!). Although the philosophy teaching schedule was reduced in a very competitive science class, with a heavy workload in the ‘important’ subjects, I followed the philosophy classes with a kind of fascination, trying as much as possible to do some reading until the course of world events, starting in March 1968, took me away from philosophy for a while, at least in appearance. However, under the influence of this teaching and the political events in which I took an active part, I decided to give up my planned studies in the science preparatory class; I therefore started the new school year in hypokhâgne and not in ‘Math’ sup’ as planned. From then on, although my philosophical knowledge was very limited at the time, I had no doubt about my ‘vocation’. As for where this might lead, I only asked myself that question much later. Those were happy times (which would soon come to an end) when we debated passionately about the collective future, but when the individual future was not a source of anxiety...

Luc Foisneau – A university career involves a series of ‘tests’: recruitment exams, a PhD, the HDR (Habilitation à Diriger des Recherches, or accreditation to supervise research), etc. Could you tell us which ones were the most significant and the most difficult for you, and why?

Jean-François Kervégan – The most difficult ones: all of them! Preparing for the ENS and agrégation competitive examinations was a nightmare, because I was confronted with the extent of my ignorance (a feeling that has never completely left me, even now that I am a well-established researcher). But the worst of these experiences was undoubtedly the defence of my doctoral thesis (I had enrolled shortly before the introduction of the ‘new doctorate’ and the Habilitation) in Lyon. It lasted seven hours and I was confronted, by the majority of the members of the jury appointed by my thesis supervisor, with almost unimaginable signs of mistrust and hostility; all because the thesis developed a confrontation between Hegel and Carl Schmitt, an author whom some of my judges admitted they did not know existed, and who for others was the devil (which was not entirely unfounded, as far as I can judge); a judgement that, after an hour and a half of deliberation, resulted in a distinction (very honourable by majority vote, if I remember correctly) that I can flatter myself, if I dare say so, to be one of the few candidates to have obtained! The ordeal was so violent that it took me over a year to recover, especially as it was followed by a misadventure during my first university application: ranked first for a position as a lecturer by the committee at a major Parisian university, I was downgraded by the CNU (which, at the time, had the final say). It is true that the following year it confirmed my appointment as a university professor at the brand new University of Cergy-Pontoise, which means that I have never been a senior lecturer... I learned a lesson from this misadventure: in the many thesis defences I have participated in during my career, as thesis supervisor, guarantor or member of the jury, I have felt obliged to always show kindness towards the candidate, regardless of my reservations about the content of the work or my annoyance at the presumptuous attitude (rare, incidentally) of the people whose work I had to judge.1 Every cloud has a silver lining...

Luc Foisneau – It is sometimes said that the agrégation plays an important role in choosing one’s research topic. Sometimes a competition topic can spark a vocation. Was that the case for you?

Jean-François Kervégan – No, I don't think so, except that it was during the oral exam that I first met the person I would later ask to supervise my thesis, Bernard Bourgeois. But it is true, in general, that competitive examinations, particularly the agrégation, play an important role, which some may consider excessive, not only in the choice of research topics for those who take them, but also in the intellectual organisation of apprentice philosophers. I explained this in an article published in 2012 in the French journal Esprit: the French system of higher education, in which preparatory classes and competitive examinations play a decisive role, more decisive in any case than that of the university, engenders a certain formatting of the mind that has great merits (as I was able to observe as a member of the ENS and agrégation philosophy examination boards) but which undoubtedly influences the French philosophical « style » and clearly distinguishes it, in terms of comparable quality, from that of young Anglo-Saxon or German philosophers. This is perhaps one of the reasons for the success of a certain French philosophy (that of Derrida or Lyotard, not that of Vuillemin or Granger) across the Atlantic: it was strange...

As far as I am concerned, passing the agrégation led me to become a secondary school teacher at the end of my studies at the ENS (at the time, there were no doctoral contracts or thesis grants), which delayed my enrolment in a PhD programme by several years, as I was overwhelmed by my teaching duties. The little free time I managed to find was devoted to a collective work on Hegel's Logic, outside of any academic framework.

Luc Foisneau – We met at the ENS in Fontenay-aux-Roses in 1983 or 1984 in a seminar you led with Catherine Colliot-Thélène and Élisabeth Kauffmann. It was a seminar on reading texts, entitled « Philosophy and Politics in Germany, 18th-20th Centuries », perfect for inspiring vocations in German philosophy. One year, we worked on the Addresses to German Nation, if my memory serves me correctly. How important is translation in your philosophical work in general, and in your approach to Hegel in particular, with whom you have had a long intellectual partnership?

Jean-François Kervégan – Having access to high-quality translations is crucial for the work of a commentator, even if access to the original text can never really be replaced. I have always warned students who wanted to undertake a thesis in German philosophy under my supervision: with a few exceptions (in the case of foreign students for whom access to French translations was already an effort in itself), I required a minimum command of the German language, enabling them to have direct contact, even if only rudimentary, with the texts in question. For my part, I was able to see in my own approach to Hegel's texts how important the quality of translations was. My first reading of Hegel, in hypokhâgne, was of The Phenomenology of Spirit in Jean Hyppolite's translation and Logic in Stanislas Jankélévitch's translation. It was a challenge I had set myself, and it was particularly daunting, especially when it came to the Science of Logic. I made my way through the four small volumes, mostly without understanding anything I was reading; the translation was not entirely to blame, even if the intrinsic difficulty of Hegel's texts never makes them easy to approach. In any case, I was able to gauge the progress of my understanding when another generation of translations appeared just as I was seriously embarking on the study of Hegel: those by G. Jarczyk and P.-J. Labarrière for the Logic, those by B. Bourgeois for the Encyclopaedia, and many others during the 1970s and 1980s.

Luc Foisneau – Translating Hegel, as you just pointed out, is no small feat. How did you come to undertake the titanic task of translating Philosophy of Right into French? How did translating contribute to your thinking about Hegel and the philosophy of law?

Jean-François Kervégan – During the period when I was preparing my doctoral thesis (1980–1990), I read the Elements of the Philosophy of Right on a daily basis, even more so than Hegel's other writings, which convinced me of the shortcomings of the existing translations: those by André Kaan and Robert Derathé and Jean-Paul Frick, especially when compared to the aforementioned translations of Logic and Encyclopaedia. So, after completing and publishing my thesis (in 1992), I had the idea of producing my own translation of this text. This work, which was accompanied by the writing of copious commentary notes based on the research carried out during the preparation of my thesis (and which had only been very partially incorporated into it and into the book that resulted from it), led in 1998 to the publication of my annotated translation of the Elements, preceded by an introduction of about a hundred pages. Reissued in pocket format in 2005, it was substantially expanded in 2013 with the incorporation of the Additions written by Eduard Gans based on students' notes taken during Hegel's lectures. In total, this work of translation and annotation continued for some fifteen years and undoubtedly fed into my subsequent publications and influenced my overall view of this text and of Hegel's work as a whole, making me, for example, more attentive to the institutional dimension of this philosophy of law.

Luc Foisneau – When did your companionship with Hegel begin, and what were the main stages? Did Marx play a role in your choice of Hegel?

Jean-François Kervégan – Marx undoubtedly played an indirect role. Like many of my contemporaries, in the 1970s I claimed to be a Marxist, and more specifically a follower of the resolutely anti-Hegelian interpretation of Marx developed by Louis Althusser and his students in Pour Marx and Lire le Capital. From this perspective, it went without saying that Marx's thinking was based on a ‘reversal’ of Hegel's ’ ‘idealism’; moreover, Marx himself had written that he intended to “put back on its feet” a dialectic that, in Hegel, “walked on its head”. But what was the substance of this idealism? Beyond some of Hegel's rather summary proclamations (“all true philosophy is idealism”), it soon became clear to me that things were more complicated when one took the trouble to read his texts seriously. It was therefore necessary to find a key to unlocking the mysteries of Hegelian idealism in order to understand how it could be overturned – a goal that I had no doubt was absolutely valid. But things did not turn out as I had imagined.

What was decisive in my investigation of Hegel, and changed the way I read him, was reading Gérard Lebrun's book La Patience du concept2 (The Patience of the Concept) when I was in khâgne, which opened up an exciting new horizon for me (and many others). From then on, I knew that I would have to devote a lot of time to understanding this author, whom I had blindly begun reading in hypokhâgne, starting with the least accessible, Science of Logic, a book to which the first academic work I participated in was devoted, a collective commentary in three volumes written on the initiative of my former philosophy professor, André Lécrivain, as a continuation of a demanding reading seminar that lasted several years at the ENS Saint-Cloud. I should add that my choice of this direction was reinforced by the person who supervised my first university thesis, Jean-Toussaint Desanti, who was a respected professor for a whole generation of philosophy students at Paris 1 and the ENS. During the defence of my master's thesis on Husserl's Formal Logic and Transcendental Logic, he whispered to me: “Go and look at Hegel, it's more interesting...” I followed his advice and, still under his supervision, devoted my DEA thesis (the equivalent of a Master's second year) to Hegel's “Logic of Essence”. From these two experiences (the ‘free’ seminars on reading Logic at Saint-Cloud and my academic work at Paris 1), I was embarked on a journey that I did not know (but did I not know?) would continue for fifty years.

Luc Foisneau – What do you think of what Paul Ricœur says about Hegel in an interview with the Revue Non-Violente: “It is certain, however, that Hegelian philosophy has promoted the ideology of violence. For this philosophy, what matters is the historical realisation of great nation states, at the cost of destruction and massacres, crushing the weak in order to create greatness.”

Jean-François Kervégan – I do not share this point of view. Moreover, Ricœur himself, as a keen reader, qualified or even contradicted it in other texts, for example in Parcours de la reconnaissance, a book published in 2004, in which he shows (as does Axel Honneth from a different perspective) the benefits that can be derived from Hegel's Jena writings on the ‘struggle for recognition’. In general, I believe that the image of Hegel as an advocate of violence was mainly crafted posthumously, during the rise of nationalist and pan-Germanist ideology in the second half of the 19th century, for example, by the historian Heinrich von Treitschke, who wanted to see Fichte and Hegel as advocates of the Machtstaat, or power state, which he opposed, unlike Hegel, to the Rechtsstaat, or constitutional state. That said, it is clear that Hegel was not a pacifist thinker; he believed that conflict was inherent in humanity and that it could be a factor in the progress of the ‘self-consciousness of the spirit’. But his most ‘bellicose’ statements (a page from the 1802 article on natural law, which he himself quoted in § 324 of the Principles) must be put into context; and it should not be forgotten that for Hegel, authentic patriotism is demonstrated less in acts of military bravery than in gestures of everyday civility (Elements, § 268).

Luc Foisneau – Ricœur adds: “Behind this, Hegel has the model of the Roman state and its greatness. In a way, the West is the heir to that greatness”. Would you agree with placing Hegel in this lineage of the Roman Empire? Can we draw any conclusions about the place of the Elements of the Philosophy of Right in Hegel's work?

Jean-François Kervégan – Again, I am not entirely convinced, despite the existence of some excellent work (particularly Italian) on Hegel's relationship with Romanitas. One need only read the passage from The Phenomenology of Spirit entitled “The State of Law” (Rechtszustand), which in fact concerns not the modern rule of law (Rechtssstaat), but rather the Roman Empire, to understand how little appetite Hegel has for the “monstrous self-consciousness” of the “master of the world” – the Roman emperor (Phenomenology, French translation by Bourgeois, p. 418). From the opening sentence of his unfinished manuscript on the constitution of the German Empire: “Germany is no longer a state”, to his Berlin lectures on the philosophy of history, there is a constant mistrust of imperial forms: he contrasts the Reich with the state (der Staat), which he considers to be the rational political configuration, the only one capable of responding to the challenges of modernity. Of course, he admired Napoleon. But, for him, imperial and imperialist temptation was what compromised and ultimately defeated what he saw as Bonaparte's true mission: to consolidate the achievements of the French Revolution by establishing the institutional foundations of a modern state. Hegelian political philosophy is a philosophy of the state, not of empire. In this respect, Carl Schmitt is diametrically opposed to him, considering that “the era of the state is coming to an end” (The Concept of the Political, French translation by Marie-Louise Steinhauser, p. 42) and that the future undoubtedly belongs to empires. In this respect, unfortunately, he may not have been wrong.

Luc Foisneau – Que faire de Carl Schmitt3 (What to do with Carl Schmitt?) is the title of a book you published with Gallimard at a time when controversy was raging in France over the extent of his involvement in the Nazi regime.4 Could it also characterise your concern in the first book you devoted to him, based on your thesis, entitled Hegel, Carl Schmitt. Le politique entre spéculation et positivité (Hegel, Carl Schmitt: Politics between speculation and positivity)? Or was the subject matter different?

Jean-François Kervégan – My encounter with Carl Schmitt, whose only text, The Concept of the Political, was readily available in French in the late 1970s, was almost fortuitous. It resulted from the combination of two factors. On the one hand, as a Marxist at the time, I was struck – like many others – by the absence in this school of thought of a consistent theory of politics, which, even in Lenin, was reduced to formulas that we have seen could lead to the worst practices (think of the ‘dictatorship of the proletariat’); Hence the idea of looking elsewhere, even in what at first glance seemed furthest removed from Marxist thought, for elements of a theory of politics that did not reduce it to a mere ‘superstructure’. Reading Schmitt's The Concept of the Political was, in this respect, a happy coincidence. At the time, I was unaware that others had followed a similar path, particularly in Italy, where what could be called an original ‘left-wing Schmittism’ had developed – an obviously paradoxical expression when one knows who Carl Schmitt was and what his career path had been.

On the other hand, as I was immersed in reading Hegel's legal and political writings for my thesis, I was struck, as I acquired a much broader knowledge of Schmitt's writings (which became exhaustive once I moved to the Max Planck Institute in Frankfurt, where I finished writing my thesis), by the surprising relationship between these two powerful schools of thought, which Jacob Taubes aptly described as a “divergent agreement5”. Agreement in criticising depoliticising conceptions of politics (let us say: liberalism, it being understood that the nascent liberalism with which Hegel grapples is very different from that of the 20th century, which Schmitt made his adversary of choice); but divergence, on the one hand, in terms of their own political philosophy (Hegel is, after all, an ‘authoritarian liberal’, while radical anti-liberalism is the constant backdrop to Schmitt's thinking, which has undergone many changes, from Catholic conservatism to Nazism, then to a ‘metapolitical’ stance), and, above all, in terms of the philosophical, I would almost dare to say metaphysical, underpinnings of their thinking: Schmitt's sharp dualism, Hegel's rejection of ‘either/or’ thinking.

These were, broadly speaking, the reasons why my thesis, initially conceived from a Foucault-inspired perspective as a confrontation between a regime of rationality embodied in Hegel's thinking and the autonomous development, in the field of law as elsewhere, of ‘positivity, ultimately took the form of a confrontation between the legal-political thoughts of Hegel and Schmitt, the latter being used as a kind of distorting mirror to highlight certain little-known aspects of the former's thinking. Having discovered in Germany Schmitt's writings following his unconditional support for National Socialism, I was well aware of the darker side of a figure for whom I have always felt aversion; but I considered that, in his case, which was similar in many respects to that of Heidegger, the power of his writings, or at least some of them, justified separating the man from his work, so to speak. This is what everyone except far-right readers has done, in fact, all those who have undertaken to think ‘with Schmitt and against Schmitt’, to use a hackneyed phrase.

Luc Foisneau – In Que faire de Carl Schmitt ?, on page 29, you say that Schmitt emphasises the reference to Hobbes, but that what matters to him is Hegel. Could you clarify the reasons why you think Schmitt claims to be a Hobbesian – and indeed, you will not say otherwise, he wrote extensively on Hobbes... – but that he is in fact a Hegelian?

Jean-François Kervégan – That's a complicated question. Hobbes is the only author to whom Schmitt devoted an entire book (in 1938, at the worst possible time, and to develop a violently anti-Semitic interpretation of the biblical opposition between Behemoth and Leviathan), and he devoted some of his very last writings to him. In a note in the latest edition of The Concept of the Political6 , in 1962, he offers an interpretation of what he calls “the crystal of Hobbes”, which he presents as “the fruit of a lifetime's work”. From Political Theology (1922) onwards,7he claimed Hobbes as his inspiration, presenting him as the “classical representative of the decisionist type of political thought,” in opposition to the “normativism” of Kant or Kelsen. This interpretation was strongly contested by Hobbes scholars, starting with Leo Strauss8, whose book on Hobbes develops an interpretation that is diametrically opposed to Schmitt's9 . In any case, references to Hobbes run throughout Schmitt's work, although their meaning has changed several times. Nevertheless, I became convinced – perhaps also because it had not been the subject of in-depth study, unlike the Schmitt-Hobbes relationship – that the relationship with Hegel, whom he emphatically refers to as "the Philosopher", was deeper and more "structuring" for Schmitt's thought than the relationship with Hobbes. Not only because Hegel is, in his eyes, 'a political mind in the highest sense10 ' – Hobbes is too; but also, more profoundly, because the very rhythm of this thought seems to me to correspond to a kind of flattening of Hegelian dialectics, forcing it to return to the 'either/or' that Hegel rejected. In any case, I believe it can be argued without risk of contradiction that Hobbes and Hegel are, for reasons that are not identical and on the basis of highly contestable interpretations in both cases, Schmitt's two major philosophical references, because their thinking is not 'normativist' in the sense that Kant's can be.

Luc Foisneau – If, as you just pointed out, the subject of your thesis was different, could you clarify the intention of your second book on Schmitt?

Jean-François Kervégan – When I was writing my thesis, despite its turbulent defence, I never imagined that the rediscovery of Schmitt's work, facilitated by the gradual publication of good translations of his main writings, would give rise to such controversy in the 2000s, during which suspicions were raised, in the journal Cités and in the columns of Le Monde, that the interest shown by certain individuals (myself, of course, but also others such as Catherine Colliot-Thélène, Olivier Beaud and Étienne Balibar) was evidence of a fascination with what some considered to be the dark undercurrent of Schmitt's thinking: anti-Semitism. This was, for example, the thesis put forward by Raphael Gross in his book Carl Schmitt et les Juifs11 , but also by French authors whose knowledge of Schmitt's writings was sometimes sketchy. Let us be clear: I am not saying that Schmitt was not a Nazi (he was, entirely, from 1933 to 1945), and I too observe in him, particularly after 1945, in his journal (Glossarium: somewhat the Schmittian equivalent of Heidegger's Black Notebooks...), clear anti-Semitic traits. What I believe to be false is that anti-Semitism was, from the outset, particularly in his writings from the Weimar period, the driving force behind his thinking. I am still waiting for someone to show that anti-Semitism was the ultimate driving force behind the 1928 Theory of the Constitution. Faced with an offensive that sought to challenge the very legitimacy of any reading other than denunciatory, I first organised the publication in the journal Le Débat12 of several contributions (by Catherine Colliot-Thélène, Giuseppe Duso, Philippe Raynaud and myself) proving, on the contrary, in their very diversity, the interest that could be attached to reading Schmitt. But I wanted to go further and publish a book explaining in detail my own reasons for taking an interest in this author. I wrote Que faire de Carl Schmitt ? not only to refute the suspicions to which I had been exposed, but more generally to explain why, on a range of issues relating to law, politics and even theology, paying close attention to Schmitt's analyses could prove fruitful. The translation of this book into various languages shows that the issues it addresses have struck a chord. In my mind, this confrontation with Carl Schmitt was to be final, settling the score once and for all, as I feel I have gained all I could from reading Schmitt. If I had to sum it up in one sentence, I would say that Schmitt's merit is to remind us that law always has a political basis. That said, I have more or less stuck to a policy of abstention ever since, even though I have responded, and still sometimes respond, to requests concerning this author. In the meantime, in the field of legal philosophy, other questions, more legal than political, had caught my attention and taken my research in a different direction. But I think we will come back to that.

Luc Foisneau – In a recent review, you return to the concept of political theology. Why revisit a concept you discussed in your second book on Carl Schmitt? I ask this question because theological concerns do not seem central to your approach to the philosophy of law.

Jean-François Kervégan – That is quite correct. Moreover, the chapter entitled “Theology” in Que faire de Carl Schmitt ? (What to do with Carl Schmitt?) sets out to show that Schmitt's understanding of “political theology” is much more about politics than theology... In the review you mention, I compared three recent books, very different from each other, in which the theme of political theology occupies a central place. It also gave me an opportunity to reflect on the reasons for the recurrence – one might even say the resurgence – of this theme in contemporary political philosophy, given that we live in a secularised world whose secular character is one of its defining features. My conclusion, and my conviction, is that theology should remain the preserve of theologians (and the subject of their disputes), and that philosophy would do better to leave it to them, unless it wants to become, as in medieval universities, its servant (philosophia ancilla theologiae...). While it is true that, according to the formula of Ernst-Wolfgang Böckenförde, democracy is based on presuppositions that it cannot establish itself, I am not convinced that these presuppositions necessarily lie “between naturalism and religion”, to borrow the title of a book by Jürgen Habermas13.

Luc Foisneau – To what extent does law, independently of the philosophy of law, enable us to reflect on the world in which we live?

Jean-François Kervégan – That is a question to which I do not have a definite and complete answer. However, a few points can be raised. Obviously, all human societies have law, if by that we mean a normative framework for actions that separates the permissible from the forbidden. In most of them, until modern times, this body of norms was differential: the ‘rights and duties’ of individuals were not the same depending on their age, gender or ‘status’. This changed with the normative protocols established during the great revolutions of the late 18th century, from the American and French Revolutions: from then on, in principle, men were ‘free and equal in rights’ – even if, of course, social and political reality was reluctant to conform to the normative principles formulated by the Declarations, which resulted not in their abandonment, but in their clarification and reinforcement (with the so-called second and then third generation rights). Of course, this promotion of universalist law and human rights was not the result of chance or sudden enlightenment: it is clearly linked to the emergence in the West, in place of the old society of orders, of a market society with autonomous modes of regulation, alongside and partly independent of the state, based in principle on the free interaction of the social atoms that are individuals. The ‘civil society’ of Hegel (and Smith, Ricardo, Marx...) is a society based on law, whose consistency and completeness it postulates (even if this is partly illusory). Legal positivism, which became the official epistemology of jurists, from the 19th century onwards, established a conception of law adapted to the position it occupies in contemporary societies, to which it offers, as Niklas Luhmann shows, a universal coding that is indispensable precisely because of the differentiation of society into relatively autonomous subsystems (politics, economics, culture, etc.)14. In this sense, despite its fragility and shortcomings, law is indispensable to the existence of our world and compels philosophers, sociologists, historians and political scientists to equip themselves with the means to reflect on its substance and effects (for example, what is known as the juridification of social life, which is not without its questions).

Luc Foisneau – Once the theological dimension has been removed, could you clarify the nature of your approach to the philosophy of law, a discipline you have practised in several institutions?

Jean-François Kervégan – My interest in the philosophy of law (which I believe is important to distinguish from political philosophy, as it does not necessarily have a normative purpose) arose from my assiduous study of classical German philosophy, whose main representatives (Kant, Fichte, Hegel, and even Schelling in his early days) made important contributions to this area of philosophy – which, of course, is closely related to the historical context, as the French Revolution was the first to place the question of law and rights at the heart of its programme. If I remember correctly, my first contribution in this field was an article in which I compared the early German theorists of legal positivism with Hegel's work15 ; I also undertook, without resulting in publication, a comparison of Hegel's legal thought with the work of Friedrich Carl von Savigny, founder of the Historical School of Law, considered the greatest European jurist of the 19th century. Gradually, however, my interest in the philosophy of law became partly disconnected from its original source, and I became interested in legal traditions other than those of the Germanic world, in particular Anglo-Saxon legal philosophy, whose philosophical background was quite different, with empiricism and then the utilitarianism of Bentham and/or Mill playing a predominant role. Overall, I would say that my position on the philosophy of law (or legal theory: I consider this distinction, which is often made, to be rather pointless) is that of flexible or soft positivism, and the legal philosopher I feel closest to overall is Herbert Hart, who himself defines his position in the Postscript to the 2nd edition of The Concept of Law as soft positivism, insofar as he admits the existence of a “partial overlap16” between law and morality, whereas other forms of positivism seek to separate them rigorously. However, I am also interested in hard positivism, that of Kelsen for example, to which I have devoted a short book (in Italian)17.

Why this option in favour of positivism, when the philosophers who inspired me still placed their reflections on law within a natural law framework, while redefining the principles and methodology of classical theories of natural law (Hobbes, Grotius, Pufendorf, Rousseau, etc.)? Because it seems to me that natural law axioms have been devalued (although a number of legal philosophers continue to refer to them, such as Michel Villey and John Finnis, and, of course, Leo Strauss in the past); they have been devalued because of the blurring of the theological reference that accompanied them and the obsolescence of the ‘constructivist’ model of rationality, as Hayek puts it, that they implemented. On the other hand, the autonomisation of the sphere of law from other areas of normativity (moral, religious, political, etc.) has meant that, as Luhmann, a representative of a particularly ambitious ‘systemic’ positivism, says, “only the law can say who is of the law18” (and not just “what is of the law” ...). Once we have dispensed with the caricatures (positivism = sacrifice of the normative in favour of the factual = submission to the brute force of those in power, etc.), legal positivism strikes me as a reasonable position in a context of inevitable pluralisation of normative systems and moral values, but also of substantive legal principles.

Luc Foisneau – If positivism is the (almost) insurmountable horizon of contemporary legal philosophy, why still do legal philosophy? One could consider that legal systems are sufficient in themselves, and that there is no longer any need to reflect philosophically on law... Except, of course, if one considers that the philosophy of law has an exclusively critical function: to explain why there is no need to go beyond positive law.

Jean-François Kervégan – Legal positivism is a (in fact, several) philosophy of law, whose conceptual elaborations can be impressive: consider Kelsen's pure theory of law, which some have seen as the equivalent in this field of the Critique of Pure Reason in the field of the theory of knowledge. Once the (relative) closure of the legal system has been accepted, the conceptual means required to describe it, identify its weaknesses and inconsistencies with a view to transforming it, must be invented, and they can be invented in one direction or another. For example, Herbert Hart's distinction between ‘primary’ and ‘secondary’ rules is anything but obvious, and can prove extremely fruitful in understanding the functioning of positive legal systems. Another example: the work carried out at the beginning of the 20th century by Wesley N. Hohfeld has made it possible to understand that a concept such as that of ‘subjective right’ (right) is in fact polymorphic: when we, including legal professionals, talk about rights, we are referring to legal ‘things’ (more precisely: normative powers) of a different nature; and this goes beyond the now commonplace distinction between ‘rights of’ and ‘rights to’. In short, just as positive law is diverse (the law of common law countries, based on case law, is profoundly different from continental law, which is law-centred), the theories that attempt to account for it are very diverse and today display an impressive (and sometimes off-putting) conceptual sophistication. Positivism, or rather legal positivisms, are philosophies of law which, far from being limited to the recognition of the “normative force of the factual19”, according to the formula of the great German jurist Georg Jellinek, a friend of Max Weber, offer an understanding of legal rationality that can be rich in lessons, including for the theory of rationality in general.20 This was, for example, the whole point of the work of the philosopher, jurist and logician Chaïm Perelman in highlighting this connection between law and reality. That said, although it constitutes (in its very diversity) the dominant theory of law, legal positivism has been the subject of virulent criticism, most notably in recent times by Ronald Dworkin.

Luc Foisneau – John Rawls' Theory of Justice has reignited the debate on justice outside the framework of legal philosophy. Can this moment in 20th-century normative philosophy be considered to provide some answers to the questions you have been asking? If, as I suspect, this is not the case, could you tell us why?

Jean-François Kervégan – As you can see, Rawls is not very present in my work (although I did publish an article a long time ago comparing his thinking with that of Hayek 21). There are good and bad reasons for this. First of all, A Theory of Justice has been the subject of so much commentary that it would be presumptuous of me to claim to add anything truly new to it. Secondly, as I said earlier, I strive to maintain a strict separation between political philosophy, which seeks to define normatively what a just society might be, and the philosophy of law, which cannot be a purely normative discipline, since, willy-nilly, it deals with existing material, good or bad. Even a ‘pure theory of law’ such as Kelsen's claims to account for the nature and functioning of law as it is, and in this sense claims to be “the theory of legal positivism22”.

Rawls' work has clearly been a major contribution to political philosophy: there is a before and after A Theory of Justice. On the other hand, his contribution to the philosophy of law is more modest. It should be noted, however, that his 1955 article “Two Concepts of Rules23” is a remarkable anticipation of Herbert Hart's distinction between primary and secondary rules, which has had a considerable impact on the trajectory of the philosophy of law.