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INTRODUCTION

This is a book about three personality ideals of modern creative man. All three – the gentleman, manager, and Homo digitalis – function in modernity as agents of knowledge production, technological progress, and economic growth. Starting in the early modern period, the gentleman as scholar, inventor, tinkerer, merchant, trader, entrepreneur, or financial broker helped establish a technical attitude toward the world and spread the “spirit of capitalism” in northwestern Europe. In eighteenth-century England, this dynamic led, for the first time in world history, to the explosive spread of machines and factories, and thus to the onset of industrialization. The British Industrial Revolution – as it has commonly been called in academic discussions since Arnold Toynbee’s Lectures on the Industrial Revolution in England (1884) – was arguably the greatest upheaval in the recent history of Western civilization. It provided the foundation for the salaried manager to become, since the last third of the nineteenth century, the driving force of an industrial society dominated by large-scale enterprises – a society first established in North America and later in places such as Germany and Japan. Homo digitalis, by contrast, represents the type of modern creative individual associated with the rise of the network society. Since the turn of the millennium, the high-tech cluster of Silicon Valley has become iconic for this society. Each of the three personality ideals stands for a particular historical constellation that becomes dominant at a different point in time. However, the ideals of the gentleman, the manager, and Homo digitalis do not emerge onto the stage of history one after the other and independently of each other, but rather form three overlapping and coexisting historical strata.

All three have the following in common: they are the subjects of a movement and in a movement geared toward new knowledge, technological innovation, the increase of economic prosperity, and the improvement of general living conditions. When considering the destruction of old structures and their continuous replacement by new ones that typifies the process of industrialization, the economist Josef Schumpeter spoke in the 1940s of a “process of industrial mutation” that he termed “creative destruction.”1 Whereas Schumpeter ultimately holds the exceptional entrepreneur as type responsible for this process – a type driven by power, ambition, and the will to shape things – I am interested in the personality ideals of the gentleman, the manager, and Homo digitalis for other reasons. They intrigue me primarily because their forms of work and life manifest practices (based on and pursuant) of liberty (Freiheitspraktiken) such as the invention of technologies, the founding of companies, or the creation of markets – because such practices are part and parcel of their personalities and the genesis of their psyches. In this way, all three contribute to the formation of a culture of universal rights and liberties (Freiheitsrechte). The intent of this book, however, is not to write a history of formal rights and their solemn declarations since the late eighteenth century. Instead, it aims to ask what significance the creative individual’s forms of work and life have had in the past and continue to have today for the technological and economic dynamics of modern society – and how these dynamics are related to a culture of rights and liberties. For this reason, this study does not limit itself to individuals as “bearers” of rights, but also incorporates in its view a sociocultural level that goes beyond individuals and their history of development. With the help of this method, the book aims to show how (and to what extent) the process of transformation of the concept of legal subjectivity2 in modernity accompanies a change in the nature of culture and how both developments influence each other.

In the twentieth century, a fundamental transformation takes place in the understanding of the connection between social and cultural phenomena. The sciences no longer look for cultural patterns or rules from which a social practice derives, but describe instead the social practices that produce cultural and normative phenomena in the first place. Wittgenstein’s late philosophy of language is typical in this respect. Wittgenstein no longer regards the grammar of a language, its set of rules, as a pre-existent mental form that makes speech in everyday life possible and governs its use. On the contrary, for him, grammatical rules follow from the way in which a language has established itself and is spoken in a specific speech community.3 A comparable shift can also be shown in twentieth-century European literature. Just as with Wittgenstein the speaking of a language becomes part of a form of life, so in European literature the real-life language and its modern repertoire of forms gain in importance. In Italy, for instance, Cesare Pavese is one of the first writers whose novels are characterized by a turn toward “everyday communicative conventions,” by literary work with spoken language, and by play with “slang, sociolects, and syntactic inflections from the Piedmontese dialect.”4 In the terminology of Michel Foucault, one could say that, especially in the sciences, it is now a matter of specifically discursive practices, their anonymous force fields and their effects – and no longer a matter of thinking along the axis of consciousness–cognition–science.5 This is the theoretical background that serves as the starting point for this book’s assumption that institutions such as legal subjectivity emerge gradually and incrementally from social practices, and not least from processes in which conventions are formed, the “economies” of which should not be reduced to the consciousness and intentions of individuals.

If such a primacy of social practices that are not fully accessible to reflection is accepted, it requires us to reconfigure the relationship between formal and informal institutions. For example, it is the case in many countries around the world today, including Mexico, that the validity of a law is tied to a parliamentary procedure; here it must first be passed before it can come into force and claim general binding effect. This formal procedure, however, presupposes a social practice that entails obeying duly passed laws. If, on the other hand, everyday life is dominated by the informal rule “I obey, but I do not comply – obedezco pero no cumplo,” then no matter how many laws the Mexican Congress passes, they will have no effect. Even if the president and administration employ coercive means, increase police presence, replace administrative personnel, or send in the military, laws will continue to be ineffective as long as the attitude of the population toward formal rules does not change. Informal rules and institutions such as “I obey, but I don’t comply” must therefore first be overcome in everyday life itself, and compliance with the law must gain constancy and stability; only then can the parliamentary legislative process take hold and have an impact. This is certainly a highly simplistic example of the problem of the validity of legal norms. However, there is a strong case to be made that the disparity in development and prosperity between northern Mexico and states in the south, such as Oaxaca and Chiapas, is related to a lack of compliance to the law, an obedience not internalized by the legal subject. And this contributes to southern Mexico having less efficient legal systems less able to enforce the law, and southern governments that are more patronage-based and corrupt in the way they deal with their citizens.6

Scholarly interest in a more detailed analysis of the significance of informal institutions for the knowledge-based, technological, and economic dynamics of modern society has increased considerably in recent times. I will be coming back to this point repeatedly in the following chapters. In this context, however, I refer primarily to a distinction developed in French political philosophy by Cornelius Castoriadis and Vincent Descombes: the distinction between instituting power and constituent power, between pouvoir instituant and pouvoir constituant. Descombes uses this distinction to name and resolve the foundational paradox of any consciously created constituted order: The formal order that is to be founded must in some way already exist as an order. One place in which Descombes encounters this entity – that is always already present and is to be accepted (i.e., the instituting power) – is in an analysis of the puzzles of collective identities. In particular, he finds it in the question of what it is that constitutes the common identity of the members of a nation-state. He argues that, for the nation-state as a collective body, the difference between the status of the citizen and that of the noncitizen is constitutive. Without this distinction, there can be no society.7 But where is the rule, Descombes asks, that determines the conditions for membership in the same body politic? In democracy, he says, it is the people who lay down these rules by giving themselves a constitution that contains them. But insofar as the constitution-making authority of the people decides, for example, who has the right to vote and who does not, those who have the right to vote decide on the rule that grants them this right. This is what...