Secrecy and Transparency: A Reflection Based on the Analysis of Forms of Normativity in Contemporary Times

1With the Enlightenment, politics and power were largely thought of in opposition to secrecy and arbitrariness, by claiming to be based on rational public debate. [1] The modern conception of law and the very definition of law—as a general public rule—could thus be interpreted in this tradition as a bulwark built against secrecy and arbitrariness in politics. However, we can start from one observation: we have witnessed, since the 19th century at least, a transformation of the modes of managing populations, which Foucault referred to as governmentality. According to Foucault, such a mode of management, which aims much more at orienting behaviors than at prohibiting them, does not rely centrally on law, but rather on multiple forms of incentives, which today allow us to think quite differently about the exercise of power in the era of globalization and new technologies. And Foucault suggests that the law, which is based on the distinction between the forbidden and the lawful as well as on the exercise of legal violence, has largely given way to other forms of normativities that espouse reality and behavior, making them largely invisible and painless.

2Contrasting and confronting these two forms of normativity (legal and extra-legal) invites us to identify new forms of management and/or “secrecy” around normative practices. It also invites us to reinterrogate the term “transparency societies”. It is to this reflection that two legal experts, Isabelle Boucobza and Charlotte Girard, and a philosopher, Thomas Berns, were kind enough to contribute. They also agreed to write, in boxes that we have inserted within the interview, some aspects of their reflections and work in progress, which support the exchanges that make up this interview.

Charlotte Girard and Isabelle Boucobza: Norms and Practices of Secrecy

3Trilogues have a double originality: they are the procedure favored by the institutions of the European Union for the production of its legislative norms, and they are born of a practice that has earned them the absence from the treaties that constitute this Union. They are therefore both the product of a practice that is gradually becoming institutionalized and the site of the practice of a secrecy of negotiations that would be at the service of a necessary efficiency in the making of the law.

4Quite classically in so-called democratic regimes, the making of the law seems to be governed by procedures described or even codified in constitutional rules. However, at the level of the European Union, the vast majority of legislative acts are adopted following negotiations behind closed doors, known as “trilogues”, the existence of which was not revealed in official texts until quite a long time after they had begun.

5Trilogues are informal meetings attended by representatives of the three institutions that make European laws: the Commission, the Council, and the Parliament.

6The success of the use of trilogues is said to be due to the efficiency they bring to the legislative process, particularly in terms of time saved. When the Parliament became co-legislator in the co-decision procedure created by the Maastricht Treaty, the latter proposed the institutionalization of a procedure allowing agreement to be reached at first reading. Indeed, the first years of co-decision had been marked by extremely long legislative processes, according to the actors. No text was adopted on first reading but at the end of the third. Since the mid-2000s, the situation has reversed.

7And today, the European Parliament’s activity report does not fail to underline this evolution: “The trend towards first reading agreements, already evident under previous terms, was further accentuated” [2]. Indeed, in twenty years, the number of acts under the ordinary legislative procedure adopted at first reading has risen from 28% to 89%.

8Over time, we have seen the trivialization and then the institutionalization of a practice: trilogues. At the beginning of their operation, these trilogues were completely unknown to the public, and even to lawyers specializing in Community institutions. No mention was made of them in Community law textbooks. In other words, the trilogues slipped under the radar of legal dogma. The discretion of these negotiations is, moreover, recognized by the acts which, subsequently, gradually [3] lifted the veil on this practice. Interinstitutional agreements and joint declarations [4] on this subject also show the will of the institutions to “legislate better”. This desire was expressed in May 1999, because the Council resented the intrusion of the Parliament into the legislative procedure. The institutions then obliged themselves to “cooperate loyally in order to bring their positions as close as possible so that, as far as possible, the act can be adopted at first reading” [5]. But the trilogues, although their practice was to become quite successful, are not mentioned anywhere. In 2003, an interinstitutional act mentions “intensive contacts” [6]. It was only in 2007, in a joint declaration on the practical arrangements for the codecision procedure, [7] that “trilogues” were defined as “informal negotiations”.

9The legislative procedure will therefore be enriched by additions resulting from the current practice of its institutional actors. “Better law-making” does not mean legislating differently, but continuing to legislate by pragmatically improving the procedure in force—in such a way that the institutional actors of these practices become the interpreters of treaties that they do not modify but implement.

10This is why it was not necessary to revise the constitutive treaties in order to introduce and formalize these tripartite exchanges, which did not radically modify the ordinary legislative procedure but applied it while making it more fluid. Trilogues are therefore the product of the practice and the will of the actors of the legislative procedure itself.

11The particular circumstance of the practice as the birthplace of trilogues adds to the secrecy that characterizes them insofar as a practice is not necessarily published. It is constituted by a behavior that unites actors around a concrete objective. The actors do not act by virtue of a rule that they claim. They only act by virtue of the objective they share. This “grouping” [entre-soi] isolates them from gaze and guarantees the secrecy of their negotiations.

12The closed session favored by the trilogues is thus an asset rather than a disadvantage in the history of the European legislative procedure. It even ends up appearing as a guarantee of the quality of European law, a trademark. Thus, the European Parliament, which could have the most to lose in the trilogues, participates in their institutionalization and uses them to exert pressure, particularly on the Council, by demanding more transparency and publicity from it, without going so far as to demand this same publicity for the trilogues themselves. [8]

13Indeed, the secrecy of the trilogues is closely linked to their function. They are the place where the representatives of the co-legislating institutions seek to build a common position that will eventually become the European legislative act: what is known as a process of reconciliation of their respective positions, in other words, a compromise. And as in most negotiations, there is a practical interest in keeping the content of these negotiations secret. These pre-legislative negotiations bring together the sometimes divergent interests of each institution, a spectacle that none of them want to show. On the other hand, one of the institutions is the Council, whose particularity is to involve bodies representing the executive powers of the Member States. However, when an intergovernmental body is negotiating, it is customary for the positions defended to be able to remain secret, due to reason of State. This is another important reason for the lack of publicity of the debates in the trilogues. In fact, there are no minutes and the documents that relate the progress of the positions of each party are not immediately accessible.

14This results in a maintained opacity which does not, however, detract from the quality of the legal norm of the acts thus produced.

15Marie Goupy: Before addressing contemporary forms of political secrecy, how does this notion of transparency, often used today to qualify our societies, make sense in your work?

16I. Boucobza: Let us begin by saying that while working on the trilogues, while working on the making of the law, where we were trying to bring to light practices of secrecy, the question of transparency imposed itself on us. In other words, whereas we had gone looking for secrecy in the trilogues, it was transparency that imposed itself. The other surprise is that there was rarely any question of publicity. As if transparency totally erased the idea of publicity.

17C. Girard: Yes, we started with classic reflexes in law: we were looking for the principle of public deliberation. And we found an injunction of transparency. And this is in the texts that appeared after the revelation of the trilogue affair. As if transparency were the official answer to the problem of opacity, which was also the problem of publicity.

18I. Boucobza: So there is a kind of dualism between publicity and secrecy on the one hand, and transparency and secrecy on the other. The law is associated with the idea of publicity, just as Parliament is associated with openness, where the public is expected; and on the other side, there is the executive, the government and secrecy. The difference is that if the government allows us access to information (the elements of an international negotiation, for example), it is because it accepts it: it gives access, through transparency, to information that—in principle—is not available to the public. Transparency is in a way conceded. And what has been happening for some time now is that the boundaries between these two universes, which seemed to be face-to-face, publicity, law, and Parliament on the one hand, and secrecy, administrative acts and the executive on the other, are becoming blurred.

19Thomas Berns: One could speak of a “notion” of transparency, insisting then on its vague character, which exposes it to injunctive uses (“one must be transparent”)—watchwords as Deleuze would say—and more broadly to multiple and sometimes rival uses. Faced with this diffuse and perhaps overly moral level of transparency, it is useful to start from its distinction with the idea of publicity, as it has been fixed at least since the Enlightenment, since Kant. Publicity is perhaps less a notion than a principle. What I mean by this is that publicity is linked to the idea of limitation. In Kant, for example, publicity is the object of a specific exercise, an exercise of judgment; as such, it is limited, dependent on its testing, which is otherwise very monological. From a legal point of view, especially, it also seems to me that publicity must be considered in its instituted character: it is provided for by the law, it relates to specific acts that it thus aims to control—to control a decision for example. Likewise, what is published in the minutes or reports is never the entirety of a discussion, but only that which an assembly decides to make public. Publicity is then limited in the sense that it tolerates its opposite: an opposite that may be protected by privacy, for example, or by other institutions that may be protected by the seal of secrecy. If I turn now and on this basis to transparency, it is on the contrary its unlimited character that is underlined. This does not discredit transparency, but it invites us to consider it in relation to this limited universe, which is that of publicity, always instituted, and therefore of the law. In this respect, one can consider that transparency, rather than relating to specific acts always provided for by the law, has a vocation to relate to the totality of reality, or is at least open to this problematic limitlessness. The law deals with acts; transparency deals with people or with the totality of people’s lives. And where publicity has the vocation of allowing the control of certain acts, transparency has the vocation of diluting the decision. My goal here is not to praise a legally protected decisionism, but only to note this fact. If I may refer to my studies on the history of statistics or census practices, it seems to me that one can develop quite different genealogies of the idea of transparency as opposed to the principle of publicity. Transparency, as Montchrétien says, must “reveal the secrets of houses and families”; it allows for a type of control that I would tend to say, unlike the control of the law, has a moral tone; above all, its aim is to control, in one and the same movement, like today’s search engine, the whole, the totality of reality, and the detail of reality. Which is what the law fails to do or refuses to do, with its limited space proper to publicity. Therefore, rather than a simple opposition between light and secrecy, I think that there are different combinations, or different articulations between transparency and secrecy, and between publicity and secrecy, that is to say different ways of exercising secrecy.

Thomas Berns: The Chiaroscuro of New Normativities or The Chiaroscuro of Transparency

20If secrecy has undoubtedly always been linked to power, source of power, the novelty could be that the necessity of a zone of secrecy is now imposed in the name of and within a movement of production of transparency. It is in the name of the demand for normativity as close as possible to reality, an expression of reality, that new shadow parts of power—even new secrets of power—are justified.

21We can understand the evolution of the most contemporary normative practices by starting from the idea that they are increasingly deployed globally by moving away from the model defined by legal normativity, that is to say by nourishing a relationship of immanence to reality, as if it were enough to express it. This is how their normative power acts. Thus, I believe that we can identify three major “primary” gestures on the basis of which most contemporary normative devices are organized, and all three of which testify to a concern to express reality: to define reality (of which the most obvious examples are institutions such as ISO or DSM); to report reality; to give a statistical expression of reality.

22Let it be clear that these three gestures, with their apparent restraint, only fuel government hypertrophy; they allow for endless governing, in both senses of the term: at the same time, governing consists only in following reality without seeming to want to give it a specific form, and governing can therefore be incessant.

23This normative evolution confirms and radicalizes Foucault’s analysis, i.e. the requirement of a microphysics of power that draws attention to the fact that power is exercised rather than a sovereign property, that it is deployed in a multiple and heterogeneous way rather than being represented in a unitary way, that it acts in an immanent way rather than a transcendent way with respect to what it relates to, and finally that it causes something to be done rather than repressing and blocking behaviors.

24In addition to these fundamental achievements of the Foucauldian thought on power, it is necessary to take note of a series of other qualities inherent to the power that is deployed through the new normativities, all of which move us away from the representation of power according to the model of the law. The new normativities testify:

  • to an effective reconciliation between the serializing and individualizing nature of power against the tension of these two natures in the law;
  • to a continuity of the normative action as opposed to the sporadic nature of the action of the law; this continuity is also based on the adaptability of the norm, where the sporadic action of the law was the result of a norm thought in permanence;
  • to the possible distancing of the new normative space with regard to the discursive and narrative register of the law: not only is the law fundamentally discursive, but it presupposes and develops a narrative deployment prior to (the parliamentary debate) and after (the judicial trial). Norms now complicate this link to the discursive and narrative: is an algorithm a discourse? Isn’t defining the words we use an exit from the regime of discursivity? Isn’t the debate on norms and their test in a space like that of the trial what this normative field is currently lacking?

25On this basis, it seems to me that we can draw three main consequences that radicalize even more the opposition that we draw between the new normativities and legal normativity.

26• Where the legal register has developed precise modalities for questioning the legitimacy of its acts from what it establishes or institutes as their “originary” moment (the promulgation of the law, with the publicity it demands, the search for its sources, etc.), the new normativities shine, on the contrary, by their lack of concern for their moment of institution. They are there independently of any origin or of any beginning. Let us note immediately that the concern for the origin that would define the legal ethos means above all a capacity to institute or even to fictionalize its origins. It is not at all an obsession with a pure and given origin: it is for this reason that discursivity is essential to it; it is because the origin is not simply given nor available, that it must be given, in short, that law is an art, an art that manufactures fiction!

27• Where the legal register includes the possibility of disobedience to the point of foreseeing it and defining its conditions and sanctions within the law itself, the new normativities not only do not foresee such a possibility, but one can even say that they make disobedience impossible: in a strict sense, obedience is also compromised. In favor of what? Something akin to “following”—this is the question that needs to be addressed in order to determine the modalities of an adequate resistance.

28• Finally, and above all, where the legal norm is thought of in terms of its visibility— it is published, it is classified in codes, no one is supposed to ignore it, even its disobedience must be publicly sanctioned, etc.—the new normativities are fundamentally discreet, even invisible: an effective norm is one that does not even appear (and as such essentially escapes debate).

29The effectiveness of the new normativities might even be achieved in their invisibilization, which is only the combination of the characteristics I have listed: immanence, continuity, non-discursivity, dilution of the origin, absence of the possibility of disobedience… This is what is exemplarily relayed by the literature of the European Commission: “Most of the goods and services we have today are subject to standards, which we generally do not realize. Like invisible forces, standards keep things in order” [9]. Above all, this is what must absolutely be questioned about one of the most ambitious and central contemporary devices, namely the search engine.

30M. Goupy: In the context of the production of law at the European level, starting with the case of the trilogues, can we speak of a “new form of secrecy” in politics, which would be specifically linked to historical transformations: institutional, economic, etc.? For example, you note in your text that the “secrecy” that accompanies the decision-making process of the trilogues prior to the vote in the Parliament has crept into practice by translating both a grouping [entre-soi] of European actors and a same way of conceiving political efficiency. So is secrecy, in this form of technical opacity, growing in Western institutions? Or is it not finally, as you seem to imply, elsewhere, a form of “ordinary reason of State” that necessarily creeps into the practice of power and law, and that spreads each time it is not stopped by one form or another of counter-power?

31C. Girard: I would just like to come back, first of all, to this delimitation that you draw, Thomas, between the field of transparency and that of publicity and which would coincide with the distinction between the fields of morality and law. For us, as jurists, the notion of transparency has acquired a legal status. I am therefore a little troubled by this distinction. On the other hand, one can speak of a blurring of the notions, which perhaps makes it possible to grasp a new form of secrecy. We are not historians, but for all that, it seems that we can say that there has always been secrecy in political decision-making—secrecy even being one of the main criteria of its effectiveness. In any case, secrecy is commonly attached to the executive sphere of power, including in the maintenance of order, in defense or in the management of ministerial cabinets, for example, where one finds each time implemented a traditionally secret machinery that has never been much questioned. To this sphere, it seems that one can oppose an apparently more transparent sphere: the parliamentary sphere, where everything must be public. However, this distinction is no longer very relevant. This blurring ends up affecting the very idea of Reason of State. Indeed, if the Reason of State seems to be the prerogative of the executive power alone—a secret confined to the cenacles of diplomacy or the secret police— one realizes that the Reason of State also inhabits the legislative power, its internal negotiations and its underlying reasons. In other words, the public, parliamentary, legislative expression of decision is not as visible and transparent as one might think. The apparently acquired distinction between the secret habits of the executive and the public culture of the parliamentary function is blurring. We are witnessing an extension of the ordinary Reason of State on the side of the making of the norm, with an indistinction between the procedures that belong to the legislative field and those that belong to the executive field. It is basically an extension of the executive sphere. This is clearly seen in constitutional law, with accelerated procedures, the decree-law or ordinance procedures, here in France, but which take very comparable forms elsewhere. Everywhere, we go through delegated legislation, where it is the executive power that controls the making of the rule.

32M. Goupy: So you started with a description of the mechanisms of production of the rule at the European level, but what you describe would be much more general?

33C. Girard: Much more general, yes. Let us say that the practice of decree-laws, for example, has always taken place; it has been very present since the Third Republic, therefore before European construction. Historically, it is always in the same circumstances that this evolution has taken place: in circumstances of a state of emergency, of a state of exception, to speak quickly. But today, it is used in principle, it is a mode of government—a very convenient practice. Perhaps it could also be called “governmentality”.

34I. Boucobza: Finally, the word that comes to mind is that of administration or “administrativization” of these processes, since one could say that, in our example that concerns European law, this “law” is produced under the terms of a negotiation that is quite similar to a diplomatic negotiation. At the time of the debates on CETA, I recall an internationalist colleague’s saying to me: “But what are they all doing demanding transparency, when a treaty has always been negotiated in secret! It has never been done!” That’s kind of the idea of this government by decree: they keep talking about law, but all the procedures that allow them to be produced are administrative procedures, without deliberation, and then they are given the value of law.

Charlotte Girard and Isabelle Boucobza: Secret of Legislative Deliberation in all Transparency

35This maintained opacity does not affect the status of legislative acts conferred on texts that result from this ordinary legislative procedure adapted to the requirements of the effectiveness of European Union law. In other words, in the European Union, the legislative procedure can remain ordinary, even if it is not the place for public deliberation. The European institutions favor a form of propaganda of transparency that could coexist with the secrecy of legislative deliberation.

36The trilogues are formalized while remaining secret, i.e. they do not include a report of the proceedings. There are, of course, documents (4 columns) that state the position of the actors in the negotiations, but they are not immediately accessible (see below). Thus, on the one hand, trilogues are the subject of forms of codification (codes of good conduct, directives for internal use and internal regulations of the institutions, etc.) where the requirement of transparency is the main watchword. On the other hand, the way in which they are carried out remains perfectly opaque in order to preserve the margins for political negotiation and, in particular, so that diplomacy can be exercised in the Council. This is particularly visible from 2007 onwards in the aforementioned joint declaration, where the trilogues become the object of propaganda in favor of transparency.

37In this first text, which literally refers to the trilogues, transparency is stated as one of the guiding principles for the functioning of the institutions. [10] This commitment can be found in a new interinstitutional agreement on “Better Lawmaking” of 2016. A point 32 under the title “Transparency and Coordination of the Legislative Process” states that “The three Institutions acknowledge that the ordinary legislative procedure has developed on the basis of regular contacts at all stages of the procedure. They remain committed to further improving the work done under the ordinary legislative procedure in line with the principles of sincere cooperation, transparency, accountability and efficiency”.

38Transparency and legislative procedure are constantly linked without the opacity of the trilogues appearing to contradict them. However, the oddity of entrusting these institutions that cultivate opacity with the task of ensuring the transparency of procedures is striking.

39Moreover, there is no lack of criticism. Secrecy would make it impossible for European citizens to exercise certain rights: it would be undemocratic. In the face of this challenge, the democratic legitimacy of the trilogues is built within the framework of a well-established community method in which transparency and access to documents are intended to usefully replace the public nature of debates, always in the name of efficiency.

40The sacrifice of citizens’ political rights in the trilogues echoes the classic criticism of the Union”s “democratic deficit”. The complaints start with some MEPs themselves who express a feeling of being sidelined, repeating a well-known scenario in the European institutions: the sidelining of the Parliament in general and of MEPs in particular. For other actors who also participate in the animation of the European legislative debate, such as NGOs, the trilogues have become a way to “circumvent good democratic practices and prevent public participation” [11]. These secret meetings reinforce inequalities in access to information: the most powerful lobbies would have exclusive information and the weaker ones would not have much.

41The practice of trilogues was also the object of an investigation conducted by the European Ombudsman in 2015-2016. In her report, she also points out the risks that trilogues pose to European representative democracy by depriving citizens of the possibility of holding “their representatives accountable for the political choices they make in their name” [12]. According to the Ombudsman, the trilogues would also be an obstacle to the participatory democracy that the current treaties are supposed to implement, by not giving citizens the means to have their opinions heard directly or indirectly during the decision-making process.

42However, it is in the judicial field, as is often the case in Community history, that the responses to criticism reveal the European conception of democracy and legislative deliberation. A 2018 decision by the European Union’s Court of First Instance [13] confirms and extends the Ombudsman’s position. The European judge annulled the decision of the Parliament which had refused a litigant the communication of documents resulting from the trilogues, particularly in the part that reveals the compromise reached by the institutions. From now on, the European Parliament must in principle give access upon specific request to documents concerning the trilogues in progress. [14] This decision is very important because it qualifies the trilogues as a decisive phase of the legislative procedure, recognizing that the agreement reached there will almost certainly be the final legislative text. [15] This is why the judge ruled in favor of the litigant, emphasizing that “[i]f citizens are to be able to exercise their democratic rights they must be in a position to follow in detail the decision-making process […]” [16]. However, this “democratic” right of access to information for citizens does not entail the obligation to make legislative deliberations public: this question is not raised at all. The “democratic” right that the citizen asks to be respected before the judge of the Union is the right to access documents, not the publicity of debates. If the Ombudsman does not recommend that the table of negotiations of the trilogues, and in particular the 4th column containing the compromise position reached, be made available “as soon as possible after the negotiations have been concluded” [17], the judge authorizes this communication at any time during the trilogue, but only on a case-by-case basis and not in a general manner. The transparency in question here would therefore be analyzed as a right to documents. A right to make visible what is not visible, a right that the citizen must request from the judge and according to the circumstances. This is the conclusion that is reached. Because the answers to the criticisms formulated against the secrecy of the trilogues are articulated each time in terms of transparency and not in those of publicity. This is the price of maintaining secrecy—a secrecy in the service of efficiency in the making of European law.

43M. Goupy: Thomas, you describe the emergence of new forms of normativity alongside legal norms—those that regulate the management of goods, digital information, or the description of medicines, etc.—and you show that this is a parallel and much more discreet form of normativity. You show that this is a parallel and much more discreet form of normativity. Can you first explain your central idea here: that all these norms do indeed translate a new form of normativity? And what do you think is the relationship of this new normativity with this transformation in the exercise of power, with this “governmentalization” described by Charlotte and Isabelle?

44T. Berns: Rather than a new form of power, I would say, in the footsteps of Foucault, that there are new ways of exercising power. I start from the observation that our behaviors in general are more and more organized by a series of normative devices—which can be statistics, reporting practices, etc.—that take an increasing place in our lives, and that can no longer be considered from a merely legal angle. These normativities draw a regime of rivalry in relation to it. This normative plurality has always existed, of course: there have always been non-legal normative devices, such as the one organized around the confessional, or disciplinary practices, described by Foucault, which have managed our lives. But the legal norm has imposed itself by extracting itself from this normative magma, as a kind of regime of exception, in the sense that it appeared as the norm of reference, whose legitimacy could be reflected upon, even as being able to bring order to this normative magma. This is what is lost with these new normativities, which increase their competition and lead to a loss of legitimacy or reference value of the legal norm. Not only does anyone doubt that a search engine manages a large part of our social visibility, but I don’t think anyone doubts that it manages it better than an instrument of a legal nature—which obviously does not mean that it does not invade our lives. Now, in this situation, we have ended up losing our understanding of what governs us—and I say this knowing obviously how much it complicates our ways of inheriting from Foucault! My strategy is then to try to reflect these new normative devices through their gap: that is to say to enlighten these devices through a comparison with legal norm. This allows me to clarify in return what I value in legal normativity. These new normativities indeed feed on obscurity, and they induce obscurity in the situation of normative competition. All the more so if we are focused on the idea that the norm must be this public and luminous thing that is the law. So, on the one hand, there would be obscurities specific to these new normative devices; then there would be the effects of the contamination of this obscurity in a situation of normative plurality; and finally, there would be a blindness produced by the law in the sense that Foucault said that we were mistaken in thinking that power had something to do with sovereignty: the law hides power rather than saying it. I believe that these three components would allow us to say in what way there is obscurity in our new normative situation, that is to say that we struggle to experience it and understand it.

Thomas Berns: Is a Market for Norms Possible?

45The normative panorama that we have drawn, with, at its heart, a tension between a normativity that finds its model in the law (and is thought according to this model, that is to say, even more profoundly than it is the object of a thought and a tradition!) and the new normativities that emancipate themselves from this model and legitimize themselves by their link to reality, derives in fact from the ultimate advance of the market: the production of a market of norms, in which all would be taken, decision-maker as well as user. This competition of norms (among which the legal norm, which would only appear as one normative option among others), in their exercise and their effectiveness, is as such an attack on the legal norm with the idea of a monopoly of the normative space that it brews.

46If such a hypothesis of a new market for norms is credible, then it is obviously necessary to analyze much more closely the question of the discretion that protects the new norms: indeed, the market that is taking shape is quite particular, and it is understandable that it is precisely its visibility that is struggling to appear. In a way, this market would bring face to face on the one hand a legal norm, visible, but accompanied by the conviction that there can be no market. And on the other hand, new multiple norms, thus carrying the possibility of a market, but discreet, i.e. not ceasing to hide this market! It is therefore a false market, an invisible market, denied by some who refuse it, and hidden by others who participate in it. Or else, this is precisely the revelation of the asymmetry inherent in any market: never a real face-to-face encounter, but rather a game of lying poker. Hence the importance of the question of secrecy, which makes all this visible.

47M. Goupy: Could we qualify this or these obscurities generated by the new normativities as a new form of secret today?

48T. Berns: Starting from the gap between legal normativity and new normativities leads us to note modalities of production of light or publicity, of obscurity or chiaroscuro, which are of a different nature. At the very least, what seems unquestionable to me is the idea that the legal norm goes hand-in-hand with a principle of publicity. Faced with this, the new normativities are shrouded in discretion. This does not mean that laws are indeed public, known to all, or even democratic, and that the new normativities are anti-democratic and hidden by commercial secrets for example. Rather, it means that from this gap, we can ask ourselves what these two representations of the norm, these two forms of normativity, are carrying. What processes of subjectivation do they support? Do we manage to become subjects of our search engines? The legal norm brews very specific possibilities of subjectivation, linked to the publicity of the law and to the narrativities that this publicity allows. I am thinking of parliamentary debates, of their various relays, but also of the judicial space. There is also the question of the stability of the law. Something that is stable can be known. On the contrary, by their intrinsically evolving character, their tendency project, the new normativities are not necessarily secret, but they are inevitably more obscure. In the same way, the law has this particularity that it makes disobedience possible, it foresees it, it includes disobedience in its very structure. All this allows me to draw a vis-à-vis, an opposition, to reveal the discretion of these new normativities. And here, the search engine is a marvelous example, even if it is probably still too paradigmatic. The sequences of algorithms that make our search engines work are constantly evolving and, as such, they are unknowable. They are also legally protected by commercial or industrial secrecy. That doesn’t just mean that it’s a good way to profit from it. I’m not saying it’s wrong, but it’s still not very interesting. What is more interesting is that this obscurity of the search engine is constitutive of its functioning: it is because it is secret that the search engine makes it possible to efficiently organize visibility, assuming that the providers of information on the Internet remain in behaviors that are not (too) strategic since they do not know what orders them, what ranks them. There is therefore a constitutive secret in the functioning of the search engine, which is quite wonderful. All the evaluation practices that we undergo in our universities are certainly less noble, and just as invasive; but we must admit that there again, the normative devices that dictate them act in the mode of not knowing what is at their initiative. We never know where it comes from! The counterpoint to the legal object is here. Not that we always know where the law comes from, which is of course supported by interests, lobbies, etc., but the very specificity of the law appears to be to make the question of its origin a primordial issue. Here, I am not saying that the law is the primordial norm, but rather the opposite: the law is or has been a quite particular norm, because it is this norm from which one seeks to say where it comes from. Obviously, all this is fictional: the sources to which the legal experts keep referring are not the real origins of a law or of a judicial decision: they keep having to be established by the very exercise of the law. But there is thus this intimate relationship, however fictionalized, to the question of origin that is linked to this issue of publicity. On the contrary, the new normativities are carried by an obscurity that perhaps makes them much more normal; in this they correspond to life. And this is perhaps why the law is a miracle, because it is concerned with its origins, in a fictional way, I repeat. Perhaps this is what we are slowly starting to regret.

49M. Goupy: Isabelle and Charlotte describe a transformation of secrecy within the legal practices of normative production, which would be linked to a movement of expansion of the executive. And we could refer here to Léon Duguit, who already, in the first half of the twentieth century, defended the need for a transfer of a whole legislative activity to the executive for reasons of efficiency, but also of the complexification and technicalization of political questions, which escape by this very fact parliamentarians, who remain “generalists”. For his part, Thomas invites us to think about the rise of new normativities that embrace reality—and here, we might first ask whether these normativities are somehow “natural”, as you seem to say sometimes, in the sense that it would be in some way the nature of life to generate norms (a somewhat Bachelardian reflection, perhaps), or whether these normativities are a very specific historical product, that of capitalist societies, where the driving force behind these discrete normativities would be, in the last instance, economic. Whatever the case may be on this question, it would obviously be interesting to think about the articulation of your two analyses, between which there is not necessarily an opposition: one can think in particular that the technicization that accompanies and justifies this extension of the executive could be described (or legitimized?) as an effort to “embrase the economic reality”—the reality of the relations of economic forces. In this case, should we still speak of normative competition between legal normativity and the new normativities, or should we not rather speak of a kind of “normative complicity”, which would reveal itself precisely in the mechanisms of management of secrecy that these normativities produce? Could we not say, for example, that in both cases the dominant forms of normativity today “embrace” reality increasingly?

50C. Girard: There is probably more a link of complementarity than of competition between legal normativity and other forms of normativity. The discourse of technicality is often used to put aside or renounce more traditional forms of legal normativity, where publicity is required. The argument of technicality makes it possible to dissimulate the political dimension of the decisions that are at the origin of the norms. There is thus a well understood interest between the classic legal normativity and the technical normativity, which makes it possible to do without a certain number of stages, of procedures imposed by publicity. Under the guise of technicality, the public is “spared” the debate. And the discourse of technique helps prevent the public from feeling concerned by the norms, not only as recipient, but also as author—as sovereign author. Finally, this whole question of normativity comes down to the following question: “Who is the author of these norms?” This is also the question suggested by the opacity of the Trilogues, for example, “Who are the authors of the laws in Europe?” Isn’t this the question that must be systematically asked again to try to understand how it happens and where it happens? This is the question of origin that you were talking about, Thomas. Now, we realize that there are discursive or even procedural devices of dissimulation: we have seen the multiplication of these “intermediary bodies”, algorithms or economic powers, but also agencies, which participate in normative production techniques that produce a kind of veil dissimulating the origin of norms.

51I. Boucobza: As soon as the argument of technicality comes up, we should ask the question: who decides what is “technical”? For example, in the European field, there are many discussions about whether monetary policy is a technical issue. Whether it is only technical or whether it is a political decision. And above all: who decides the boundaries between technique and politics? This goes back to the more general question of who governs? Is it the government or the cabinets at the Élysée, for example? All this raises the question of political responsibility as well as legitimacy, which has always been associated with the law. If the law is the product of an administrative process, if it is made in the secrecy of the offices of the President of the Republic’s collaborators, the legitimacy of the law no longer derives from the procedure that allows its adoption: the vote in public session by the representatives of the Nation on a text proposed by the government, which is politically accountable to them. So, legitimacy is reinvented: it comes in the guise of competence, of technical expertise, in short of a highly specialized scientific knowledge.

52C. Girard: Knowing who governs joins the turmoil generated by the evolution of normative production procedures and by new normativities: are all these norms really mandatory? How effective are these norms, to put it in Kelsenian terms? In any case, there is a problem in thinking about the very notion of norm: because we no longer distinguish clearly between the author and the effect of the norm, nor its binding nature. But are we still dealing with “norms” or have we mutated? This is the case of rules relating to compliance, for example, all those norms that do not call themselves norms but are rules of good conduct, charters, guidelines, etc.: are they norms? Because we no longer know who produces them, nor what their mandatory nature is. We are talking about this indeterminacy when we ask ourselves if there is another normativity.

53T. Berns: First of all, I agree that the gap I mentioned between legal normativity and new normativities fits perfectly with a kind of complementarity of a deeply strategic nature. As for the inanity of the question “who governs?”, which we have arrived at, I do not intend to defend the rule of law by affirming that it would offer us a real “who”. This “who” is fictional, but I am attached to it. In the same way, I do not want to appear to be obsessed with constraint, but these questions to which the jurists have accustomed us: “What is the origin of the law?”, “Is it an obligation?”, “What sanction ensures its effectiveness?”etc.—these questions allow us to measure power, to know the exercise of power. So, yes, if we are no longer in a regime of obedience, what regime are we in? We are in a regime where “things follow, one after the other”. And perhaps we should regret not the constraint, but the fact of being able to measure this “follow-up” by which power is exercised against what the constraint offered—as this is what allows for the subjectification and feeding of political resistance. Therefore, in order not to appear to regret constraint, we should invent new forms of evaluation that are as effective as constraint was, in order to confront the contemporary exercise of a power whose strength is that it has gone beyond constraint!

54I said that the law was an anomaly in normative history. Does this mean that reality is on the side of economics or technology? I don’t want to take a position on this. What I do want to say, however, is that there is an ultimate advance of competition or of the market that is taking shape through the production of a market for norms. Or an intensification of this situation of normative competition, far beyond what we have already known in other periods (the medieval period is characterized by some through normative competition, and again, Foucault has well and truly shown the game of hide-and-seek throughout the modern period between disciplines, control, etc.). I’m not concerned about such a situation of normative pluralism. But the intensification of this competition—and this is my main concern—simply gives rise to a normative frenzy. And here, I feel like putting my fatigue on the table and calling for a certain normative sobriety, which the legal norm has perhaps been able to allow. This market of the norm is something that exhausts us in the strict sense and leaves us at this stage without any hold to resist it. To think from the gap between legal normativity and the multiplication of contemporary normative possibilities, is also to want to draw inspiration from the obstacles elaborated in the face of the former in order to develop them in this new normative framework.

55M. Goupy: Could we not, under certain conditions to be examined, welcome the appearance of these forms of technical normativity, which could also lead to the emergence of new forms of control over the norms of social conduct on the part of scientists or experts—the role played by the Scientific Committee in the management of the Covid crisis being perhaps interesting from this point of view? Or, on the contrary, and to return to the question of responsibility, have we not witnessed the expression of a belief in a form of “natural” or “mechanistic” legality—a legality that is perfectly in tune with reality, and whose format would be analogous and would henceforth circulate everywhere, from legal norms to technical norms, from the economic field to that of the market? This does not mean, of course, that it is not also a question of political and economic interests that are quite obvious today, but rather that there would be an implicit thinking of normativity that circulates?

56T. Berns: That technical norms appear as effects of reality is perhaps the crucial point. This means that claiming to govern from reality offers more invasive possibilities of government than claiming to govern reality. But if we base ourselves on the situation we have just experienced, then I was rather struck by the weakness of this support on the real, as to its claim to simply want to express it: the real indeed appeared as always caught up in effects of government. To count the crudest reality, the most simply dichotomous, to be alive or to be dead, even that was the object of debate! We can resort to Alain Desrosière’s words, “the data are not given”, well, even for that, “to be alive or dead”, the data are not given. We spent our time producing statistics that said different things. All this showed us how political reality is. We wanted reality, our policies were so lost, and what came back to us was a reality, even the most basic, that was always already intrinsically political. This has not slowed down the governing machine, which has only gotten out of control, but we can hope at least that it sheds light on the fact that governing from reality is only one modality among others of power, but one of the most efficient.

57C. Girard: Yes, of course, reality is political, but what interested me was the way in which, immediately, the politician tried to base his decision on a device that consisted of making a scientific committee speak in order to legitimize his own decision. As if his own decision was not enough, as if it lacked legitimacy from the outset, and therefore needed this discourse of “truth”, if not of “nature”. The politician has in fact instrumentalized the word of the scientists to give credit to his own decision. So I am less sensitive to the idea of natural legality, but rather to this role-playing that allowed politicians to produce a decision for which they could not be held responsible—a decision endorsed by scientists. But what we discovered, surprisingly, was that even the scientific discourse was open to discussion. And there, the politician came face to face with himself. He was quick to relativize the scientific opinion, considering it as advisory, as it should be. Rather than a natural legality, we should therefore speak rather of the instrumentalization of a pre-decision, and in this sense, there is perhaps a naturalization of the political decision. But in the end, the masks have come off: politicians make decisions that they seek to wrap in a certain aura.

58I. Boucobza: The episode of the management of the crisis illustrates the limits of this mode of government stamped with knowledge, competence, technicality, which we are fed in the economic field. It is an ideology: that of ordo-liberalism, the limits of which we have seen applied to the field of health. But faced with uncertainty, faced with the absence of scientific truth or the fragility of scientific discourse in this case, the politician found himself naked. He was forced to reveal his preferences. And that is politics in the end: what are the values that I decide to defend today with the elements I have and their limits? Politics reappeared in all its power. And this power has been forced to be exercised, in spite of all these artifices, in a fairly visible way.

59C. Girard: …transparent.

60I. Boucobza: Almost transparent.


  • [1]
    On this point, we refer to the Preface of this issue.
  • [2]
    Activity report on the ordinary legislative procedure 2014-2019, For the period of 1 July 2014 to 1 July 2019 (Eighth legislature), p. 3.
  • [3]
    Here is what the Guide to the ordinary legislative procedure, European Parliament, November 2017, specified about trilogues: “For an act to be adopted under the ordinary legislative procedure, the co-legislators must, at some point during the procedure, agree on a joint text that is acceptable to both the Parliament and the Council. For this to happen, the institutions must discuss their positions in trilogues, i.e. informal tripartite meetings on legislative proposals between representatives of the Parliament, the Council, and the Commission […] Trilogues are political negotiations, although they may be preceded by preparatory technical meetings […]”.
  • [4]
    The joint declaration of 30 June 2007 (207/C145/02) is in line with that of 1999. Its distinctive feature is that it names “trialogues” for the first time: “The institutions shall cooperate loyally throughout the procedure in order to bring their positions as close as possible and, in so doing, to prepare the ground, where appropriate, for the adoption of the act concerned at an early stage of the procedure. […] Cooperation between the institutions in the context of co-decision often takes the form of tripartite meetings [“trilogues”]. This system of trilogues has proved to be both strong and flexible […]”, points 7, 8, 14 and 23.
  • [5]
    Joint Declaration of the European Parliament, the Council, and the Commission of 4 May 1999 on practical arrangements for the new codecision procedure (Article 251 of the Treaty establishing the European Community), (OJEC). 28.05.1999, No. C 148.
  • [6]
    Interinstitutional Agreement on “Better law-making” of 31 December 2003, 2003/C 321/01.
  • [7]
    Joint Declaration on practical arrangements for the codecision procedure of 30 June 2007, 2007/C 145/02.
  • [8]
    European Parliament resolution of 30 May 2018 on the interpretation and implementation of the Interinstitutional Agreement on Better Law-Making (2016/2018(INI)): “underlines the asymmetrical access to information between the co-legislators, since the Council can attend parliamentary committee meetings but Parliament representatives are not invited to attend the meetings of the Council’s working groups; considers, therefore, that a coherently transparent approach is desirable; suggests that the Council should as a rule conduct all its meetings in public, as Parliament does”.
  • [9]
    Communication from the Commission to the European Council, “Integration of environmental aspects into European standardization”.
  • [10]
    Joint declaration on practical arrangements for the codecision procedure of 30 June 2007, point 3. “In exercising their powers and in compliance with the procedures laid down in the Treaties, and recalling the importance which they attach to the Community method, the three Institutions agree to observe general principles of Union law, such as democratic legitimacy, subsidiarity and proportionality, and legal certainty. They further agree to promote simplicity, clarity and consistency in the drafting of Union legislation and to promote the utmost transparency of the legislative process.” (emphasis added) Interinstitutional Agreement, “Better Law-Making”, point 2.
  • [11]
    See a letter published in late 2015 by many associations, including La Quadrature du Net in France, the Spanish Xnet or the Brussels platform Corporate Europe Observatory (CEO). For one MEP, “We are in a bastard regime between democracy and commercial negotiation”.
  • [12]
    See Proposals made by the European Ombudsman following her strategic inquiry OI/8/2015/JAS on the transparency of trilogues resulting in the decision of 12 July 2016.
  • [13]
    Judgment of the General Court (Seventh Chamber, Extended Composition) of 22 March 2018, Emilio De Capitani v. European Parliament, Case T-540/15.
  • [14]
    Usually, the requests made to the European judge for access to documents concern more administrative or jurisdictional procedures. This time, the Parliament and its co-legislators are directly targeted on the basis of a regulation imposing access to Union documents, which was adopted in application of article 15 TFEU, by which every citizen has a right of access to documents of the Union institutions and each institution has the obligation to ensure the transparency of its work.
  • [15]
    Affair T-540/15. § 109: “the work of the trilogues constitutes a decisive stage in the legislative process, since the agreement eventually reached is liable to be adopted, mostly without substantial amendment, by the co-legislators”.
  • [16]
    Affair T-540/15. § 98.
  • [17]
    Decision of the European Ombudsman setting out proposals following her strategic inquiry OI/8/2015/JAS concerning the transparency of Trilogues, p. 14-15.