Instituting: a Legal Practice

Abstract

This article explores the concept of institution as the legal performance par excellence. It starts by giving an account of the perspective that Merleau-Ponty opens on the notion of institution and aims to show the connection with the concept of passivity. The central focus is on the dynamics of instituting: in order to deal with this concept and to see its implications in the field of philosophy, it will proceed by making Merleau-Ponty’s speculations dialogue with the research conducted in the same year (1955) by Deleuze: Instincts et institutions. In passing, it will be necessary to show what is at stake in the debate on the concept of institution, and the short-circuits that can be avoided through a better conceptualisation. To this end, a brief reference will be made to the main anti-institutionalist currents that have left deep traces in the contemporary debate, and to the idea of institution that, more or less explicitly, is still at the heart of social sciences. Given these preliminary foundations, the project is to make the fundamental questions inherent to the concept of institution—its relationship with temporality, with history, as well as the “classic” contractualist alternative to the institution that is still at the heart of political philosophy—react with the research of Yan Thomas on the origin of ius and on law as the quintessential instituting technique. Finally, we will return to Merleau-Ponty to take his insights a bit further and show their potential in the contemporary debate on instituting praxis.