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i
Oxford Constitutional Theory has rapidly established itself as the primary point
of reference for theoretical reflections on the growing interest in constitu-
tions and constitutional law in domestic, regional and global contexts. The
majority of the works published in the series are monographs that advance
new understandings of their subject. But the series aims to provide a forum
for further innovation in the field by also including well-conceived edited
collections that bring a variety of perspectives and disciplinary approaches to
bear on specific themes in constitutional thought and by publishing English
translations of leading monographs in constitutional theory that have ori-
ginally been written in languages other than English.
Zoran Oklopcic
••
1
iv
1
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
© Z Oklopcic 2018
The moral rights of the authorhave been asserted
Impression: 1
First Edition published in 2018
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a retrieval system, or transmitted, in any form or by any means, without the
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address above
You must not circulate this work in any other form
and you must impose this same condition on any acquirer
Crown copyright material is reproduced under Class Licence
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v
Acknowledgements
This book is about the importance of not closing our eyes before the situations and
environments in which we struggle to achieve something that we hope will withstand
the test of time. Completed almost fifteen years after I moved to an environment that
made the pursuit of that aspiration possible, this book is also a polemic against what
seems to be the dominant tendency in contemporary constitutional thought: to lend
dignity to such aspirations through sympathetic theoretical conceptualizations of con-
stituent power, self-determination, identity, and autonomy—collective, or personal.
Captivating, pleasurable, and comforting (especially after the fact), these idea(l)s are
also passivizing, distracting, and infantilizing. By providing ‘us’ with a virtual pat on the
shoulder, they fail to remind us that whoever we think we are, what we really need is a
helping hand. It is only because such a hand was extended by so many generous friends
and colleagues that am I enjoying the privilege, and pleasure, of writing these lines.
Though an unrefined sense of what is ‘wrong’ with the way in which contemporary
theoretical debates approach various aspects of the vocabulary of sovereign people-
hood could already be detected in my doctoral dissertation, which I defended at the
University of Toronto Faculty of Law in 2008, it took me nearly a decade to render
that initial set of convictions, assertions, and irritations more visible—and, as a result,
intelligible and sensible. It is only natural that my greatest debt of gratitude goes to the
person whose wisdom, friendship, encouragement, and gentle, but persistent probing,
gave these initial, rudimentary intuitions a chance to survive and develop—my doctoral
supervisor, Patrick Macklem. In addition to Patrick, I also wish to extend my heartfelt
gratitude to the members of my dissertation committee, Simone Chambers and Sujit
Choudhry, as well as to my internal and external examiners, Karen Knop and Stephen
Tierney, who each in their own way helped set the stage for the development of the
ideas that went into this book.
Over the last decade and a half, I have also been very fortunate to profit from con-
versations with a number of admirable colleagues. At the risk of omitting many of
those to whom I remain indebted, my thanks goes to Adrian Smith, András Jakab, Alex
Schwartz, Amy Bartholomew, Avigail Eisenberg, Benedict Kingsbury, Charles-Maxime
Pannacio, Christine Bell, Cormac Mac Amlaigh, David Dyzenhaus, Dejan Stjepanović,
Fleur Johns, Ida Koivisto, James Tully, Joel Colón-Ríos, Jarmila Lajčakova, Karlo Basta,
Kristen Rundle, Luigi Nuzzo, Luis Eslava, Maddy Chiam, Margaret Moore, Martín
Hevia, Matthew Lewans, Michael Fakhri, Miodrag Jovanović, Muhammad Shaha
buddin, Nehal Bhuta, Neil Sargent, Neil Walker, Nikolas M Rajkovic, Paul Blokker,
Peter Swan, Rayner Thwaites, Remo Caponi, Richard Albert, Rita Lynn Panizza, Ron
Saunders, Rose Parfitt, Rueban Balasubramaniam, Stacy Douglas, Stephen Holmes, Tom
Campbell, Umut Özsu, Vicky Kuek, Vidya Kumar, Vincent Kazmierski, Vito Breda, and
Yaniv Roznai. In different ways and at different places—from the University of Toronto
vi
vi • Acknowledgements
and the Department of Law and Legal Studies at Carleton University (my home insti-
tution), to Edinburgh Law School, Victoria University Department of Political Studies,
NYU Law School, and Harvard Law School’s Institute of Global Law and Policy—they
have each made the years of work that went into this book personally edifying, so-
cially enjoyable, and intellectually enriching. In particular, I wish to thank András, Fleur,
Maddy, Margaret, Nehal, and Umut, who read and commented on the portions of an
early version of the manuscript; Nikolas, for his path-breaking reading suggestions; Ida,
for our ongoing parodic re-conceptualizations of serious theoretical concepts; Adrian,
for confronting my half-developed thoughts attentively, enthusiastically, and critically;
and finally—for all of the above—K arlo, my childhood friend, comrade émigré, and
intellectual fellow traveler.
For her patience, generosity, and love—as well as for our innumerable conversations
about the substance, style, and composition of this book—I thank above all my wife
Helena Kolozetti. I also thank my parents-in-law, Nada and Vlado Kolozetti, whose
selfless hospitality I continued to enjoy throughout this process, and which I will always
cherish. Finally, the courage I felt I needed to summon in order to write this book didn’t
come from nowhere. For that I thank my parents, Slobodanka and Zdravko Oklopčić.
In nurturing my early inclinations towards the world of visual arts on the one hand, and
towards the world of politics and ideas on the other, they set the foundations for my
more recent adventures in diagrammatic writing and visual political theorizing. This
book is dedicated to my son Danilo—in hope it makes him as proud as his father is
proud of him.
Zoran Oklopcic
Toronto, January 2018
vi
Contents
List of Figures xi
A Note on the Cover xiii
A note on Usage xv
Chapter 1 A Different Beginning: Theory as Imagination 1
1. A sovereign people and its two realms 1
2. Videre aude: theory as imagination 5
3. Twining’s Palomar and his ‘cosmic wisdom’ 8
4. Imaginative theory as constituent imagination 12
5. Purposeful imagination: polemical, practical, productive 15
6. Visual imagination: figures, stages, gazes 19
7. Quasi-narrative imagination: crypto and proto 22
8. Affective imagination: affected and affecting 26
9. Ambiental imagination: prognostic, disciplinary, rhetorical 30
10. Conceptual imagination and the paper tools of theory 37
Chapter 2 Constituent Imagination: Behind Popular Expectations 43
1. The twilight (zones) of sovereign peoplehood 43
2. The people: from ridiculous (1956) to ridiculous (2016) 46
3. Popular expectations: back to the future past 51
4. Jeopardy, futility, perversity: learning from reaction 55
5. The people: an anatomy of a polemical concept 60
6. Creator vs Framework: one binary to rule them all 64
7. Beyond perspectives: the work of figuration 67
8. Emblems, ensembles, polymorphs, isomorphs 70
9. Image schemata and the laws of contrast 73
10. The anxious loop of popular sovereignty 75
11. Kelsenian ‘tendency’ and the imaginative spectroscopy 79
Chapter 3 Many, Other, Place, Frame: Beyond a Sovereign People 83
1. A sovereign: staged and dramatized 83
2. The dramatistic quartet: Many, Other, Place, Frame 85
3. Behind the stage: ex nihilo and its creatio 89
4. Behind the stage: dramatizing constituent power 94
5. Behind the people: friends, enemies, and their thirds 100
6. From Schmitt’s anxiety to Kelsen’s ‘tendency’ 105
7. Hollow topologies: constituent dramatism today 109
8. The people, (semiotically) squared 115
vi
viii • Contents
Chapter 4 Hope, Telos, Xenos: Beyond Constituent Power 121
1. Constituting: what is it good for? 121
2. Constituent power and its prompters 124
3. Constituting: founding and withstanding 127
4. Constituent power as the prognostic inscription 129
5. Theorizing: moral hazards and polemical gambles 134
6. Reconceptualizing: polemical clarifications 139
7. Scripting: Schmittian contamination 141
8. Scripting: Lockean exhaustion 144
9. Imagining (others): beyond reified stratagems 149
10. Bloch’s Vorgriff: a way of seeing 152
Chapter 5 Nephos, Scopos, Algorithm: Beyond Self-Determination (I) 157
1. Self-determination: five ways beyond 157
2. From emblematic holders to fuzzy ensembles 161
3. Nephos: Kelsen’s ‘ocean’ as a political aerosol 163
4. Granular attitudes: Kelsen’s ‘torment’ as
Bloch’s ‘contradictions’ 167
5. Scopos: polemical space beyond the Place 171
6. Self-determination: the geography of failure (I) 176
7. Self-determination: the geography of failure (II) 179
8. Imagining denominators: beyond transubstantiation 182
9. Imagining denominators: beyond circularity 184
10. Normative theory and its ‘red-haired man’ 188
Chapter 6 The Nomos and the Gaze: Beyond Self-Determination (II) 193
1. International jurists and their mental maps 193
2. Self-determination: beyond the jigsaw puzzle 196
3. Self-determination: beyond the hovering gaze 201
4. Kelsenian symptoms: statism and cosmopolitanism 205
5. Oscillating gaze and the structure of legal argument 209
6. A quiet calculus: Others in other universes 213
7. Legal interpretation as anxiety management 216
8. Legal interpretation as hope management 220
9. Beyond (the jurists’) self-determination? 223
10. Tipping the scales: from Apology to Utopia(s) 227
Chapter 7 Territorial Isomorphs: Beyond Foundational Authority 231
1. Territorial isomorphs and Sierpinski recursion 231
2. ‘A measure of my own Gestalt’: four laws of grouping 234
3. Beneath the source of ultimate authority 237
4. The final say: Münchausen and his trilemma 242
5. The varieties of (un)responsive foundationalism 245
6. Para-constitutionalism: between vague and strange 251
7. Constitutional pluralism: hermeneutics as
anxiety management 253
8. Radical pluralism: (why not) beyond constitutionalism 257
ix
Contents • ix
9. Abstract theories as problem-solving templates 259
10. Sierpinski recursion and symbolic reflection 262
Chapter 8 Constitutional Isomorphs: Beyond Collective Self-Government 267
1. Popular self-government: space, time, and spacetime 267
2. Cicero’s Ulysses: behind pre-commitment 273
3. Taking Kelsen literally (beyond Kelsen) 277
4. Self-government as a constitutional isomorph 281
5. Constitutional isomorphs and the pursuit of purpose 287
6. By the people? Imaginative plurality and its dignity 291
7. For the people? Shameful geography of liberal oligarchy 293
8. Of the people? Narrative identity, de-dramatized 295
9. Chained to the rhythm: beyond identity and hybridity 299
10. Seeing through: beyond the light and shadow 302
Chapter 9 An Isomorphic Pluriverse: Beyond Sovereign Peoples 305
1. Beyond people-Giants and people-Dwarfs 305
2. The vengeful Grossraum: Schmitt’s dark materials 308
3. The figure of Schmitt: the irritant and the reminder 313
4. The American sovereign: an amnesiac Narcissus 317
5. Multitude: the emblem of failure 321
6. The pretender Demos and the disciplinary pretensions 323
7. Cosmopolis: between Nomos and Telos 328
8. Beyond Cosmopolis: Nehru’s (isomorphic) world 333
9. For love of the purpose: Das telos der Erde 337
Chapter 10 A New Hope: Image Wars and Eutopian Imagination 343
1. The Square, the Triangle, and the Circle 343
2. Beyond circularity: transparency and its ironies 347
3. Theory, iconoclash, and the games of make-believe 351
4. Beyond image wars? ad bellum purificandum 354
5. Breaking the siege: the liberation of eutopian imagination 361
6. Striking back: the Anathema, the Nebula, and the Utopia 363
7. And again: the Aporia and the Tabula 368
8. Wishful images and partisan onlookers 372
9. Diagrams of hope and purpose 375
Index 381
x
xi
List of Figures
Ulysses and the sirens. When students of popular self-government wish to make their
case for liberal-democratic constitutionalism as vivid as possible, that’s the allegory they
turn to. In popular imagination, a sovereign people looks nothing like a partially self-
incapacitated ancient warlord, however. In fact, some who invoke the people’s name
on the ground would be more likely to associate it with the downtrodden, exhausted
masses represented in Ilya Repin’s The Barge Haulers on the Volga (1874), one of the
masterpieces of nineteenth century Russian realism.
A ‘typical’ reader of the monographs published in this series—in my imagination,
someone theoretically sophisticated, socially responsible, and politically cautious—will
most likely remain unimpressed by either melodramatic representation of popular sov-
ereignty. Instead, the reader I’ve just conjured is quick to agree that a sovereign people
can only ever exist as a more or less useful fiction, a figure of speech, a metaphor we
live by: the constitutionalist representation of a national community that is imagined,
a name for a collective sovereign that is invented; a political concept whose purpose
was, is, and will continue to be polemical. While this book has no quarrel with these,
more theoretically self-aware, understandings of sovereign peoplehood, it nonetheless
dares to ask: What does this figure look like? If it’s imagined, what exactly does its
image evoke? If it’s invented, where are its blueprints? If it’s polemical, where are its
battle plans? Sensible and intriguing they may be, but these questions are inadvisable, if
not unmentionable, from most contemporary disciplinary perspectives on the vocabu-
lary of sovereign peoplehood. Among other things, this book is an attempt to answer
them. The name for that effort is constituent imagination: a practice which, even when
approached seriously, is always one step away from parody, or a step away from being
parodied, itself. Repin’s Barge Haulers is the emblem of that predicament: an illustration
intended to poke fun at the solemn nautical metaphors of contemporary constitution-
alism, but which, very quickly, under the inspection of my more sharp-eyed colleagues
became the object of ridicule itself.1
Though partly satirical in its aesthetic and rhetorical aspirations, this book rests on an
unironic conviction—an earnestly held belief that many, potentially useful, analytical
insights lie in an insufficiently explored strip of intellectual landscape delineated by the
tolerably indecorous and the disciplinarily undisciplined—two invisible boundaries of our
theoretical imaginations. To explore this zone is to find new ways of moving beyond
the traditional styles of practicing theory, and, with it, beyond the enduring represen-
tations of popular sovereignty in a wider social imaginary. While this book is not an
attempt to convince its readers that they ought to make that move, it intends to provoke
1
Yaniv Roznai, true to his humorous habitus, was quick to point to the cell phone in the hands of an ex-
hausted elderly employee in the middle of the painting.
xvi
A Note on Usage
This book departs from prevailing ways of writing about social imaginary and theor-
etical imaginations of popular sovereignty both in substance and in style. As will soon
become fully obvious, my style is thoroughly visual, manifest not only in my ample use
of images—diagrams, tables, and graphs—but also in my frequent reliance on visual ac-
cents, such as small caps, which appear throughout the book in the body of the text it-
self. Mildly anxious about the prospects of being accused of not practising what I preach
(imagination), I have resorted to their use for three reasons: (1) in order to generate (in
my mind, as effortlessly as possible) the effect of estrangement from dominant theor-
etical preoccupations with the figure of a sovereign people and its attributes—with the
aim of drawing attention to the conceptual, visual, rhetorical, semiotic, and other con-
cealed implements of theoretical imagination used to stage the manifestations of that
people and its attributes, instead; (2) in order to underscore the imagined and imagina-
tive character of allegedly superior theoretical alternatives to specific figurations of a
sovereign people, or to the vocabulary of sovereign peoplehood in general; and, finally,
(3) in order to make further distinctions among the diversity of background imagina-
tive choices and half-thought considerations that inadvertently shape the way in which
the figure of a sovereign people appears on the pages of a theoretical monograph. In
opting for this approach, I was aware of the risk of alienating readers who expect to
confront discrete chunks of unadorned text, and not lines of text interspersed with pic-
torial emphases, visual restatements, and diagrammatic summations. If I have failed in
my ambition to deploy these visuals illuminatingly, I still hope that there will be those
who will consider it as an experiment well worth the effort—an attempt to theorize fast
and slow; to communicate mutually-related ideas at different levels of compression, in
the hope that doing so might make them easier to disassemble, reassemble, compare,
combine, adapt, discard, or deploy—and overall, situate and evaluate.
xvi
1
1
A Different Beginning
Theory as Imagination
1
Charles Taylor, Modern Social Imaginaries (Duke University Press 2003) 23.
2
2 • A Different Beginning
expectations and as the warden of the spatiotemporal boundaries of their mor-
ality and sensibility. In these roles, a sovereign people also acts as the manager
of mental phenomena—emotions, attitudes, and affects—which these expect-
ations provoke, sustain, amplify, or diminish in the context of a particular pol-
itical struggle.
Among a variety of different affective attitudes that come in tandem with
the vocabulary of sovereign peoplehood, one has been particularly important.
Ignored by the theorists, the attitude in question—perhaps best referred to
as hopeful self-confidence, or self-confident hopefulness—has allowed those
who rally around the name of the people to act on the basis of a belief that
has no correlate in the historical eras prior to the one defined by the social
imaginary of popular sovereignty; a belief that ‘we, the people, have the right
to voice on our own initiative; worthy, united, numerous, and committed,
we have the capacity to change things’,2 trustful that doing so will not be in
vain and that establishing a new order of, for, and by the people can only be
for the better. Those who approach this figure theoretically, however, rarely
pause to ask, is this still what we expect today? Is it really true, as Ernst Bloch
declared in 1959—the year which, in retrospect, may be seen as the beginning
of the soon to be eclipsed zenith of that imaginary—that ‘we never tire of
wanting things to improve’?3 Or has the ‘continual propensity towards the
better’, which Bloch detected more than half a century ago, been nothing
but his own groundless projection, the result of his own overactive imagin-
ation: ‘part socialist propagandizing’, ‘part German metaphysics’,4 part echo
of the mid-twentieth century anti-colonial Zeitgeist?
As they seek to interpret the meaning of specific propositions of peoplehood,
theorists, for the most part, do not confront these questions, nor do they, in con-
sequence, have an opportunity to ask themselves those that would otherwise
logically follow: What is it that we expect from the figures that inhabit the realm
of theoretical inquiry once we broadcast them—in the world, and for those who
rely on them within the realm of social imaginary, in the field of struggle? How
do we want our figurations of sovereign peoples and their predicates to arbiter,
police, and mediate their own expectations? Which among their innumerable
struggles do we wish to catalyse, and on the basis of what? What is it that we,
the inhabitants of the realm of theoretical inquiry, envision as we assume, diag-
nose, prognosticate, hope, worry, regret, and yearn?
To ask these questions is to ask what is theory as a practice, and what is that
practice for. To aspire to answer them is to reimagine theory as the practice
of imagination, and then to practice it differently: purposefully, deliberately,
actively, and interactively. To practice theory as imagination in the realm of the-
oretical inquiry is to violate the norms of communal decorum, which stipulate
2
Charles Tilly, Regimes and Repertoires (University of Chicago Press 2006) 56.
3
Ernst Bloch, The Principle of Hope, vol 1 (Neville Plaice, Stephen Plaice, and Paul Knight trs, first published
1959, MIT 1995) 77.
4
Alan Mittleman, Hope in a Democratic Age: Philosophy, Religion and Political Theory (OUP 2009) 182.
3
A Sovereign People • 3
how to treat interlocutors’ images: always as props, always invisible, and always
unmentionable—either because they successfully prop up the propositions of
those who imagined them, or because the consequences of their failure to do
so must be indicated differently, without pointing a finger at a picture, which,
by definition, may always be pictured differently. Finger pointing, as in every
other polite conversation, is strongly discouraged. To ask: What is the point of
imagining a scene in which a sovereign people appears like that, like that?—is
to introduce irrelevant and tone-deaf considerations, more becoming of a ‘man
of business’5 than of someone appreciative of the ‘unusually conversant’ voice
of theory.
Notice, however, that the same theory-as-imagination, which commits its
practitioner to laugh away the reproachful gazes of those who claim that ‘bar-
barism may be observed to have supervened’6 whenever ‘so that what?’ and
‘on the basis of what?’ questions disrupt the flow of mellifluous theoretical
conversation, also seems to commit that same practitioner to fight the ‘critical
barbarism’ of those who participate in the scholarly games of make-believe for
the opportunities they provide to demolish someone else’s stage props.7 While
fighting critical barbarism in this arena ultimately doesn’t commit a theorist-
imaginer to refrain from exposing, ridiculing, or unmasking sacred cows, ta-
boos, and fetishes, it does commit her to keep reminding herself and others
that those who approach these entities purposefully are not idiots; that is, that
they are not constitutively incapable of detecting a conceptual shell game, a
manoeuvre of hiding the theoretical ball, or an attempt to smuggle an imper-
missible assumption when they see one. In the context of this book, it is to ask
not only what is the point of imagining the figures of sovereign peoplehood in
a certain disciplinarily disciplined way, but also what is the point of problem-
atizing or critiquing those imaginations—specifically.
Provisionally situated between these two styles of theoretical thought, then,
theory-as-
imagination is neither a dispassionate conversation sustained by
a system of winks and nods, nor an intramural sport of theoretical criticism
whose audience is known in advance, but rather one of many possible instanti-
ations of ‘symbolic action’. Always haunted by the oscillations between a vague
and concrete sense of purposefulness, the dilettantism of its diagnostic and
prognostic judgements, and the irresistible allure of the ‘adventures of thought
in writing’—its aim is always to move: someone, somewhere, and for the better.8
Those who practise it are imaginers and practically minded rhetoricians,
the ‘priests of the profane’,9 as Nicholas Onuf called them, and the veritable
5
Michael Oakeshott, Rationalism in Politics and Other Essays (Methuen 1962) 201. 6
ibid 212.
7
Bruno Latour, ‘Why Has Critique Run out of Steam? From Matters of Fact to Matters of Concern’ (2004)
30 Critical Inquiry 225.
8
Kenneth Burke, A Rhetoric of Motives (University of California Press 1969) 42.
9
Nicholas Onuf, World of Our Making: Rules and Rule in Social Theory and International Relations (Routledge
2012) 106.
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Author: Brada
Language: French
BRADA
PRÉFACE DE
ANATOLE FRANCE
PARIS
CALMANN LÉVY, ÉDITEUR
ANCIENNE MAISON MICHEL LÉVY FRÈRES
3, RUE AUBER, 3
1895
DU MÊME AUTEUR
Format grand in-18.
ANATOLE FRANCE.
JEUNES MADAMES
I
QUESTIONS BUDGÉTAIRES