An Outline for a Foucauldian Interpretation of Modern Law
An Outline for a Foucauldian Interpretation of Modern Law
Abstract and Keywords
In the first chapter, the author provides a picture of the current state of contemporary Foucauldian interpretations of law. The author claims that Foucauldian scholars – notwithstanding recent important contributions – have not been able to properly debunk the thesis that Foucault “expelled” law from the locus of power. The author proposes to overcome this impasse by considering law as a proper sui generis apparatus of subjectivation and by undertaking a geneaology of the modern discourse of law in order to discover its generative syntax. The author’s goal is to demonstrate that in developing towards its modern form, law moved from being an order based upon the paradigm of sovereign commands to one based on the paradigm of socially constructed norms (understood in a Foucauldian way). The author identifies the formal features of generality, abstraction, and the substantive features of equality and freedom as key for this purpose.
As of today, probably few academic pronouncements have been more neglected than Jean Baudrillard’s now (in)famous remark, ‘Forget Foucault!’.1 Michel Foucault’s theories, ideas, and concepts, more than thirty years after his death, remain at the centre of intellectual debates in fields as diverse as philosophy, history, political science, sociology, media studies, gender studies, criminology, and postcolonial studies.2 Although Foucault can rightly be seen as one of the most influential thinkers of our times, his ideas have hardly been received without also generating controversy. His vision of law in the modern era, in particular, has drawn severe criticism from many circles. Established scholars as diverse as Jürgen Habermas and Nicos Poulantzas have expressed strong reservations about aspects of Foucault’s approach to the legal phenomenon, accusing him of downplaying and distorting the role of law in modern society.3 He has been criticised for portraying law as a mere spectacle for the manipulative ploys of a fathomless power, and, as a consequence, for being unable to recognise the development of legal rights as tools designed to contain the pervasive influence of power, and as instruments to promote individual and collective freedom, and self-determination. These attacks are far from unwarranted. Foucault’s argument appears almost counterfactual: how is it possible to claim that, in the modern ‘age of rights’,4 the individual, formally protected by a sphere of legal autonomy, is, in fact, subject to the omnipresent gaze of power?
Such a reading of Foucault’s work in relation to law, however, is ultimately quite misleading as it takes Foucault’s passing remarks on the regression of law in our times5 at face value without considering the broader context of his genealogical enterprise. Those sharing the conclusion that Foucault disregarded the liberating potential that modern law could offer (p.2) to the individual implicitly assume that, according to the French philosopher, in modern societies, the individual is not freer than before, or at least, she is only apparently free, while in fact secretly manipulated by the cunning of power. It is easy, though, to demonstrate that Foucault did not address the relationship between autonomy and power in the crude terms of a zero-sum game (more autonomy, less power, and vice versa), but, more subtly, as a matter of different regimes of freedom. In this regard, he suggested that power and freedom are almost coextensive. Power does not subjugate the individual; rather, it activates certain patterns of behaviour and thinking that follow power’s own impersonal discourse and that need a certain space of freedom to flourish and be effective.
The question of law within a Foucauldian framework, therefore, should not be posed in terms of a stark alternative (‘Does modern law effectively grants us an individual sphere of autonomy or not?’), but, instead, should be understood as an inquiry concerning the ambiguous landscape of freedom that law contributes to generating against the background of contemporary dynamics of power. It has recently been suggested that the entirety of Foucault’s oeuvre can be understood as an exercise in problematisation understood as an inquiry into the conditions of possibility of the present.6 Seen in this light, Foucault’s work becomes suddenly relevant for the legal field as it offers a series of theoretical tools that could open up new, previously foreclosed, avenues of research. The present work is an attempt in following this path. Its scope is that of provoking a problematisation of law that would unearth the unseen postulates and implicit assumptions that delineate the limits and establish the conditions of truth of our current legal horizon. Its goal is that of demonstrating that the very concept of law that we moderns silently accept and incessantly utilise is not a transhistorical reality, but rather an evolving eminently historical formation, operating according to distinctive discursive rules.
Such an endeavour promises to be doubly fruitful. First, it would resolve a longstanding conundrum which has faced many Foucauldian scholars and critics alike, showing not just the possibility of situating law within the broader Foucauldian project, but how Foucauldian conceptions of power, freedom, truth, and subjectivity are key to illuminating the progressive establishment of the modern legal discourse and to elucidating its internal workings. Second, and most importantly, it would break new ground for legal theory more generally, as the ultimate purpose of any problematisation is precisely that of making visible a problem that we could not see in the first place. Anticipating the results of my interpretation, I would posit that law and modern (biopolitical) regimes of power (p.3) are not to be seen as incompatible or heterogeneous. Rather, they both evolved isomorphically as normalising technologies of government of the living, and exist in a relationship of co-production: law creates the universal subject of rights, who is reflected in the normal subject of biopolitical regimes, and vice versa. While this relationship established a largely functional complex for a long time, this complex is nowadays progressively collapsing in the face of the shift towards what Zygmunt Bauman calls ‘liquid modernity’ and the consequent displacing of normalising dynamics that it brings along. This mismatch between what remains a fundamentally normalising legal discourse and an increasingly non-normalisable subjectivity is, I suggest, at the root of the normative and functional crisis of modern law. Through my analysis, I will make this problem visible, while exposing contemporary legal theory’s inability to properly theorise it because of its failure to question law as a historical construct. If my argument will prove convincing, I will have revealed how modern law should not be treated as a given universal and how contemporary legal theory should search for the solutions to some – or possibly many – of the normative and functional predicaments of our age by breaking away from the increasingly fragile mould of a discourse conceived in other times and built to answer different problems from the ones that challenge us now, and those that loom ahead in the coming future.
To achieve this ambitious result, I propose to perform the most typical Foucauldian methodological manoeuvre: a genealogical analysis. Foucault’s genealogical method, mentioned in his writings as early as 1967,7 drew explicitly from Friedrich Nietzsche’s works. Broadly speaking, it can be described as a kind of approach that ‘examines the constraints, the “regimes of truth” that underlie the historically variable divisions between the true and the false in knowledge and culture’.8 In a different way from his archaeological method9 – which focused on the ‘system of conceptual possibilities that determines the boundaries of thought in a given domain and period’10 – genealogy investigated more specifically the interplay of power in the shift from one system of thinking to another.11
Genealogy thus addresses the progressive formation of the complex and contingent nexus formed by power, knowledge, and truth, which constitute the seemingly absolute horizon of our social reality. It attempts to contextualise the order of the present so as to show not only that the most fundamental assumptions structuring our living environment are, in fact, the product of incidental historical junctures but, most crucially, how these have actually emerged. In its demystifying task, genealogy does not represent a form of judgement of the present, but rather the most (p.4) radical form of its critique that is propaedeutic to judgement.12 It is a form of inquiry that, desedimentising the concretations of history, allows us to see beyond a present which ‘is always conditioned by its own inertia’,13 and to imagine previously unthinkable alternatives.
I will explain more precisely the contours of my genealogical project and how it partially departs from the Foucauldian canon in the following pages. First, however, in order to provide a more solid background to my subsequent analysis, I will focus on some relevant aspects of Foucault’s theory and on the controversial role that law plays within it.
Foucault and the law: an indigestible meal?
Foucault famously claimed that modern forms of power are biopolitical as they place the lives of individuals at the centre of explicit political machinations.14 The idea of biopolitics was brought to the forefront of academic debate by Michel Foucault, who first mentioned the term in 1974.15 He later developed the concept in The Will to Knowledge16 and in his courses at the Collège de France.17 The statement that best seems to encapsulate his fluid ideas on the matter is this, taken from The Will to Knowledge:
One would have to speak of [biopolitics] to designate what brought life and its mechanisms into the realm of explicit calculations and made knowledge/power an agent of transformation of human life … For millennia, man remained what he was for Aristotle: a living animal with the additional capacity for a political existence; modern man is an animal whose politics places his existence as a living being into question.18
Foucault provided a historical account of the rise of biopolitics. According to his view, it evolved from a framework that focused on the body of the single individual to one that took into its calculations the life of populations as a whole.
Foucault famously argued that modernity is marked by an abandonment of the juridico-political model of sovereignty. Increasingly supplementing it,19 between the end of the sixteenth and the whole of the eighteenth century, a vast array of techniques conceived to dominate the body of the individual emerged, aiming at enhancing the body’s ‘productive force’.20 In Discipline and Punish,21 his most systematic study of this topic, Foucault delineated the general characteristics of ‘disciplinary societies’. He argued that societies came to be informed by an ‘anatomo-politics’, that is a ‘micro-physics’ of self-regulated power. Through a complex and multi-layered system of surveillance, hierarchy, inspections, reports upon the object of the body – suddenly understood as a powerful (p.5) tool of production itself – ‘disciplinary techniques’ were conceived and implemented. This disciplinary power was born within various heterogeneous institutions – the prison, the asylum, the factory, the army, etc. – as a dispersed set of norms and practices that fostered efficiency and effectiveness. It coupled perfectly with the rising capitalistic mode of production.22 As Foucault puts it:
The historical moment of the disciplines was the moment when an art of the human body was born, which was directed not only at the growth of its skills, nor at the intensification of its subjection, but at the formation of a relation that in the mechanism itself makes it more obedient as it becomes more useful, and conversely.23
From the second half of the eighteenth century onwards, Foucault saw another technology of power that does not exclude or substitute for discipline but that, installing itself on the substrate formed by it, operates at a ‘different level’ using ‘different instruments’.24
The object of this emerging technique is not the single body of the individual any more but, more abstractly, the life of men itself. As Foucault says, it is a ‘new body, a multiple body, a body with so many heads, that, while they might not be infinite in number, [they] cannot necessarily be counted’.25 This body has the name of ‘population’. The problems arising along with this new object of power are of a statistical nature: probabilities, series, and aleatory circumstances are the kind of events affecting it. The mechanisms characterising this new technique of power make use of the biological body similarly to disciplinary techniques, but they follow a completely different path. They do not deal any more with the taming of the body of the single individual but take into account the global entirety of a species: hence they do not discipline but regulate. To this kind of technology of power Foucault gave the name ‘governmentality’.26
With the individuation of the field of governmentality, Foucault attempted to study all of those activities that could ‘concern the relation between self and self, private interpersonal relations involving some form of control or guidance, relations within social institutions and communities and, finally, relations concerned with the exercise of political sovereignty’.27 His thesis was that at a certain point in history, the state ceased to be derived from the divine order of the universe and started to be conceived as an object with its own autonomous rationality of government and concerned mainly with the correct management of the productive life of its population.28 This new conceptualisation marked a profound shift in (p.6) the art of government as it moved from the administration of a territory with its population to the administration of
men in their relations, their links, their imbrication with those other things which are wealth, resources, means of subsistence, the territory … men in their relation to that other kind of things, customs, habits, ways of acting and thinking … lastly, men in their relation to that other kind of things, accidents and misfortunes such as famine, epidemics, death, etc.29
The dynamics of power, in other words, moved from the scheme of sovereignty or the limited focus of disciplines in order to surround the individual and the population as a whole within a triangle formed by sovereignty–discipline–government that aimed at an efficient and rational management of the national community.30 The modern state, consequently, has to be seen as the product of this new network of practices and, according to Foucault, the history of modern Western society is, all things considered, that of the ‘governmentalisation of the state’.31 Foucault further argued that the emergence of this new rationality of government derived genealogically from the Christian ‘pastoral power’.32 Foucault also suggested that this form of power was organised around certain basic tenets that were starkly at odds with the typical dynamics of sovereign power as it focused on protecting and fostering the individual instead of asking for their sacrifice.33
Pastoral power influenced governmentality in two distinct ways. In the first place, it entered into a direct dialogical relationship with the individual, enveloping her within its rational discourse and pushing her to internalise ideological, behavioural, practical standards of conduct. Secondly, it treated the subject both as a single individual and as a constituent part of a flock, thus giving rise to a discourse of power that would at once ‘totalise’ and ‘individualise’.34 As a consequence. Foucault claimed that ‘we should [not] consider “the modern state” as an entity which was developed above individuals, ignoring what they are and even their very existence, but on the contrary, as a very sophisticated structure, in which individuals can be integrated, under one condition: that this individuality would be shaped in a new form and submitted to a set of very specific patterns’.35 Foucault, in short, understood the state as a by-product of disciplines, governmentality, and a pastoral vision of power. He seemed to downplay to the largest extent the function that law exercised in the emergence of the state and in informing its structure.36
Discipline and governmentality, notwithstanding their differences, were seen by Foucault as parts of common dynamics of power that, focusing on the biological, aimed at managing the subject both as a single individual (p.7) and as a member of the social body.37 Together they surrounded the subject, forcing her to internalise standards of practice, behaviours, and ideology, and giving rise to a dynamics of power where abiding by rational standards and rules of conduct was of paramount importance.38 Within this context Foucault stressed that power, in modern society, and through discipline/governmentality, abandons what he called a Hobbesian model of sovereignty and moves towards a model of ‘normalisation’.39 In this model, power is not obsessed any more with prohibition or repression; rather, it tries to enforce upon society the ideal of the normal. The concept of ‘normal’ comes to represent a fundamental key to manage society as it provides power with a guideline for its regulatory operations. It does not only offer a matrix by which to interpret society, but also a scale by which to judge and differentiate each individual from the next. As Foucault observed, ‘the power of normalisation imposes homogeneity; but it individualises by making it possible to measure gaps, to determine levels, to fix specialties and to render the differences useful by fitting them one to another’.40 The emergence of a normalising dynamics of power during the late eighteenth and the nineteenth century has to be seen as the completion of a unitary surrounding manoeuvre around the body, the final stage of a siege that puts in check man understood as a biological machine: ‘We are, then, in a power that has taken control of both the bodies and life or that has, if you like, taken control of life in general – with the body as one pole and the population as the other.’41
Foucault, following Canguilhem,42 derived the concept ‘normal’ from that of the ‘norm’ understood in a socio-scientific sense as a rule that functions as ‘a minimal threshold, as an average to be respected or as an optimum towards which one must move’.43 Within this context Foucault stressed that power, in modern society, largely ceases to be articulated along the scheme of sovereign commands, and is instead structured along the logic of the norm.44 The norm, according to Foucault, is a concept that is not limited exclusively to the moral, ethical or legal realm, but defines a whole mode of thinking that is distinctively modern. François Ewald, following Foucault, suggests that the concept of the norm, at the beginning of the nineteenth century, ceased to be plainly equated with the legal or moral rule and came to be linked with the idea of normality. In the modern sense the norm designates both ‘a particular variety of rules and a way of producing them and, perhaps most significantly of all, a principle of valorization … Its essential reference is … to the average; the norm now refers to the play of oppositions between the normal and the abnormal or pathological.’45
(p.8) The norm, understood in this way, becomes something akin to an epistemological and ordaining idea of the world. The norm, in other words, functions both as a scheme that allows us to efficiently categorise reality and also as a parameter by which to regulate it. To this extent, the norm fulfils two functions. In the first place it works as a method of communication as it allows the comparison of different entities on the basis of a common standard. At the same time, it transforms reality with its illocutionary force: the norm divides reality into discrete comparable entities that can be articulated through the norm itself. As Ewald puts it:
the norm implies a rule of judgement, as well as a means of producing that rule. It is a principle of communication, a highly specific means of resolving the problem of intersubjectivity. The norm is equalising; it makes each individual comparable to all others; it provides the standard of measurement. Essentially, we are all alike and, if not altogether interchangeable, at least similar, never different enough from one another to imagine ourselves as entirely apart from the rest. If the establishment of norms implies classification, this is primarily because the norm creates classes of equivalency.46
The Foucauldian tools of biopolitics, discipline and governmentality, fascinating though they might be, have not always been welcomed, especially by those thinkers working in the liberal legal tradition. Liberal scholars have generally rejected Foucault’s arguments as a distorted historical interpretation, offering, instead, a more straightforward vision of the relationship between power, law, and freedom in our society. It is clear that these scholars do not claim that our era is characterised by an unbridled state of individual liberty (that would be almost a contradiction in terms); nevertheless, they argue that in modern societies the individual is protected from the ploys of power to an unprecedented extent. This result has been achieved, above all, thanks to the development of a complex and sophisticated system of rights ensuring an autonomous sphere of action for the individual both at a formal and a substantive level.47
Such attacks are not entirely misdirected. The province of law seems to represent for adherents to Foucauldian theory a somewhat indigestible meal (an expression Foucault used with regard to the notion of the state).48 Foucault himself produced, as is well-known, very sparse and sometimes contradictory comments on the subject, and has never offered a comprehensive analysis of law within the context of his theory, sometimes, even, seemingly resorting to the generally accepted idea of legal rights as a vehicle for expressions of resistance and subversion against practices of subjection promoted by the incessant workings of a faceless power.49
(p.9) If one had to choose a standard-bearer for the liberal dissatisfaction – a dissatisfaction that verges on irritation – towards the generality of Foucault’s theories, and in particular his ideas about power and modernity, that would be Jürgen Habermas. Habermas mounts a full-scale critique of the Foucauldian approach to law. Taking into consideration Discipline and Punish, Habermas claims that Foucault’s understanding of the changes in penal practice around the close of the eighteenth century as the inception of a disciplinary turn in the dynamics of power is ‘false in its generality’.50 According to Habermas, Foucault can only put forward his thesis by moving from the premises of a ‘theory of power for which the normative structures of the development of law remain elusive’.51 As a result, Foucault disregards the normative impact that philosophies like utilitarianism and the Kantian theory of morality and law – which he sees connected with the emergence of discipline – have had on modernity. He simply ‘does not go into the fact that these in turn serve the revolutionary establishment of a constitutionalised state power, which is to say, a political order transferred ideologically from the sovereignty of the prince to the sovereignty of the people’.52 In Habermas’s opinion, Foucault – precisely because of his normative hollow theory of power – neglects ‘the development of normative structures in connection with the modern formation of power’.53 Within this perspective, the modern discourse of law is heavily underestimated with regard to its internal rational content:
whereas the sovereign power of classical formations of power is constituted in concepts of right and law, this normative language game is supposed to be inapplicable to the disciplinary power of the modern age; the latter is suited only to empirical, at least nonjuridical, concepts having to do with the factual steering and organisation of the behavioural modes and the motives of a population rendered increasingly manipulable by science.54
Overall, in Habermas’s interpretation, it is the entire object represented by modern law that is overlooked in Foucault’s grim account of the modern penal system. Foucault is bound to disregard it, otherwise
he would have to submit the unmistakable gains in liberality and legal security, and the expansion of civil-rights guarantees even in this area, to an exact interpretation in terms of the theory of power. However his presentation is utterly distorted by the fact that he also filters out the history of penal practices itself as aspects of legal regulation. In prisons, indeed, just as in clinics, schools, and military installations, there do (p.10) exist those ‘special power relationships’ that have by no means remained undisturbed by an energetically advancing enactment of legal rights.55
Habermas, in other words, accuses Foucault of ignoring the normative dimension of law to subscribe to a grim vision of the modern legal phenomenon. Law is understood as a mere spectacle for the manipulating play of a fathomless power, and Foucault is consequently unable to recognise the development of legal rights as limits to the influence of power and as instruments for individual and collective self-determination.
The claim that Foucault, in his account of modern forms of power, did not pay enough attention to or grossly misinterpreted the role of law in our times has been endorsed by more sympathetic readers of the French philosopher than Habermas. Alan Hunt and Gary Wickham are among those who have stated more clearly the case proposing the so-called ‘expulsion thesis’ in their book Foucault and Law.56 Their argument, although developed in a broader and more nuanced fashion, reaches in practice the same conclusions as Habermas’s: Foucault, in his version of modernity, downplayed excessively the force of law within the dynamics of society. Relying too much on discipline and governmentality, he effectively expelled law from the locus of power. According to this thesis, Foucault saw law as a hollowed-out discourse colonised by external sets of knowledge and devoid of any effective autonomous directive role.57
Hunt and Wickham’s description of Foucault’s thoughts on law (which they claim cannot form a Foucauldian theory of law because of their sparse and cursory nature)58 rests heavily on the idea that Foucault himself proposed a very grim account of law. They suggest that Foucault saw law as inextricably linked with sovereign expressions of authority, as the vehicle of a kind of power that manifested itself negatively as a form of a prohibition. Law was the pure command of the sovereign that told its subjects what not to do and which activities and behaviours they should avoid so as not to suffer the punishment of his violent wrath. In this sense law and power always worked as a limit not to be surpassed, its exemplar being criminal law accompanied by its sanctions.59 In the wake of modernity, power changed its shape and embraced a new dynamic. The emergence of disciplinary societies marked a mutation in the relationship between power and the individual which abandoned a purely negative dimension. As already mentioned, according to Foucault, modern forms of power embraced a positive stance towards the subject and began to shape and mould her. In this context, the simply repressive function of law faded into the background as power became more and more diffuse (p.11) in the way it worked, creating the subject from the inside – acting on her routines and conducts, entrapping her into a panoptical gaze – instead of punishing her from the outside. As a consequence, Hunt and Wickham conclude, Foucault relegates law to a minor role in today’s society.60 The legal field is colonised by the norms of human sciences and has lost its normative pre-eminence in the face of a more penetrative form of normalising power. Hence the expulsion thesis: within the dynamics of modern power, law has little or no place.6162
Foucauldian scholars, on the other hand, have frequently addressed the issue of law in modern society. They have done so mainly from an applied perspective, by ‘deploying Foucault’s various methodologies or concepts in the service of a range of different critical approaches to law (and in a range of different legal contexts)’.63 Nikolas Rose and Mariana Valverde, in particular, offer a range of methodological suggestions for how to explore law from a biopolitical perspective and can be considered exemplars of this approach.64 They urge us to study law in concatenation with specific disciplinary and governmental practices and strategies in order to unearth its biopolitical usages. Namely, they intimate that we should focus on law as a phenomenon that produces practices of subjectivation through ‘a series of productive antagonisms and alliances between different conceptions of the objects, subjects and mechanisms of government’65 and a heterogeneous patchwork of different authorities which intermix inextricably legal and extra-legal authorities and mentalities.66 Such an approach implies that, in practice, law falls far from the ideal of freedom, following instead biopolitical lines of subjection.67
While Rose and Valverde’s propositions are indeed stimulating, the premise of their reasoning is troublesome. By arguing that ‘[l]aw, as a unified phenomenon governed by certain general principles is a fiction’68, and claiming that conducts are governed facially through law ‘but by ways of thinking, regulating and enforcing that are very different from those usually associated with legality’,69 they repeat some of the most trite tropes of the expulsion thesis, leaving their approach open to two serious lines of criticism. In the first place, the work of the legal scholar is hereby made redundant or, at best, parasitic, in the study of the legal field. If law is little more than a veneer, then the legal scholarship can offer no proper insights into the workings of law and can only be subservient to the task of the sociologist or the historian. Secondly, denying substance to the legal discourse proper seems to be in plain contradiction with (p.12) its development and importance in modern society, an implausible and unacceptable conclusion.
Much of Foucauldian legal scholarship, therefore, while offering useful and provocative insights, appears to miss the point of the liberal challenge to a Foucauldian reading of power and, as a consequence, of freedom. Liberals, to their credit, do not dismiss out of hand the idea that modern societies can be oppressive notwithstanding the presence of a developed legal system and individual rights. On the contrary, they often recognise the wrongs of our times. They suggest, however, that law is the primary instrument to right those wrongs. No doubt, certain laws and rules can be an integral part of the process of legitimising oppressive and freedom-quashing discourses when strategically situated within a broader biopolitical landscape; nevertheless, the idea that fundamental legal rights protect the individual against the abuses of power still retains its theoretical validity.
Hence, much of the current Foucauldian legal scholarship does a praiseworthy job in criticising law in its practical application and contextuality, but does not fundamentally question the liberal ideal of freedom that (reformed) law can still theoretically offer. The Foucauldian argument that power and freedom are coextensive therefore appears to be weakened when we are confronted with the legal field. The theoretical enjeu here is particularly high: if law can, at least in principle, serve the purposes of enabling individual freedom, then Foucault’s vision of modern forms of power loses a good deal of its appeal as it seems to follow the lines of an internal analysis of the liberal project, unearthing in novel ways its inconsistencies, but seemingly incapable of a truly radical critique of its overarching discursive dimension.
The conundrum that Foucauldian legal scholars have to address is therefore the following: how can one describe law without falling back within the schemes of commands and socio-scientific norms? Recognising a certain catch in Hunt and Wickham’s argument: how is it possible to avoid the trap of the expulsion thesis? Several authors who have taken seriously Foucault’s thoughts on law have tried to resolve this dilemma. They have certainly offered valuable improvements towards a new understanding of modern law, but, I would argue, they are eventually unable to provide an account of law that clearly escapes the command/norm gravitational field.
François Ewald is, of course, one of these authors. His work is fundamental to grasping clearly Foucault’s understanding of law as a discourse that, in modernity, was dramatically reframed by the rise of normalising (p.13) scientific regimes. Ewald reads Foucault as providing a distinction in law between a juridico-political dimension and a legal dimension,70 and suggests that the turn towards the norm implicates, in general, the emergence within the legal field of a new rationality that he calls ‘normative’ (in the sense that it is built on the concept of the norm as explained above) in the place of the one that Foucault termed ‘juridical’. This shift caused the ingraining of rational-scientific, socially generated norms within the legal discourse and the abandonment of the arbitrary impositions of a sovereign will. Modern law and society are thus both ‘normative’ because they both follow the same paradigm of the norm.71 This is a very promising insight, but the way in which Ewald develops it is problematic. This can be seen in his ponderous study on ‘insurance societies’, where his legal ideas are more thoroughly expounded. In État Providence,72 Ewald attempts to describe the juridical experience73 of historical legal systems and the rule of judgement74 that underscores coeval modes of legal thinking. More precisely, he analyses what he sees as the rise of ‘insurance societies’ in the nineteenth century.
His argument – crudely summarised – is that the complexity of modern society requires that the subject of law is not any more the single individual but society as whole – as a multitude with all its intricacies and interconnections.75 He claims that the consequent socialisation of risk that is inherent in this kind of society imposes a new legal rationality that eschews the concepts of personal fault and individual responsibility,76 in order to adopt the concepts of error and balance.7778 The juridical experience that emerges from this transformation is that of a Social Law (an order where collective claims are paramount) which is opposed to the old system of Civil Law (roughly, a legal system based on individual absolute rights), characterised by a rule of judgement that establishes the norm as its paradigm, pushing into the background law understood as a static set of universalising standards.79 In this context, the norm appears as a shifting and modulating operator of socialisation that is capable of ensuring the correct balance of the community, generating an efficient distribution of resources among different interest groups.80 Applying this new rule of judgement – this new law of the law – the judge does not any more subsume the concrete case under a legal categorisation; rather, she resorts to a norm that will rearrange societal conflicts on a case-by-case basis so as to reach an optimal equilibrium among parties.81 The frame of reference moves from an absolute justice to a relativised social justice where what is due to each party is not determined on the basis of some abstract scheme, but is calculated to ensure the most desirable result concretely achievable in a given society at a given time.82
(p.14) While I generally agree (as it will become apparent later in the present work) with the broad characterisation that Ewald proposes of the medieval and modern legal period (which he – idiosyncratically – dubs classical natural law and modern natural law) as two historical stages which, respectively, had as their frames of reference a metaphysical heavenly plan and an idealised vision of secular society, and I concur with much that he has to say with regard to the contemporary period (namely, the idea that we are progressively abandoning any idealisation of society and shifting our concern to the concrete possibilities of managerial articulation of the social body), I believe that his approach suffers from one serious flaw. Namely, Ewald does not develop a specific account of how law itself changed during its evolutionary process. He fails to offer a description of how the very structure of law was transformed by changing regimes of power and how it achieved a distinct specificity, in the face of the normalising complex. This is quite surprising, as in his analysis he urges us to focus on the changing structure of the ‘law of law’83 – that is to say, the structural logic informing the legal discourse. However, when he claims that the modern ‘law of law’ increasingly moved towards the norm, he does not offer a satisfying explanation of the syntactical effects that this change had on the legal language. Ewald apparently fails to appreciate that the normalising dynamic common to disciplinary, and later to governmental, mechanisms did not establish itself as ‘the law of law’, but, quite differently, forced law to adapt its structure so as to include normalising forms of rationality. On the contrary, it is necessary to avoid to uncritically identifying socio-scientific norms as the new structural logic of law and to be aware that modern law developed its own specific logic which, in turn, does have an impact on related regimes of power. Certainly the ‘law of law’ did change in reaction to the rising truth claims of normalising regimes but, at the same time, did not collapse within their dimension as it produced a peculiar distinctive syntax. Overlooking this would imply that law is only a reflection of a game of power that takes place somewhere else.
Ewald’s reasoning, in sum, falls into the expulsion thesis trap. To say that there are certain rules of judgement, external to the legal discourse proper, that determine the meaning of legal statements (énoncés) is to say that the legal discourse itself has no proper identity and must be complemented by an external discourse.84 What appears, in other words, is that the legal discourse has no autonomous or independent logic of its own whose dynamics are always heterodirected. Law is thus depicted once again as a veneer behind which power exercises its ploys, a hardly acceptable conclusion.85
(p.15) Victor Tadros has tried to avoid such pitfalls, trying to demonstrate the relative autonomy of the legal field and its impact on society when confronted with disciplinary and governmental regimes. Moving from Ewald’s interpretation, he recognises that Foucault’s position on law was complex and nuanced and that the juridical is by no means to be equated to the legal. He suggests:
We must consider three different phenomena if we are to understand the sophistication of Foucault’s argument about law; firstly there is the law itself (which may take a number of different forms), secondly there is the network of power relations (which, at different times, may be either juridical or disciplinary, for example) and finally there is the code by which power presents itself (which for Foucault is consistently juridical).86
Building on this understanding, Tadros further claims that, in the passage from the Middle Ages to the modern age, the advancing of disciplines (that he sees as a restructuring of the network of power relations) involved a mutation in the forms of law, which abandoned a purely juridical expression and became the central mechanism of what Deleuze and Guattari call an ‘assemblage of capture’.87 Tadros writes:
[Modern] law succeeded not by exerting violence but by unifying through the alliance of power relations that were already in place. By the beginning of the Classical Age the codification of power relations was sufficiently established to have converted the prior mechanisms of power into a legal mechanism. The law, then, co-ordinated the pre-existing relationships of power and reduced the potential for conflict between the structures that they formed.88
A few pages later, he specifies his claim using one of Foucault’s most fundamental ideas, namely, that modern power has a distinctive creative effect vis-à-vis the individual:
The primary aim of law was no longer to prescribe general rules which defined a level of transgression, it was to intervene into the relationships between particular groups of people according to information carefully collected and analysed in the form of the economy … The modern regulatory aspect of law, then, ought not to be understood merely as ‘power-conferring’ but should be seen as intervening in the social construction and government of the modem subject.89
Differentiating between discipline and governmentality, Tadros concludes that this construction was made possible by a system of law that worked (p.16) as a relay, as a connective tissue between these two normalising regimes, transferring the subject among various normalising mechanisms.90
This is certainly a valuable contribution, and provides a useful touchstone with which to explore the potentialities of an approach that would take Foucault’s thoughts about law seriously. Most importantly, this position, albeit implicitly, approaches law as a historical discourse within broader biopolitical dynamics. Closer scrutiny, however, reveals a weakness in Tadros’s proposal.
One should notice that Tadros – emphasising the normalising nature of modern networks of power relations – configures the sovereign dimension of power mainly as a rhetorical function.91 This has a quite problematic effect: if the sovereign dimension of power is broadly rhetorical, should one not conclude that the only source of power resides in the truth of normalisation? How is it possible, then, to avoid the conclusion that law is just an empty space occupied manu scientiae by the swarming machinations of disciplines and governmentality? To this end, it is not sufficient to declare that modern law moved from a ‘commanding’ to a ‘co-ordinative’ and ‘connective’ mode, as this amounts to begging the question: the issue, in fact, is not ‘what is the effect of modern law?’ but, more fundamentally, ‘what is the change internal to law itself in the face of emerging biopolitical (normalising) forms of power?’. Avoiding this issue creates the illusion of a law that is always heterodetermined in its formulations, a by-product of normalising scientific regimes that always lie beyond the reach of law. If, as Tadros argues, power networks are in place before law’s codification, what is then law’s proper dimension?92 Does not this reading depict law once more, in a somewhat crude fashion, as a deceiving smokescreen skilfully deployed by the cunning of power? Are we not falling again into the expulsion thesis trap?
Such problems have not passed unnoticed. Golder and Fitzpatrick, in their book Foucault’s Law, offer an excellent overview of Foucauldian interpretations of law and raise similar concerns to those rehearsed above. One of their main goals is to reject the ‘expulsion thesis’. As it happens, they make short work of the crudest version of the thesis, the one which depicts law as a completely overlooked topic in Foucault’s work. Through a close reading of Foucault’s texts,93 they easily demonstrate that Foucault addressed the question of law repeatedly both in his publications and in his lectures, and never actually claimed that law is obliterated from the horizon of modernity, insisting, on the contrary, that law is an integral part of our social life. Against the more insidious version of the ‘expulsion thesis’ – the one claiming that Foucault considered law as a discourse (p.17) that has little influence on the distinctively modern and pervasive systems of power embodied by discipline and governmentality – Golder and Fitzpatrick muster two concurring arguments. First, they suggest that law, far from playing a subservient role to biopolitical forms of power,94 is linked to them by a complex and mutually enforcing relationship. More precisely, they argue that law legitimises the disciplinary/govern-mental regimes of human sciences by providing a final epistemological horizon to their practices, and implementing their orders upon recalcitrant subjects.95 At the same time, law bases its legitimation on the truth produced by human sciences and implemented by normalising regimes.96 Second, law is not described by Golder and Fitzpatrick just in positive relational terms with regard to normality. Building on Foucault’s idea of co-dependency between power and resistance, Golder and Fitzpatrick argue that law’s determinacy – its commandeering aspect – is ‘only one side of the equation of the law’,97 the other being law’s necessary flexibility towards the undetermined and yet-to-be-known.98 Law thus exhibits a responsiveness to new interrogations by unruly subjects that opens up possibilities of subversion against normalising practices and institutions.99
Such a reading looks like a promising perspective on Foucauldian theorisations of law. The suggestion that law and discipline/governmentality work in concatenation, mutually enforcing their authority and legitimacy, is powerful, fertile, and thought-provoking. In effect, the idea that disciplinary and governmental apparatuses established with law a positive – that is, a productive – relationship seems to fit squarely within Foucault’s theoretical framework, and points towards a nuanced and sophisticated understanding of the modern legal phenomenon. Notwithstanding their insightfulness, however, Golder and Fitzpatrick’s propositions against the more insidious version of the ‘expulsion thesis’ present some troubling limitations.
At the outset, it is not entirely clear how law would be capable of legitimising normalising practices. The authors are quite vague on how exactly law exercises its supporting epistemological role by framing discipline/governmentality: what would be law’s legitimating force – which is supposed to be overarching – in the face of normality’s truth claims? On this point the Foucauldian textual grounds that Golder and Fitzpatrick select from Discipline and Punish to corroborate their thesis100 are worryingly shaky, since to say that the involvement of the judicial system with normalising discourses gave ‘legal justification’ to the latter is a rather underdetermined claim as it begs the crucial question: how is this legalisation complementing the scientific truth of discipline and (p.18) governmentality beyond merely adding a supplement of coercive force to their implementation? Golder and Fitzpatrick’s suggestion that law vouches for the appropriateness of normalising claims by limiting their most extreme applications does not solve this dilemma.101 The kind of legitimation that a legal system operating only at the peripheries would offer would be a flimsy one indeed, looking like little more than a deceitful smokescreen which, behind the veneer of a modicum of legal constraint, in fact lets normalising practices run loose. Curbing only the most dominating aspects of disciplinary/governmental regimes, law seemingly operates as a decoy that appears to limit normalising practices but, in fact, generally rubber-stamps their truth claims.
Further, their claim that law operates in modernity by restraining the excesses of law implies two consequences. First, if law generally operates at the margins, it follows that the overwhelming majority of disciplinary and governmental practices go unchallenged. Discipline/governmentality therefore represent a province which law only seldom dares to explore, and one must conclude that, in modernity, biopolitical forms of power have indeed hollowed out or colonised the territory previously overseen by law, greatly reducing the reach of the legal field. Second, even if we accept this submission – if we accept that the law operates mainly at the margins and turn a blind eye to the innumerable instances of the fine and penetrating intervention of law in social practices – Golder and Fitzpatrick’s argument implies that that there is only an external relationship between law, on the one hand, and discipline/governmentality on the other; the two systems operate with distinct and different rationalities and purposes. This picture describes law and discipline/governmentality as absolutely heterogeneous. Law’s discourse, while still present in our societies and attached to disciplinary and governmental regimes, is ultimately external to them and to their underlying dynamics. Law therefore represents a system which is fundamentally alien to the modern biopolitical horizon of power, a relic of a sovereign past which still casts a shadow upon us. What we end up with is not exactly a replica of the subtler version of the ‘expulsion thesis’, but something akin to what we could call a ‘heterogeneity thesis’.
The problem with such an interpretation is that it does not dispel the embarrassment that legal scholars must endure when facing the liberal challenge to Foucauldian theories of law. How is it possible to claim that the legal discourse has a marginal function in the structuring of power in modernity? How to square this fundamental heterogeneity with the role that law has played in the establishment of modernity itself? Anybody can see that law regulates our social body extensively and minutely, that (p.19) rights and obligations are central to the workings of power, that the very fabric of modernity has been weaved thanks to the language of law. In this perspective, Golder and Fitzpatrick’s suggestion that law provides the individual with a transformative space of resistance against the swarming of discipline/governmentality is too reductive. Law in modern societies does not just operate at the margin, serving either as an ultimate horizon of legitimation or as a final opportunity for subversion. Law is central to power in a much deeper way than Golder and Fitzpatrick’s Foucauldian interpretation caters for.
While Golder and Fitzpatrick’s propositions are open to criticism,102 it must be recognised that their reading closely follows Foucault’s own reflections about the relationship between the legal discourse, on the one hand, and biopolitical forms of power, which he saw as intertwined with the ideology of liberalism, on the other. Foucault’s argument, foreshadowed in the ‘Society Must Be Defended’ and the ‘Security, Territory, Population’ courses at the Collège de France in 1975–6 and 1977–8 respectively, was spelled out more properly in the subsequent course ‘The Birth of Biopolitics’ in 1978–9.
As we have seen, Foucault argues that around the sixteenth and seventeenth centuries we have the dawning of a new governmental rationality that represents a distinctively modern technology of power. Between 1580 and 1650 we have the emergence – through works such as Della Ragion di Stato by Giovanni Botero (1589) – of a new vision of government which is not focused any more on territorial expansion, on an economy of subtraction, and on an increase in the sovereign’s glory,103 but is instead devoted to the multiplication of the forces of the population, which is pursued through a form of pastoral care involving each and every individual. It is in this phase of his research that Foucault made some of his most controversial observations about law, seemingly defining it in negative terms104 and proclaiming the juridical model of sovereignty (and law) as fundamentally incompatible with the core tenets of liberalism.105 Such incompatibility is rooted in the essentially divergent rationalities that, according to Foucault, animate the legal and the normalising discourse.
In his ‘Birth of Biopolitics’ course at the Collège de France, Foucault traced the rise of liberalism and neo-liberalism as the dominant ideologies at the root of contemporary governmental forms. In his analysis, he suggested that with the advent of modern economy in the eighteenth century, the subject of government is no longer the Homo Juridicus, the holder of rights typical of juridico-political thought, but the Homo Economicus, an absolute agent of human interest guided by the invisible (p.20) hand of the market. These two subjects are fundamentally different, with a completely unlike relation to political power.106 In one case the presence of a sovereign is necessary, in the other it is superfluous or damaging. According to Foucault, in the juridico-political discourse,
the subject of right is, by definition, a subject who accepts negativity, who agrees to a self-renunciation and splits himself, as it were, to be, on one level, the possessor of a number of natural and immediate rights and, on another level, someone who agrees to the principle of relinquishing them and who is thereby constituted as a different subject.107
The individual, in order to protect her interest, enters into the social contract and, as a consequence, becomes the subservient subject of rights, obedient to the supreme will of the sovereign. The Homo Economicus, by contrast, is a subject who can never relinquish her interest. She cannot do that for two concurrent reasons. First, personal interests are seen as overriding the bindingness of any social contract – if the contract no longer is functional to the subject’s interests, it no longer has force.108 Second, interests are only personal and cannot be pursued collectively. The common interest is therefore seen not as an interest pertaining to the generality of the population, but is more like the aggregate result of single interests. Hence, it is impossible for ‘the sovereign to have a point of view on the economic mechanism which totalizes every element and enables them to be combined artificially or voluntarily’.109 The two regulatory systems that emerge from these different visions of the subject and her relationship with her interest are fundamentally divergent. The system linked with the Homo Juridicus is one where there is a ruling sovereign who represents the absolute will of all, and which imposes limitations on its subjects. The system which centres on the Homo Economicus, on the other hand, rejects to the largest extent possible any form of government on the basis that society is capable of finding its own equilibrium. There is therefore, according to Foucault, a fundamental incompatibility between ‘the non-totalizable multiplicity of economic subjects of interest and the totalizing unity of the juridical sovereign’.110
The discourse of law is therefore ‘alien’111 to that of dawning normalising regimes. There is an absolute break in the rationalities of power whereby law appears as a theoretical (and yet very encumbering) residue of the sovereign past and discipline/governmentality are intertwined with the liberal ideology. People such as Hobbes, Rousseau, Montesquieu, Locke, and their political theories, are therefore characterised by a non-modern matrix that makes them allegedly superfluous for the understanding (p.21) of the dynamics of power in our societies.112 Moving from these considerations, it is no surprise that Foucault dedicated little time to law in his analytics of power.
The time has come to recognise that this ‘heterogeneity thesis’ was a mistake on the part of Foucault. I am convinced, on the contrary, that the legal discourse has been fundamental in shaping the diagram of power in modernity. I believe that that we should attempt an analysis of law that, using Foucault’s ‘toolbox’, will allow us to go beyond Foucault’s own limits and provide us with an original approach to the legal field.
An alternative approach: back to Foucault’s ‘toolbox’
In the light of the above considerations, we can sum up the problem of current Foucauldian approaches to law thus: in one way or another, they always depict law as a phantasmatic presence, either a proxy that has no a force of its own, and is dominated (or almost completely informed, or systemically functional and subservient) to discipline and governmentality, or as a residual discourse that is, at its core, radically non-modern and only very limitedly participates in the constitution of the environment of power in our societies. Critics of Foucault (like Habermas) have, therefore, an easy time in attacking this juncture; to argue that law in modernity plays such a marginal role leads to a gross oversimplification that largely disregards the power that is intrinsic to law as a self-standing normative discourse – a vague and rightly unacceptable conclusion.
In order to avoid a characterisation of the legal field that would fall prey to the expulsion thesis we do not need to abandon Foucault altogether. Quite the opposite – we need to be even more Foucauldian in our endeavours. With this goal in mind, I will now dig deeper into Foucault’s theoretical ‘toolbox’. First, I will briefly expound Foucault’s understanding of the complex intertwining of power, truth, knowledge, subjectivity, and freedom. Second, I will scrutinise more closely some of his writings that are more specifically concerned with the evolution of juridical forms, namely his Rio113 and Louvain lectures.114
Power is a problematic that did emerge immediately in Foucault’s work, but came to prominence roughly around the time of the publication of Discipline and Punish and was further explored in The Will to Knowledge and other subsequent texts.115 It must be clarified that Foucault never offered a clear-cut theory of power but preferred, instead, to proceed by means of an ‘analytics’ of power, that would lead towards ‘a definition of the specific domain formed by the relations of power, and towards a determination of the instruments that will make possible its analysis’.116 Hence, while in his (p.22) works Foucault tried to be as nominalistic as possible with regard to the actual configurations that power acquired during history and eschewed all-encompassing definitions, he nevertheless provided some stipulations concerning how to study power.117 According to Foucault, power is not a tool that can be owned and used, but rather a dynamic, ‘the name that one attributes to a complex strategic situation in a particular society’.118 It implies a set of practices – routinised and reiterated processes understood as ‘programs of conduct which have both prescriptive effects regarding what is to be done … and codifying effects regarding what is to be known’119 – that work as a logical ensemble and are not guided by the will of individual subjects.120 Power is therefore not seen by Foucault as an object or a quality that one has or has not; rather, it is seen as an omnipresent field that ‘is produced from one moment to the next, at every point, or rather in every relation from one point to another’, and it is everywhere ‘not because it embraces everything but because it comes from everywhere’.121
The omnipresent quality of power logically implies that power relationships are ‘not in a position of exteriority with respect with other types of relationships … but are immanent [in them]’.122 In particular, power establishes a strong correlative relationship with knowledge, where the two are so inextricably intertwined as to form a sort of unicum, which Foucault described with the neologism power-knowledge. According to him, the production of knowledge always takes place within formations (institutional, social, interpersonal, etc.) that are already invested by power and, on the other hand, there is no power relation which does not itself produce knowledge as a discourse that ordains, explains, legitimises, and propagates the operations of power.123 This connection is not at all an impermeable self-feeding mechanism where power and knowledge mutually support each other ad infinitum, but an unstable link where the two poles enable and limit each other in a relationship which is as productive as it is perpetually problematic and subject to continuous reframing.124
The conviction that power and knowledge are co-dependent led Foucault (in the footsteps of Nietzsche) to reject the idea of truth (inherited by the Enlightenment) as the correct description of an objective reality,125 and embrace a vision of truth as a regime of formation of true and false claims, focusing more on the conditions that allow one to make a statement than on the quality of the validity of the assertions themselves.126 As he put it:
by truth I do not mean ‘the ensemble of truths which are to be discovered and accepted’, but rather ‘the ensemble of rules according to which (p.23) the true and the false are separated and specific effects of power attached to the true’ … ‘Truth’ is to be understood as a system of ordered procedures for the production, regulation, distribution, circulation and operation of statements. ‘Truth’ is linked in a circular relation with systems of power which produce and sustain it, and to effects of power which it induces and which extend it. A ‘regime’ of truth.127
We can therefore see that power, knowledge and truth constitute a sort of triangle where each element both supports and draws support from the other two. Most importantly, we can see that this structure is not negative or repressive, but rather, is chiefly aimed at the positive production of social effects. Building on this approach, Foucault offered a peculiar and intriguing understanding of subjectivity which eschewed the primacy of the subject as something already given and firmly places it as the primary product of the ensemble formed by power–knowledge–truth. The place that the individual occupies in the play of power is crucial, as she ceases to be opposed to its working but becomes integral to its mechanisms:
The individual is not to be conceived of as a sort of elementary nucleus, a primitive atom, a multiple and inert material on which power comes to fasten or against which it happens to strike, and in doing so subdues or crushes individuals. In fact, it is already one of the prime effects of power that certain bodies, certain gestures, certain discourses, certain desires, come to be identified and constituted as individuals. The individual, that is, is not vis-à-vis of power; it is, I believe, one of its prime effects.128
Contrary to some simplistic interpretations, Foucault does not present a ‘power-determined’ vision of the subject.129 Rather, he sees the individual as intrinsically enmeshed with the discourses of power/knowledge.130 In this sense, ‘Foucault’s interest is in showing the extent to which subjects are the effects of discourses or [sic] power by bracketing the relative autonomy of the subject’.131 Foucault further argues that power, within the horizon of modernity, is not seen in opposition to freedom but as coextensive to it. Power, constituting the individual, also takes the individual as its main vector and the means of its propagation. Internalised by the subject, power does not subjugate the individual completely; rather, it activates certain patterns of behaviour and thinking that will implement power’s own discourse and that need a certain space of freedom to flourish and to be effective:
Power is exercised only over free subjects, and only insofar as they are free … [F]reedom may well appear as the condition for the exercise of (p.24) power (at the same time its precondition, since freedom must exist for power to be exerted, and also its permanent support, since without the possibility of recalcitrance, power would be equivalent to a physical determination).132
Following Foucault’s penchant for neologism, we could invent the neologism ‘subjactivation’ to indicate precisely this effect of power on the individual, an effect which implies a positive working of power, not repressive but creative, and which transforms her into an agent who is both the passive recipient of norms of conduct and their active (and therefore potentially subversive) operator. In modernity, thus, power operates upon individual subjectivity in order to create and mould the person into a well-integrated member of society. Hence, the idea of personal conduct comes to prominence as the most important factor in pursuing positive change, charging the subject with a specific responsibility to act in relation to herself and society. The individual is not the passive recipient of heteronomous principles of conduct, but emerges as an autonomous agent that, following her own egoistic interest, also contributes to the greater good.133 In this sense, the single person is not only free to choose her own path, but she is also ‘obliged to be free’, invited to actively shape her life in accordance with the standards of optimisation that are generally accepted.134
Foucauldian studies – and in particular governmental ones135 – have thus shown how the freedom we enjoy as individuals in modern society is built into an inextricable web of rationalities, policies, and practices that inexorably influence an individual’s mind set, choices, and world view. These studies suggest that such a freedom is not an unqualified one; rather, it represents a spectrum of strategic possibilities that are acceptable – even favoured and fostered – within a given historically and contextually specific dynamic of power. As Peter Miller and Nikolas Rose contend:
The practices of modern freedom have been constructed out of an arduous, haphazard and contingent concatenation of problematisations, strategies of government and techniques of regulation. This is not to say that our freedom is a sham. It is to say that the agonistic relation between liberty and government is an intrinsic part of what we have come to know as freedom.136
The upshot of this complex picture is that the individual is turned into a subject by the deployment of a series of discourses that inscribe the person into a triangle formed by power, knowledge and truth which designates (p.25) the environment of the subject’s freedom, both enabling her actions and limiting her possibilities in a fluctuating, continuously changing equilibrium. The ensemble of the mechanisms that make possible processes of subjectivation is called, in Foucauldian terminology, a dispositif, normally translated into English as apparatus.137 The meaning of the term ‘apparatus’ is never explicitly described by Foucault, who came closest to a definition in an interview in 1977 in which he said that a dispositif is the strategic network formed by a
heterogeneous set consisting of discourses, institutions, architectural forms, regulatory decisions, laws, administrative measures, scientific statements, philosophical, moral, and philanthropic propositions – in short, the said as much as the unsaid … The apparatus is … always inscribed into a play of power, but it is also always linked to certain limits of knowledge that arise from it and, to an equal degree, condition it. The apparatus is precisely this: a set of strategies of the relations of forces supporting, and supported by, certain types of knowledge.138
The meaning of apparatus has been further expounded by other thinkers in the Foucauldian tradition, most importantly Gilles Deleuze and Giorgio Agamben. Deleuze, offering his idiosyncratic take on Foucault’s term, argues that an apparatus is a machine both of visibility (a mechanism which makes an object apparent in our world as a problematic) and of enunciation (a mechanism which imposes rules of knowledge and truth upon a certain discourse) which works along lines of power and subjectivity (that is, it imposes specific meanings and connections while being open to human manipulation).139 Agamben, on his part, building on both Foucault and Deleuze, has intimated that an apparatus is ‘anything that has in some way the capacity to capture, orient, determine, intercept, model, control, or secure the gestures, behaviours, opinions, or discourses of living beings’,140 hence stressing that the main effect of any apparatus is to produce a process of subjectivation which will mould living beings into social subjects.141 It must not be overlooked, however, that processes of subjectivation are not absolute. Building on the Foucauldian principle of co-extensiveness between power and resistance, Sandro Chignola acutely observes that no apparatus can perform a complete overdetermination of the subject, as no apparatus can ever fully foreclose lines of flight that allow for opposition and subversion.142 An apparatus, then, can be described as, on the one hand, one of the machines that embody and operationalise the co-dependent relation between a given historical epistemic order and a given historical network (p.26) of power and, on the other, the performative place of a subjectivity that perpetually (yet only partially and imperfectly) escapes the overdeterminations of power.
But what is the role that law plays, if any, within this dynamic? The lectures that Foucault gave in Rio de Janeiro in 1973143 and in Louvain in 1981,144 both chiefly concerned with the problem of how specific historical forms of subjectivity are created through regimes of knowledge imbued with power,145 point towards what seems to me a fruitful line of inquiry. In Truth and Juridical Forms Foucault’s goal is to study ‘juridical forms and their evolution in the field of penal law as the generative locus for a given number of forms of truth’.146 It is not my intention here to analyse in depth his studies on the Germanic test, the late medieval inquiry, or the modern examination; rather, I would like to point out Foucault’s broader argument that closely links specific truth-producing mechanisms with broader social dynamics, demonstrating that there is a relationship between the judicial production of truth and more general schemata of power-knowledge which inform societies at large.147 By looking at judicial procedures Foucault attempted to gain access to ‘models of truth which still circulate in our society, are still imposed on it, and operate not only in the political domain and in the domain of everyday behaviour, but even in the realm of science’.148
In Wrong-Doing, Truth-Telling, Foucault’s goal is similar, but his focus homes in on how the individual is subjectivated through her participation in certain judicial procedures, namely that of avowal. Having qualified avowal as a very special kind of declaration associated with a certain ‘cost of enunciation’,149 Foucault suggests that the avowal is a ‘verbal act through which the subject affirms who he is, binds himself to this truth, places himself in a relationship of dependence with regard to another, and modifies at the same time his relationship to himself’.150 An analysis of the history of the avowal, therefore, is part and parcel of a general critical history of those processes of veridiction through which the individual becomes a subject and finds herself tied to certain forms of truth instigated by specific regimes of power/knowledge.151
What emerges from the Rio and Louvain lectures is Foucault’s idea that the legal field is a privileged one with which to explore the relationship between forms of veridiction and subjectivation, dynamics of power, and regimes of knowledge.152 Unfortunately, Foucault did not pursue this avenue to its fullest extent. As already mentioned, he was persuaded that the discourse of law and that of normalising regimes (which embraced the ideology of liberalism) were fundamentally incompatible, and that there (p.27) was an absolute heterogeneity between the subject of right and the liberal subject of interest.153 Hence, he took into consideration juridical forms only as those reflected broader schemes of veridiction in a given historical era, but never investigated properly how law was related to the emergence of the subject of interest in the political realm.
I believe that we need to address precisely this space. My working hypothesis is thus the following: law should be studied as a sui generis apparatus which, working along the lines of jurisdiction/veridiction, inscribes subjectivity within a triangle formed by power, knowledge, and truth. More precisely, and against Foucault’s heterogeneity thesis, I intimate that law is that particular apparatus which, in modernity, establishes the political truth of the subject by making visible her interests. It is within this context that I will proceed towards a genealogy of modern law. When conceived as a proper apparatus, law is by no means an exception to the Foucauldian genealogical rule. Once we realise that the discourse of law can be understood as a distinctive channel of subjectivation – according to Agamben’s and Deleuze’s meaning of apparatus – we are bound to attempt an analysis of such an apparatus that would disentangle the strands of its peculiar discursive formation while trying, as much as it is possible, to treat it as a discrete entity. An approach that would take seriously Foucault’s teaching – to the extent of contradicting Foucault himself – should face this problem squarely. One should use his ‘conceptual toolbox’ to scrutinise the shifting meaning of law, its changing structure and configuration, in order to glimpse its specificity in relation to different societies and systems of power.
By means of a genealogical analysis, I aim to link the problematisation of modern law with its eventalisation. Achieving a ‘breach of self-evidence, of those self-evidences on which our knowledges, aquiescences, and practices rest’,154 I will be able to approach modern law from a fresh angle and to question it as an original problematic object. The kind of analysis I propose is currently lacking not only in legal theory as generally understood, but, more surprisingly, in Foucauldian approaches to law as well. This void – which is puzzling in legal theory and quite frankly striking in Foucauldian studies – has brought about two dire consequences: first, the legal discourse is seen as an inert object which is never analysed on its own and it is therefore necessarily relegated to a sort of ancillary role with respect to other power nexuses; second, the word ‘law’ is always used in an unqualified way as a historical invariant that does not need to be properly investigated, and whose internal continuities and discontinuities are therefore forgotten and neglected.155
(p.28) To be sure, localised and field-specific legal genealogies have been attempted.156 What I am suggesting here, however, is something much broader and deeper. What I want to scrutinise in the present work is the transformation of what we could call the internal logic that informs modern law – what one could call its fundamental syntax157 or the properly legal ‘law of law’.158159 In this regard, I would like to distinguish my views from other commentators’ and suggest that the general epistemological structure linked with normalisation did not lead socio-scientific norms to bluntly colonise the legal field or made law a relic of the past; rather, it transformed the very structure of the legal discourse from within. Law, I would thus argue, in developing through the centuries into what we could now identify as the modern form of law, progressively adopted the underlying logic of contemporary biopolitical regimes – which for Foucault had a normalising nature. My claim is that law, under the pressure of normalisation, ceased to be only and exclusively a mere sign of power to become the general discourse of power in modern societies. To put it differently, I believe that, progressing towards the modern age, law gradually ceased to be an order that was – by and large – the mere signification of sovereign commands (the social form in which a heteronomous sovereign entity manifested itself) and instead became a self-standing discourse structured upon the paradigm of the norm (understood in a Foucauldian sense) which delineated the general environment of power. Law, according to my thesis, was not slowly ‘hollowed out’ by the swarming of norms belonging to various external socio-scientific discourses but, by adopting the paradigm of the norm as its internal structuring principle, underwent a mutation that fundamentally changed its own discursive nature and, as a consequence, its role as an apparatus within the broader context of power.160
Before I proceed further, some caveats are in order. It must have not gone unnoticed (for the informed Foucauldian reader at least) that I plan to address law as an apparatus in a quite peculiar fashion. The term ‘apparatus’ normally refers to a varied array of ideas, practices, institutions, etc., and is therefore marked by a distinctive heterogeneity in its constitutive elements. Hence, law as a (more or less self-contained) discursive formation should be excluded from this definition, as law should be examined only in its social applications together with the practices and institutions that actualise its existence in society. My investigation would therefore resemble more an archaeology than a genealogy, and allegedly should not make use of the notion of apparatus as a conceptual tool. I would reject such a reading. In the first place, genealogies cannot take place if not in conjunction with archaeologies, and the two operations cannot be neatly (p.29) separated.161 In the second place, it is important to point out that while the orthodox conception of apparatus is that of a heterogeneity, the core of this idea – its problematising function, so to say – is that of a machine capable of producing subjectivity. In this sense, law indeed represents a specific sort of subjectivising machine because it is one of the few apparatuses – maybe the only one – that by its discursive force alone is capable of creating subjectivity. Sure enough, any discursive formation imports a subjectivising effect, but modern law is uniquely effective and transformative in this respect. As is widely recognised and as I will make clear through my subsequent analysis, modern law performs this function by linking together at a political level truth, knowledge, and power in a distinctively potent way. Through its injunctions, therefore, law literally structures our social environment and creates subjectivities (the citizen, the criminal, the minor, etc.) to a historically unparalleled degree. To that extent, focusing on the syntax of modern law is a genuinely genealogical enterprise as it traces the development of an overarching diagram of truth, knowledge, and power in our society and problematically frames its dynamics with regard to the subject. This is not to deny that we can thus serenely eschew the study of law in practice; as a matter of fact, the study of the concrete deployments of the legal discourse is of the utmost importance. I believe, though, that it is also very important – indeed, necessary and fundamental in terms of its logical priority – to address as well the discourse of law as a sui generis apparatus so as to open up the intellectual ‘black box’162 represented by its syntax and critically examine its inner workings.
Further, the reader (again, especially one versed in Foucault’s works) might be disoriented by my subsequent rather conceptual and analytical reading of the emergence of modern law, and by the relative absence of the intertwining of intellectual ideas and a rich social history which characterises much of Foucault’s work and that of those – like Rabinow, Rose, Hacking, etc. – whom he inspired. I readily admit the charges, but I would plead clemency on two grounds. First, my conceptual interpretation is to be read against the background of Foucault’s more general description of the historical evolution of forms of power. As such, my study should be read as an addendum to that project, building upon the general lines of the social history it describes (even if I sometimes depart from the Foucauldian canon). Second, my project, while ambitious in its scope and goal, cannot hope to account for a detailed genealogy of the modern legal discourse. An enterprise of this sort appears titanic in its breadth and would probably require several volumes to complete. More modestly, the present work only represents an outline of such a genealogy as it attempts (p.30) to indicate the broad paths of development undertaken by modern law. Keeping with the inquiring spirit of a genealogy, my study aims at making visible a certain problem. It does not pretend to offer a complete picture of our complex reality; rather, it aims at shedding light on previously overlooked fissures and lines of flight in it so that we can work on them. Future work will be needed for this purpose. Here I only dedicate myself to the most urgent task of indicating the existence of such a field and to delineating its general contours.
A framework of analysis
One of Foucault’s most important methodological rules is that the analysis of any phenomenon should avoid ontological questions and should focus instead on more historical ones. Foucault famously tried to circumvent anthropological universals in order to treat them as historical constructs and unearth the hidden meanings of their actual articulation through time. A genealogical scrutiny of modern law is bound to follow this rule. Consequently, I will not address the conceptual conundrum of what law is in and of itself but will explore the discursive effects that modern law has produced on our society. In order to answer this question, it must be recognised that it is almost impossible to initiate a discussion of modern law without bringing in the notion of the modern state that frames it.
Foucault claimed that the state is the effect rather than the cause of a whole range of power relations,163 and that it represents for them a sort of ‘quilting point’ towards which various apparatuses have gravitated and by which they have been absorbed or sanctioned.164 The rise of the state is, at least at the level of social institutions, the single most important phenomenon of modern times, a phenomenon that is inextricably linked with the development of modern law. The aetiological relationship between these two elements, however, does not concern me here. What interests me is to evoke the notion of the state so as to provide a sound basis from which to address the discourse of modern law. What I want to do, in other words, is to provide a notion of the state that will help us to see how law was developed in relation to the problem of social order and worked instrumentally to provide its solution. Looking at the fundamental features associated with the state, we will be able to see, as in reverse, the fields of operations where law played a constitutive role. As a preliminary step towards a genealogical account, I will therefore have to clarify what is generally understood by the modern state.
The term ‘state’ finds its roots in fourteenth-century political thought.165 At that time, the term (and its Latin equivalent status), however, (p.31) did not have the meaning we currently attach to it. It referred to the particular personal standing of rulers themselves so that, within the political language of the day, state meant ‘the state of the king’, a condition of stateliness. Only subsequently, and namely with the works by Guicciardini and Machiavelli (fifteenth to sixteenth centuries), did the idea of the state come to be detached from that of the people actually governing a given community in order to define the community of the governed as such or the commonwealth. The modern theoretical usage of the term ‘state’ was developed by Bodin and Hobbes. These authors in effect rejected the idea of the state as a direct emanation either of the governors or of the governed, and attached to the state a ‘doubly impersonal character’.166 In doing so, they emphasised the autonomous quality of the state as an organisation whose supreme territorial authority is independent both ‘from that of the rulers or magistrates entrusted with the exercise of is power for the time being’ and ‘from that of the whole society or community over which its powers are exercised’.167 As such, the state can be broadly defined as a particular historical form and manifestation of political power.168 More precisely, it is ‘an apparatus of power whose existence remains independent of those who may happen to have control of it at any given time’.169
The state has been defined as the master noun170 of modern political language. As such, and beyond the very general definition provided above, it is associated with multifaceted, and often overlapping, meanings.171 The idea of the state could thus give us divergent answers with regard to the nature of the modern state.172 By way of an example, to illustrate this point, the answer to the question ‘what is the state?’ would produce very different answers depending on the standpoint taken: genetic (‘What were the conditions that led to the emergence of the state?’);173 functionalist (‘What is it that the state does?’);174 or political (‘What groups or dynamics does it help or undermine?’).175 For the purpose of the present work, I will focus on its more formal characteristics and sketch out its basic institutional outline.
The state, in effect, can be seen as a modality of the institutionalisation of political power.176 That being the case, the idea of the state, which implies the existence of a supreme public power continuous in time over a given territory,177 comprises three distinct, yet interlocked, aspects: the depersonalisation of power relations; the formalisation of the exercise of power; and the integration of power relations into a comprehensive order.178
The first feature – depersonalisation – reflects the fact that, in modern states, political power does not depend on an individual’s identity but, (p.32) instead, is objectified in the administrative and bureaucratic structure of the state. In a different way from interpretations derived from the feudal and absolutist model, the organisation of the modern state detaches political power from personal statuses in two senses. Firstly, public officials do not act on the basis of their personal authority; rather, their authority derives almost entirely from the neutral powers of the state itself. Secondly, power relations are depersonalised in the sense that individuals are, in principle, treated in an objective way by the state; in other words, political power addresses the individuals as abstract citizens regardless of their personal identity. The second feature – formalisation – refers to the fact that state power is normally exercised following standardised rules of conduct. State power, thus conceived, does not operate on the basis of arbitrary personal decisions but is always directed and limited by formal dispositions. Finally, the third feature – integration – involves the interconnectedness of the private and public spheres and therefore a link between the individual and her own state. The state and the individual do not exist as two extraneous bodies, but are related by some kind of political integration forming a mutually dependent whole.179
It is largely recognised that the first two features have been achieved historically mainly by means of legal rules,180 famously leading Weber to identify the modern state with a ‘legal-rational’ ideal-type of domination.181 The state could thus be defined as the societal organisation that holds the monopoly of violence by means of a supreme and binding legislative authority over a given territory.182 Linking this well-known idea with Foucault’s suggestions concerning the role of the state in power networks, an interesting intersection emerges: what was the role that law exercised in elaborating, rationalising and centralising a heterogeneous set of power relations under the banner of the state?
To answer this question – which must be central to any genealogical analysis of modern law that would avoid the expulsion thesis – we need to examine law as an apparatus and turn to the third feature of the institutionalisation of power (integration) to build a framework of analysis. The integrative feature of the state is, as David Held has suggested, the central matter of modern political theory, and can be condensed as follows: ‘How should the “sovereign state” be related to the “sovereign people” who were in principle the source of its power?’183 This (integrally modern) question is properly associated with the democratic basis of the modern state and poses at the centre of the political discourse the issue of how to model a societal order that would operate in line with the subjective interests of its members. It will not be necessary here to provide an extensive (p.33) definition of what democracy is;184 suffice it to say that, at its core, lies the idea that the only legitimate government is the one that is upheld by the voluntary consent of the people.185 The outcome of a consensual process, the very essence of democracy, should consist of a symmetry and congruence between citizens and government on the one hand, and between the outputs of government (decision, policies, and similar) and its constituency (i.e. the citizens) on the other,186 thus allowing (ideally) a reflection of subjective interests in the actions of government and in the structure of state and society.
It is clear that law is central to the working of democracy, and one needs only to invoke the idea of the rule of law to demonstrate the close relationship between legal rules and democratic practices. Crucially, the democratic regime based on law necessarily implies a process of subjectivation that makes visible the individual as a member of the state while animating the state (in the literal sense of giving the institutionalised society an animus, a soul) through the will of the individual. Even more importantly, such a process of subjectivation has the important effect of ‘redoubling’ the subject, which is made visible both as a single individual and as a member of society, two entities whose volition and interests (as theorists of social contract have pointed out) can sometimes be in conflict. In this context, law appears as the apparatus of subjectivation that can resolve the great modern question concerning the relationship between a sovereign people and a sovereign state: how to know the truth about the interests of the individual and use it to rule the constituted society? The emergence of the apparatus represented by modern law, therefore (not dissimilarly from what Foucault said about the state), is not really the cause of a certain mode of government, but rather its most fundamental effect.
For analytical purposes, I propose that modern law can be differentiated from earlier legal systems with reference to the presence of four key operators: generality, abstraction, equality, and freedom. Modern laws, in other words, are construed as general and abstract rules which ensure equality and freedom before the law. The fundamental role these four operators play in structuring modern law has been elucidated by F. A. Hayek in The Constitution of Liberty – his vision was shared, to a large extent, by Weber, Neumann, Kelsen, and Hart, among others.187 Hayek defined freedom as ‘that condition of men in which coercion of some by others is reduced as much as is possible in society’.188 He took it as the central struggle that has guided the social evolution of mankind. In addition, he argued that ‘[t]he great aim of the struggle for liberty has been (p.34) equality before the law’.189 He then described laws as general and abstract commands, rules that apply to everyone irrespective of their peculiar conditions: ‘Law in its ideal form might be described as a “once-and-for-all” command that is directed to unknown people and that is abstracted from all particular circumstances of time and place and refers only to such conditions as may occur anywhere and at any time.’190 Hayek’s suggestion is that only laws articulated and formulated in this way can effectively guarantee equality of individuals before the law and thus protect freedom from arbitrary coercion: ‘when we obey laws, in the sense of general abstract rules laid down irrespective of their application to us, we are not subject to another man’s will and are therefore free.’191 According to this reading, generality, abstraction, equality, and freedom delimit the most fundamental generative principle of what we have called above the syntax of modern law.192 Bearing in mind this scheme, I will proceed with the view of delineating the historical emergence of these concepts, and their structural and functional relationship within the context of coeval dynamics of normalising power.
In the remainder of the present work, my Foucauldian interpretation of modern law will develop as follows. The aim of Chapters 2 and 3 is to offer a genealogical analysis of law as an apparatus by addressing its subjectivating function from a double perspective: law as the apparatus to extract and enforce the truth of the interests of the individual, and law as the apparatus to extract and enforce the truth of the interests of society.193 My genealogical analysis would focus on two distinct, but related objects. In Chapter 2, I will explore the emergence of law as an apparatus that makes visible the political truth of the individual by analysing the works of some key philosophers ranging from Aquinas to Hegel. More precisely, I will demonstrate that, in the shift from a metaphysical to a post-metaphysical way of thinking, the foundation of political power was identified in the secular interests of the single person, and that the syntax of law was reconceived to transform the legal discourse into a machine capable of making those interests manifest through the paradigm of the norm. In Chapter 3, I will turn to the development of law as an apparatus that makes visible the political truth of society by scrutinising the English, American, and French Revolutions as the main events that have established the constitutional horizon of modernity. Namely, I will show how each revolution, in its own distinct way, established innovative constitutional mechanisms which ensured a structural correspondence between the institutional exercise of political power and a political truth reflecting the interests of society. Those (p.35) mechanisms, I will prove, were founded on a new conception of law that was normalising in scope and function, framing both government action and human will within absolute operational limits marked by the paradigm of the norm.
Through my genealogy, I will show how modern law works as an apparatus along the two lines of normalisation that Foucault termed ‘normation’ and ‘normalisation in a strict sense’. Normation, Foucault argued, entails the primacy of the norm over the conduct: the norm is set in advance and people have to abide to it.194 Normalisation in the strict sense, on the other hand, ‘consists in establishing an interplay between … different distributions of normality and in acting to bring the most unfavourable in line with the more favourable’.195 Modern law presents clearly this Janus-faced nature: on the one hand it imposes rules of formation on power, knowledge, truth, and subjectivity, thus delimiting their field of existence; on the other hand, those very same rules allow power, knowledge, truth, and subjectivity to become visible and to mould the social environment. With my genealogical analysis, I will unearth the development of this syntax while exploring some politico-historical questions. How did these operators emerge in the course of the historical development of the state? How did their meaning change through the centuries? How did this shifting meaning transform the discourse of law from an order delimited by sovereign commands to one generated by the logic of the norm?
These questions will prove propaedeutic to my endeavour in Chapter 4, which is to delineate in greater detail how modern law operates as a sui generis apparatus establishing the general environment of biopolitical forms of power, and how it works in concatenation with other disciplinary/governmental apparatuses. In doing so, I will tackle head on the challenge posed by the expulsion thesis by claiming that modern law and apparatuses of normalisation form a coherent self-feeding assemblage which, through a dynamic of co-production, inscribes the subject within an isomorphic space where the paradigm of the norm dominates both the legal and the socio-scientific dimension. Given this picture, I will investigate the workings of the normalising complex in our contemporary times, which Zygmunt Bauman has famously described as ‘liquid modernity’. My suggestion is that the social fluidity characteristic of liquid modernity is reflective of a profound biopolitical shift, which is conducive to an understanding of the individual as a ‘virtual entity’.196 This dynamic, I contend, fundamentally challenges the paradigm of the norm and is therefore bringing us to the absolute limit of the normalising complex, (p.36) ushering in a seemingly unsurpassable normative and functional crisis for the legal discourse connected with it.
Finally, my interpretation of modern law will bring me to question, in the Conclusions, what I see as a theoretical blockage in legal thinking in both the (broadly speaking) liberal and the critical camps. In short, I argue that both defenders and critics of liberalism – the political system coextensive with the modern legal discourse – because of a lack of genealogical perspective on the legal discourse fail to appreciate the extent of the inherently and inescapable normalising effects that modern law imposes on the subject, and thus are unable to offer viable solutions to the normative and functional crisis that modern law is suffering (and will suffer even more in the years to come) in the face of an increasingly liquid, non-normalisable, social body. Against this state of affairs, I plead for a Foucauldian approach to law that, far from expelling law from the locus of power, can indicate new and unforeseen avenues that we need to explore if we wish to tackle the challenges looming ahead.
(1.) Baudrillard, 2007. Foucault’s work has been used to analyse diverse areas of sociality ranging from medicine to social work and international relations. The articles and publications inspired by a Foucauldian framework are almost impossible to count (see ex multis Morton and Bygrave, 2008; Dillon and Neal, 2008; Oksala, 2005; Trigo, 2002; Strozier, 2002; Garland, 2001; Carrette, 2000; Chambon, Irving and Epstein, 1999; Petersen and Bunton, 1997; Barry, Osborne and Rose, 1996; Simons, 1995; Simon, 1993). As of 2007, Foucault was the most cited author in the field of humanities according to the database ISI Web of Science. See ‘The most cited authors of books in the humanities’, 26 March 2009, <https://www.timeshighereducation.co.uk> (last accessed 4 August 2016).
(26.) Foucault, 1991. Foucault first mentioned ‘governmentality’ in the 1 February 1978 lecture at the Collège de France, which was subsequently published in the Italian journal Aut-Aut, no. 167–8, Sept.–Dec. 1978. One of the most comprehensive studies on governmentality is offered by Dean, 2010. See also Lemke, 2010.
(63.) Golder, 2008, 749. Foucauldian approaches have thus been used to formulate feminist critiques of law (Drakopoulou, 2007), and to analyse various legal fields such as human rights (Sokhi-Bulley, 2011; Evans, 2005), international law (Hammer, 2007), or criminal law (Garland, 2001), among others.
(67.) ‘This is neither a matter of the constitution of subjects in legal form nor of the disciplining of subjects whose natural form is otherwise; but of the encouragement, support and shaping of self-projects in such ways that in specific practices, these come into alignment with the diverse objectives of regulation’ (Rose and Valverde, 1998, 548).
(70.) ‘Foucault does not mean to suggest … that the development of bio-power is accompanied by a decline of law … In fact, normalisation tends to be accompanied by an astonishing proliferation of legislation … The norm, then, is opposed not to law itself but to what Foucault would call “the juridical”: the institution of law as (p.166) the expression of a sovereign’s power … In the age of bio-power, the juridical, which characterised monarchical law, can readily be opposed to the normative, which comes to the fore most typically in constitutions, legal codes, and the constant and clamorous activity of the legislature’ (Ewald, 1990, 138).
(71.) ‘The normative allows us to understand how communication remains possible even within a historical moment characterised by the end of universal values. The norm is a means of producing social law, a law constituted with reference to the particular society it claims to regulate and not with respect to a set of universal principles. More precisely, when the normative order comes to constitute the modernity of societies, law can be nothing other than social’ (Ewald, 1990, 154–5).
(73.) ‘If we understand as “juridical system” a normative order with its sources, its techniques, its organisation, the juridical experience refers to the manner in which, within certain “political economies”, the juridical system – the law (“le droit”) – is, at the same time, programmed, problematised, and contested … The way of opposing law and morality, of distinguishing law and non-law, of finalising it, all that refers to certain juridical experiences’ (Ewald, 1986a, 30).
(74.) ‘To describe the element of reflexivity of law, I propose to speak of a rule of judgement. Legislation, doctrine and case law are all practices of legal judgement. Their articulation, distribution and mutual competence depend on the type of rationality that this legal judgement obeys. This type of rationality defines, for a particular legal order, the economy of its ‘juris-diction’. The rule of judgement is not a rule laid down by a body, but is what regulates the judgement of all bodies; accordingly, not something that one applies, but something whereby one judges’ (Ewald, 1987, 38). See also Ewald, 1986a, 436.
(77.) Ewald, 1986a, 441–50. Error and balance make reference to statistical occurrences. The error is an event that is inherent to human activity and cannot be avoided (statistically), no matter the level of care exercised in a certain conduct. Balance, on the other hand, is the social equilibrium to be preserved between competing interests on the basis of the likely occurrence of a conflictual event; the concept of balance therefore contextualises the notion of fault within a (p.167) specific social environment and indexes compensation to the statistical recurrence of a damaging event. On the notion of balance see Ewald, 1986b, 61–71.
(78.) The emergence of a new ‘law of accidents’ therefore represents a new stage in the social history of causation. It is the moment in which society realises that it cannot master the rules of subjective causation (who caused what?), but can indeed establish a positive normative order of imputation based on objective criteria of causation (what is the statistical risk that something will occur?). See Ewald, 1986a, 438–40.
(79.) ‘[S]ocial law should be conceived of in relation to the notion of norm. Of course, this term designates, not certain legal expressions, but a system for formulating certain expressions, and a specific way of judging. In classical law, the Law – we give it a capital to distinguish it from the individual laws promulgated by the legislator – designated such a system for formulating expressions. In order to belong to the legal order, these had to take the form of (or derive from) the Law, a general expression intended to have perpetuity. For social law, the norm corresponds to what the Law could be for classical law’ (Ewald, 1986b, 71).
(85.) Ewald (1986b, 57) is quite explicit in calling law a ‘formal garb’ that ‘social law’ must adopt, and claiming that law ‘serves to camouflage the machinations of power’ (Ewald, 1990, 159). He also repeats the well-trodden expulsion thesis trope, according to which, in modern times, the rule of judges slides into the background in favour of the rule of technical experts (Ewald, 1986a, 490).
(87.) ‘[A]n assemblage is first and foremost what keeps very heterogeneous elements together: e.g. a sound, a gesture, a position, etc., both natural and artificial elements. The problem is one of “consistency” or “coherence”, and is prior to the problem of behaviour. How do things take on consistency? How do they cohere?’ (Deleuze, 2006, 179).
(p.168) (90.) Tadros, 1998, 99, combines and expands two ideas already present in Foucault. On the one hand, Foucault suggested that law works as a relay in his treatment of the penal system; on the other, he claimed that discipline and governmentality were connected through forms of concrete arrangements (such as the dispositif of sexuality).
(91.) ‘Law’s symbolic representation as a monopoly of the right to violence, primarily exercised by a Sovereign … The symbolic representation of law as the sovereign right to violence was a condition for the law’s acceptance as well as a method for co-ordinating the form which the legal structure took’ (Tadros, 1998, 87).
(96.) ‘The scientificity of the disciplines hands to the law the power of … truth, although … it is law which guarantees for discipline its “unitary field of objects”’ (Golder and Fitzpatrick, 2009, 66).
(101.) When Golder and Fitzpatrick provide empirical evidence for their proposition (Golder and Fitzpatrick, 2009, 64–6), they analyse a judicial case that, eventually, appears to run contrary to their own Foucauldian ideas of law. The case they analyse is R v. Board of Visitors of HM Prison, The Maze ex parte Hone (1988 AC 379). Unfortunately – if I understand their argument correctly – it must be noted that the case itself, showing judicial deference in the face of a carcerial disciplinary regime, provides little support for their legal thesis. The case concerned the right of prisoners charged with carcerial disciplinary offences to be represented before a reviewing panel. Considering the discretionary administrative nature of the power exercised by the prison’s authorities, the House of Lords declared that no such right existed. It is hard to see how, in this case, law positively legitimised in any way the disciplinary carcerial institution. Rather, it seems that the House of Lords simply showed deference to the authority of disciplines without properly questioning their limits. One might go so far as to say that the simple fact (p.169) that the procedures adopted in Her Majesty’s prison could be legally challenged shows that law does work as a potential limit to disciplinary powers. Such an interpretation (which is not spelled out explicitly by Golder and Fitzpatrick), however, would simply beg the question: is law, in fact, legitimating disciplines by regulating their mechanisms or is it rubber-stamping their normalising claims and processes?
(102.) While I am sceptical about some aspects of Golder and Fitzpatrick’s argument, it will become clear in the subsequent development of the present work that I agree with and build on their idea that the legal discourse is in a relationship of co-production with disciplinary and governmental regimes.
(112.) Foucault (2008, 295–313) offers an argument to that effect while discussing the emergence of the original notion of civil society in the seventeenth and eighteenth centuries as an analytics of government and its incompatibility with classical depictions of the political community as a juridical one.
(121.) Foucault, 1978, 93. As Jessop summarises: ‘Foucault stressed three themes in his “nominalist” analytics of power: it is immanent in all social relations, articulated with discourses as well as institutions, (p.170) and necessarily polyvalent because its impact and significance vary with how social relations, discourses and institutions are integrated into different strategies’ (Jessop, 2007, 35).
(124.) ‘Discourse transmits and produces power; it reinforces it, but also undermines and exposes it, renders it fragile and it makes it possible to thwart it. In like manner, silence and secrecy are shelter for power, anchoring its prohibition; but they also loosen its hold and provide for a relatively obscure areas of tolerance’ (Foucault, 1978, 101).
(125.) ‘Foucault is not a relativist or a solipsist, but he does not believe that knowledge confers ultimate acquaintance with reality, or that means of verification used to determine truth are available to us in forms which we know to be definitive’ (Gordon, 2002, xvii–xviii).
(137.) For an interesting analysis of the problem of translating the word dispositif into English see Kelly, 2013, 132–4.
(141.) Agamben (ibid.) maintains that basically anything can function as an apparatus: ‘[P]risons, mad houses, the panopticon, schools, confession, factories, disciplines, juridical measures, and so forth (whose connection with power is in a certain sense evident), but also the pen, writing, literature, philosophy, agriculture, cigarettes, navigation, computers, cellular telephones and – why not – language itself, which is perhaps the most ancient of apparatuses – one in which (p.171) thousands and thousands of years ago a primate inadvertently let himself be captured, probably without realising the consequences that he was about to face’.
(147.) Hence, for example, the Germanic test is reflective of a society that settles disputes in a formalised continuation of warlike dynamics, the inquiry is the expression of a society where the production of truth is made possible only by the investigation performed by a centralised political power which peers into the private affairs of its citizens, and the examination is the primary mechanism used by emerging bourgeois societies to establish a system of surveillance that would protect its economic interests.
(151.) ‘In the case of a critical philosophy of veridictions, the problem is not that of knowing how a subject in general may understand an object in general. The problem is that of knowing how subjects are effectively tied within and by the forms of their veridiction in which they engage. In this case, the problem is not that of determining historical accidents, external circumstances, mechanisms of illusions or ideologies, or even the internal economy or errors or failures in the logic that could have produced the falsehood. The problem is to determine how a mode of veridiction, a Wahrsagen could appear in history and under what conditions … In a word, in this critical philosophy is not a question of the general economy of the true, but rather about historical politics, or a political history of veridictions’ (Foucault, 2014b, 20).
(157.) I am here using the term ‘syntax’ in the formal logic sense. Carnap defined the concept of syntax in the following way: ‘By the logical syntax of a language, we mean the formal theory of the linguistic forms of that language – the systematic statement of the formal rules which govern it together with the development of the consequences which follow from these rules … Thus we are justified in designating as “logical syntax” the system which comprises the rules of formation and transformation’ (Carnap, 1937, 1–2). In this perspective, with ‘syntax’ I will refer to the internal structural logic of the legal system regulating the latter’s formation and production and change. I am not, however, referring to the purely formal dimension of the legal language which links the legitimation of legal rules to their abidance by certain elementary expressive rules (e.g. laws must be formulated in general and abstract terms to be properly called laws – see Jürgen Habermas, who understands this dimension as the ‘grammatical form’ of law, 1996, 189). More broadly, with the term ‘syntax’ I will define the most basic logical structure of modern law through the discursive interrelation of its constitutive elements as they appeared historically.
(158.) Ewald, 1986a is the one that has come closer to such a genealogy. However, as I have pointed out earlier, Ewald, in overlapping norms and law, is unable to offer a compelling picture of how law genealogically transformed as a sui generis apparatus with a distinctive discursive dimension. The result is that legal statements are thus deprived of a force of their own and law itself is effectively expelled from the locus of power.
(159.) I am therefore not including in my subsequent analysis authors such as Agamben (2003, 1998), Esposito (2008), and Hardt and Negri (2004, 2000), as they do not address the legal field proper, but take into consideration law only in an oblique fashion in order to address higher political and philosophical issues of sovereignty, immunity, and capitalist exploitation.
(160.) On this point, Foucault remarked that law’s normativity is not to be confounded with ‘procedures, processes, and techniques of normalization’ (Foucault, 2007, 56). While modern law certainly deploys very complex and significant ‘procedures, processes, and techniques’ vis-à-vis other biopolitical apparatuses, I will argue that it nonetheless shares with them the same baseline logic of normalisation.
(p.173) (162.) Latour, 1999, 304, uses this term in relation to the scientific discourse: ‘The way scientific and technical work is made invisible by its own success. When a machine runs efficiently, when a matter of fact is settled, one need focus only on its inputs and outputs and not on its internal complexity. Thus, paradoxically, the more science and technology succeeded the more opaque and obscure they become.’
(164.) ‘It is certain that, in contemporary societies, the state is not simply one of the forms of specific situations of the exercise of power – even if it is the most important – but that, in a certain way, all other forms of power relation must refer to it. But this is not because they are derived from it; rather, it is because power relations have become more and more under state control … Using here the restricted meaning of the word “government”, one could say that power relations have been progressively governmentalised, that is to say, elaborated, rationalised, and centralised in the form of, or under the auspices of, state institutions’ (Foucault, 2002b, 345).
(168.) The exercise of political power is generally defined in relation to the possession of facilities by means of which physical violence may be exerted (Bobbio, Matteucci and Pasquino, 2004; Weber, 2004, 33; Poggi, 1990, 4) and its primary focus can be understood as ‘the activity of attending to the general arrangements of a set of peoples whom chance or choice has brought together’ (Laslett, 1956, 2).
(172.) It should be stressed that the term ‘modern state’ is somewhat pleonastic, for the characteristics of the state are not to be found ‘in any large-scale political entities other than those which began to develop in the early modern phase of European history’ (Poggi, 1990, 25).
(175.) Marxist analyses have traditionally emphasised the subservient role of the state vis-à-vis capitalistic bourgeois interests. More recent (p.174) leftist approaches, however, have recognised a more autonomous role of the state (see Jessop, 2008; Poulantzas, 1980). For a review that presents a more favourable interpretation of the autonomous nature of the state see also Skocpol (1979).
(192.) Hayek, in his argument, aimed at defending an ideal form of the Rechtsstaat against the advance of the Welfare State. Within the latter model, Hayek saw an undue expansion of governmental discretion which was dangerous for the very idea of the rule of law, and thus for individual freedom. It should be made clear that an inquiry into the possible causal relationships between these four elements goes beyond the purpose of this work.
(193.) It is at this juncture that I will depart more markedly from the Foucauldian canon and the presence of Foucault’s own voice will be (quite paradoxically) less felt. As I have already mentioned, Foucault was sceptical about the role of law in the formation of the general environment of power in modernity, and his few thoughts on the development of legal thinking through history are not particularly useful to my endeavour.