Foucault for Lawyers

Al Katz, State University of New York, Buffalo
©1982. All rights Reserved.

I-a. Law, Norm, Rights
I-b. Realism, Formalism, Normativity
II. Difference, Dispersion, Pluralism
III. Similarity, Difference, Adjudication
IV. Power, Knowledge, Jurisprudence

II. Difference, Dispersion, Pluralism

From the perspective of an ontology, difference requires no accounting and is to be submitted to no analysis looking toward a reduction or further simplification. Difference is original, real, essential and natural. Civilization, order and category compel the submission of difference to the law of the same. This is the kernel of Foucault's philosophical posture, and it seems to have developed from his historical investigations rather than determined their course--though the relation to Nietzsche is commonly noted.

The Law of the sovereign required that difference submit to a demand that was external and above it in the name of authority, virtue, order, salvation or redemption. By contrast, normativity posits difference as an exception; as deviance, delinquency or disease. In a dramatic reversal, difference is extruded from an essential same and must perpetually justify and defend itself against that which would correct and assimilate it. The reversal is dramatic because the contingency of the same is valorized and made to appear essential or natural. The law of the same is joined to the law of natural necessity in order to hide a fundamental truth: the same is always a domination proceeding from relations of power.

But if difference is not to be equated with the Good what is the point of noting its originality? And, perhaps with the exception of pure difference functioning in a hypothetical state of nature, difference is always situated in a state of relative proximity to a same which it threatens to undermine or risks being consumed by. Is it possible to comprehend the struggle of difference with the same as such: apart from substance, free of content? From the point of view of a master class, slavery is only the name of an essential difference; difference produces slavery. From the point of view of the slave, the law of the same is articulated upon difference in order to achieve a consolidation, A production of power externalizes the slave as a consequence of the same violence that produces the master class. Resistance may thus proceed either in the name of a difference which knows no privilege or a universal same: since we are God's children we are all different and we are all the same.

What sort of possibility does this analytic of difference open up for law? There is plainly nothing novel in the suggestion that equality, posed either as the negation of difference or a positivity Of the same, can never be enclosed within legal principle--that the requirement of similar treatment in the presence of likeness specifies an absolute indeterminacy; that, like equality, the notion of relevance refers to a relationship which must find its grounding and justification elsewhere. Nor is it obvious that a theory of the originality of difference makes a useful contribution to the requirement of justification. That is, if we understand equality as a requirement that difference be justified, and we understand relevance as a requirement that a positive relation be justified, the originality of difference contributes nothing to a substantive justification in either instance. And it is very difficult to imagine how an analytic of difference might confront the principal of universal religious freedom which simultaneously enjoins similarity within difference (all religions) and difference within similarity (only religions).

III. Similarity, Difference, Adjudication

Everything that has been said in the history of reason, civilization itself, displays on its surface the relation of similarity and difference, yet no method exists to determine the particular truth of this relation. It is a central theme in Foucault's work that judgements distributing similarity and difference are relations of power expressed by discourses of truth. This implies that a,practice which, in its own terms, is one requiring that judgements of similarity and difference be justified must explicate the determining relations of power. Judgements of similarity and difference imply either a discourse of power or one struggling to be born. The deep meaning of this thesis is that there is only a political philosophy.

Out of the multiple activities that constitute adjudication several moments have been selected by modern literature as critical: (1) That an instance of behavior if its under a rule or small group of rules; (2) That some events elaborate the meaning of other events; (3) That an unrelated multiplicity may be reformed as a loose and vaguely bounded singularity. The three moments of applying rules to an instance, determining relevance and analogizing cases characterize the process of adjudication. When reduced to a pedagogy they generate the formalist obfuscation: with attention drawn to the surface of instance, relevance and analogy one does not see that these judgements of similarity and difference are being determined by relations of power. But this substrata of power has not totally escaped attention. There is, first, the examination of power as a function of the (fully contextualized) agent who makes judgements of similarity and difference: in effect, an explication of the determinations of power in terms of perception and interest. Second, there is the possibility of a substantive evaluation of these judgements in terms of their power effects: whether they tend to repress or privilege, impoverish or enrich, constrain or liberate identifiable human beings. Third, a history of the arrangement of judgements of similarity and difference describes the stability and dynamics of power relations: shifts in the mechanisms of control (from contract to tort), strategic retreats and re-deployments (from property rights to personal rights), the emergence and disappearance of modes of determination (from will to reliance). In short, where does power come from, what are its effects, how does it work; ajudication as a modality of the circulation of power.

Yet the specificity of ajudication remains shrouded in mystery precisely because of a double exclusion: on the one hand, an absolute determination by similarity - that is, by rules, relevance and analogy - cannot be verified by experience; on the other hand, a coherent ajudication appears inconsistent with a principle of pure difference. From time to time one hears muffled cries despairing of the domination of similarity in the form of masks, roles, rules, catagory or even policy in favor of some intense singularity produced by a pristine difference grasped in its absolute isolation. 'Decide this case. Decide it on the basis of its own facts. Consider who these parties really are and deal with them rather than future, hypothetical possibilities.' This liberal despair is condemmed to absurdity because it must retain its general rules? and because the insistence on vigorous individuation is always in the service of re-contextualization. We shall not speak of liability for negligence in general but look at Mrs. Palsgraff. And who is she? She is a member of the working class.

If we are driven to regard ajudication as a functioning of power, then its specificity must lie in its being what it is by appearing to be other than what it is. The truth of ajudication is that it may be a mode of the circulation of power only by appearing otherwise; not power but its denial. The essence of ajudication is negativity.- reification, ideology, legitimation. Always an elision or dislocation. Foucault insists, however, that he is not concerned with ideology to the extent that notion refers to a production of the false. His work seeks to isolate discourses of truth: the conditions for their emergence, the manner of their circulation and elaboration, and their consolidation and deployment by agencies of state power. The claim is that discourses of truth - what we now understand as the human sciences - are the positive productions of power that cannot be studied or completely understood by the techniques of relentless unmasking and demystification applied to ideology, legitimation and reification - the negative productions of power. Foucault is suggesting that while it is the burden of all realist - and Marxist - critiques to produce a consciousness capable of penetrating these negative tactics through research on the origins, effects and functioning of power, an understanding of the positive productions of power requires a different approach. In short, the human sciences cannot be understood as pure ideology even though they may contain ideological elements or be infused with bourgeouis values. Sociology may not be reduced to an instance of reification nor law to one of legitimation. Both are disciplines engaged in producing knowledge; they are discourses of truth to be understood as the actions of power and not its disguise. Power produces knowledge which produces power.

Taking the specificity of adjudication as a moment in the positive functioning of power means regarding instance, relevance and analogy as critical operations producing knowledge rather than occasions requiring its application. It means eliding the question of justification by reference to that which precedes and determines it in favor of opening the question of the knowledge adjudication produces. It requires putting aside the notion that adjudication is cursed with an original deficiency that must be redeemed by some demonstration that the movements of instance, relevance and analogy are legitimately determined - or, more seriously, conceptualizing these movements as legitimation by mechanisms of reason which are no more than the mask of power. Rather than simply claim that there is no truth to instance, relevance and analogy distinct from an origination in relations of power, the suggestion points toward the knowledge produced. Here are a few possibilities.

Legal reasoning, constituted as a discipline, acquires a certain ontological status distinct from the social sciences and divorced from the other operations of government. There may be histories of it, or its relation with science or realism may be examined; sections of jurisprudence anthologies are set aside for treatment of it; there are even introductions to it that participate in the schooling of young lawyers who will come to share the general view that a skill, method, approach or bent of mind characterizes its practice. As Lord Coke so well knew, the specificity of legal reasoning may serve to constitute an alternativey if not entirely autonomous, context of power. This relation to power of legal reasoning as a discoursive practice locates it within an inevitable and apparently perpetual ambivalence: between, on the one hand, its ties to representations that ground it in a source of legitimate power (custom, a democratic will, a realist facticity), and on the other hand, modes of formal precision that establish its affinity with other discoursive practices (logic, philosophy, economics). And it is surely a part of its ordinary history that legal reasoning forcibly excludes certain forms of knowledge and spins off knew ones that aspire to a certain independence. Thus the fates of wisdom and policy: the former ejected from the house of legal reason as an infection threatening to destroy from within; the latter moving gradually toward an independence signaled by the achievement of legitimate status as the discipline of policy study or policy science. Surely part of the notorious vagueness of legal reasoning stems from these movements of refusal and independence which simultaneously purify and evacuate it. It is precisely this insubstantiality that tends to drive the study of legal reasoning toward the perspective of negativity; since it has no other content it must be a mode of ideology and a mechanism of legitimation.


In the domain of practical reason adjudication stands as the pre-eminent clinical science. Though it does not pretend to have solved the problem of deducing particulars from generalities, adjudication takes the core of its meaning from a capacity to situate stances in a non-arbitrary fashion. The most severe critics of legal reasoning attempt to undermine its pretentions by demonstrating the indeterminate quality of its results in spite of herculean efforts to proceed according to methods that wholly eliminate the judicial will. This mode of the discourse of legitimacy that surrounds adjudication has become part of its functioning to the extent that the attack has thus far not succeeded in demonstrating that instance is a moment of absolute freedom. Indeed, the significance of instance as a production of truth is its power to continually resist the charges of absolute freedom and accept, in the alternative, a determination by multiplicity. That is, what appears on the surface as a pure indeterminacy is in fact an incredible complexity. Understandably, the uninitiated and politically immature are impatient with this and continue their search for the simplicity of direct relations, While that search continues adjudication firms its nest with the material of language, policy, interest, history, presumption, deference, logic, and precedent. Nor is it the case that unavoidable differences of opinion imply whimsy and caprice. Instance need not be subjected to a binary universe of the arbitrary or the fully determined because the truth of adjudication is that a middle position exists in the form of a judgment that is other than wisdom.

Judgments of relevance always presuppose a third term, usually an unspoken statement of probability or experiential generality serving to connect two otherwise disperate phenomena. Teasing out, articulating and interrogating these silent mediations indicates that they have neither a precise authoritative source, nor are they originally produced by adjudication. Furthermore, the connection between phenomena, though it frequently appears direct and unmediated, is wholly dependent on these probabilities and generalities which cannot be either established or refuted. And, finally, should the inherent weakness of these mediating truths be pointed outy their employment may be defended on the ground that they are used to specify only that which may be considered; such matters come to have a bearing on particular concerns but never fully determine consequences. Adjudication makes judgments of relevance reflecting mediating truths such as: behavior reflects motivation; behavior tends toward consistency over time and space; relationship qualifies objectivity. In the case of homicide, for example, motivation is relevant on the issue of identity when mediated by the proposition that one who has something to gain from a death is more likely to bring it about than one who has nothing to gain. The implicit generalization about human rationality or consistency, the inherent vagueness in the notion of gain, and the incorrigibility of the probabalistic estimate are lost to the mass of applications. But the truth that is produced in these applications is hardly trivial or buried, for they constitute a stream of statements to the effect that some knowledge is independent of precise authoritative source, cannot be established or refuted, and may have a significant bearing on judgments without being completely determinative. Once againt adjudication produces the possibility of judgments which need not submit to the rigor of binary criteria, but locates its truth in the space between,

Rather than depend on a presupposed term, analogy produces a generalization out of a finite set of intrinsic similarities the salience of which is said to exceed the remaining differenceso Analogy is thus positioned between absolute identity and radical difference. The dependence of adjudication on analogy is at once its secret genius, its principle of growth and development, its capacity to orient itself in historyl a violation of the principle of fair notice and hence inconsistent with the rule of law in its mood of rigorous determination, an open invitation to the introduction of bias, whim and caprice, and a recognition of the absolute unpredictability of events which nevertheless demand to be classified as either thematic or original. Through analogy adjudication thus speaks the truth of moderation and adaptation; a continuity at once irreducible to the law of the same, but a merely modest rupture with the security of past adventures.

And not of least significance: the case, the party and the claim, Floating on an ocean of doctrine, the requirement of a case constituted by a severe seclusion of the person and a vigorous statement of a claim that will produce an advantage for that person. Both requirements are said to define a priori the province of adjudication; a double exclusion of the objective/ collective/ political and the subjective/trivial/personal. But is it not at least equally true that the collective/political domain is organized and shaped through the construction of cases? Is it not possible to write a history of the trivial/personal in terms of this production? May it not be one of the primary positive functions of adjudication to produce a thickly populated social space between political and private life; a legal space over which it presides and in which citizens are invited to participate from time to time? Inevitably the articulation of this legal space will periodically embroil adjudication in an 'institutional' conflict over whether it has either usurped a political function or invaded a private enclave. On these, as well as less notorious occasions, adjudication significantly contributes to the knowledge of what counts as political and private life, but also immediately produces a domain for its own functioning not reducible to either. This is the situation with which contemporary literature grapples as it confronts cases that are not private in the classical proprietary sense, but resist classification as political insofar as they are proper cases. The case is the truth of adjudication establishing its terrain. (A good deal of nonsence might be eliminated by not confusing the subjective/trivial/private, understood as a social domain, with the body of doctrine labeled private law).

Legal reasoning, instance, relevance, analogy and case are five moments of adjudication that produce a knowledge of the relation of similarity and difference, To be sure, the knowledge produced does not solve the problematic of similarity and difference, but that hardly undermines the effectiveness of this production. These f ive moments of adjudication produce a knowledge that refuses to respond to oppositional criteria and asserts the reality of a truth that stands between, Legal reasoning claims a status in the world of legitimate power though it cannot be firmly tied to a source of pure authority nor grounded in accepted formal methodologies; instances may be situated within a rule without being subjected to the charge of arbitrariness even though that inclusion is not fully determined by the rule; judgments of relevance are made on the basis of generalizations which are not provable but may nonetheless be used because the connections they induce have a bearing on consequences while not wholly determining them; analogies allow the present to adapt to change at a moderate pace by recognizing a level of continuity that is neither sameness nor novelty; cases produce a domain of functioning for adjudication that neither usurps the objective/collective/political nor invades the subjective/private/trivial.

These five moments suggest the full measure of liberalism's core paradox is elegantly articulated across the endless operations of adjudication; the voice heard when Truth fell silent. Adjudication produces a knowledge that lays claim to truth by failing every test of truth established by liberal disciplines.

Finally, an originary difference may be used to support reactionary doctrine: if difference is primary then there can be no requirement that Congress subsidize rights in order to make them concrete (i.e., abortion); and very powerful reasons may be required before it may prohibit the wealthy from using their means to disproportionately influence the electoral process. Is not the market commonly supposed as that great private sector expression of the principle of difference in the form of subjective interest and its satisfactions?

All of this may very well miss the point--which is to suggest that research focus on the dispersion of difference 'as such'. Under what circumstances does difference appear as a positive good or as a dangerous excess? For example, while price-fixing is bad other forms of standardized trade practice are essential. At another level, under what conditions does difference appear as the focus of community rather than as a disintegrating force. John Marshall Harlan's famous invocation of 'our Federalism'' plainly identified multiplicity as integrative, and the discourse forming the fabric of speech and religion doctrine appears similarly grounded. On the other hand, the entire notion of regulation (in the 20th century) sense involves a shifting but nonetheless precise understanding of the need to confine difference, to channel and distribute it in the interest of stability; a reduction of difference in the name of accumulation or a viable functioning. Finally, an investigation of the dispersion of difference might discover that liberal -pluralism enjoys a certain asymetrical mobility in the legal discourse of balancing. At a discrete level, it describes and justifies the need to 'take into account' a multiplicity of considerations. Pluralism is substance born of balancing as method. But when it is abstracted to enclose the positive recognition of multiplicity as a value in itself, pluralism becomes identified with balancing as a consequence, an outcome or a policy. In this sense pluralism is not another name for difference understood as the great other of the same, but as an absolute point of accommodation, a wholeness enclosing both difference and the same. Thus elevated pluralism becomes the truth of difference redeemed from anarchy.

By a dramatic reversal Foucault would drive pluralism back along its line of flight in order to recover for the future an always potential difference. Hence the question of anarchy and its redemption appears inescapable, and it is not a question confined within the inevitability of political organization. On the one hand, there is the general philosophical question of situating the theory of difference in relation to Marx's species being and Neitzsche's natural man. On the other hand, difference inserts itself within the ordinary movements of thought as an insideous force, as that which poses a barrier to the domination of the same by undermining its expression in 'reason': given difference, how may one situate an instance under a rule, determine relevance, associate the multiple to form a singularity? Is there an alternative to the classical critique according to which reason escapes the disintegration of difference only to become the mask of power?













©Al Katz • Prof. of law SUNY, Buffalo, 1969-1989 (ret.)