IV.
Power, Knowledge, Jurisprudence
Is
there some deep, meaning to the distinction between legal
philosophy and the philosophy of law than a superficial verbal
ordering? If legal philosophy attempted to constitute law
and locate it within a comprehensive social theory as well
as a metaphysics, the philosophy of law takes law as an already
constituted, pre-existing subject to be studied, clarified
and comprehended with increasingly tedious precision. Taking
the distinction as plausable and this statement of it as a
decent approximation, it is possible to pose an historical
question of some significance. Can we identify the period
during which jurisprudence came to regard law as external,
an externalization that henceforth eliminated the possibility
of understanding law as applied jurisprudence and jurisprudence
as theoretical law. From a contemporary perspective this mutual
exclusion seems perfectly normal since we fully understand
why, for example, cultural life is not applied anthropology.
As
an hypothesis, it should be the case that the externalization
of law coincides with the elimination of jurisprudence as
a force in the positive constitution of social power relations.
The elimination of theology as a theoretical foundation, credited
to the eventual influence of Machievelli, no doubt preceded
the severance of jurisprudence. But the two are connected
because Christian theology grounded secular power by a series
of implications that traditionally generated two laws, and
this dualism had to be taken into account both by theology
and jurisprudence. It is possible, however, that when power
came to be grounded in an immanent popular will rather than
a transcendent divinity the need for a jurisprudence that
could account for and specify a secular legality was substantially
reduced. What remained for jurisprudence, and pointing back
toward its ancient origins#, was the task of theorizing limitations
on democratic power in the name of rights that would always
bear the sign of a transcendent naturalism. Natural rights
as the limit of democratic power was the final province of
classical jurisprudence. One might suppose, therefore, that
the fate of jurisprudence would be tied to that of rights,
and that with the collapse of rights through its alliance
with power in the production of the norm jurisprudence would
be reduced to an analysis of difference within a legality
that is an always already given. Reduced, that is, to a frequently
quite intelligent sociology, What was lost in this radical
reduction was the capacity of jurisprudence to theorize law
as an articulation of power. But it is precisely this silence,
this refusal of modern jurisprudence to theorize power, that
poses the contemporary relation of legal knowledge to power.
Consider the following propositions,
First,
that the movement of 20th century legal scholarship toward
social science was made possible by the gap opened by a jurisprudence
no longer concerned with the positive constitution of law.
However, where classical jurisprudence never had to justify
its place within legal study, those movements which filled
this vacancy with studies of sources, conflicts, points of
resistance or comparative modes of resolution, had to make
their way into legal studies as bearers of importations the
relevance of which required argument to a fairly skeptical
audience even though these heroic excursions brought back
traditional information packaged somewhat differently: a psychology
rather than a theory of human nature, a sociology rather than
a social theory, and a political science which continued to
speak of relations of force in terms of wealth, influence
and arms.
Second,
the silence of jurisprudence coupled with the resistence to
social science on the ground of its externality carried the
singular message that the coherence of law lay in its independence:
the segregation and isolation of law was that which made knowledge
of it possible. It was, to some, a special language game and
only ignorance and frustration would result from confusing
it with other language games and social practices.
Third,
the actual constitution of a discipline dedicated to the knowledge
of law as an isolated variable gives rise to the supposition
that, in principle, pure law is a possibility. By implication,
this possibility of a pure law means that the actual saturation
of law with relations of power, legitimate and otherwise,
merely indicates a state of temporary imperfection; contingent
rather than essential contaminations. This is the truth modern
jurisprudence seems dedicated to producing. The systematic
functioning of a philosophy of law implies the actuality of
an independent legality otherwise merely posed as its subject.
These
hypotheses are at least partially counter intuitive. The normal
approach imagines jurisprudence as functioning to legitimize
a legality that is in fact the production of power: it imagines
the relation of power to jurisprudence as one of truth to
its disguise; as essence to mask. In this view, since law
is a function of power and jurisprudence is epiphenomenal
the knowledge produced by the latter is at best secondary
or ancillary. The significance of Foucault's work is to suggest
that jurisprudence be studied in its positivity; not as an
ideological formation but as a mechanism producing knowledge
that may be assimilated by power and contribute to its domination.
Specifically, the body of work generated by the tradition
that runs from Hohfeld to Dworkin signifies the concrete reality
of an independent law. Rather than a mere negativity, the
positivity of jurisprudence - perhaps from the mid-19th century,
but certainly over the course of the 20th - should be understood
as a reaction in the strict sense: a counterattack tending
to destroy the notion of law as a determination of power,
as superstructural.
Two
immediate implications seem interesting. First, the unity
of classical jurisprudence now appears as a fractured dualism
enclosing a rather vague middle space. On the one hand, at
least for most of this century the law-and-social science
enterprise assumed the constitutive role of classical jurisprudence
as a left-liberal and basically reformist concentration. On
the other hand, analytic philosophy continued the ancient
tradition separating law and jurisprudence as a right-liberal
and quite conservative discipline. In a somewhat larger sense,
the latter takes its place as a decedent of the scholastic
tradition while the former carries forward a modernized civic
humanist strain. Between these two is that messy and vaguely
rationalist or pragmatic mode of accommodation we currently
identify as 'reasoned elaboration' in some form or other.
Given this schema, the intrusion of economics is either unaccounted
for or destroys the superficial elegance of this classification
since it is largely a conservative social science. However,
to the extent economics appears in legal discourse as an analytic
rather than empirical or contextualizing form it both assumes
and supports the notion of an independent legality and should
be understood as a moment neo-scholasticism, But there is
one aspect of this peculiar enclave of modern jurisprudence
that is otherwise significant: the introduction of market
conceits into legal discourse reflects existing complexities
in the relation of desire and reason within an overall conception
of the rule of law.
|
Thus the second implication. When the authoritative source of
law shifted from an absolute divinity to an absolute democracy
the problematic of legal autonomy was reconstituted, though
not for jurisprudence as such. On the one hand, the notion of
legal autonomy and a determinate legality was completely inconsistent
with an immediate (legal) responsiveness to democratic desire.
On the other hand, the alternatives to immediate responsiveness
were either the mediation of reason or the mediation of a (political)
division of labor. Economics contributed the irrationalism of
market actors as its counterpart to democratic desire, and the
notion of efficiency as its alternative to the mediation of
reason, Thus it reproduced within legal analysis the classical
liberal movement of an irrational democracy of desire (market
choices) transmogrified into a rational legality (efficiency).
Hypothesizing
analytic jurisprudence as a discipline producing the truth of
an independent legality still leaves the specificity of legal
content unexplored. Taking law as a discipline, as one of the
human sciences, we can ask how it manages to create a workable
arrangement of normativity and diversity; we can inquire into
the character of its substantive relation to persons and groups
both at points of origination (what do people do, how do they
behave, what do they believe) and at points of impact (incarcerations,
prohibitions, settlements). This questioning brings to the surface
the full significance of the power/knowledge reciprocity because
Foucault pushes it to the limit by arguing that in the absence
of power there are only phenomena, events, fantasms; not ignorance
or stupidity, for these are necessarily joined to knowledge
in a relation of presence to absence, sufficiency to lack. Knowledge
is a finitude created by subtracting from infinite possibilities;
knowledge is the world as n-l. And this subtraction is always
a work of violence in the sense that knowledge never stands
in an immediate relation to the world but is always already
mediated by power. Thus the positive knowledge produced by power
flows from a primary reduction. Knowledge is loss, not gain.
Power is constituted by relations of force between persons.
It is essential ands, perhaps$, inevitables, but certainly not
the invasion of an externality or the perversion of an ideal.
Most importantly, the microcosmics of power requires that it
be studied in modes of determination applied to the bodies of
persons. Regulating movements, training habits, learning skills,
punishing infractions and curing defects become, in this constructions,
primal applications of power at the 'local' levels, at the level
of the disposition of the body. The specificity of the modes
of disposition articulate upon bodies the most intense and perhaps
least conscious forms of knowledge, a knowledge that simultaneously
determines the locus of power and is produced by its exercise.
These are the primary movements and linkages of Foucault's theory:
a power/knowledge reciprocity formed by relations of force that
are fundamentally local. In additions, the fate of these local
relations, at least if we are speaking of the West since the
end of the 18th centurys, is to suffer a process of colonization
and suppression at the hands of centralized power--particularly
the state. Knowledge produced by the articulation of power at
the local level is gathered up by the states, brought together,
coagulated and recognized by official organs of legitimate power.
And by virtue of this same movements, some knowledge remains
unrecognized, ignored and ultimately suppressed as a consequence
of the redeployment, in top down fashion, of that which has
been recognized by the movement of colonization. In time these
suppressed knowledges virtually disappear, perhaps remaining
as curiosities of an ethnic, racial, religious or geographical
variety, but in any case regarded by authority as ignorance,
superstition, mysticism or a weird and perhaps brutal fanaticism.
It is according to this procedure that the colonization of knowledge
generated by local relations of force produces truth, The power/knowledge
surrounding trade practices, child rearing, marriage, the treatment
of illness, the recognition of deviance, the determination of
that which is admissible to acceptable discourse (how and when
one may speak of sexuality, of death, of madness) become, when
acceptance is centralized and authoritative, the truth of the
norm,
Foucault
builds his argument for an epistemology that is always political
with these few elements: the originary quality of difference
subjected to the determination of relations of force create
knowledges the diversity of which are eliminated by the centralizing
and unifying tendencies of the human sciences and state power.
The hegemony of the human sciences is the truth of power in
its double movement of suppression/valorization. This epistemology
thus leads to the same challenge as did the theory of difference:
it undermines the security of self--congratulatory liberal conceptions
of diversity such as pluralism, majoritarianism and the market-place
of ideas. In each case a limit has been imposed on the acceptable
level of diversity - this time at the level of what can be known
or that which counts as knowledge. The point is not - or at
least not yet - that human society can flourish amidst an absolute
diversity, but that the reduction or containment of this diversity
is the production of a will to truth, and that this will to
truth has a history and may be studied as such.
If
a contemporary and critical jurisprudence is to have a life
not entirely dedicated to demystification it must confront the
truncated diversity of liberal pluralism, and perhaps the curious
novelty of 'legal' pluralism as well, as a specific articulation
of power manifesting its will to truth. This is not to say that
vigorous elucidation and denunciation of the contradiction inherent
in an ideology that triumphantly displays pluralism as its truth
beyond Truth is either mistaken or pointless. On the contrary,
it is to suggest that critical jurisprudence approach law as
a positive production of power/knowledge whose claim to truth
survives in spite of its incapacity to ground itself in either
a valid empiricism, a rigorous logic, an audible ethics, or
a privileged proximity to the virtue of an irreducible sovereignty.
|
