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

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.













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