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

I. (b) Realism, Formalism, Normativity

The question is whether we should continue to regard realism as the antithesis of formalism; as marking the moment of a shift in consciousness or a singular strategy undermining a particular mode of intellectual domination. This question is not posed as a prelude to historical investigations resulting in a more precise account of either formalism or realism, or a contextualization suggesting only a relative independence. What is at stake is not a mythology of abandonment and substitution, nor a more precise and elaborate articulation of theories of process for which some modest synthetic claim might be made. The question is posed upon the hypothesis that realism was the salvation of formalism rather than its contradiction, a supplementation rather than an antithesis, a support rather than an erosion.

Realism as antithesis is a product of the attributed deficiencies of formalism: the predominance of part to whole relations, the elaboration of conceptual structures and hierarchies, and its preoccupation with universals are alien to a world of variety and difference characteristic of shifting alignments and arrangements, the ebb and flow of events and the tendency of human behavior to be both episodic and differentially constrained. The contribution of realism may not lie, however in correcting deficiencies, filling gaps or otherwise being what formalism was not, but in its relation to what formalism affirmed and supported. Formalism demonstrated that it was possible to retain the notion of authority and its transgression at the center of law severed from monarchy, cleansed of an archaic natural reason and forever holding at bay a sensate empiricism which threatened to introduce a Lutheran revolution into the heart of secular political society. At the core of law was authority and its transgression supported by reason and its truth.

It is here that realism as the universal sign of unreason supposedly takes hold and establishes its revolutionary claim that the truth of reason is merely the power of authority, and that from the perspective of its functioning formalism is neither reasonable nor true. Hence the double thrust of its behaviorism: as an undermining of the truth of reason, and as an elucidation of the buried but nonetheless articulable alternative order which will provide the foundation for reform.

In order to set aside this claim it is necessary to call into question the tightly woven 19th century unity formed around positivism, legal science and formalism: formalism understood as the legal science of sovereign authority expressed in positive law. Must we assume that formalism exhausts the possibilities for a legal science even though, for example, the psychology of William James effected no closure on a science of the mind? If, in spite of the enormity of the ruptures they introduced, Einstein and Keynes may be nevertheless situated within a scientific continuity why must realism mark the death of legal science; and what may be said of its affect on positivism - the third figure of the indisoluable trinity?

Formalism, in the 19th century, could stand alongside certain other sciences as the unification of a multitude of singularities and aggregations. As the science of sexuality concerned itself with individual bodies and populations, as economics reconciled individual self interest with growth and utility, as medicine understood physiology through pathology, so formalism could lay claim to being that science of law situating all particularities within a generalized conceptual schema. Perhaps more importantly, this legal science preserved sovereign authority according to the model of monarchy. No matter that the source of law was legislative; no matter that through the insertion of an encompassing representation the subjects and objects of law became merely two indistinguishable points of an endless circularity. This legal science confirmed the timeless truth of law as authority and transgression. Whatever affect representational democracy may have on politics, the truth of law was heirarchial authority. Science, tradition and order were the three virtues of formalism.

In the 19th century sense, however, formalism was bad science. While the other human sciences were studying behavior in order to produce a norm in relation to which deviance could be defined, punished, controlled or cured, formalism merely articulated the demands of sovereignty according to a monarchial model of authority and transgression. Should we be surprised that realism, from the moment of its delayed inception, specified normativity and deviance as its central problematic? If a theory of general utility could be constructed around the norm of individual self interest, if a theory of language could be built upon the foundation of discoursive practices, should we be surprised that realism insisted that legal rules be reformed to reflect the normal behavior of legal subjects?

The fundamental error of our perception has been to regard formalism as legal science appropriately situated with the other human sciences of the 19th century - as though in obedience to some principle of even development in the movement of history. Proceeding from this assumption we needed to explain its singular failure to survive the 20th century. To be sure, the other human - and natural - sciences experienced dramatic shifts and reformulations, but all have deepened, spread and solidified their claims to science. None, save law, abandoned it. As a consequence of this fundamental error, we have come to accept two propositions: that 19th century formalism was not a science regardless of how sincerely the belief may have been held by those who practiced it; that realism put an end, perhaps finally, to the very possibility of a legal science. At the moment there seems little point in arguing whether formalism was a bad science or none at all. The second proposition is much more significant because it fails to appreciate realism's positive contribution to the formalist program. Rather than being its antagonist, realism deepened and intensified the scientific program initiated by formalism. The success of this extention may be attributed to an absolute penetration by normativity and the displacement of truth.


Normativity is homeostatic and basically Aristotelian in the sense of requiring that institutions and rules recognize or produce clusters of events, practices or responses which maintain a flow, produce an incremental increase or retard a deterioration. It is equally useful in the construction of a commercial code, determining the proper role of adjudication, or adapting and modifying rules of civil liability. Normativity expresses no preference respecting that hoary question whether law should direct or reflect, and it provides no absolute determination of validity or virtue because its prime function is to control a discoursive practice: whether, for example, judicial intervention should be minimal or intrusive generates a discourse which locates regular functioning at its core. The norm never determines consequences because within any situation one may identify a multiplicity of critical points of regularity to which priorities may be assigned. But it is a mistake to conclude from this indeterminacy that normativity is unscientific where, by contrast, the inability to prioritize personality does not eliminate scientific psychology. It is also a mistake to assume that normal functioning establishes a privilege for any particular sort of empirical data. For example, no violence is done to normativity by rejecting negative evidence of the harmful effects of pornography or the deterrent effect of capital punishment in favor of ethical beliefs or moral opinions since the choice is simply between alternative modes of regularity.

The production of regularities provides the basis for a recognized normativity with reference to which deviance may be arranged. Though it may appear novel, modern and scientific, normativity can be situated within an 18th century tradition that identifies virtue with the elaboration of a middle position between a chaotic democratic dispersion? on the one handy and totalitarian centralization on the other; with a rejection of absolutism in favor of the truth of moderation; with balancing as norm and necessity.

The truth of the norm is displaced from its substance to normativity as such. The displacement of truth is produced by the asymmetrical relation between data and its meaning. The results of an election or the number of divorces granted each year can be determined precisely while simultaneously generating an indefinite series of meaning statements. Deviance does not find its truth in the norm, nor the norm in the deviance it extrudes. By an upward displacement truth is located in the norm-deviant relation itself as an epistemological universal. Hence the privilege of method within scientific discourse.

Where classical law found its truth in sovereign authority, scientific legality refers its validity to relations of normativity. Realism distributed its science around the norm, and so it appeared as a radical break with formalism. But the rupture had already occurred and was elsewhere - in the demise of sovereign authority in favor of a disciplinary science engaged in the production of normativity. Formalism bears the same relation to realism as 18th century psychiatry bears to modern psychology.

In 1842 Joseph Story offered an account of judicial decisions that simultaneously bowed in the direction of a decadent sovereignty (state judicial decisions were not law for purposes of the Rules of Decision Act) and embraced the regularity of commercial practice as reflected in decisions of tribunals concerned with commercial matters as the voice of an imperious normativity. On the one hand, 'written' law produced by the classical agencies of political representation; on the other hand, a legal 'speech' produced by the countless voices of commercial actors engaged in the regularity of a universal practice. Law and norm were thus articulated upon the legal division of labor (separation of powers) as a highly problematic jurisprudence. In 1928 Holmes sought to eliminate this ambiguity by returning all of law to a sovereignty speaking with a single voice. He had, perhaps, forgotten his own observation that the life of the law was experience: the confrontation of human actors with the endless parade of unique events. Did Holmes consider by what magic experience as an infinite multiplicity of events could become Experience the congealed singularity of meaning? Surely he did not return, in thought, to that time and those places wherein experience was transparent to its community, But if experience was not a vibrant and immediate presence how was it to be known? Would we not need investigators to gather and select, arrange and classify; to perhaps stimulate, interrogate and otherwise force experience to disclose its dimensions and meaning? The return for this herculean effort would surely be the transformation of an absolute diversity of events into a regularity of practices, choices, concessions and risks which offered themselves up as a finite and durable norm. The life of the law was not logic but normativity. Joseph Story was mistaken because when the norm is articulated upon sovereignty the distinction is unnecessary, and ultimately impossible.

In the writing of the history of its failure realism discovers its moment of absolute triumph, its point of maximum penetration. Through a detailed accounting of inevitable organizational stresses, inherent structural limitations, the interplay of personalities saturated with strengths, deficiencies and neuroses, the failure of realism may be celebrated in its absolute banality. What may be expected of institutions and the human relations which constitute and transect them? Realism's commitment to normativity and its truth determines the historical account of its decline and demise: a certain level of conflict among realist scholars is normal; some degree of personal inadequacy (deviance) is also normal; unexpected events (deviance) intrude, but they always do. The history of realism according to norm and deviation is its truth - not the violence it did to formalism, or the political virtue of its reformist tendencies, or its ability to carry the future, or its methodological precision. The truth of realism, folded back on itself, is that its historical being was normal.













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