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. (a) Law, Norm, Rights

Law and norm describe a specific historical shift as well as a structural arrangement. Law is the enunciation of sovereignty; it is dramatic, proscriptive, distanced and pre-emptive, The model is a top down flow based on the Word; it is Hebraic before it is Christian-monarchial. Law is the Word of absolute right, so it is of no consequence that sovereignty comes to be exercised by the state rather than by God or King. Law is a creation of sovereignty acting as such. The ordinary sociological understanding of law as a type of norm should be set aside because in this discussion Law is to be understood in a relation of difference and discontinuity with normativity.

The norm is produced by populations in the regularity of their functioning. It is a statistical/moral notion, and for that reason the production of the norm by populations is not to be taken as an immediate production. That is, this production of normativity is mediated by institutions of the state and elite specialists. Normativity is the substance of expertise, and it is produced by experts acting upon populations: examining, interrogating, incarcerating, curing, punishing, passifying, exciting and regimenting. Consequently, disease and delinquency are to be understood as deviations or irregularities of functioning rather than violations of an injunction or transgressions of a Law.

In principle, expertise cannot precede the norm since normativity is constitutive of expertise; but it is also true that the norm cannot precede an expertise upon whose mediation it depends for its creation. This is why Foucault is interested in that which makes a given practice possible; the conditions for its emergence. Ordinary history, one might say, elided this "chicken/egg" problem by the privilege it granted to discovery or initiation - generally known as the great man theory; the history of knowledge written as a succession of unique discoveries or singular contributions. Foucault rejects this procedure. In the history of madness, for example, the question is what conditions made the medicalization of madness possible. Before the end of the 18th Century madness could be enclosed within the law of reason as religious transgression, moral infraction or physical degeneration. After the 18th century madness becomes a form of behavior inscribed within the fibers of everyday life, articulated upon relations and events, and having diverse affects upon the body.

Law and norm refer to different structural arrangements. As an enunciation of sovereignty, Law inevitably proceeds in a downward flow from apex to base; its problem is penetration, dispersion and distribution in the downward movement, and loyalty, organization and concentration in the upward movement. Law is thus inevitably linked with hierarchy and bureaucracy. The movement of the norm is more complex and ambiguous. it originates at multiple points of application, around localized relations of power: the education of a child, the treatment of a disease, the imposition of punishment, the mode of satisfaction in an economy of desire. In each instance there is a macro concern that corresponds to various localized articulations: the training necessary for a general moral and political rectitude, the health of populations, the efficiency of punishment and its force for a general deterrence, the movement of wealth or the relations of production. The relation between localized points of application and the concern with populations is both necessary and discontinuous: necessary in the sense of supplying a general or statistical mode of validity or verification supporting the domination of professional expertise in the individual case, but discontinuous in the sense that the one is neither the generalization of the other nor its deduction. Consequently, the discovery of critical linkages is of great importance as a matter of intellectual history. But these linkages, intersections or strategic alignments are even more significant from the perspective of social control. Through a process of domestic imperialism state agencies seize these local relations of power, bring together their multiple strands, and redeploy them as mechanisms of state power. A physical or mental abnormality within the family group, or a learning deficiency, may be submitted to a regime of cure accepted as legitimate by agencies of state power out of a concern with the well being of the population as a whole. Thus the domination of the norm according to three critical modalities:

1. As a diagnostics. The inscription of delinquency and deviation in spaces otherwise occupied by simple difference? followed by an internalization sufficiently intense to make these judgments appear as original, organizing elements in the formation of local power relations. (Johnny broke all of the family dishes; he must have a serious emotional problem; perhaps he is disturbed; he should not be punished by the family for his behavior.)

2. As a principle of therapeudic management, The human hierarchies we refer to as institutions accept normativity both as an epistemological first principle, that is, as a substantive truth (Most people enjoy television, need life insurance, fear certain drugs, read package labels ....and as a formal principle specifying the regularities required for the efficient performance of the institution. Chains of command, relatively precise role definitions, stable hours of work and play, clear understandings of social possibilities in the presence of economic and class differences--these are all examples of the penetration of normativity within the functioning of institutions. From their birth, that is, from the late 18th century forward, the institutions created to cure or otherwise manage individuals whose presence was based on a certain substantive deviation, found the most efficient measure of therapeudic progress in the ability of delinquents to adapt their behavior to the modes of institutional regularity required by efficient management. The truth of delinquency was thus verified by an 'independent' necessity.

3. As a production of truth. Since there is no longer any possibility of grounding power in the access of officials to an arcane source of authority or virtue, the state must rely upon normal values? or upon information gathered according to principles of relevance drawn from normal values and arranged according to procedures supplied by the statistical sciences (by no means limited to the social sciences). Normativity, inscribed with every requirement that behavior be 'reasonable'- regardless of regulatory context - appears as the truth of reason. Where Law found its truth in a transcendental sovereignty, the truth of the norm lies in its immanence, a pure functioning within social relations articulated in the space of a civil society originally uncontaminated by state power, (This is, perhaps, what Unger meant when he said that secularized transcendence leads into immanence.)

[Foucault's theory of the norm draws a distinction similar to that between Aristotelian and Galelian science: the former grounded in a natural repetition, regularity and frequency; the latter issuing abstract propositions produced by the distortions of experimental conditions: laws of nature that are anything but natural; actual but never apparent.]

The question to be posed is whether the movement from Law to norm affected the liberal theory of rights. There should be no mistake that this is fundamentally a political question. If since the 17th century, rights form a system of exclusion constituted by principles of resistance to the Law of the sovereign, a political assessment of rights must produce (1) an analysis according to the model of sovereign legality, and (2) a detailing of the mechanisms according to which rights form an inevitable alliance with the regime of norm/deviation.

(1) Foucault characteristically draws attention to the positive function of rights in relations of power and domination, a corrective to the general tendency to accept modes of suppression, exclusion and silence in the negative form in which they are presented. What is the positive function of rights in maintaining, elaborating and securing a particular regime of power? Foucault suggests that at the least rights serve to bless, rather than damm, with the faint praise of 'no rights violation'. That is, absent a violation of rights there is no possible mode of resistance to power that has a basis in anything other than subjective desire. That which is not prohibited to the state must be permitted. I think it was Bickel who wrote that it does not say much to say a law is constitutional. Foucault's point seems to be contrary: that outside rights understood as a mode of resistancey there is no discourse of legitimate power. Resistance must make its stand according to the system of rights or confess that it simply prefers alternative distributions of the good, Rights constitute an enclave of freedom created by negating a thrust of power, and this power becomes absolute so far as it is able to exceed (negate) this negation. Power that violates no rights is an absolute power.

[The dialectic is very neat, but it is not like Foucault to push logical arguments not somehow drawn from the texture of experience. There is at least one essay which leads me to be tentative about this movement of contradiction and totality in the positive functioning of rights. Foucault's paper on excess, transgression and the limit suggests some severe constraints on the capacity of dialectic to comprehend transgression. While this alternative must be left for another time, the relation of rights to transgression is apparent, so any rethinking of the latter would surely have an impact on the former.]

(2) From the perspective of norm and delinquency it is difficult to imagine rights functioning with their historic negative stringency. The question may be posed very precisely: How may one speak of the normal as excessive? Of regularity as a deviation? Of balance as transgression? And if we follow through this mad interrogation it leads toward a singular universal: that there can be but one 'right', one point of resistance, one moment of exclusion. Regardless of where it appears--in the notation that 34 states reactivated the death penalty after its episodic judicial demise; in the thousands of determinations turning on reasonableness, convenience, necessity, efficiency, danger or risk; in every historical reconstruction shrunk in the wash of legal relevance; in every identification of a legitimate interest - the norm is opposed by nothing save that which it extrudes. Abnormality, deviation, unreason, disease, neurosis, delinquency must all join in the search for a discourse which can resist power in the name of difference. But this is difference robbed of the nobility and grandeur that would allow it to be easily inserted within the great individualist tradition. This is not a difference grounded in the image of a singular resistance to the oppression of power postulated as an excess, a deviation, abnormal. Rather, this difference bears on its surface the image of anarchy always suppressed by the individualist thematic; and perhaps one sees the shadow of the noble savage.

Power as norm is immune to the charge of excess provided this immunity is understood in terms of an alliance with rights. To the extent there is a normal speech, a reasonable use of land, a legitimate expectation of privacy, a notion of usual punishment or of ordinary procedure - to that extent rights articulate the norm and specify excessive power as a deviation. Since doctrinal specifications of rights all express normative states power engages rights in a complimentary, not oppositional, discourse. Power may not defeat legitimate (normal) expectations, or ignore reasonable (normal) claims, or suppress protected (normal) activities. Reciprocally, power may not be defeated by unusual, deviant, illegitimate, subjective or unreasonable demands made in the name of rights. Thus: power ---- norm ---- rights.

[There is plainly some relationship between the instrumentalist thesis which seeks to understand certain early 19th century legal arguments as marking a shift from abstract imperatives of the moral sort to concrete social goals of the economic and political sort, and the notion of rights as affected by the shift from Law to norm. In the case of riparian rights, for example, a claim of right under the Law of the sovereign may not be ultimately persuasive when attention is directed toward formulating and maintaining a system of normalized usage which will alter everyone’s expectations (rights) in the long run. The period might be of special interest because the tension between law and norm is both general and specific.]

This alliance of power and right in the elaboration of normativity has two principle consequences. First, whatever may be said of Foucault’s suggestion that the positive function of rights against the Law of the sovereign was to render absolute all power that was not a violation, a much better case for the complicity of rights in the domination of power can be made where both are needed to fully elaborate the normal. Therefore, it is literally nonsense to speak of a right to be different. Difference is the great Other of the alliance of rights and power in the production of the norm. Second, to the extent difference is the great Other of the alliance of power and right (norm) it is difficult to avoid the political question of anarchy. More specifically, whether a theory of difference might bind itself to liberal pluralism--understood as the rational kernel of bourgeous democracy.













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