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.
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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?
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