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.)
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[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. |
