Between Governance and Discipline-The Law and Michel Foucault(1)

http://www.jstor.org Between Governance and Discipline: The Law and Michel Foucault Author(s): Victor Tadros Source: Oxford Journal of Legal Studies, Vol. 18, No. 1, (Spring, 1998), pp. 75-103 Published by: Oxford University Press Stable URL: http://www.jstor.org/stable/764723 Accessed: 13/08/2008 03:03 Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at http://www.jstor.org/action/showPublisher?publisherCode=oup. Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission. JSTOR is a not-for-profit organization founded in 1995 to build trusted digital archives for scholarship. We work with the scholarly community to preserve their work and the materials they rely upon, and to build a common research platform that promotes the discovery and use of these resources. For more information about JSTOR, please contact support@jstor.org. Between Governance and Discipline: The Law and Michel Foucault* VICTOR TADROSt Abstract-This article attempts to re-establish the importance of Foucault's work for an understanding of the way in which modem law operates. This argument has two stages. Firstly, there is a critique of the interpretation of Foucault's work by legal and sociological thinkers. It is argued that by reading the term 'juridical' as synonymous with the term 'law' in Foucault, people miss the substance of Foucault's argument. The term juridical describes an arrangement and a representation of power rather than the law. This is made clear through a critique of J. S. Mill's On Liberty which is shown to make a juridical distinction between power and a free space of action which is unsustainable. Secondly, Foucault's genealogy of power relations is recast from the perspective of a legal theoretician. Foucault's history of power relations is constructed from historical differences in the mode of operation of power and discourse. By analysing these differences and their relationship to the mode of operation of law, an account of the place of modem law in Foucault's genealogy is established. Modem law operates between Foucault's concepts of government and discipline. It provides a key way in which government decisions can adjust the relationships between disciplinary institutions. This introduces the idea that law begins to operate in the perspective of the complete lives of individuals rather than just to prevent certain actions. Law, then, operates in accordance with what Foucault calls 'bio-power'. 1. Introduction A number of scholars whose approach is within the Critical Legal Studies movement have recently expressed scepticism about Michel Foucault's under- standing of law. In turn, in this article, I would like to express scepticism about their understanding of Foucault's work in general and in particular his argument about the decline of the juridical matrix of power. In the first part of the article I would like to show some of the inadequacies of recent jurisprudential scholarship on Foucault. Briefly there are two different claims which have been raised against Foucault's understanding of law. The first is developed by Hunt and Wickham in their book Foucault and the Law' and is shared by Peter Fitzpatrick. They * Many thanks go to Costas Douzinas, GuntherTeubner, Kenneth Campbell, John Gardner and Adam Tpmkins for their instructive comments on an earlier draft of this paper. t School of Law, King's College London. Foucault and tic Law: Towards a Sociology of Law as Gozveeance (London: Pluto Press, 1994). Hereafter referred to as Hunt and Wickham (1994). Oxford Journal of Legal Studies argue that in contrasting 'juridical power' and 'disciplinary power' he reduces the law to simple formulae which do not adequately describe its nature in the modem world. In this reading 'juridical power' is equated with 'legal power', an equation which I would resist. The second criticism of Foucault, which is slightly more sophisticated, is argued for by Boaventura de Sousa Santos in his book Toward a New Common Sense.2 He suggests that although Foucault is correct in highlighting the role which disciplinary power has played in modem society, he underestimates the extent to which disciplinary power is intertwined with juridical power. Again Santos equates 'juridical power' with 'legal power'. In failing to appreciate the contrast which Foucault makes between disciplinary power and the juridical matrix I would argue that the potential of Foucault's work to position modem law3 is lost. Both Hunt and Wickham and Santos attempt to find in Foucault's work an answer to the question 'what are the minimum conditions for a statement or system of statements to be considered as law?'. By concentrating on this kind of question both the originality of Foucault's approach and the challenge which such an approach provides are lost. Foucault's genealogical method analyses the political structures of power relations in different periods, bringing out their particularity through the historical changes that take place. In line with this, it is the differences between the modes of operation of law that characterize a Foucauldian approach rather than what they have in common. That is not to say that one could not find the minimum conditions for a discourse to be considered as law but this is just not Foucault's question. Furthermore, his studies do not rely on any particular answer to this question. For Hunt and Wickham and Santos the term 'juridical' refers directly to law and thus, for them, it is by analysing this term that one could discover the answer to this question. But a careful reading of Foucault shows that it is not his intention to equate the terms 'juridical' and 'law'. The term juridical, as we shall see, refers to the conception of power relations which one might call Austinian. It is neither the case that all law is necessarily 'juridical' in Foucault's understanding of the term nor that the only way in which juridical power manifests itself is legal. What is at stake in the different interpretations of the term 'juridical'? Once this term is understood correctly, the position of the law in Foucault's work becomes an open question. This leaves us with two problems which this article is designed to address. Firstly, if it is the case that law, for Foucault, is not necessarily juridical and that the juridical does not always find its expression in law the question remains as to the relationship between this juridical conception of power relations and the law. But secondly, and more importantly, if Hunt and Wickham are mistaken about the relationship between the juridical and the 2 Toward a New Common Sense: Lasz Science and Politics in Paradigmatic Transition (London: Routledge, 1995). hereafter referred to as Santos (1995). 3 Foucault's work, until the end of the 1970s, distinguishes between three periods; the Middle Ages, the Classical Age, and the Modem Age. Roughly, the Middle Ages extends from the twelfth century to the middle of the seventeenth, the Classical Age runs from the middle of the seventeenth until the end of the eighteenth century and the Modem Age begins at the beginning of the nineteenth century. 76 VOL. 18 The Law and Michel Foucault law, a re-evaluation of the relationship between the other mechanisms of power and the law is called for. For Foucault the juridical conception of power relations no longer adequately describes the way in which power predominantly operates in modem society; as Foucault has famously written, 'in political thought and analysis, we still have not cut off the head of the king';4 the ancient conception of power as a possession which is wielded to deny certain forms of action is still in place but it no longer effectively describes the various ways in which power manifests itself. If the law is not necessarily juridical in its operation, and I would argue that in modem society it is not even predominantly juridical in Foucault's sense, then the relationship between the law and the modem forms of power (that is discipline and government) needs to be re-evaluated. The criticism that Foucault reduces law to the Austinian conception of 'rules + sanctions' cannot, then, be levelled at Foucault as, for him, this is the very mode of operation of power which has been superceded. And this supercession has resulted not only in the proliferation of disciplinary power but also in the transformation of law. Whilst jurisprudential scholarship since Hart has not failed to perceive the changing character of law it has failed to situate it historically and politically. That is to say, by considering the analytical question 'what is law?' in isolation, jurisprudential scholarship has not accounted for the historical differences in law's evolution. The rich history of critique which is associated with this philosophy of difference is thus lost to the Anglo-American tradition. By attempting to bring this question of the nature of law back to Foucault, Hunt and Wickham also miss this vital element of Foucault's genealogical method.5 On a more general level, a Foucauldian account of the law should help to show some weaknesses in the liberal position on law. Foucault's work shows that the liberal understanding of power which opposes the areas controlled by social and state power to a space of freedom is inadequate when seen against the background of the multiplicitous operations of power. The liberal conception sees power as operating predominantly on a field of acts. The primary question for liberal theory is 'which acts ought to be permitted and which acts ought to be prohibited? Foucault's account of power relations, however, shows that power is involved in the construction of the lives of individuals and, in modem society at least, is exercised on the field of lives. Power is not only preventative, it is also creative or as Foucault would put it, it is not only deductive, it is also 4 Foucault, 71ec History of Sexuality Vol. 1 (trans Hurley, London: Penguin, 1978) Introduction at 88-9. Hereafter referred to as HoS. 5 Whilst Hunt and Wickham are aware of Foucault's 'anti-subjectivist' view of history, they do not recognize the implications of this position. For Foucault, as for Heidegger, man is thrown into a historical frame which he inherits and which does not evolve according to the intentions of a rational animal that lies outside this evolution and directs it. The paradigm shifts in different historical periods, in Foucault, consist not just of an alteration of the subject, then, but of an alteration of the 'frame' of social phenomena themselves. By showing how the subject is constructed within the social frame, then, Foucault's predominant purpose is not to criticize traditional historical methodology (though this is one implication of his work). His predominant purpose is to provide a critique of modernity through a thorough analysis of the social frame in which the subject is immanent. The juridical conception of power provides one way in which the subject is constructed (as a transgressor) and it is to this that Foucault contrasts 'bio-power' whereby man is not seen predominantly through his transgression but with regard to his 'complete life'. 77 SPRING 1998 Oxford Journal of Legal Studies productive. But this creative or productive form of power does not take the spectacular form of legal or social interdiction. It operates through successive, trivial moments of exercise. Foucault makes this clear by using the concept of discipline. The succession of disciplinary forces, however, results in a dominating form which both constructs the subject and subjects him to subtle forms of control. As a result of Foucault's analysis, liberal theory, which still dominates legal philosophy, seems directed towards an archaic vision of society which was displaced more than 200 years ago. The dominant and dominating form of modem power which is characterized by discipline evades the liberal attack. As the law is complicit in this modem regime of power, the consequences of a Foucauldian account of the relationship between law and power provides a fundamental challenge to liberal jurisprudence. This can be shown most clearly against the background of Foucault's genealogy of power relations. Consequently, in the second part of the paper, I would like to try to re-establish Foucault's schema in order to discover the position of modem law in the continuum of power relations. To do this I will show how the juridical matrix has been replaced by the two poles of bio-power: the disciplinary network and techniques of governance. A brief summary of my argument would be as follows. The juridical conception defines power in relation to a series of acts. It defines which acts transgress and which are permitted. Law is not the only way in which the transgressive threshold is defined nor is it the only way in which it is enforced. As John Stuart Mill, who might be called a typically juridical thinker, makes clear in On Liberty both social power and legal power can define the transgressive threshold. Hence what Foucault calls 'the juridical' is not equivalent to legal power. It describes any form of power which attempts to prevent a certain type of action through the threat of legal or social sanctions. Foucault argues that this is not the predominant way in which power is exercised in the Modem Age. Rather, he suggests, modem power can be described by the term 'bio-power'. Bio-power does not operate in relation to a series of acts but rather in relation to the lives of individuals. Bio-power has two poles; discipline and governmentality. Discipline operates on particular individuals in a particular space. It collects information about an individual and acts according to that information. In the Classical Age it occurs in schools and workshops. In the Modem Age it spreads to families and hospitals and begins to be exercised by marginal religious groups, psychiatrists, psychologists, and social workers. Governmentality, on the other hand, operates on particular groups of individuals. It receives information through statistical analyses, financial reports and popu- lation registers. Its techniques of power are directed to making adjustments in the population and their economic condition. Legislation is one technique which is used to make these adjustments. It works alongside the other governmental devices which, in the eighteenth century, were collected under the name of the police. Once we have developed the mode of formation and operation of these two poles of bio-power we will be in a position to consider the role of modem law. 78 VOL. 18 The Law and Michel Foucault Law, in my understanding operates as a field through which techniques of governance can intervene in the disciplinary network. Law, then, acts as an interface through which governmental decisions can take effect by adjusting the operations and arrangements of the disciplinary mechanisms. But by connecting itself to both of the poles of bio-power law, in justifying itself, it masks the need of each of these forms of power to legitimate themselves. 2. Critique Misses the Target In Foucault and the Law Hunt and Wickham state that Foucault's understanding of law does not take into account the variety of roles which law plays in moder society. Their argument is based on two related claims. The first is that Foucault regards the law as equivalent to rules backed up by power and the second is that he equates the law with sovereignty. Of the former they write; 'the formula "law=rules+sanctions" lies at the heart of the positivist tradition in jur- isprudence. It is thus pertinent that Foucault chooses to direct his fire against this widely held and influential conception of law, but fails to engage with any more sophisticated conceptions which seek to explore the connection between legal regulation, legal rights and constitutionalism' (Hunt and Wickham, 1994: 41). Hence they suggest that Foucault's conception of law falls to the same criticism which H. L. A. Hart famously made of Austin in The Concept of Law. To equate the law with criminal law, they argue, simply excludes too much. If regulation is one of the primary modes of power in modem western society then the law has an important role to play in the exercise of this form of power. In arguing for the latter the authors claim that Foucault equates law with pre- moder forms of power. They suggest that Foucault regards the law as emanating at every instance from sovereignty. They write that 'the strict association which Foucault makes between sovereignty and law is at best unhelpful and at worst simply perverse in denying the self-evident truth of the intimate connection between modem forms of power and legal mechanisms' (Hunt and Wickham, 1994: 62-3). By formulating their argument in this way Hunt and Wickham have made clear a fundamental misunderstanding about Foucault's project as a whole. Foucault, as they themselves suggest, does not have a theory of what law, in all its different manifestations, is. Foucault was anything but a closet positivist. The law, in Foucault's account, operates in a number of different ways and within a number of different relationships of power. Hence Frangois Ewald, who was a close colleague of Foucault, has written that we must 'imagine a history of law that would give meaning and function to the law's varying modes of formal expression'.6 The Law does not operate in the same way and in the same structures over history. And both its role and its formal 6 Ewald, 'Norms, Discipline and Law' in Post (ed.), Law and the Order of Cduure (University of California Press, 1991) at 139. Hereafter referred to as Ewald (1990). 79 SPRING 1998 80 Oxford Journal of Legal Studies VOL. 18 expression are at least partially governed by the predominant ways in which power is exercised. Hunt and Wickham derive their argument about law from a number of statements which Foucault has written concerning 'the juridical'. Hence they quote Foucault from The History of Sexuality Vol. 1 where he writes 'we shall try to rid ourselves of a juridical and negative representation of power, and cease to conceive of it in terms of law, prohibition, liberty and sovereignty' (HoS: 90-1; Hunt and Wickham, 1994: 40). But whilst Foucault is arguing that power must not be understood in terms of the juridical, Hunt and Wickham seem to be suggesting that law must not be understood in terms of juridical power. Whilst they are clearly correct in not seeing law in this way, their argument would seem to have little relation to Foucault's understanding of the juridical. In his essay Norms, Discipline and the Law Ewald has already warned against lawyers equating juridical power and real law itself. We must, he writes, be careful to 'distinguish law and its formal expression from the juridical' (Ewald, 1990: 139). This is what Hunt and Wickham fail to do. In failing to provide an analysis of what Foucault means by 'the juridical', the nature of Foucault's argument is lost. A similar criticism can be levelled at Boaventura de Sousa Santos. Santos argues that whilst disciplinar