rule of law and Foucault

If the rule of law is meant to protect us against arbitrary power – i.e. the rule of law and not certain individuals or groups – then what becomes the rule of law if one understands power in Foucauldian terms?

Foucault suggests the existing legal system that purports uphold the rule of law while at the same time acting as a mechanism for state control over that individual. In light of this, it can be proposed that Foucault’s view of the legal system is a negative one as a negative utopia. After all Foucault sees the legal system as a way of legitimating state control over its citizens or as Litowitz terms it “a form of domination and a smoke screen for non juridical modes of domination.” The arbitrary power comes from the sovereign government where disciplinary power arises to control the state.

Foucault believes that the juridical notion of commanding power can be traced to the monarchies of the 17th and 18th centuries where sovereign power was equated to the rule of law. For Foucault, this still exists and will continue as long as power stays with the monarchy because as Foucault states “we have still not cut off the head of the kind”.

Foucault argues that governments exploit and repress people, while pretending to be just and fair however it is more complex than identifying who are the oppressors and who are they oppressed. Power was not a thing that was held, or be seized up on, by groups or individuals; it belonged to no-one. It cannot be seized because it is dynamic that is to say it circulates throughout culture constantly moving from one position to the next. Power is more effectively exercised by hidden coercion’s but he felt power was not only repressive but also positive.

Sovereign Power and the Rule of Law

Foucault sees power as productive not merely negative and views the idea of “law equaling rules plus sanction” as the problem. He believes that this juridical notion of commanding power can be traced back to the monarchies of the 17th and 18th centuries where sovereign power was equated to the rule of law. The equation he argues still exists and will continue to do so as long as power stays with the monarchy because as Foucault states “we have still not cut off the head of the king.” This comment illustrates the way in which Foucault claims that jurisprudence has not moved beyond its classical conception of power as between the state and the individual.

Foucault claims that it is “characteristic of our Western societies that the language of power is law. “ In saying so Foucault is in effect equating power and law in societies such as our own. He goes on to say that the truth of law is inscribed in its ability to impose violence with domination taking place through imposed rituals. It is therefore the law’s use of violence, which creates such power and enables domination. Law Foucault argues is not the truth of power but a dangerous and problematic manifestation of power”.

A key theme of Foucault’s work is the opposition between law as sovereign power and disciplinary power, being completely incompatible. Foucault sees law and the sovereign as inseparable. The law is a command of a political sovereignty which presents itself as the sovereign’s prohibitory command to an obedient subject backed ultimately by the sword.

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By the beginning with the classical age, which he argues was characterized by law, sovereignty and monarchy, Foucault highlights a historical reversal that has taken place where trials were secret and punishment was public. This is opposed to the modern age where trials are public and punishment is secret. Foucault sees this reversal as a shift from a system of justice that expresses itself in the public spectacle of public execution to one that brings together punishment with confinement. In the classical age, law justified the sovereign both to himself and to his subjects as it represented his will. Therefore the magnitude and strength of the rule of law had to be publicly displayed so that the sovereign could be viewed as awesome. In this criminal justice system, this act of violence was a symbolic illustration of the sovereign’s power which reasserted the power and integrity of the law. Such a presentation of great power had to be illustrated time and time again as the sovereign’s power was challenged and had to be reasserted.

However, as the 19th century approached there was a shift from the degree of punishment as to a punishment to fit the crime. The result of this process was the model which we now have, that of confinement isolation and normalization which is the rise of the role of disciplines.

The main characteristics of the classical age revolves around the integration of law and sovereignty, being “the monarchist system’s mode of production.” Law and sovereignty encompassed the juridical monarchy but that law and sovereignty have remained central to our understanding of the modern forms of state power despite the passing of monarchical rule. The problem then is that we are still using pre modern notions of sovereignty to understand a modern regime of power relations. Our concern according to Foucault shouldn’t be with repressive laws typical of the classical age, but with the way in which individuals today are turned into subjects by productive laws and regulations. It is then vital to examine the disciplines, as they are central to the way in which power is exercised today.

Disciplinary Power and the Rule of Law

Whereas sovereign power is viewed by Foucault as negative, extractive and destructive, disciplinary power by contrast employs surveillance and organization to increase productivity, characterized by everyday mechanisms. Disciplinary methods became general formulas of domination, being implemented in the institutions using observation, normalizing judgment and examination.

Foucault provides a clear example of disciplinary practices in a prison environment, and explains this being spread throughout society into schools, hospitals, factories, courts and various other spaces. These disciplinary practiced do not just locate the normal form of behaviour, but also act as a positive force of knowledge. A clue to just how vast disciplinary practices are in the Modern Age is the disappearance of the outlaw, which is now taken up with the deviant. The mechanisms achieve “the docile body” that allow for the coding of the individual of any given knowledge. There is no way to get “outside” the law, but one remains in a deviant form that is located within the disciplinary space. There is no escaping the mechanisms of power throughout society, as mechanisms of power-knowledge will continue to flourish in many different transformations. However, by not mistaking these transformations as necessary for “progress” and getting the mechanism to operation in your favour, one can achieve real progress.

Foucault regards the disciplines as a characteristic of modern power. Discipline and law can be seen as dual yet opposing process acting as counter laws, where surveillance acts as the essence of disciplinary power. For Foucault, law is critically tied to the disciplines and the process of normalization, allowing the disciplines to operate. The legal system has experienced a progression from a pre modern system based on coercive law to a modern system governed by disciplinary normalization. The disciplines are more intrusive than the pre modern repressive system, allowing a subject to be controlled without the force of sovereign by subjecting the person to normalizing modes of regulation, shaping the person in a way which the law is unable to.

Foucault believes that in many ways law acts in opposition of the disciplines. It is Foucault’s conception of law as command, which leads him to see it as counter posing discipline. According to his theory the two are totally incompatible yet also mutually dependent. He believes that the law is not being replaced by the disciplinary system, however the disciplinary system is now brought about in the form of laws and regulations. In effect the law is becoming more regulatory, administrative and disciplinary while the disciplines are becoming more legalized. In creating so many technologies that are foreign to law, society begins to fear the effects of those technologies and attempts to recode them in law. Foucault views this as a paradox, which only enforces the already emphasized rise of regulation and the disciplines.

The main difference between sovereign power and modern disciplinary power is the difference between power that operates via institutions and power that operates via disciplinary techniques. According to Foucault, power operating via modern disciplinary techniques is more penetrating than earlier forms of power. The tactics and techniques of modern power operate to discipline people through their social practices and not just through their beliefs.

Conclusion

Foucault predicts that the role of law will begin to operate more and more as a norm in the future, function through various forms of regulation. By doing so, Foucault suggests that it is now fair to view modern society as a disciplinary society shifting from being repressive to regulative and normative.

It is evident that in Australian law, there is much legislation, rules and regulations that act as surveillance on the actions of individuals in society. Legislation is constantly being amended and added due to the dynamic nature of society in order to discipline and place active controls.

Foucault’s impressions of law are illustrated by the various themes of power, sovereignty and disciplines where he rejects the rule of law as significant in modern society. He does so because of its strong link with the sovereign and incompatibility with the disciplines. Foucault views the legal system as a negative utopia. He claims it is nothing more than a tool employed to enforce domination and legitimize state control.

References

Litowitz, D. "Foucault on Law: Modernity as a Negative Utopia", Vol. 21(1996) Queens Law Journal
Hunt, A. and Wickham, G. Foucault and the Law: Towards a Sociology of Law and Governance, London, Pluto Press, 1994
Dreyfus, H.L. and Rainbow, P. Michel Foucault: Beyond Structuralism and Hermeneutics, 2nd Edition., Chicago, University of Chicago Press, 1982
Baxter, H. "Bringing Foucault into Law and Law into Foucault", Vol.48 (1996) Stanford Law Review
Foucault, M. “Discipline and Punish”, Harmondsworth, 1997
McNay, L. Foucault: A Critical Introduction, New York, Continuum, 1994

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