Of late I have been – rather slowly it has to be said – making my way through Giorgio Agamben’s Homo Sacer[1]. Whilst I’m sure this is hardly interesting news to most people (as likely you won’t care or have already read it), I thought I might as well occasionally blog my thoughts on the book. I found the following argument rather interesting:
One of the most persistent features of Foucault’s work is its decisive abandonment of the traditional approach to the problem of power, which is based on juridico-institutional models (the definition of sovereignty, the theory of the State), in favour of an unprejudiced analysis of the concrete ways in which power penetrates subjects’ very bodies and forms of life ... Foucault seemed to orient this analysis according to two distinct directives for research: on the one hand, the study of political techniques (such as the science of the police) with which the State assumes and integrates the care of natural life of individuals into its very center; and on the other hand, the examination of technologies of the self by which processes of subjectivization bring the individual to bind himself to his own identity and consciousness and, at the same time, to an external power ... Clearly these two lines ... intersect in many points and refer back to a common center ... Yet the point at which these two faces of power converge remains strangely unclear in Foucault’s work ... If Foucault contests the traditional approach to the problem of power, which is exclusively based on juridical models ... or on institutional models ... and if he calls for a “liberation from the theoretical privilege of sovereignty” in order to construct an analytic of power that would not take law as its model and code then where, in the body of power, is the zone of indistinction (or, at least, the point of intersection) at which techniques of totalizing procedures converge? ... [W]hat is the point at which the voluntary servitude of individuals comes into contact with objective power? ... Confronted with phenomena such as the power of the society of the spectacle that is everywhere transforming the political realm today, is it legitimate or even possible to hold subjective technologies and political techniques apart?[2]
As I say, I find this position to be quite interesting, and on some levels it reflects how I have felt when I engaged with Foucault’s work (I should add that this has been a very limited engagement, a situation I hope to remedy sometime). For me, what is particularly interesting is the notion that ‘the traditional approach to the problem of power’ was based ‘exclusively on juridical ... or ... institutional models’ and took ‘law as its mode and code’. Of course, I should firstly note that Agamben may not accurately represent Foucault’s views, I am inclined to think that he gets to the gist of what Foucault (sometimes) says quite well, but am ready to be corrected otherwise.
With this in mind there are a few ways in which this interests me. Firstly, one ought to point out the slippery notion of the idea of the notion of a ‘traditional’ mode of analysis. Designating something as traditional is a rhetoric flourish which tends to mark one out as ‘radical’ and reduces complex theoretical positions to some single ‘idea’. I say this because orthodox/mainstream accounts of power clearly have recognised the importance of informal/non-state power. Sure, there is a tradition (that one might designate ‘libertarian’) whose sole purpose seems to ideologically obfuscate the fact that non-state actors can wield tremendous amounts of power, but I don’t think we can just call these people ‘traditional’ and be done with it.
This is more important when we take into account critical theorists. Whilst obviously not ‘mainstream’ such positions were nonetheless often accused by Foucault of being too fixated on state power (particularly Marxists). This always struck me as incredibly counter-intuitive, seeing as how for traditional Marxists political power was subordinate too or at least produced (dialectically) by economic power. But this isn’t what really interests me, instead we need to examine the vision of ‘law’ that is put forward in this type of analysis. Here law is seen as inextricably linked to the state – as a kind of directive vertically addressed from the state to the citizen – hence its linkage with ‘objective power’. This view – that of law as sovereign command – does have a certain lineage, one can find it in some of the older legal positivists, but by and large it has been rejected by orthodox legal theory. Thus, there is the classical argument by Hart, that this sort of position has real difficulty in explaining whole swathes of civil law – contracts, marriages etc. – whereby the law isn’t a projection of state power so much as a mode by which individuals are able to form relationships. Here the state may craft the outlines of some rules (although this again is by no means certain) and judges will step in, but only in the last instance. The same can be said of human rights. Here what we have rights that individuals have which can be asserted against individuals or against the state. Whilst one might attempt to characterise human rights as the state commanding itself/others to behave in a certain way, this seems to miss the point. Human rights are characterised by their active assertion by the rights-holders or those representing them. Finally, of course, there is the matter of international law (my own personal obsession) here of course there is no body with the monopoly on legitimate violence that characterises the ‘traditional’ vision of the state.
This is the typical argument of a ‘Pashukanite’. Law can’t just be conceived as the ‘norm’ directed from state power, as this fails to encompass many of the relationships we currently consider to be legal. Furthermore, the state addresses its subjects through numerous commands and directives which we might not characterise as law. The next step of course is to argue that ‘law’ cannot be considered from content, function etc., as other things have similar contents, functions etc. – we have to move to seeing law as a social relationship or a social form. Pashukanis sees the legal form as one in which individuals are posited as formally equal, abstract units and regulated as such.
This gives us two immediate considerations to think about. Firstly, as Pashukanis notes, the growth of law can be characterised as ‘the disintegration of organic patriarchal relations and their replacement by legal relations, that is to say relations between formally equal subjects’[3]. If we wanted to put this in good old Foucauldian terms, we might say that for Pashukanis the process of ‘juridicalisation’ goes on concomitantly with – and perhaps even drives – the process of individuation. This, of course, somewhat problematises the law/discipline (etc.) distinction, precisely because Pashukanis sees that individuation (and ultimately the production of selves) is at least partly a legal process. Richard Kinsey, in what I consider to be one the best works in Marxist legal theory, put it this way (emphasis mine):
What is important here however is not so much the invisibility of the legal relation but its possibility. That is, the possibility of the concretisation in legal relations of all social relations of commodity production and exchange, a possibility which is essential and specific to the commodity structure of the capitalist mode of production. It is this potential for the extension of legal relations to include and define all social relations which marks the full and mature development of law in the bourgeois epoch and displays the inherently bourgeois character of law as a lived relations, as a definition of subjectivity.[4]
Linked to this of course is the reach of legal power. Foucault is often said to have contrasted micro-power and macro-power, with law largely confined to the latter category. But I would argue against this. Firstly, in the sense – as above – that the legal form is an important driving force in the constitution of individual subjectivity, but secondly because once you correctly understand law as a form of social regulation then we can see how law is constantly involved in the micro-politics of everyday life. So – and this is the usual law school spiel – there is the obvious contractual stuff – with the obvious example of sale and the crucial example of the alienation of labour-power. But there is also anti-discrimination legislation, health and safety laws, working time regulations etc. There is a plethora of labour law and human rights law that is clearly a part of the texture of micro-politics.
And this bring me nicely onto another point about law. Whilst I have stressed that the law simply cannot be thought of as ‘state power’ it would be rather silly to just remove state power from the equation. Instead law should be understood as a relationship that requires force for its actualisation (although what type of ‘force’ is a point we need to specify) and one through which the bourgeois state typically articulates its demands. This dialectical understanding – law as a relationship of formal equality through which objective violence is articulated in nicely captured by Pashukanis (in one of my favourite quotes of his):
Before us is some sort of strange dual concept; although both aspects are located at different levels, they nevertheless undoubtedly condition each other. Law is simultaneously a form of external authoritative regulation and a form of subjective private autonomy. The basic and essential characteristic of the former is unconditional obligation and external coercion, while freedom is ensured and recognized within definite boundaries. Law appears both as the basis of social organization and as the means for individuals "to be disassociated, yet integrated in society". On the one hand, law completely merges with external authority, and on the other it completely opposes every external authority not recognized by it.[5]
Here Pashukanis seems to be agreeing with Agamben – law cannot be understood as operating on the subjective/objective divide of power. Instead law encompasses – dialectically – both of these processes constituting subjectivities autonomous of the state, whilst also bringing in the objective violence of the state. Recognition of this fact also leads to some particularly interesting examples. Thus, the human rights movement and the labour rights movement have both done good things. They have used the law to try and alleviate the suffering of people. Yet – through using the legal form – they have vastly expanded the acceptable range of state power (this could also be linked with Schmitt’s observation that the welfare state has politicised everything and so vastly expanded the range of the political[6]) and legitimated the idea that power is able to intervene in any sphere of social life and must necessarily monitor it for any violations. This is all brilliantly summed up in Rajagopal’s book International Law From Below[7]. This book is perhaps the most theoretically astute of all of the TWAIL works, brilliantly deploying a number of critical theoretical concepts to interrogate the history of the international human rights movement (although it does suffer slightly from the malaise I outlined earlier this month as regards ‘deep’, ‘explanatory’ theory). In respect of the human rights movement Rajagopal notes a certain schizophrenia towards state power:
While these debates [on the possibility of economic and social rights] are important, they suffer from a common schizophrenia and ambivalence: a deep suspicion of sovereignty and state on the one hand (conflating them in that process), and a total reliance on the moral possibilities of the state on the other. That is, while the human-rights discourse celebrates the retreat of the state, the realization of human rights is predicated on the expansion of the state.[8]
Fredric Megret (in a review) puts it rather more starkly in relation to international criminal law:
None of the authors reviewed pays much attention to or seems much perturbed by the paradox that the apex of the human rights movement comes in the form of a tribunal that is not a human rights tribunal properly so-called; nor has there been much notice of the historical irony that the international human rights movement, which started among other things as a challenge of the state’s penal excesses, should end up legitimizing a huge system of criminal repression.[9]
One can only really understand this process through the characterisation of law roughly outlined above – through moving away from the vulgar-positivist concept of law (and I do mean the vulgar view, as opposed to the more sophisticated positivism of today) and towards the conception of law outlined above. I often wonder why it is that Foucault and those he influenced (I think Poulantzas suffers from a similar problem) fail to do this. Sometimes I think it may be down to the fact that they operated in continental legal systems, which are usually portrayed as simple lists of rules emanating from the state.
I think I’ve rambled on long enough (though wonderfully this has made me read a few things for information that I hadn’t touched in a few months and they’re fairly awesome), later on in the week I have a few more Agamben ideas that I want to work through.
[1] 1998, Stanford University Press
[2] Ibid., p.6
[3] “Preface to the Second Russian Edition” in Law and Marxism: A General Theory, (1978) Inklinks
[4] Richard Kinsey, “Marxism and Law: Preliminary Analyses” (1978) 5 British Journal of Law and Society 202, at p.218
[6] Concept of the Political, (1996) Chicago University Press, p.22
[7] 2005, Cambridge University Press
[8]Ibid., p.189
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