Foucault, power and law Flashcards
Traditional approach to power
- power is negative it constrains, restricts, excludes and represses; power is possessed – some people hold it, some don’t
- Foucault’s alternative theory of power
Foucault is one of the few writers on power who recognise that power is not just a negative, coercive or repressive thing that forces us to do things against our wishes, but can also be a necessary, productive and positive force in society.
Power produces reality
Foucault argued over centuries, socieites have changed from feudalism
argued that over centuries, societies have changed from feudalism, to monarchies, to democracies; but our political theories of power have not kept up with those changes. Since we no longer live in monarchies, Foucault argued, we need a more finely tuned theory of power that can help us understand the many different ways power operates when there are no dictators.
Power
We must cease
We must cease to describe the effects of power in negative terms: it ‘excludes’, it ‘represses’, it ‘censors’, it ‘abstracts’, it ‘masks’, it ‘conceals’. In fact power produces; it produces reality; it produces domains of objects and rituals of truth. The individual and the knowledge that may be gained of him belong to this production
Where is power present
- Power is present in all social relations including everyday
Who is foucault
French postmodernist, has been hugely influential in shaping understandings of power, moving away from the analysis of actors who use power to coerce, toward the idea that ‘power is everywhere’, diffused and embodied in discourse, knowledge and ‘regimes of truth’ (Power for Foucault is what makes us what we are
How does foucault’s idea of power differ from previous ideas
- power is diffuse rather than concentrated, embodied and enacted rather than possessed, discursive rather than purely coercive, and constitutes agents rather than being deployed by them’
According to Foucault, where is power
Foucault challenges the idea that power is wielded by people or groups by way of ‘episodic’ or ‘sovereign’ acts of domination or coercion, seeing it instead as dispersed and pervasive. ‘Power is everywhere’ and ‘comes from everywhere’
‘Power is everywhere’ and ‘comes from everywhere’ so in this sense is
- neither an agency nor a structure (Foucault 1998: 63). Instead it is a kind of ‘metapower’ or ‘regime of truth’ that pervades society, and which is in constant flux and negotiation. Foucault uses the term ‘power/knowledge’ to signify that power is constituted through accepted forms of knowledge, scientific understanding and ‘truth
A key point about Foucault’s approach to power is that
it transcends politics and sees power as an everyday, socialised and embodied phenomenon
Foucault is largely influential in
- pointing to the ways that norms can be so embedded as to be beyond our perception – causing us to discipline ourselves without any wilful coercion from others.
Describe disciplinary power
- Foucault (1979) claims that ‘disciplinary power’ is exercised by those more powerful than their subordinates in order to make their subordinates behave in ways in which the ones in power wish them to.
- power structures not only control people’s actions directly, but indirectly whereby people become easier to control to the extent that they discipline themselves to act in line with the wishes of the person or organisation that controls them.
how does disciplinary power work
- we also make sure we follow them, and try to enforce them upon others. We do this because it is expected behaviour, and what is considered to be normal. However, we also do this partly because we feel we are being watched or scrutinised and wish to avoid any potential penalties for not following the rules.
the sovereign mode of power operates in democracies when
authorities (people or laws) try to control other people
Feature of sovereign mode of power
power most obvious in a monarchy, where the king or queen possesses ultimate authority over other people’s lives.
Foucault used the term ‘sovereign’ to refer to this noble mode of power.
it most closely resembles forces of domination and control with which we are familiar.
In democratic societies,
people are subjected to laws and coercive practices (sovereign power)
We control ourselves
Disciplinary power is the kind of power we exercise
Disciplinary power is the kind of power we exercise over ourselves based on our knowledge of how to fit into society. We discipline ourselves on the basis of messages we get from society – knowledge, rewards, and images – of how we are supposed to live. We try to be normal by disciplining ourselves even in the absence of threats of punishment.
Foucault’s analysis tells us that disciplinary power is executed through mechanisms that are different from the mechanisms of sovereign power. For example
sovereign power is exercised through physical punishment and rewards. Disciplinary power, on the other hand, is exercised through surveillance and knowledge.
disciplinary power
One surveillance mechanism is
the gaze. The gaze is symbolized by the panopticon, a prison design that allows a supervisor to watch inmates.
The concept of the gaze is important because it shows that it is not necessary to watch people constantly because people will regulate themselves even when they think they are being watched. The gaze gives people the feeling that they are being watched, and that feeling is a mechanism of our self-discipline.
power makes
social order effective and intelligible
according to Foucault, power can make social order effective and intelligible even when power does not have the characteristics social and political theorists normally attribute to it including
- concentrated in the state or any other unique source of sovereignty such as a dominant class
- not acquried or possessed
- not violence or a form of regulation made effecive through law
- enlisting physical force to subdue the body of individuals
- impose limits on their capacity to perceive and pursue their true interests
What does power create?
power creates the intersection between knowledge and action that is a characteristic of practice
Link between truth and power according to Foucault
power and truth directly imply each other
truth is an effect of power and in turn reproduces power
power and truth traditionally
what does this depend on?
power excludes truth and vice versa
e.g. marxism - false consciousness is generated by capital domination of the working class
depends on power-as-repression
power-as-repression
supresses desire, fosters false consciousness, promotes ignorance i.e. prevents or at least distorts creation of true knowledge
when foucault refers to power he does not mean
power as a group of institutions and mechanisms that ensure the subservience of citizens of a given state
foucault generally
tends to avoid defining power, rather prefers to ilustrate its operations through highly detailed genealologies of exemplary sites e.g. prisons
characteristic form of power in modern socities
discipline
normalising judgment
type of discipilnary punishment
difference between disciplinary punishment and punishment by the criminal justice system in a state?
described by Foucault as ‘micro’ and ‘infra-penalty’ that operates continously in the gaps left by criminal law to regulate trifling intractions e.g. lateness to work
continuous and microscopic vs occasional and spectacular
Norm according to Foucualt
Not clearly defined, Norm in foucaultian sense: standard representing an average
- invoke normal facts about people’s limits and capacities
- compliance is relative, behaviour is not so much obedience to norm, rather distribution around it
Rules compared to norms
Prescriptive rather than descriptive
application produces two possible outcomes: observance and non observance
rules and norms recirporcal dependence
content of rules (school regulations) is derived from norms (e.g. ability and behavioru of diff aged children)
on the other hand, the process of quantifying and averaging out infractions and observances of rules produce a model of the normally obedient individual turns rule-following behaviour into another source of norms
juridico natural regimes of discipline
in relation to rules and norms
places an individual who is subjected to them under an obligation to be normal, or not abnormally bad
purpose of disciplinary punishment vs criminal justice system
correction of deviant individuals vs condemnation of forbidden acts
disciplinary power emerge in Foucault’s account of panoptic prisons
No prisoner can tell for sure if anyone is observing them from the tower, thus every prisoner would behave at all times as if they were observed. Anyone, not limited to the prisoner governer can turn on the panoptic machine by standing in the central tower and spying on prisoners in the surrounding cells. subject to examination
- paraodixical result = objectified individuals, who are seen but do not see, internalise the gaze of the supervisors and begin to super vise themselves
Anyone caught within the Panopticon’s disciplinary apparatus
will develop a capacity to reflect on and correct their own behaviour
most significant feature of disciplinary power, eschews use of force and instead relies on physical capacities of an individual - self reflection and conscience
Law
Disciplinary power is radically different from
sovereign power and judicial power
juridicial or sovereign model of power according to Michael Foucault
centralised, top-down power
One theorist who has contributed a great deal to the articulation of this shift in understanding of the operation of power is
Michael Foucault
Foucault challenges assumptions about
the operation of power in liberal states
Foucault argues that power operates in liberal states in ways that differ from what he terms as the juridical model of power that is accepted in much political and legal theory.
Foucault suggests that, under liberalism, coercive juridical or sovereign power is no longer the dominant form of power. It has been replaced as the central mode of exercise of power by what he has termed ‘disciplinary power’, a new mechanism of power that emerged in the 17th and 18th centuries
Unlike the model of power that we see at work in positivist legal theory,
Foucault suggests that disciplinary power is productive in that it constitutes subjects through ‘a multiplicity of organisms, forces, energies, materials, desires, thoughts etc.’
Implications of disciplinary power
move from looking to sovereign entities or beings we imagine as holding power, to thinking about the role of disciplinary power in constituting subjects.
Power does not operate from the top-down, as something seized by an all powerful sovereign and then used to oppress those with less power. Rather, power is employed and exercised in relations between people, rather than existing as a commodity that can be monopolised by a single entity. Thus, Foucault’s methodology involves a shift from studying the sovereign to studying the process of subjectification:
One crucially important feature of Foucault’s analysis of modern powers is his discussion of the relationships between
repressive legal-sovereign power, on the one hand, and the modern descendents of productive normalizing-pastoral power, on the other. Sovereign powers are essentially repressive and pastoral powers are essentially productive.
n The History of Sexuality, Volume 1 (aka The Will to Knowledge) Foucault views sovereign power as
negating, legislative, prohibitive, censoring, and homogenous
he views bio-power
always productive, immanent, exercised, capillary, and resisted
Foucault views sovereign power as representing itself as negating, legislative, prohibitive, censoring, and homogenous (1976, 83-85), he views bio-power as always productive, immanent, exercised, capillary, and resisted (1976, 94-95). These five qualifications of each conception of power are not
necessarily opposed to one another point-to-point, but one clearly gets the drift that there is a deep rift between sovereign power and pastoral power.
Biopower thus names the way in which biopolitics is put to work in society, and involves what Foucault describes as
[A] power that exerts a positive influence on life, that endeavours to administer, optimize, and multiply it, subjecting it to precise controls and comprehensive regulations
This new biopower constitutes a ‘profound transformation of [the] mechanisms of power
Foucault conducts a lengthy critique of this repressive functioning of power
that such power functions to hide other productive or ‘positive’ capacities of power that are also at play
Foucault traces the evolution of two forms of power which
‘were not antithetical’ to each other, constituting ‘two poles of development linked together by a whole intermediary cluster of relations’
- disciplinary power
2.
Furthermore, Foucault viewed the legal system as utilizing a negative conception of power because its primary enforcement mechanism is
a punishment for breaking the law. Likewise, when people speak of political reform and the reorganizing of power structures they usually seek to change the law—to change what is licit or illicit. For Foucault, this negative juridical notion of power masks the actual function of power in modernity because the law is not the sole source of power
Yet a scholar as celebrated as Foucault, whose work
deals primarily with power structures, their effect on the individual, critiques of the modern state, and the institutions that operate alongside it, must have some bearing on how the law evolves itself in the Twenty-First Century.
One of his most famous turn of phrases comes from The History of Sexuality Volume 1: The Will to Knowledge, a work he would not complete before his life was tragically cut short by AIDS: “In thought and political discourse we have yet to cut off the head of the king.”5 What he meant is that
when power is analyzed it tends to be reduced to the laws coming from the king, or the king in his modern form, the State. The State creates a legal system that divides practices into categories of “licit” and “illicit” and then punishes transgressions
We confine our analysis of power to two questions:
that of sovereignty, or who has the power to make laws, as well as what should be legal and what should not
The jurist’s strategy is fundamentally flawed because
power is multifarious, it functions, it exercises itself through networks; individuals both submit and exercise power. Power should not be viewed as a “mass and homogenous domination.”
Starting in the Eighteenth Century, there is a more
subversive bio-power, positive rather than negative in its operation, through which the basic biological features of the human species have become the object of political strategy.1
Social institutions—such as
the social sciences, psychiatry, the family, schools, and medicine—operate alongside and in conjunction with the State to control individuals in a much more subversive manner than the tyrant monarchies
Foucault views schools….
, hospitals, barracks, and asylums as spaces that are part of disciplinary mechanisms that mold individuals into normative social units.
A paradigmatic example of the difference between sovereign power and the new disciplinary power of bio-power is
embodied in the juxtaposition of the sovereign’s power over death and the modern state’s power over life.
A sovereign’s power to affect life is exercised only when
the sovereign can kill
Instead of deciding whether to execute a subject, the modern State now possesses the ability to
reform that subject, discipline him, and place him back in societ
As an illustration of how Foucaultian theory can aid the law, consider
how the concept of bio-power would flip on its head the entire modern debate over the death penalty
through a Foucaultian lens, the decision to stay execution and attempt rehabilitation is actually more cruel than the alternative. The State declares dominion over the body and attempts to mold it into an acceptable social unit.
The question is not, should the king kill his subject, but can institutions rehabilitate him? From a Marxist perspective,
there exists a motivation to not waste as many bodies of production as possible, to squeeze as much production out of the individual before the State disposes of him
Governmentality
term coined by philosopher Michel Foucault, and refers to the way in which the state exercises control over, or governs, the body of its populace.
Governmentality also refers to
the way in which people are taught to govern themselves, shifting power from a center authority, like a state or institution, and dispersing it among a population.
Govermentality can therefore be understood as how conduct is shaped, making “the art of governing” and embodied experience
While governmentality can broadly focus on the process of governing individuals
Foucault was specifically interested in neoliberalism as a form of governmentality, because of the way in which it involved individuals in the process of governing. Through neoliberalism, Foucault argued that individuals were taught to govern themselves, showing how the power of governing becomes embodied.
Biopower, according to Foucault,
is the way in which a state or institution exerts power over the body of a population
through governmentality that the State began to
record statistics, such as birth rate, death rate, and gross domestic product. The State measures success as a positive increase or decrease of these statistics
The State improves these statistics
not through punishment of illicit activity, but through policies that operate on an entire population. The modern state creates spaces, which mold society in a desirable manner.
The modern state creates spaces, which mold society in a desirable manner. To take the example from above, the State
did not force citizens to buy goods from merchants, they constructed the town and the city in such a manner that traffic would be directed to merchants, and a corresponding increase in economic activity occurred. In contrast to the negative juridical power of the law, this new power is positive in operation.39 It does not punish, it guides silently
The policy solution never operates
on an individual; the problem is always solved in the aggregate by asking how the population will react
this new form of biopower needs to be able to predict the actions of individuals at the aggregate level. The State now requires knowledge of what a normal human subject does. If an individual is abnormal, that individual needs to change. Sciences of life arise to fix the abnormality
what happens to abnormal individuals
Asylums are built to reform mad individuals. Previously allowed to roam the land free as an expression of God’s knowledge on earth, they are now a threat to the basic logic of governmentality’s operation because they are unpredictable.
abnormal individuals
prisons
prisons become correctional facilities because there is utility in creating a system that reintroduces criminals into society.
abnormal individual
Schools
Schools categorize and evaluate students. They identify, early on, abnormal individuals and subject them to disciplinary techniques
Medieval punishment involved
excessive displays of sovereign power, such as public executions. The modern system of punishment, in contrast, involves isolation, normalization, regimentation, confession, and moral reeducation.
This is analogous to the law because the law has become less repressive and coercive, yet more regulatory and administrative
One example of governmentality as a way to control bodies is
the way some prisons are designed In “Discipline and Punish,” Foucault explains that early prisons designed by Jeremy Bentham were designed as a ring of cells observed by a single guard tower in the center. Bentham called this design a panopticon
panoptic design of prisons allows
for a single guard to observe many prisoners. The prisoners are never fully aware of whether or not they are being observed, and since prisoners are never sure if they are being watched or not, they are forced to assume they are being observed and control their behavior even when a guard is not on duty
he panopticon example can also be used to
The panopticon example can also be used to metaphorically describe how a population self-censors or embodies forms of control.
characteristics of disciplinary power
hierarchical observation
normalising judgments
micropenalties and rewards
govenmentality
targets population and produces biopolitical subjects
biopower involves the management of population qua living beings
Discipline is
s a way of controlling the movement and operations of the body in a constant way. It is a type of power that coerces the body by regulating and dividing up its movement, and the space and time in which it moves
Foucault is clear, however, that the concept changed in the eighteenth century. Discipline became a widely
Discipline became a widely used technique to control whole populations. The modern prison, and indeed the modern state, is unthinkable without this idea of the mass control of bodies and movement
The human sciences
Sciences, or bodies of knowledge that have man as their subject. Psychiatry, criminology, sociology, psychology and medicine are the main human sciences
Together, the human sciences create
a regime of power that controls and describes human behavior in terms of norms. By setting out what is “normal”, the human sciences also create the idea of abnormality or deviation
Norm
An average standard created by the human sciences against which people are measured: the sane man, the law-abiding citizen, and the obedient child are all “normal” people.
But an idea of the “normal” also implies
the existence of the abnormal: the madman, the criminal and the deviant
An idea of deviance is possible only where norms exist.
For Foucault, norms are
concepts that are constantly used to evaluate and control us: they also exclude those who cannot conform to “normal” categories. As such, they are an unavoidable but somehow harmful feature of modern society
Essentially, power is a
relationship between people in which one affects another’s actions
Power differs from
force or violence, which affect the body physically. It involves making a free subject do something that he would not have done otherwise: power therefore involves restricting or altering someone’s will.
Power is present in
the state
all human relationships, and penetrates throughout society.
The state does not have a monopoly over power, because power relations are deeply unstable and changeable.
The relationship between power and knowledge is also an important one
The human sciences are able to control and exclude people because
human sciences are able to control and exclude people because they make claims to both knowledge and power.
The human sciences are able to control and exclude people because they make claims to both knowledge and power. To claim that a statement is true is
also to make a claim to power because truth can only be produced by power
Discipline and Punish s a history of the modern penal system.
Foucault seeks to
punishment in its social context, and to examine how changing power relations affected punishment.
Punishment b4 18th century
public execution and corporal punishment were key punishments, and torture was part of most criminal investigations. Punishment was ceremonial and directed at the prisoner’s body.
Public execution reestablished the authority and power of the King
how did prison become punishment?
developments in the seventeenth and eighteenth centuries of the disciplines.
. Discipline is a series of
techniques by which the body’s operations can be controlled. Discipline worked by coercing and arranging the individual’s movements and his experience of space and time.
Disciplinary power has three elements:
how is norm developed?
hierarchical observation, normalizing judgment and examination. Observation and the gaze are key instruments of power.
By these processes, and through the human sciences, the notion of the norm developed
Disciplinary power is exemplified by
Bentham’s Panopticon, a building that shows how individuals can be supervised and controlled efficiently. Institutions modeled on the panopticon begin to spread throughout society. Prison develops from this idea of discipline.
Prison develops from this idea of discipline. It aims both to
deprive the individual of his freedom and to reform him.
penitentiary is the next development. It combines
the prison with the workshop and the hospital. The penitentiary replaces the prisoner with the delinquent
development of various bodies of knowledge
development of various bodies of knowledge (the human sciences) that reinforce and interact with that power.
The modern power to punish is based on
the supervision and organization of bodies in time and space, according to strict technical methods: the modern knowledge that Foucault describes is the knowledge that relates to human nature and behavior, which is measured against a norm.
Foucault’s point is that one cannot exist without the other. The power and techniques of punishment depend on
nowledge that creates and classifies individuals, and that knowledge derives its authority from certain relationships of power and domination
THE BODY
b4
Beginning with public execution, where the body is horrifically displayed, Foucault charts the transition to a situation where the body is no longer immediately affected. The body will always be affected by punishment
THE BODY
modern system,
body is arranged, regulated and supervised rather than tortured. At the same time, the overall aim of the penal process becomes the reform of the soul, rather than the punishment of the body
genealogical account of the modern soul.
soul gradually replaces the body as the focus of punishment and reform.
modern processes of discipline have essentially created that soul. Without the human sciences and the various mechanisms of observation and examination, the normal soul or mind would not exist
Ideas such as the psyche, conscience, and good behavior are effects created by a particular regime of power and knowledge
Discipline and Punish aims to chart the transformation from
a situation where atrocious sentences were passed by a judge, and carried out in public, to one where the experts of the human sciences judge everyone in society according the norm established by their discipline
The idea of a history of the soul is also an important one.
y
hift of penality from a focus on the body to a focus on the soul. The modern system of discipline works on and attempts to reform the soul.
We have then a public execution and a timetable. They do not punish the same type of crimes or the same type of delinquent. But they each define a certain penal style.
pre-modern system
punishment is carried out on the body of the criminal in a public and violent manner
We have then a public execution and a timetable. They do not punish the same type of crimes or the same type of delinquent. But they each define a certain penal style.
carceral system; the timetable
in which the criminal’s soul is the object of attention.
the timetable regulates his soul, dividing his time into smaller, ordered parts
the timetable represents one in which the aim is to classify and order behavior in an attempt to control the individual.
The Panopticon, the fantastic building designed by Bentham, has become
a symbol of Foucault’s argument.
From the center of the panopticon,
the controller can see each individual room or cell.
Each individual held within it is isolated, permanently exposed to the gaze of the observer; by looking at them, the observer controls them.
panopticon makes what easy
makes examination easy: it is marvelous both because it allows one person to have power over many, and because it is such an unusual construction.
carceral system is that the form of discipline associated with the modern prison is not contained within prison walls, but derives from the society beyond those walls.
The mechanisms of control, examination and classification operate within all the institutions
factories, schools, barracks, hospitals
prison became the
major instrument of penality in Europe
What is the prison’s place in society?
Foucault sees the prison as very closely linked with many of the structures of modern society. The mechanisms of discipline and power that control the prisoner’s life also control that of the citizen
. Foucault’s account of the development of the prison and the carceral system makes it clear that society has a “carceral texture” and is penetrated by the same mechanisms that operate within the prison. Equally, through its construction of delinquency, the prison helps to control and regulate class conflict and popular illegality
Foucault believe that prison can be abolished as a penalty?
Its abolition is unthinkable, partly because the practical alternatives simply do not exist, and partly because it is a central part of modern systems of power and discipline.
The carceral system is powerful and in many ways harmful, but Foucault holds out some hope of change. However, the chief agent of change is likely to be
the growth of the human sciences themselves, which may one day take over some of the supervisory and observational work of the prison
Prison, like the psychiatric hospital,
marks out and isolates the “abnormal” or illegal elements of society. In doing this it “creates” something that can be controlled and which the state can put to various uses.
he classical age discovered the body as
the target of power. The docile body is subjected, used, transformed and improved.
The disciplines had always existed in monasteries and armies, but in the seventeenth and eighteenth centuries
they became a general formula of domination. A
knowledge and discipline
‘discipline’ also refers to an academic subject, such as the discipline of sociology or the discipline of political science
This meaning of ‘discipline’ highlights the role knowledge plays in the governing practices of modern democracies.
In the disciplinary mode of power, knowledge of psychology and social science helps us to understand who we are, what is good, what is normal, and how we ought to behave.
knowledge and discipline
how does knowledge allow us to govern ourselves
Particular kinds of knowledge are produced and made available to us, and that knowledge allows us to govern ourselves in particular ways.
sovereign power
Sovereign power involves obedience to the law of the king or central authority figure. Foucault argues that ‘disciplinary power’ gradually took over from ‘sovereign power’ in the eighteenth and nineteenth centuries. Even now, however, remnants of sovereign power still remain in tension with disciplinary power
5 propositions of Foucaultian power
- power is not a thing but a relation
- power is not simply repressive but it is productive
- power is not simply a property of the State.Power is not something that is exclusively localized in government and the State (which is not a universal essence). Rather, power is exercised throughout the social body.
- power operates at the most micro levels of social relations. Power is omnipresent at every level of the social body.
- the exercise of power is strategic and war-like
Foucault argues that biopower is
a technology which appeared in the late eighteenth century for managing populations. It incorporates certain aspects of disciplinary power. If disciplinary power is about training the actions of bodies, biopower is about managing the births, deaths, reproduction and illnesses of a population.
Discipline is a
mechanism of power which regulates the behaviour of individuals in the social body. This is done by regulating the organisation of space (architecture etc.), of time (timetables) and people’s activity and behaviour (drills, posture, movement)
how is discipline enforced
it is enforced with the aid of complex systems of surveillance.
is power discipline?
Foucault emphasizes that power is not discipline, rather discipline is simply one way in which power can be exercised
disciplinary institutions
prisons, hospitals, asylums, schools and army barracks
Foucault originally used the term ‘governmentality
to describe a particular way of administering populations in modern European history within the context of the rise of the idea of the State
Foucault later expanded his definition of governmentality
to encompass the techniques and procedures which are designed to govern the conduct of both individuals and populations at every level not just the administrative or political level.
Panopticon metaphor
Although the prison was never actually built the idea was used as a model for numerous institutions including some prisons. Foucault uses this as a metaphor for the operation of power and surveillance in contemporary society.
