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.