Poststructuralist Legal Thought: Foucauldian Legal Theory

Question 1

Sovereignty /Sovereign power

Answer 1

• Hereditary, monarchical rule
• The sovereign possess power and right over life and death
• The asymmetry of life and death emerges when the sovereign practices its right to kill, and only then will they have authority to the right to life
• 18th century, an alteration to political rights occurred when the policy transformed into the power to “make live and let die”
• “Make live and let die” is evident through its public methods of violence (public executions)
• In the Body of the Condemned (1977), Foucault recount public executions as a public spectacle orchestrated by the sovereign
• The elaborate scheme of public executions aimed to publicize a dominant message that contraventions of the law are contraventions of the sovereign
• Sovereigns have torture rituals to the public body; “Rule by sword”
• Portrayed in the case of violence and aggression from an absolute sovereign
• Sovereign delegated its people starting as “neutral”, then they will be evaluated on whether or not they die or keep living
• This practice was seen as asymmetrical → the sovereign exercised his right to life on the basis whether or not others should be dead or alive; Foucault refers to this as the “Theoretical Paradox”
• “Public punishment”

Question 2

Disciplinary power

Answer 2

• 19th century - “anatomo-politics”
• Foucault defines disciplinary power as a form of power that concentrates on the individual body
• Disciplinary power operates through norms and conventions applied to individuals, who consequently submit to standard societal customs.
• Starts in the prison system
• Post-Enlightenment, associated with the rise of liberal democratic state
• Internalized by individuals; a mandate of self-discipline

Panopticon:

• Invented by Jeremy Bentham
• Maximum visibility of inmates
• Do not know if guards are watching
• Internalized norms

Question 3

Governmentality

Answer 3

Governmentality = art of government
‘the conduct of conduct’, or the power to act on the actions of others

3 components:

1. its calculated nature,
2. its ability to act at a distance, and
3. the governmentalization of the state

• Governmentality is comprised of power that targets the population
• Its source of knowledge is primarily the political economy, and its instruments are discursive apparatuses
• Governmentality uses the state as the rationality of population regulation
• It is a technique of government that legitimizes the power to operate based on societal actions
• The state’s governmentalization is evident in modern society as the state continually controls and regulates lives
• Pharmacies, hospitals, schools, and other institutions
• Discursive apparatuses are products of governmental organizations where there are numerous agencies but is centralized to the state
• Governmentality disperses state’s identity into diverse institutions, operations, and techniques
• State logic of population management
• Governmental apparatuses form knowledge; ‘truth’

Question 4

Biopower

Answer 4

• Population level
• Biopower is the power to “make live”
• Methods of political control include healthcare, schools, prison, hospitals
• These institutions are coordinated by biopower to implement administrative policies and procedures
• Biopolitics implement techniques of executing control over bodies/population
• The techniques systematize and normalize societal performance from medicine, behavior, and more
• Biopolitics is evident through state racism. The state plays a significant role in preserving the health of the state and its citizens which results in state racism.
• The subjugation of bodies/controlling a population through scientific means
• Regulation of bodies that the state deems worthy of being part of society and the national identity
• Fostering life, breed a better population

Ex. Nazi Germany
- a form of biological racism and eliminating the “inferior” group to better the lives of the “dominant” group

Question 5

Power-knowledge

Answer 5

• “Power must by analysed as something which circulates, or rather as something which only functions in the form of a chain. It is never localised here or there… Power is employed and exercised through a net-like organization… individuals are the vehicles of power, not its points of application” (Foucault 1977)
• Power and knowledge are intertwined
• Power is relational and interlinked through discourse
• Discourse comes in a form of language, images, information, and more which operates to produce knowledge within everyday lives
• This link between power and knowledge produces a relationship in which society’s fundamental concept of the world is enclosed within the context of discourse, power, and knowledge.
• In Discipline and Punish (1977), Foucault states, “Knowledge linked to power, not only assumes the authority of ‘the truth’ but has the power to make itself true”
• Foucault’s statement implies that knowledge’s link to power produces a “truth” that can assume itself as true. Foucault manifests that discourse, power, and knowledge construct a medium in which “truth” is produced
• Discursive apparatuses produce “truth” through its authoritative position as experts

Production of “Truth”

• of knowledge = “truth regime”
• No capital ‘T,’ transcendental Truth
• Only socially normative truths, little ‘t’ truths
• Truth is always produced

Question 6

State racism

Answer 6

• The strength of a population is determined by education, intellect, class, etc.
• People who fall outside the criteria are considered inferior thus, are allowed to die
• Ex. Nazi Germany. A paradox within modern biopower
• extreme expansion of biopower since “the biological was so tightly, so insistently, regulated”

The functionality of State Racism

1. Creates different categories of the population
2. Links death of “sick” to the “health” of others/population as a whole

• In a normalizing society, state racism is the precondition that makes killing acceptable
• The vital importance of state racism to the exercise of such a power: it is the precondition for exercising the right to kill
• So racism is bound up with the workings of a State that is obliged to use race, the elimination of races and the purification of the race, to exercise its sovereign power