Foucault And Ground Level Oper Essay, Research Paper

LAW AND SOCIAL THEORY

2000 SESSION ONE

TAKE-HOME EXAMINATION (NO. 2)

QUESTION 4

The process by which the bourgeoisie became in the course of the eighteenth century he politically dominant class was masked by the establishment of an explicit, coded and formally egalitarian juridical framework, made possible by the organization of a parliamentary, representative regime. But the development and generalization of disciplinary mechanisms constituted the other, the dark side of these processes The real corporeal mechanisms constituted the foundation of the formal juridical liberties

What is the thrust of Foucault s thesis set out in this quotation? What light, do you think, it throws on the nature and function of the rule of law and legal rights in contemporary western societies?

Foucault s thesis attempts to explore the ground-level operations in society that are a counterpart to the higher, and widely accepted, notions of the rule of law and representative liberal democracy. The thrust of his argument is that these notions which we take for granted work because each individual, by his or her interactions with others, is conditioned to make what they consider free choices, but within a framework of discipline, coercion and power imbalances. The real source of our legal rights and the source of legitimacy for the rule of law are not substantively derived from the top tiers of society (parliaments, courts, etc), though they may be formally and legally derived from these, but are supported by transparent interactions between the people who claim to be represented at the ground level that region of irregular bodies, with their details, their multiple movements, their heterogenous forces [and] their spatial relations . These are the people who, in exercising their free choices, are actually perpetuating the system which they live in ultimately they become the tools by which they themselves are governed. Foucault uses various metaphors to express this system of government that of the panoptic tower and the prison. As I will demonstrate in this essay, these metaphors are central to his exegesis.

Foucault uses the metaphor of the panopticon and the prison to explain what he perceives to be the real power structures in society. Perhaps the word metaphor here is too weak one senses that Foucault would prescribe, or at least describe, the panopticon and the prison as embodying the very structures upon which modern society is based. His panopticon is essentially a cylindrical ring with a tower in the middle. In the tower hides the supervisor or director , and in the ring are inmates . Each inmate is separated from the other, and each occupies the entire length of a slice of the ring. All the buildings have windows, but are positioned in such a way that the supervisor can see all the inmates, but the inmates cannot see the supervisor (or each other, for that matter). The supervisor is thus able to peer into the minutiae of each individual s daily existence. The inmates know this and by the fact of knowing this, adjust themselves accordingly. Thus they are governed. But upon deeper examination it is revealed that it is not the supervisor who is doing the governing, but the inmates themselves. The supervisor may or may not be there, but this is irrelevant. The mere threat is deterrence. And what might start out as external conditioning thereby resolves itself into the inner conscience and ideology of each person. No one with any particular skill or heredity need control the tower anybody can spy from it. And given that it is open to the public, everyone knows how the system works. The fact that someone can look creates inherent transparency amongst all.

This is exactly what the rule of law is. It is, by contrast, not the rule of man , but it doesn t have to be because, like a panopticon, a human being does not need to be present. No one can be subject to accusations of tyranny, and the rule of law becomes a weapon that individual persons can use against others. It is a weapon of deterrence the individual can call upon the aid of the courts if his/her rights are wronged. In using the system, one becomes very much part of it, and is ingrained into it, and rather than being a higher power like a king, against which there may be a general human tendency to rebel, the rule of law is invoked by individuals subconsciously in their relationships with others. When all individuals seek protection in the rule of law, and when all employ it against others as when necessary, it becomes clear that the rule of law governs more effectively than any other human can. It works perfectly with a liberal society, because individuals continue to think that they can still make completely free choices. The reality is that this is a freedom that is circumscribed by the freedoms of others (therefore a residual freedom), and the rule of law is the well-oiled joint that cushions this myriad panoply of individual activities and choices against each other. If there was real freedom, people could choose to kill others, or do any sort of act which society prohibits. The governance of the rule of law prevents this from happening, but its discreetness, like the shadowy observer in the panoptic tower, makes us forget that we are governed. By analogy, it is instructive to consider who is the governor and who is the governed, the drug addict, or the drug itself? Though it is the drug addict who is in physical control of an inanimate object, it is by using that object whereby he becomes not the ruler, but the ruled. The rule of law is just as intangible, but like the drug addict, the individual in the modern bourgeois society becomes addicted to it, yet thinks that he/she is making a truly free choice. The true formalistic power, at least, lies with the rule of law the drug of modern society.

Even having established that the rule of law operates almost subversively to make us think that we are free when we are in actual fact not (in the sense described above), the rule of law is itself somewhat illusory when we move from the formalistic levels to the substantive levels in the conception of the modern society. The rule of law, representative democracy and legal rights are all espoused as hallmarks of Western society, but, as Foucault points out, there is a darker side. This is what he calls the real corporeal disciplines . Despite what might be professed by the leaders and theorists, the reality of the modern individual relationship structure is one of power imbalances. Foucault gives the example of the work contract he states that the work contract itself is a fiction, and that the real power lies with the employer, to whom the employee is subjugated. What is professed is the rule of law, what happens is routine subordination of some people to others coercion. In America, for example, it might be declared that all men are created equal, but one knows that this is clearly not the case. The employee in most situations is inferior to the employee, the citizen inferior to the police in the sense of street power , the vice-president to the president in a club, and so forth. These are relationships of coercion and dominance which people agree to enter. Though they are supposedly free contracts between equals, as soon as the contract contains a mechanism of discipline , then the relationship becomes asymmetrical and non-reciprocal.

The rule of law and legal rights are backed up by a right to punish. Foucault argues that the existence of a prison structure actually gives legitimacy to the courtroom, and then ultimately, to the rule of law and legal rights. So society can actually be construed as being sourced ultimately from the prison house. Once again, this example demonstrates that legal rights in society mean nothing if there is no prison to lock up those who violate it. The legal right is then nothing more that a intangible assertion by one individual over another. However, I believe that Foucault goes too far in describing the prison as the real source of power. Though it is important to distinguish between real (or normative) and formal power, it is not logical to say that courts ability to punish are justified by the existence of prison. Perhaps their actual capacity to put someone away is facilitated by the existence of prison, but surely the real power is not in the prison but, as Foucault himself argued earlier, in the interactions between persons, mediated by the courts? Nevertheless it does go to show that a liberal democratic society needs illiberal non-democratic elements (prison) in order to function at a normative level.