Law Is Not The Most Important Power In The Society
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Student Number: 0837631
Law is Not the Most Important Power in the Society “They make a slaughter and they call it peace”. Tacitus Key Words: Law, Power and Society. Setting aside different meanings rendered for law, one can proceed to analyze the above statement as it does not refer to the normative dimension of law or rather it is simply referring the commonly operating positive “law”. The other important key word is power, different theorists from different disciplines tried to theorize and analyze power hence, I will elucidate it below. Society in this statement stands for comprising majority of the people in any set of population. Importance in this context refers to a power envisioned to produce a positive consequence for the society. However, the main percept in expounding the above statement should be “thinking out of the box”. Here the box is the discourse we are engaged in or our professional “identity”. Michel Foucault identified different forms of power like pastoral, sovereign/legal, disciplinary and bio powers all with their some distinctive features in the society. Other scholars like Luhman and Borch also tried to appreciate power in their systems theory and semantic intrusion respectively.1 As I have already set it before my argument is “law is not the most important power in the society “. It is very wonderful to assume law as the sole discourse in the society and then to go ahead to Borch, C. 2005. Systemic Power: Luhmann, Foucault, and Analytics of Power. Acta Sociologica. [Online]. 48 (2) [accessed 17/06/2009], pp. 162-163. Available from world wide web: http://www.jstor.org/stable/20059932 1
1
Student Number: 0837631
question back whether we could have the so called “law” after all or not. From the simplest one, do you think law solely determines what is criminal and what is not in all aspects? What is the need to call for an expert statement? [Let it be medical, forensic, accounting, science or any other discipline in deciding a case]. Then what law can do independently?
We can appreciate the plain integration of diverse
discourses in the simplest understanding of what is crime and what is not. Setting aside the insular and reductionist idea of the so called political economists, that dictates as law and the state emerge instrumentally from economic forces. 2 This and other issues urge me to acclaim and analyze Michel Foucault’s relational conception of power which in my view is reflective and unconfined. Power is dispersed in the society like capillaries.3 However, politics centric theories fail to recognize decentralization of power in the society, it appears to me still they confined themselves in the box. Their understanding is thoroughly directed towards centralization of power which presupposes leader and subjects by devising hierarchical strata in the society. Unlike Foucault’s conception of power, they consider power as zero-sum rule where one seizes the political power the other would be with out power and struggle to return it.4 Then the rhetorical question when such power could be important for the society is left to be answered by them. As the 16th century Italian political philosopher, Machiavelli, clearly stated “it is better to be feared than loved, more prudent to be cruel than compassionate” the VINCENT, A. 1993. Marx and law. Journal of Law and Society.20 (4) p.380 BEN GOLDER and PETER FITZPATRICK (2009), Foucault’s Law, chapter 1, p. 12 4 NEWMAN, S. 2004. The Place of Power in Political Discourse. International Political Science Review [online] 25 (2) [accessed 26/05/2009], p. 140. Available from world wide web : < http://www.jstor.org/stable/1601674 2
3
2
Student Number: 0837631
political discourse up until now is oriented in its negativity to the people at large than envisioned to any positive outcome whilst maintaining the concentration of “power” in the hands of the leaders or politicians. For Foucault, this is an outdated notion that no longer has any relevance to political theory. "What we need," as Foucault said famously, "is a political philosophy that isn't erected around the problem of sovereignty.... We need to cut off the King's head"5. They should avoid methodological nationalism in describing power. Neither Marxist’s nor anarchists tried to solve the problem of power in the society as Michel Foucault, who brought a radically different analysis of power. Indeed, Marx neither formulated a normative theory of law nor elucidated it in a concrete fashion however; he tried to explain power in his political economy discourse.6 Nevertheless, both Marxists and anarchists were reductionists of power analysis where they confined the problem of power in economy based class domination of state structure and thus replacing it by proletariat as transitional entity [state] and avoiding the state respectively were conceived as a solution.7 This in my view is very insular and could not solve the problem of power in the society. However, Foucault in his analytics of power tried to resolve the problem of power by describing it as non zero-sum, decentralized and dispersed like capillary. He never thought power in isolation of resistance which is often important in maintaining the balance of power in the society.8
Ibid p.143 Vincent (note 2 supra) pp.371-372 7 Newman (note 4 supra) p.141 8 BEN GOLDER and PETER FITZPATRICK (2009), Foucault’s Law, chapter 2, pp. 19-21 5 6
3
Student Number: 0837631
The issue further calls for the Hobessian and Lockean hypothesis of power in the book empire. Politicians and Economists similarly expound power as Hobbesian monarchical conception of the sovereign power in terms of its embodiment, whereas Foucault explicated it inline with Lockean hypothesis of power which is pluralistic, decentralized and assisted by counter power [resistance].9 So don’t you get bored of such a positive law that is centralized and operating with its mask against the interest of the society? It is not quite uncommon to see law as a plaint-instrument of oppression and repression of the people. How it is an irony law to be the most important power in the society. Tacitus in an impressing way said “They make a slaughter and they call it peace”10. They kill thousands of innocent people as it is evidenced in Iraq and Palestine and they call it rule of law. They facilitate their plunder and exploitation and they call it good governance, structural adjustment and transparency. Thus far, law has not been serving the people but few individuals or groups. So, when and where the law said to be protected the society from such murderers, plunderers and exploiters? Rather it served them as an apparatus. However, it has been ostensibly framed to oppress and undermine the vast majority of the people. Therefore, any power to be important in the society it should be productive rather than repressive. Thus, law has no any quality to be considered as an important power in the society.
9
HARDT, M and NEGRI, A. 2000. Empire. Harvard University Press. pp.7-8 Ibid p.21
10
4
Student Number: 0837631
Bibliography Books •
BEN GOLDER and PETER FITZPATRICK (2009), Foucault’s Law, Introduction
•
BEN GOLDER and PETER FITZPATRICK (2009), Foucault’s Law, chapter 1
•
BEN GOLDER and PETER FITZPATRICK (2009), Foucault’s Law, chapter 2
•
MICHAEL HARDT and ANTONIO NEGRI, A. 2000. Empire .Harvard University Press.
Journal Articles •
HUGH BAXTER. (1996) Bringing Foucault into Law and Law into Foucault. Stanford Law review.[online] 48 (2) [accessed 26/05/2009],pp 449-479. Available from world wide web:< http://www.jstor.org/stable/1229368
•
ANDREW VINCENT. (1993). Marx and law. Journal of Law and Society.20 (4) pp.371-397
•
CHRISTIAN BORCH. (2005). Systemic Power: Luhmann, Foucault, and Analytics of Power. Acta Sociologica. [Online]. 48 (2) [accessed 17/06/2009], pp.
155-167.
Available
from
world
wide
web:
http://www.jstor.org/stable/20059932 •
SAUL NEWMAN. (2004). The Place of Power in Political Discourse. International Political Science Review [online] 25 (2) [accessed 26/05/2009], pp.
5
Student Number: 0837631
139-157.
Available
from
http://www.jstor.org/stable/1601674
6
world
wide
web
:
<
Student Number: 0837631
7
Law is Not the Most Important Power in the Society “They make a slaughter and they call it peace”. Tacitus Key Words: Law, Power and Society. Setting aside different meanings rendered for law, one can proceed to analyze the above statement as it does not refer to the normative dimension of law or rather it is simply referring the commonly operating positive “law”. The other important key word is power, different theorists from different disciplines tried to theorize and analyze power hence, I will elucidate it below. Society in this statement stands for comprising majority of the people in any set of population. Importance in this context refers to a power envisioned to produce a positive consequence for the society. However, the main percept in expounding the above statement should be “thinking out of the box”. Here the box is the discourse we are engaged in or our professional “identity”. Michel Foucault identified different forms of power like pastoral, sovereign/legal, disciplinary and bio powers all with their some distinctive features in the society. Other scholars like Luhman and Borch also tried to appreciate power in their systems theory and semantic intrusion respectively.1 As I have already set it before my argument is “law is not the most important power in the society “. It is very wonderful to assume law as the sole discourse in the society and then to go ahead to Borch, C. 2005. Systemic Power: Luhmann, Foucault, and Analytics of Power. Acta Sociologica. [Online]. 48 (2) [accessed 17/06/2009], pp. 162-163. Available from world wide web: http://www.jstor.org/stable/20059932 1
1
Student Number: 0837631
question back whether we could have the so called “law” after all or not. From the simplest one, do you think law solely determines what is criminal and what is not in all aspects? What is the need to call for an expert statement? [Let it be medical, forensic, accounting, science or any other discipline in deciding a case]. Then what law can do independently?
We can appreciate the plain integration of diverse
discourses in the simplest understanding of what is crime and what is not. Setting aside the insular and reductionist idea of the so called political economists, that dictates as law and the state emerge instrumentally from economic forces. 2 This and other issues urge me to acclaim and analyze Michel Foucault’s relational conception of power which in my view is reflective and unconfined. Power is dispersed in the society like capillaries.3 However, politics centric theories fail to recognize decentralization of power in the society, it appears to me still they confined themselves in the box. Their understanding is thoroughly directed towards centralization of power which presupposes leader and subjects by devising hierarchical strata in the society. Unlike Foucault’s conception of power, they consider power as zero-sum rule where one seizes the political power the other would be with out power and struggle to return it.4 Then the rhetorical question when such power could be important for the society is left to be answered by them. As the 16th century Italian political philosopher, Machiavelli, clearly stated “it is better to be feared than loved, more prudent to be cruel than compassionate” the VINCENT, A. 1993. Marx and law. Journal of Law and Society.20 (4) p.380 BEN GOLDER and PETER FITZPATRICK (2009), Foucault’s Law, chapter 1, p. 12 4 NEWMAN, S. 2004. The Place of Power in Political Discourse. International Political Science Review [online] 25 (2) [accessed 26/05/2009], p. 140. Available from world wide web : < http://www.jstor.org/stable/1601674 2
3
2
Student Number: 0837631
political discourse up until now is oriented in its negativity to the people at large than envisioned to any positive outcome whilst maintaining the concentration of “power” in the hands of the leaders or politicians. For Foucault, this is an outdated notion that no longer has any relevance to political theory. "What we need," as Foucault said famously, "is a political philosophy that isn't erected around the problem of sovereignty.... We need to cut off the King's head"5. They should avoid methodological nationalism in describing power. Neither Marxist’s nor anarchists tried to solve the problem of power in the society as Michel Foucault, who brought a radically different analysis of power. Indeed, Marx neither formulated a normative theory of law nor elucidated it in a concrete fashion however; he tried to explain power in his political economy discourse.6 Nevertheless, both Marxists and anarchists were reductionists of power analysis where they confined the problem of power in economy based class domination of state structure and thus replacing it by proletariat as transitional entity [state] and avoiding the state respectively were conceived as a solution.7 This in my view is very insular and could not solve the problem of power in the society. However, Foucault in his analytics of power tried to resolve the problem of power by describing it as non zero-sum, decentralized and dispersed like capillary. He never thought power in isolation of resistance which is often important in maintaining the balance of power in the society.8
Ibid p.143 Vincent (note 2 supra) pp.371-372 7 Newman (note 4 supra) p.141 8 BEN GOLDER and PETER FITZPATRICK (2009), Foucault’s Law, chapter 2, pp. 19-21 5 6
3
Student Number: 0837631
The issue further calls for the Hobessian and Lockean hypothesis of power in the book empire. Politicians and Economists similarly expound power as Hobbesian monarchical conception of the sovereign power in terms of its embodiment, whereas Foucault explicated it inline with Lockean hypothesis of power which is pluralistic, decentralized and assisted by counter power [resistance].9 So don’t you get bored of such a positive law that is centralized and operating with its mask against the interest of the society? It is not quite uncommon to see law as a plaint-instrument of oppression and repression of the people. How it is an irony law to be the most important power in the society. Tacitus in an impressing way said “They make a slaughter and they call it peace”10. They kill thousands of innocent people as it is evidenced in Iraq and Palestine and they call it rule of law. They facilitate their plunder and exploitation and they call it good governance, structural adjustment and transparency. Thus far, law has not been serving the people but few individuals or groups. So, when and where the law said to be protected the society from such murderers, plunderers and exploiters? Rather it served them as an apparatus. However, it has been ostensibly framed to oppress and undermine the vast majority of the people. Therefore, any power to be important in the society it should be productive rather than repressive. Thus, law has no any quality to be considered as an important power in the society.
9
HARDT, M and NEGRI, A. 2000. Empire. Harvard University Press. pp.7-8 Ibid p.21
10
4
Student Number: 0837631
Bibliography Books •
BEN GOLDER and PETER FITZPATRICK (2009), Foucault’s Law, Introduction
•
BEN GOLDER and PETER FITZPATRICK (2009), Foucault’s Law, chapter 1
•
BEN GOLDER and PETER FITZPATRICK (2009), Foucault’s Law, chapter 2
•
MICHAEL HARDT and ANTONIO NEGRI, A. 2000. Empire .Harvard University Press.
Journal Articles •
HUGH BAXTER. (1996) Bringing Foucault into Law and Law into Foucault. Stanford Law review.[online] 48 (2) [accessed 26/05/2009],pp 449-479. Available from world wide web:< http://www.jstor.org/stable/1229368
•
ANDREW VINCENT. (1993). Marx and law. Journal of Law and Society.20 (4) pp.371-397
•
CHRISTIAN BORCH. (2005). Systemic Power: Luhmann, Foucault, and Analytics of Power. Acta Sociologica. [Online]. 48 (2) [accessed 17/06/2009], pp.
155-167.
Available
from
world
wide
web:
http://www.jstor.org/stable/20059932 •
SAUL NEWMAN. (2004). The Place of Power in Political Discourse. International Political Science Review [online] 25 (2) [accessed 26/05/2009], pp.
5
Student Number: 0837631
139-157.
Available
from
http://www.jstor.org/stable/1601674
6
world
wide
web
:
<
Student Number: 0837631
7
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