Power Dialogic lectures on social and legal theory

Power

Dialogic lectures on social and legal theory

Sabine Frerichs & Samuli Hurri

Helsinki, December 2009

Day-to-day Programme of the Lecture Series

Tue 01.12. Concepts / Preconceptions of Power Thu 03.12. Social Action: Microcosm of Power Fri 04.12. Social Order: Macrocosm of Power

Mon 07.12. Classical Sociology: Culture and Power Tue 08.12. Critical Sociology: Power and Conflicts Thu 10.12. Rational Discourse and Political Power

Mon 14.12. Economy of Power and Symbolic Violence Tue 15.12. Truth Regimes and the Legal Subject Wed 16.12. Recapitulation and Summary

Exam: Fri 18.12.09, 12-14 h / Wed 13.01.10, 14-16 h, PIV

Lecture 1 (Tue 01.12.2009)

Part II (Sabine):

Sociological Notions of Law and Power

An Ordinary Compass

A Sociological Compass

Macro

Micro

InsideOutsidesubjective viewobjective view

individual action

collective order

Understanding Society

Macro

Micro


individual action

collective order

Ego / I

CultureStructure

Alter / Me

shared ideas

monadic self dyadic self

external forcesobjectification

interaction

inst

itu

tio

na

liza

tio

n

inte

rna

liza

tio

n

Notions of Law and Power

Ego / I

CultureStructure

Alter / Me

shared ideas


external forces

StateSovereigntyPublic securityRealism

CommunitySolidarityCultural identityConservatism

MarketAutonomyPrivate interestLiberalism

Civil SocietyDiscourseUniversal reasonRationalism

Segmentary Differentiation

Functional Differentiation

Stratificatory Differentiation

Lecture 2 (Thu 03.12.2009)

Part II (Sabine):

Social Action: The Micro Level

Introduction: Today’s Focus

Macro

Micro


individual action

collective order

Ego / I

CultureStructure

Alter / Me

shared ideas


external forces

Rational Choice Theory

”The theory specifies that in acting rationally, an actor is

engaging in some kind of optimization.”

”It compares actions according to their expected

outcomes for the actor and postulates that the actor will

chose the action with the best outcome.

”[T]he actor takes the ’optimal’ action, that is the action

that maximizes the differences between benefits and

costs.” (James S. Coleman)

homo oeconomicus (monadic self)

Prisoners’ Dilemma (I)

The police have arrested two suspects, put them in

isolation cells and are now interrogating them in separate

rooms.

Each can either confess (=betray his/her accomplice), or

remain silent (=stay faithful to his/her accomplice).

No matter what the other suspect does, each can improve

his/her own position by confessing.

Yet, if both follow their preferred strategy and confess, the

collective outcome is only second-best.

Prisoners’ Dilemma (II)

Prisoner Bremains silent,proves faithful(=’co-operation’)

Prisoner Bconfesses, is ready to betray(=’defection’)

Prisoner A remains silent, proves faithful(=’co-operation’)

Prisoner A:low sentence (1)Prisoner B:low sentence (1)

Prisoner A:harsh sentence (10)Prisoner B:will be released (0)

Prisoner A confesses, is ready to betray(=’defection’)

Prisoner A:will be released (0)Prisoner B:harsh sentence (10)

Prisoner A:moderate sentence (5)Prisoner B:moderate sentence (5)

Prisoners’ Dilemma (III; added)

How to ’read’ the table (referring only to the columns and

rows with the results, that is the four fields in pale blue): Imagine you are Prisoner A and want to take your best

choice – which is contingent on Prisoner B’s choice. If you anticipate Prisoner B to remain silent (left column),

it would be best for you to confess since you would be

released then (second row) which is even better then a

low sentence (first row): 0 is preferred to 1. If you anticipate him/her to confess (right column), it

would, again, be best for you to confess since a moderate

sentence is better than a harsh one: 5 is preferred to 10. You get to the same result if you take the position of

Prisoner B. Again, the ’dominant strategy’ is to confess.

Symbolic Interactionism

"Human beings act toward things on the basis of the

meanings they ascribe to those things.“

"The meaning of such things is derived from, or arises out

of, the social interaction that one has with others and the

society.“

"These meanings are handled in, and modified through,

an interpretative process used by the person in dealing

with the things he/she encounters.“ (Herbert Blumer)

homo micro-sociologicus (dyadic self)

Becoming a Marihuana User (I)

”The novice […] picks up from other users some concrete

referents of the term ’high’ and applies these notions to

his own experience.”

”It is only when the novice becomes able to get high in

this sense that he will continue to use marihuana for

pleasure.”

”The taste for such experience is a socially acquired one,

not different in kind from acquired tastes for oysters or dry

martinis.” (Howard S. Becker)

Becoming a Marihuana User (II)

”If a stable form of new behavior toward the object is to

emerge, a transformation of meanings must occur, in

which the person develops a new conception of the

nature of the object.”

”This happens in a series of communicative acts in which

others point out new aspects of his experience to him,

present him with new interpretations of events, and help

him to achieve a new conceptual organization of his

world, without which the new behavior is not possible.”

(Howard S. Becker)

End-Rational vs Value-Rational Action

“End-rational action strives for the actor's own ends

through expectations of the behavior of other person[s] or

objects in the external situation. This action makes use of

these expectation as ‘conditions’ or ‘means’ for rationally

calculated ends.”

“Value-rational action orients to purely a certain behavior

for its own sake through the conscious belief in its

unconditional value (ethical, atheistic, religious or other

meaningful value). Such value does not depend on its

result.” (Max Weber)

Strategic vs Communicative Action

Strategic action: “The central concept is that of decision

among alternative courses of action, with a view to the

realization of an end, guided by maxims, and based on an

interpretation of the situation.” ”[T]he agent’s calculation

of success [relies on] the anticipation of decisions on the

part of at least one additional goal-directed actor.“

Communicative action: “The central concept of

interpretation refers […] to negotiating definitions of the

situation which admit of consensus.” “The actors seek to

reach an understanding about the action situation and

their plans of action in order to coordinate their actions by

way of agreement.” (Jürgen Habermas)

Linking Micro and Macro Levels

”Coleman’s Boat (or: Bathtub)”

Macro level

Micro level

”religious doctrine” ”capitalism”

”values””economic behaviour”

methodological collectivism

methodological individualism

micro foundation

methodological interactionism

micro translation

Power in Social Action

Power is "the probability that one actor within a social

relationship will be in a position to carry out his own will

despite resistance, regardless of the basis on which this

probability rests“. (Max Weber)

Where is power ‘hidden’ in goal-rational / strategic action? resources, restraints, preferences are taken as given the ‘law of the market’ obscures these preconditions

Where is power ‘hidden’ in value-rational / communicative

action? certain ideas, values and skills have to be presumed ‘established truths’ usually have a dogmatic core

Lecture 3 (Fri 04.12.2009)

Part II (Sabine):

Social Order: The Macro Level

Introduction: Today’s Focus

Macro

Micro


individual action

collective order

Ego / I

CultureStructure

Alter / Me

shared ideas


external forces

Consensus vs Conflict Paradigm

consensus paradigmconflict paradigm

understanding social order

focus on class conflicts,

social inequality (’structural

violence’) and the state’s

monopoly on physical force

focus on the common culture

(’collective conscience’),

functional necessities and

the social foundations of law

Law in the Consensus Paradigm

”The law develops in the very intestines of society, and

the legislator only consecrates the work already done

without him.”

”One has to teach how law emerges under the pressure

of social needs, how it establishes little by little, the

degrees of crystallization it goes through, how it

transforms.”

”One has to illustrate how the grand juridicial institutions,

such as family, property, contract, came into being, what

caused them, how they differ, how they will probably

develop in future.” (Émile Durkheim)

Law in the Conflict Paradigm

“[T]he trial represents a paradigmatic staging of the

symbolic struggle inherent in the social world […] in which

differing, indeed antagonistic world-views confront each

other.”

“What is at stake in this struggle is monopoly of the power

to impose a universally recognized principle of knowledge

of the social world – a principle of legitimized distribution.”

”[J]udicial power […] demonstrates […] the sovereign

vision of the State. For the State alone holds the monopoly

of legitimized symbolic violence.” (Pierre Bourdieu)

Schools of Legal Thought (I)

Positivism: ”law as […] a political instrument, a body of

rules promulgated and enforced by official authorities,

representing the will, the policy, of the lawmakers”

Naturalism: ”treat[s] law as […] a moral instrument, an

embodiment of principles of reason and conscience

implicit in human nature”

Historicism: ”law as […] a manifestation of the group

memory, the historically developing ethos, of the society

whose law it is” (Harold J. Berman)

Schools of Legal Thought (II)

legal text

legal subtext(implied meaning, moral principles)

legal context(embeddedness in history and culture)

doctrinalist approaches;positivist school

normativist approaches;natural law theory

contextualist approaches;historical school

Lived Norms vs Enforced Norms (I)

Concept of Law

’Legal’ Mechanism

’Social’ Mechanism

Effective Moment

Lived norms(customary law, community law)

Complex of social obligations

Socialization, effects of culture (internal control, conformity)

Proactive (shaping regular conduct)

Enforced norms(positive law, state law)

Institutionally imposed sanction

Coercive means, effects of power (external control, government)

Reactive (following disruptive conduct)

(based on Brian Z. Tamanaha)

Lived Norms vs Enforced Norms (II)

Lived Norms Enforced Norms

Law & Society customary law; legal commitments before or outside the state;”living law”

enforced law; ’real’ effects of state law (i.e. ”law in the books”);”law in action”

Law & Economics spontaneous, ’natural’ order (bottom-up); abstract principles;”rules of just conduct”

designed, ’artificial’ order (top-down); concrete regulations;”rules of organization”

Notions of Law and Power (I)

Ego / I

CultureStructure

Alter / Me

shared ideas


external forces

StateSovereigntyPublic securityRealism




Notions of Law and Power (II)

oikos

nomosphysis

polis

social constitution

economic constitution

political constitution

security constitution State

SovereigntyPublic securityRealism




Lecture 4 (Mon 07.12.2009)

Part II (Sabine):

Classical Sociology: Culture and Power

Perspectives of Law and Society

Society Law

Law Society

Social embeddedness of law Legal construction of society

Primacy of the social contextRelative autonomy of the law Law reflects social reality

Primacy of the legal text(ure)Society as a legal projection Law performs social reality

Comparing Law and Sociology

Positivism – distinct views legal positivism (text-based) positivism as empiricism (context-based)

Normativity – shared contents legal (re-)production of the normative order ’normative paradigm’ (homo macro-sociologicus)

Rationality – common grounds rationalization of/through the law law as a prototype of modern reasoning

Unity of Legal and Social Theory?

Karl Marx (1818-1883)

focus on law and capitalism ( economy)

Émile Durkheim (1858-1917)

focus on law and morality ( community)

Max Weber (1864-1920)

focus on law and domination ( state)

Talcott Parsons (1902-1979) Niklas Luhmann (1927-1998) Jürgen Habermas (born 1929)

Durkheim’s Notion of the Law

”The law develops in the very intestines of society, and

the legislator only consecrates the work already done

without him.”

”We find it [here: the structure of the family] in those ways

of acting which have been consolidated by habit or by

what we call custom, law, and mores.”

”Solidarity […] does not lend itself to precise observation

[…]. We must therefore substitute for the internal given

which escapes our view, an external fact which

symbolises the other. […] This visible symbol is the law.”

(Émile Durkheim)

Durkheim’s Theory in a Nutshell

structural change:division of labour

semantic change:moral convictions

”collective conscience”

traditional (mechanical)solidarity

”cult of the individual”

modern (organic) solidarity

secularization re-sacralization

competition specialization

moral crisis(anomie)

legal change

Weber’s Notion of the Law

Power is "the probability that one actor within a social

relationship will be in a position to carry out his own will

despite resistance“.

Domination is “the probability that certain specific

commands (or all commands) will be obeyed by a given

group of people.” “Every genuine form of domination

implies a minimum of voluntary compliance”.

”An order will be called […] law if it is guaranteed by the

probability that physical or psychological coercion will be

applied by a staff of people in order to bring about

compliance or avenge violation”. (Max Weber)

Weber’s Position on Values

The distinction ” between ‘value-judgments’ and ‘empirical

knowledge” points to “the existence of an unconditionally

valid type of knowledge in the social sciences ”.

“The type of social science in which we are interested is

an empirical science of concrete reality. Our aim is the

understanding of the characteristic uniqueness of the

reality in which we move.”

“[C]ultural science […] involves ‘subjective’ pre-

suppositions insofar as it concerns itself only with those

components of reality which have […] cultural

significance.” (Max Weber)

Lecture 5 (Tue 08.12.2009)

Part II (Sabine):

Critical Sociology: Power and Conflicts

Marx’s Notion of Law (I)

“In these customs of the poor class, […], there is an

instinctive sense of right; their roots are positive and

legitimate, and the form of customary right here conforms

all the more to nature because up to now the existence of

the poor class itself has been a mere custom of civil

society”.

“[T]he state amputates itself whenever it turns a citizen

into a criminal. Above all, the moral legislator will consider

it a most serious, most painful, and most dangerous

matter if an action which previously was not regarded as

blameworthy is classed among criminal acts.” (Karl Marx)

Marx’s Notion of Law (II)

“In the social production of their existence, men inevitably

enter into definite relations, which are independent of their

will, namely relations of production”.

“The totality of these relations of production constitutes

the economic structure of society, the real foundation, on

which arises a legal and political superstructure and to

which correspond definite forms of social consciousness.”

“[T]hese general ideas are further elaborated and given a

special significance by politicians and lawyers, who […]

are dependent on the cult of these concepts”. (Karl Marx)

Economic Sociology of Law

Economics Law

Sociology

EconomicSociology

of Law

EconomicSociology

of Law

Law &Society

Law &Economy

Economy& Society

Classic Views of Market Society

Liberal dream British tradition of utilitarian individualism ‘civilizing markets’ that further peace and democracy

Commodified nightmare German tradition of Marxian collectivism ‘destructive markets’ that undermine social cohesion

Between liberalism and socialism French tradition of communal associationalism ’feeble markets’ that are embedded in moralities

Durkheim’s Theory in a Nutshell

structural change:division of labour

semantic change:moral convictions

”collective conscience”

traditional (mechanical)solidarity

”cult of the individual”

modern (organic) solidarity

secularization re-sacralization

competition specialization

legal change

moral crisis(anomie)

Polanyi’s Theory in a Nutshell

Modern market societydis-embedded markets, fictious commodities,’economic constitution’

Pre-modern economy embeddedness of economic functions in custom and law, magic and religion

Towards a liberal socialism?re-embedding markets through de-commodification, ’social constitution’

political economic crisis(culminating in WW II)

legal change

”The Great Transformation”

Liberal Socialism vs Economic Liberalism

Bottom-upargument

Top-down argument

And the role of the law?

Polanyi

social constitution

’self-protection’ of society through social movements that promote social policies

’self-regulating’ markets as artifical orders imposed on ’commodified’ individuals

focus on the restrictive functions of ’enforced law’ (re-embedding market society)

Hayek

economic constitution

markets as spontaneous orders that emerge from ’free’ economic decisions

socio-political interventionism is considered a coercive and inefficient form of order

focus on the enabling functions of ’customary law’ (furthering self-organization)

Levels of Social Embeddedness

Micro level: individual actors, social interaction

Meso level: social networks, institutional fields

Macro level: socio-economic regimes, cultural communities

Meta level: scientific rationalities, ’deep’ culture / structure

Lecture 6 (Thu 10.12.2009)

Part II (Sabine):

Rational Discourse and Political Power

Strategic vs Communicative Action

Strategic action: “The central concept is that of decision

among alternative courses of action, with a view to the

realization of an end, guided by maxims, and based on an

interpretation of the situation.” ”[T]he agent’s calculation

of success [relies on] the anticipation of decisions on the

part of at least one additional goal-directed actor.“

Communicative action: “The central concept of

interpretation refers […] to negotiating definitions of the

situation which admit of consensus.” “The actors seek to

reach an understanding about the action situation and

their plans of action in order to coordinate their actions by

way of agreement.” (Jürgen Habermas)

Habermas’ Notion of Law

Law as a medium: regulates bureaucratic and economic systems legitimized through a ’positivistic’ reference to

procedure ( legality)

Law as an institution: forms part of the legitimate orders of the lifeworld substantive justification in rational discourse (

morality)

”Law as a medium […] remains bound up with law as an

institution.” (Jürgen Habermas)

Law / Society in Systems Theory

Parsonscentred notion of law / society(interpenetration)

Luhmannde-centred notion of law / society(autopoiesis)

economy(money)

polity(power)

community(norms)

culture(values)

economic system(money)

political system(power)

legal system(law)

scientific system(truth)

Habermas’ Theory in a Nutshell

cultureshared cultural background and common values

societysocial order and solidarity based on shared norms

personalityformation of social identities through socialization

rationalizedlifeworld(discursive power)

economic system (monetary power)

bureaucratic system(administrative power)

LAW

law as a mediumstrategic action, juridification

law as an institutioncommunicative action, justification

market economy,economic constitution

welfare state,social constitution

public sphere, political constitution

Habermas’ Notion of Power (I)

Macro

Micro

distribution of power (independent variable)

emergence of norms (dependent variable)

strategic (inter-)action

juridification / colonialization

Systems(norms ’enforced’ by the state)

Lifeworld(norms ’lived’ by the community)

Illegitimate power:from facts to norms

Habermas’ Notion of Power (II)

Macro

Micro

distribution of power (dependent variable)

emergence of norms (independent variable)

communicative (inter-)action

justification / reconstruction

Systems(norms ’enforced’ by the state)

Lifeworld(norms ’lived’ by the community)

Legitimate power:from norms to facts

What about Legal Theory / Sociology?

Humanistic Sciences

Natural Sciences

Social Sciences

dualism

nomothetic approaches

’explanation’ (abstract, statistical descriptions, general ’laws‘, quantitative methods, observer perspective)behavioural sciences

idiographic approaches

’understanding’ (concrete, ’thick‘ descriptions, unique events, qualitative methods, participant perspective)cultural sciences

Reconstructive Legal Theory / Sociology (I)

Humanistic Sciences

Natural Sciences

Social Sciences

dualism

hermeneutic objectivism

objective knowledge possible(psychologism)

radical hermeneutics

no objective knowledge possible(deconstruction)

hermeneutic reconstructionism

both objective/empirical and normative/theoretical knowledge possible(critical re-construction and rational re-construction)

Reconstructive Legal Theory / Sociology (II)

The approach of rational (or: normative, critical)

reconstruction can be understood as an attempt to

combine an empirically informed diagnosis of the age with

a normative social theory.

While the natural (behavioural) sciences generate

objective / empirical knowledge about the general

structures of an observable reality (through description)…

…reconstructive (cultural) sciences generate normative /

theoretical knowledge of the deep structures of a

symbolically pre-structured reality (through interpretation).

Between Facts and Norms (I)

”[T]he tension between facticity and validity [is] built into

language and its use”.

”The validity claimed for propositions and norms

transcends spaces and times […]; but the claim is always

raised here and now, in specific contexts, and is either

accepted or rejected with factual consequences for

action.” (Jürgen Habermas)

Between Facts and Norms (II)

”Law [can be understood] as a categorie of mediation

between facts and norms”.

”The positivity of law is bound up with the promise that

democratic processes of lawmaking justify the

presumption that enacted norms are rationally

acceptable.”

”Enacted law cannot secure the basis of its legitimacy

simply through legality, which leaves attitudes and

motives up to the addressees”. (Jürgen Habermas)

Lecture 7 (Mon 14.12.2009)

Part II (Sabine):

Economy of Power and Symbolic Violence

Bourdieu’s Notion of Law

“[T]he trial represents a paradigmatic staging of the

symbolic struggle inherent in the social world […] in which

differing, indeed antagonistic world-views confront each

other.”

“What is at stake in this struggle is monopoly of the power

to impose a universally recognized principle of knowledge

of the social world – a principle of legitimized distribution.”

”[J]udicial power […] demonstrates […] the sovereign

vision of the State. For the State alone holds the monopoly

of legitimized symbolic violence.” (Pierre Bourdieu)

Symbolic Violence

“It is necessary […] to overcome the opposition between

a physicalist vision of the social world that conceives of

social relations as relations of physical force and a […]

semiological vision which portrays them as relations of

symbolic force, as relations of meaning or relations of

communication.”

“The most brutal relations of force are always

simultaneously symbolic relations. And acts of submission

and obedience are cognitive acts which as such involve

cognitive structures, forms and categories of perception,

principles of vision and division.” (Pierre Bourdieu)

Economy of Power

„[T]he immersion of economy in the social dimension is

such that […] the true object of a real economics of

practices is nothing other, in the last analysis, than the

economy of the conditions of production and reproduction

of the agents and institutions of economic, cultural and

social production and reproduction or, in other words, the

very object of sociology in its most complete and general

definition.“ (Pierre Bourdieu)

Social Space and Field of Power

field of class relations

+ –

field of power +

–

+ –

+

–field of cultural

production

economic capital

cultural capital

Economic vs Cultural Field

field of class relations

+ –

+ –

+

–cultural field

economic capital

cultural capital

+ –

+

–

economic fielda

uto

nom

y

het

ero

nom

y

Legal Field and Field of Power

“The juridical field is the site of a competition for

monopoly of the right to determine the law.”

“Given the determinant role it plays in social reproduction,

the juridical field has a smaller degree of autonomy than

other fields, […] that also contribute to the maintenance of

the symbolic order and, thereby, to that of the social order

itself.”

“External changes are more directly reflected in the

juridical field, and internal conflicts within the field are

more directly decided by external forces.” (Pierre

Bourdieu)

Symbolic Violence and the State

“[T]he state […] claims the monopoly of the legitimate use

of physical and symbolic violence […].”

“[I]t incarnates itself simultaneously in objectivity, in the

form of specific organizational structures and

mechanisms, and in subjectivity in the form of mental

structures and categories of perception and thought.”

“The state is the culmination of a process of

concentration of […] capital of physical force […],

economic capital, cultural […] capital, and symbolic

capital [including juridical capital].” (Pierre Bourdieu)

Jurisprudence and the State (I)

“[M]ost of the writings devoted to the state partake, more

or less efficaciously and directly, of the construction of the

state, i.e., of its very existence.”

“[J]uridical writings […] take their full meaning not only as

theoretical contributions to the knowledge of the state but

also as political strategies aimed at imposing a particular

vision of the state […].”

“[S]ocial science itself has been part and parcel of this

work of construction […]. […] [T]he question of the latter's

autonomy from the state [arises].” (Pierre Bourdieu)

Jurisprudence and the State (II)

Humanistic Sciencesfrom history

to philosophy

Natural Sciences

from mathematicsto biology

Social Sciences

from economicsto sociology

Faculty of Medicinehealth code

Faculty of Theology

holy scripture

Faculty of Jurisprudence

positive law

Faculty of Philosophystate

powerscientific authority

natural orderindividual bodies

cultural orderindividual minds

social ordersocial relations

naturalism

culturalism

Symbolic Violence and the Law (I)

Juridicial capital “is an objectified and codified form of

symbolic capital”.

“This capital is the basis of the specific authority of the

holder of state power and in particular of a very

mysterious power, namely his power of nomination.”

“By stating with authority what a being […] is in truth

(verdict) according to its socially legitimate definition, that

is what he or she is authorized to be, what he has a right

(and duty) to be, […] the State wields a genuinely

creative, quasi-divine, power.” (Pierre Bourdieu)

Symbolic Violence and the Law (II)

“To understand the symbolic dimension of the effect of

the state, […] [o]ne must focus in particular on the

structure of the juridical field and uncover both the generic

interests of the holders of […] juridical competence, as

well as the specific interests imposed on each of them by

virtue of their position”.

“One must understand how […] they were led to produce

a discourse of state which, by providing justifications for

their own positions, constituted the state – this fictio juris

which slowly stopped being a mere fiction of jurists to

become an autonomous order “. (Pierre Bourdieu)

Inside and Outside the Legal Field (I)

“The relative power of the different kinds of juridical

capital […] is related to the general position of the juridical

field within the broader field of power.”

“Thus, the hierarchy in the division of juridical labor,

visible in the hierarchy of professional specializations,

varies over time, if only to a limited extent”.

“The hostility between the holders of different types of

juridical capital, who are committed to very divergent

interests and world-views in their particular work of

interpretation, does not preclude the complementary

exercise of their functions.” (Pierre Bourdieu)

Inside and Outside the Legal Field (II)

“[T]he practice of those responsible for "producing" or

applying the law owes a great deal to the similarities

which link the holders of this quintessential form of

symbolic power to the holders of worldly power in general,

whether political or economic.”

“The closeness of interests, and, above all, the

parallelism of habitus, arising from similar family and

educational backgrounds, fosters kindred world-views.

Consequently, the choices which those in the legal realm

must constantly make between differing or antagonistic

interests, values, and world-views are unlikely to

disadvantage the dominant forces.” (Pierre Bourdieu)

Inside and Outside the Legal Field (III)

“In order to take full account of the symbolic power of the

law, it is necessary to consider the effects of the

adaptation of legal supply to legal demand.”

“This adaptation is less the result of conscious

transactions than of structural mechanisms such as the

homology between different classes of producers and

sellers of legal services and different classes of clients.”

„[P]aradoxically, […] these struggles between lawyers of

different countries striving to impose legal forms […]

contributed towards unifying the world legal field and the

world market of expertise in law“. (Pierre Bourdieu)

Lecture 8 (Tue 15.12.2009)

Part II (Sabine):

Truth Regimes and the Legal Subject

Politics of Truth

”[W]hat I am doing […] is not history, sociology, or

economics. […] [W]hat I am doing is something that

concerns philosophy, that is to say, the politics of truth, for

I do not see many other definitions of the word

’philosophy’ apart from this.”

„So, insofar what is involved in this analysis of

mechanisms of power is the politics of truth, […] I see its

role as that of showing the knowledge effects produced

by the struggles, confrontations, and battles that take

place within our society, and by the tactics of power that

are the elements of this struggle.“ (Michel Foucault)

Two Histories of Truth

“The first is a kind of internal history of truth, the history

of a truth that rectifies itself in terms of its own principles

of regulation: it's the history of truth as it is constructed in

or on the basis of the history of the sciences.”

“On the other hand, […] there are in society (or at least in

our societies) other places where truth is formed, where a

certain number of games are defined – games through

which one sees certain forms of subjectivity, certain

object domains, certain types of knowledge come into

being – and that, consequently, one can on that basis

construct an external, exterior history of truth.“ (Michel

Foucault)

Truth and Judicial Forms

“Among the social practices whose historical analysis

enables one to locate the emergence of new forms of

subjectivity, it seemed to me that the most important ones

are juridical practices.“

“Judicial practices, the manner in which wrongs and

responsibilities are settled between men, […] seem to me

to be one of the forms by which our society defined types

of subjectivity, forms of knowledge, and, consequently,

relations between man and truth which deserve to be

studied. “ (Michel Foucault)

Genealogy as a Method

”By de-institutionalizing, […] de-functionalizing [and de-

objectifying] relations of power we can grasp their

genealogy, i.e., the way the are formed […] and […]

transformed”.

This means ”[1] to free relations of power from the

institution, in order to analyze them from the point of view

of technologies; [2] to distinguish them also from the

function, so as to take them up within a strategic analysis;

and [3] to detach them from the privilege of the object, so

as to resituate them within the perspective of the

constitution of fields, domains, and objects of knowledge.”

(Michel Foucault)

Genealogy of the State

”first, the state of justice, born in a feudal type of

territoriality and broadly corresponding to a society of

customary and written law, with a whole interplay of

commitments and litigations”

”second, the administrative state that corresponds to a

society of regulations and disciplines”

”finally, a state of government […] which […] calls upon

and employs political economy as an instrument, would

correspond to a society controlled by apparatuses of

security” (Michel Foucault)

Government Based on Economics

”The essential issue of [the state of] government will be

the introduction of economy into political practice.”

”The possiblity of [self-]limitation and the question of truth

are both introduced into governmental reason through

political economy.”

”The fundamental question of liberalism is: What is the

utility value of government and all actions of government

in a society where exchange determines the true value of

things?” (Michel Foucault)

From Justice to Truth

”[F]rom being a site of jurisdiction, […] the market,

through all the techniques [of political economy] […] is

becoming […] a site of veridiction. The market must tell

the truth […] in relation to governmental practice.”

”Consequently, the market determines that good

government is no longer simply government that functions

according to justice. […] The market now means that […]

government has to function according to the truth.”

”[A]ll these cases […] involve taking up a history of truth

[…] that is coupled, from the start, with a history of law.”

(Michel Foucault)

From Truth to Justice

”[T]he […] form of rationality that made possible the self-

limitation of governmental reason was not the law. […] [I]t

is political economy.”

”Limited by respect for the truth, how will power, how will

government be able to formulate this respect for truth in

terms of laws which must be respected?”

At issue is thus ”the juridical structure (économie

juridique) of a governmentality pegged to the economic

structure (économie économique)”. (Michel Foucault)

Genealogy of the Subject

”It must be possible to do the history of the state on the

basis of men’s actual practice, on the basis of what they

do and how they think.”

”[I]f one wants to analyse the genealogy of the subject in

Western civilisation, one has to take into account […] the

interaction between […] two types of techniques –

techniques of domination and techniques of the self.”

”Homo oeconomicus is someone who is eminently

governable.” (Michel Foucault)

Homo Oeconomicus vs Subject of Right (I)

”[W]hat characterizes this new art of government […]

would be much more a naturalism than liberalism,

inasmuch as the freedom that [the economists] talk about

is much more the spontaneity, the internal and intrinsic

mechanics of economic processes than a juridical

freedom of the individual recognized as such.”

”Is homo oeconomicus an atom of freedom in the face of

all the conditions, undertakings, legislation, and

prohibitions of possible government, or […] a certain type

of subject who precisely enabled an art of government

[…] according to the principle of economy […]?” (Michel

Foucault)

Homo Oeconomicus vs Subject of Right (II)

”[T]he sovereign is not in the same position vis-à-vis

homo oeconomicus as he is vis-à-vis the subject of right.”

”The subject of right may well […] appear as that which

limits the exercise of sovereign power.”

”But homo oeconomicus is not satisfied with limiting the

sovereign’s power; […] he strips the sovereign of power

[…] inasmuch as he reveals an essential, fundamental

and major incapacity of the sovereign, that is to say, an

inability to master the totality of the economic field.”

A Tentative Summary

STATE

courts as sites of justice / truth

SUBJECT

markets as sites of justice / truth

Mechanisms of Power

LAW

ECONOMY

techniques of domination

techniques of the self

Knowledge Effects

classic rule of law

classic subject of right

modern political economy

modern homo oeconomicus

Power Dialogic lectures on social and legal theory

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Transcript of Power Dialogic lectures on social and legal theory