JOURNAL OF LAW AND SOCIETY

VOLUME 31, NUMBER 4, DECEMBER 2004

ISSN: 0263-323X, pp. 592±609

Getting Marx and Foucault into Bed Together!

Alan Hunt*

This article is a contribution to the occasional series dealing with a

major book that influenced the author. Previous contributors include

Stewart Macaulay, John Griffith, William Twining, Carol Harlow,

Geoffrey Bindman, Harry Arthurs, and AndreÂ-Jean Arnaud.

MEETING MARX AND FOUCAULT

At the first meeting with the new graduate students in recent years to give a

brief indication of `where I'm coming from' I have got into the practice of

saying that I want to get Foucault and Marx into bed together. Though brief

and worth at least a smile, if not a laugh, it catches pretty accurately what I

have been thinking about over the last period. It also introduces the two

books that will frame this essay.

My first encounter with Marx was via the, thankfully shortened, edition of

Marx's The German Ideology.

1

In my teens I had never been so excited by a

book. The grand sweep of its universal human history was startling. I recall

copying out long sections and rereading them aloud. My second book is one

that continues to engage me. During my first reading of the introductory

volume of Foucault's The History of Sexuality

2

I was interested in an idea

that I was already open to, namely, that sexuality had a history, but was

rather deflected by my naive preoccupation with the question as to whether

his thesis about the Victorians and the `repressive hypothesis' was right or

wrong. I was also alienated from much of the suggestive potential of this text

by its narrow equation of law with monarchical sovereignty.

Subsequently I have re-read this, also thankfully short, book more often

than I have any other, each time getting new and different things from it, but

always coming away with varying dissatisfactions or intellectual itches. It

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350 Main Street, Malden, MA 02148, USA

* Department of Law, Carleton University, Ottawa K1S 5B6, Canada

1 K. Marx, and F. Engels `The German Ideology' [1845±46] in Karl Marx Frederick

Engels Collected Works Vol. V (1976) 19±539. I no longer have my original cheap

Moscow edition that was doubtless picked up from a second-hand book stall.

2 M. Foucault, The History of Sexuality (1976/78).

became clear to me that The History of Sexuality was a work of transition

located at the point of rupture between Foucault's preoccupation with the

transition between the two major forms of domination that have

characterized modernity, in brief, from sovereignty to discipline, to his

shift to the concern with the relationship between the governance of others

and the governance of self that featured in his final years.

It is significant that while neither of my two selected texts directly

engages with law, they both have wide ranging implications for law. I hasten

to add that I have come to realize that I do not think law as a more-or-less

independent phenomenon is what interests me; rather, law continues to

engage me because it exemplifies the dual dimension of being an institution

with coercive capacity that functions predominantly through discourses and/

or ideology.

I should say something about how these interests came to be formed. I

have long thought of myself as a product of the distinctive form of British

Labour welfarism that characterized Britain after the Second World War.

Born during the war into a family slowly becoming lower middle-class,

whose optimism about the possibility of making a better world kindled a

commitment to education in a house that was itself devoid of books and

whose enthusiasm for education made much of my early childhood, if not

exactly miserable, one that put more pressure for attainment than I was

enthusiastic about. I was entered to sit for scholarships, separated from my

local school friends, and sent to one of those classically illiberal institutions

that occupied a space between the elitist public schools and the state

secondary schools. St. Albans School suffered the indignity of being one of

the oldest schools in the country but could not claim this antiquity because

its existence had not been continuous, having been briefly closed during the

dissolution of the monasteries. So, without any formal provenance, it sought

to drive its pupils to attainment; the only legitimate aspiration was entry to

Oxbridge. This was done by imposing radical dividing practices; for

example, we were made to wear a multi-coloured blazer which meant that I

always ran the risk of abuse or a beating from the local kids as I made my

way home. It probably was not intentional but it seemed that the school

wanted to make study a drudgery and to extinguish any fun or excitement in

the learning process. There was also a suffocating formalism which meant

that to study humanities one had to take either English or Classics (Latin and

Greek); so my wish to study History, Geography, and Economics ended up

as a programme in Maths, Physics, and Chemistry! I completed my

schooling with indifference.

I did not flourish under these conditions and remain bitter that the most

tangible legacy was that I came to feel ashamed of my family and never

invited school friends to visit. I do not know how or why it happened but I

seemed in my mid-teens to have struck out towards independent study. I

started to haunt the local library and began taking out famous books. I read

Bertrand Russell on the history of philosophy and started on the classical

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philosophers themselves. But most significantly I read the Everyman pocket

edition of Marx's Capital

3

and Freud's Interpretation of Dreams that gave

me a strong sense that the human world was multi-dimensional.

Alienation from school and my reading had a radicalizing impact. I

became increasingly irritated by the petty school rules and regulations. We

had to play soldiers every Friday afternoon and this required lots of pressing

of uniforms and polishing of boots. I discovered, by chance, that this activity

was supposed to be optional and I took great pleasure in withdrawing from

the Officers' Training Corps and, if I had not acquired it before, soon

espoused a strong anti-militarism. This was beginning of activism since

others followed me away from the war games. This was the time that the

anti-nuclear-weapons movement began to surface. I am not sure whether I

went on the first Aldermaston March (although I can remember claiming that

I did), but I was certainly active in the Campaign for Nuclear Disarmament

by the second march. And it was here that I encountered the many varieties

of the Left. I joined the Young Socialists who were promptly closed down by

the Labour Party. The people who impressed me the most were the

communists. Here were people, often without much formal education, who

lived in houses full of books and who could talk knowledgeably about a wide

range of topics. They seemed to live straightforward, simple, and serious

lives. Over the next twenty years I continued to be impressed by the calibre

of the communist activists. Early on I was particularly fortunate to get to

know Ted Bramley who had led wartime occupations of London houses left

empty by the rich; he had a wide circle of political and intellectual

acquaintances and I spent many evenings listening to energetic conversations

and disputations. I wanted to join the Communist Party but was not yet 18,

but some exception was made and I went off to university proudly, as a card-

carrying member.

I had selected Leeds University because it was not Oxford or

Cambridge and had something of a radical reputation. I had happily

abandoned science and, thinking that there might be some connection

between sociology and socialism, enrolled for a degree in sociology. My

cohort shared a variety of radicalisms and there was political and

intellectual excitement in the air; it must have served us well since

members of the group are today scattered in prominent positions in

universities around the world. I threw myself most enthusiastically into

communist politics in Leeds. The Yorkshire party leader, Bert Ramelson,

with whom I was later to cross swords, taught me the elements of public

speaking from a soap box outside Leeds Town Hall while he took breaks. I

enjoyed sociology but did not put in enough time to do well, but I did learn

something which stood me in good stead later, namely, to study late at

night and gradually reduce my sleep time.

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3 Many years latter I stumbled on some notes I had made at the time and was

embarrased by my enthusiasm for a linear causality in the historical process.

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I became heavily involved in national student politics. At the time the

National Union of Students (NUS) was controlled by semi-professional

politicians who went on to careers in the Labour Party. One minor victory for

the Left had implications for my future; we won a rule change mandating

that candidates for office must recently have been full-time students. Since I

got close to election to the NUS Executive, I needed to remain a full-time

student for a while longer. For some reason, I had become tangentially

involved in mooting activities organized by the Law School and acquired an

always unrealistic aspiration to become a Clarence Darrow or D.N. Pritt,

defending the oppressed. I signed on for a law degree as also did Jack Straw.

We were both heavily involved in both local and national student politics

and did not have much time to attend lectures and tutorials. I would like to

make the belated confession that Straw and I benefitted from the neat

handwriting of two of the few female law students who periodically handed

over carbon-paper copies of their notes.

I finished my studies not having been particularly successful; but then I

defined myself in political and not academic terms. Impending marriage

compounded the need for employment. I still had thoughts of a career as a

barrister, so decided that law teaching would provide employment that would

allow scope for political work and professional qualification. I secured a junior

lectureship at the then Manchester Polytechnic. I enjoyed lecturing, and

teaching had the great merit of providing the possibility of a substantial control

over one's time, so I was able to throw myself into Communist Party politics in

the Manchester area. I became greatly involved in Marxist education which

also gave me a chance to reflect on teaching as a form of intellectual practice.

At the same time I became heavily involved with the Party's theoretical

journal, Marxism Today, which was to play a crucial role in theoretical and

political debates in Britain over the next two decades.

The late 1960s was a turbulent time. The British Left, small though it was,

became increasingly optimistic. The Communist Party pushed ahead with

developing its own strategic programme for a `British Road to Socialism'.

Creative though this process was, it later became evident that it left

unaddressed the question of the political strategy of the Soviet Union

through its control of the international communist movement. I had visited

the Soviet Union in my early years of activism; I had not been impressed. I

will cut short my account of my role in communist politics with the

observation that the British Communist Party signed its own death warrant

by, on the one hand, advancing its own independent project while, at the

same time, refusing to address why it was that the Bolshevik Revolution had

produced the oppressive bureaucratic system that was the USSR. I now

recognize that I wasted too many years in an organization that was tearing

itself apart with battles between the Soviet loyalists and the Eurocommunists

with whom I identified.

One productive consequence of my troubled political spirit was that I

threw myself into the explosion of theoretical debates that erupted within

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Marxism and other radical currents. Participation in these debates was what

made me aware of my own enthusiastic engagement with intellectual work.

The format of the reading group became popular as a means of systematic

engagement with `big' and `difficult' texts. One offshoot of my systematic

reading of Marx was to lead to the rewarding collaboration with Maureen

Cain that resulted in Marx and Engels on Law.

4

I also began to bring

together my work as a law teacher and my personal intellectual agenda. By

now I had ± thankfully ± given up the idea of becoming a legal practitioner.

And from this came the decision to strike out in a direction that was not

taken by many at the time. I decided that I wanted to bring together my

developing interest in law with my sociological background and my

Marxism by working for a doctorate. My otherwise supportive Head of

Department regretted having to turn down my request for institutional

assistance in pursuing a doctorate because `law teachers don't need

doctorates'.

So for the next few four years I spent ever spare moment, without much

slackening my political activism, under the reassuring, but somewhat

gloomy dome of Manchester Central Library. I sought to understand the

trajectory of the different ways in which sociologically rooted inquiries had

engaged the socio-political phenomenon of law. If I were to revive this

project, I would focus more explicitly on the changing historical conditions

in which law has been problematized. As it was, it made me engage in much

more depth than I had before with classical sociological theory,

rediscovering new depth and importance in Durkheim and Weber, but the

project also brought me into contact with a number of interesting figures who

left less lasting imprints on sociological thought. I became particularly

interested in the Russian sociological jurists, such as Timasheff and

Gurvitch, and the Bolshevik Evgeny Pashukanis, whom I found interesting

in themselves but also allowed me to explore one facet of the relation

between Russian Marxism and Russian sociology. One aspect of this gave

rise to my first `real' journal article that appeared in 1976 and I take the

liberty of mentioning it since nobody else has ever done so!

5

More

significant for my future was the publication of my doctoral thesis.

6

By this time there existed groupings that began to feel themselves as a

movement and that the designations `law and society' or `socio-legal studies'

represented something of a critical challenge to orthodox doctrinal or policy

approaches to law. What differentiated the law-and-society current from the

`new criminology' and `radical deviancy'

7

was that most of those who

identified with it were located within law schools. Radical deviancy was

doubly-significant because it was one of the earliest academic movements

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4 M. Cain and A. Hunt, Marx and Engels on Law (1979).

5 A. Hunt, `Lenin and Sociology' (1976) 24 Sociological Rev. 5±22.

6 A Hunt, The Sociological Movement in Law (1978).

7 L. Taylor, Deviance and Society (1971); P. Rock, Deviant Behaviour (1973).

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with an overt political agenda that took an organizational form with the

National Deviancy Conference (NDC).

8

Without the same overt politics, but

a general sense of progressiveness, the law and society current found

expression around the Journal of Law and Society (1974±) and the annual

Socio-Legal Conferences.

The question of how law and society could and should relate to the

traditional forms of legal education was a considerable preoccupation. For

many involved, life was lived on the fringes of the law schools, probably

teaching some professional legal subjects and being granted some optional

space to develop law and society or legal theory courses. The establishment

of `new' law schools, at the University of Warwick and elsewhere, that

consciously strove for a different identity created spaces for many. And

subsequently some of the law departments set up in the polytechnics created

spaces which were open to some degree of experimentation with the

curriculum. I had the opportunity to participate in these developments when I

moved from Manchester to Middlesex Polytechnic in 1975. There was much

creative energy expended on devising a curriculum which could achieve the

necessary assent of the Law Society while injecting either new ways of

dividing up the corpus of legal doctrine or seeking to move towards a focus

on forms of legal thought and reasoning.

A new intellectual current began to take shape in the late 1970s. `Critical

legal studies' (CLS) was a very distinctively American development and one

that emerged not from the margins but from the citadels of American law

schools. Some of its first exponents had a background in civil rights and anti-

war radicalism. What was most significant about it was its full-frontal

engagement with legal doctrine. Its most radical contention was that the kind

of faith perhaps most clearly articulated by Ronald Dworkin, that legal

reasoning could yield `one right answer', was naive, and that in truth legal

concepts, principles, and discourses are so open that they can be woven to

yield any juridical outcome. What CLS did was to allow the increasing

number of radicals working in legal education to become internal critics

rather than external critics. The ramifications of CLS in Britain had

differences from the Americans in being more evidently Left and in being

less enthusiastic about nihilistic variants of deconstructionism.

9

I do not

recall experiencing any direct tension between the socio-legal and the CLS

camps, but there was an increasing intellectual distance. Socio-legal

approaches became noticeably more empirical and generally less interested

in theory. `The crits' tended to be more iconoclastic and to take a keener

interest in what, politically incorrectly, was called `fancy French theory'.

The mixed impetus of CLS and socio-legal interventions into curriculum

reform took place against the rising tide of neoliberalism, in its specific form

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8 I. Taylor and L. Taylor (eds.), Politics and Deviance: Papers From the N.D.C.

(1973).

9 P. Fitzpatrick and A. Hunt, Critical Legal Studies (1989).

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of Thatcherism. Despite Thatcher's distinctive hostility to the restrictive

practices of the legal profession, the major take up of her ideas was one that

moved law closer to business, accountancy, and management. My time at

Middlesex ended with a symbolic defeat when the Law School was absorbed

into the Business School. For some time I had been interested in finding a

post in which I could more fully encompass my interdisciplinary identity.

This opportunity presented itself when I was offered a visiting professorship

at Carleton University in Ottawa. This turned into the offer of a tenured

professorship held jointly in the Law Department and the Sociology-

Anthropology Department in 1989. It has been a great pleasure to work in a

university that actively supported innovative ideas and resisted the erection

of rigid disciplinary boundaries. It was also a great pleasure to teach courses

which could be crossed-listed between many programmes and thus obtain an

interesting mix of students. A major source of both pleasure and intellectual

stimulation has come from supervising graduate students. I have been critical

of the incoherence of most undergraduate programmes in Canadian

universities, but the students who survive it make graduate students of

exemplary independence and intellectual engagement.

The experience of emigration prompted a considerable broadening of my

intellectual and research interests. First, my theoretical interests had become

much more eclectic. My relationship with Marx was complex, even fraught,

because I realized one could not simply perform some surgery that would

erase any tendencies that had contributed to the official ossification in the

form of Marxism-Leninism and leave some relatively unblemished corpus in

the way that some had sought to do by espousing the `early Marx' against the

`later Marx'. My orientation was rather to explore the supplementation of

Marx; in the short term this took me through a hectic rush through the corpus

of Foucault, but also of Habermas, Bourdieu, Elias, and then back to Weber

and Simmel and, most recently, a return to Durkheim. But of all these, it was

Foucault that made me itch more than the others, and the itch kept shifting,

reappearing in a different form.

Alongside this theoretical quest I found myself taking new directions in

my substantive interests. It was not that a historical interest was entirely new;

British Marxism had been so closely identified with history that history

rubbed off on everyone. But I had never undertaken any historical project.

My opportunity came in a way that offers an insight into the often

spontaneous eruption of a research interest. Arising from my engagement

with Foucault's treatment of law, I found myself reading around early

modern forms of regulation. I recall reading Marc Raeff's The Well-Ordered

Police State

10

on regimes of early modern city governance and in a footnote

came across a reference to sumptuary law and although I had been teaching

law for twenty years, I had never heard of such laws. The SOED could only

offer `a law regulating expenditure', but I had been bitten by a curiosity

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10 M. Raeff, The Well-Ordered Police State (1983).

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which took a disarmingly simple form: why did projects regulating

consumption arise? Why did they seemingly disappear? I learnt in the

course of my research that others had asked similar questions; for example,

Paul Veyne

11

had asked why had Roman gladiatorial combat been

introduced and why was it terminated? My project took me to a whole

range of topics, substantive and theoretical, that I had never touched before. I

encountered Veblen and Simmel, and the controversies on the relationship

between consumption and production, I delighted in Bourdieu's

Distinction

12

and I became fascinated by the history of fashion; but most

of all I became engaged with the often very strange particularlity of the

regulatory imagination and the techniques it seeks to put in place. These

elements came together with my engagement with Foucault and

governmentality into a project which resulted in Governance of the

Consuming Passions,

13

the most enjoyable writing that I have undertaken.

I found the orthodox interpretation of sumptuary laws as efforts to

maintain the hierarchical structure of waning feudal relations to reveal only a

small part of what sumptuary laws were about. There was an equally strong

and more modern logic that sumptuary law is the response to urbanization

which sought to capture social identity by securing the recognizability of

social position in the new world of strangers. In the course of developing this

line of thought, I came into contact with the concept of `moral regulation'

that I had first encountered through Corrigan and Sayer.

14

It became clear to

me that this concept had considerable potential if it could be separated from

its connection to state formation. Polemically I effected the reversal by

thinking about moral regulation as coming `from below' rather than from

above. This led to another historical project that expanded rapidly in scope to

explore a set of moral regulation movements over a period of three centuries.

In Governing Morals

15

I established something which was much closer to

the thesis that moral regulation emanates from `the middle' in that, since at

least the end of seventeenth century, moral regulation projects have been key

vehicles for the articulation of the politics of the middle classes. Not, as

Bourdieu

16

argued, that such projects were expressions of the `declining

fractions of the petty bourgeoisie', expressing the sentiments of a

Nietzschean ressentiment. This is especially significant in explaining why

the various phases of the women's movement have so frequently engaged in

moral regulation campaigns because the women's movement has most

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11 P. Veyne, Bread and Circuses: Historical Sociology and Political Pluralism (1976, tr.

B. Pearce, 1990).

12 P. Bourdieu, Distinction: A Social Critique of the Judgement of Taste (1979).

13 A. Hunt, Governance of the Consuming Passions: A History of Sumptuary Regulation

(1996).

14 P.R. Corrigan and D. Sayer, The Great Arch: English State Formation as Cultural

Revolution (1985).

15 A. Hunt, Governing Morals: A Social History of Moral Regulation (1999).

16 Bourdieu, op. cit., n. 12, p. 435.

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frequently emerged from the rising middle classes, and some jurisdiction

over the moral domain has given women a foothold in a significant field of

cultural or moral capital. My interest in the domain of moral politics has

continued.

17

And since moral politics frequently gives central place to sex

and sexuality my interests most recently has moved in that direction.

REVISITING MARX

My first encounter with The German Ideology was rather like beachcombing,

picking over incomphrensible passages of Marx's vitriolic polemic against

German philosophers I had never heard of and then, all of a sudden, coming

upon powerful gems that seemed to make sense of the way the dispersed

elements of a complex reality were connected. The passages that struck me

are many that have acquired an instant recognizability for me and many

others:

If in all ideology men and their relations appear upside-down as in a camera

obscura this phenomenon arises just as much from their historical life-process

as the inversion of objects on the retina does from their physical life-process.

18

Perhaps most striking of all:

The ideas of the ruling class are in every epoch the ruling ideas: i.e. the class,

which is the ruling material force in society, is at the same time its ruling

intellectual force. The class which has the means of material production at its

disposal, consequently also controls the means of mental production, so that

the ideas of those who lack the means of mental production are on the whole

subject to it. The ruling ideas are nothing more than the ideal expression of the

dominant material relationships, the dominant material relationships grasped

as ideas.

19

Maybe I can risk just one further passage that excited me and came to have

special importance for my thinking about law:

For each new class which puts itself in the place of one ruling before it is

compelled, merely in order to carry through its aim, to present its interests as

the common interest of all the members of society, that is, expressed in ideal

form; it has to give its ideas the form of universality, and present them as the

only rational, universally valid ones.

20

However, the Marx that I want to bring into play with Foucault is a rather

different Marx than the one that so excited me as a teenager. Then it was his

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17 A. Hunt, `Regulating Heterosocial Space: Sexual Politics in the Early Twentieth

Century' (2002) 15 J. of Historical Sociology 1±34 ; A. Hunt, `From Moral Science to

Moral Regulation: Social Theory's Encounter with the Moral Domain' in Handbook

of Historical Sociology, eds. E.F. Isin and G. Delanty (2003) 364±82.

18 Marx and Engels, op. cit., n. 1, p. 36.

19 id., p. 59.

20 id., p. 60.

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expansive philosophical anthropology that aroused my excitement. There is

a striking simplicity to his thesis that:

men must be in a position to live in order to be able to `make history'. . . . The first

historical act is thus . . . the production of material life itself.

21

At the time it seemed to follow that:

men can be distinguished from animals by consciousness, by religion or

anything else you like. They themselves begin to distinguish themselves

from animals as soon as they begin to produce their means of sub-

sistence

22

and similarly that language emerges from the practical requirements of

cooperation in wringing a livelihood from nature. Now, I am more

cautious, wanting to avoid pronouncements about the origins of human

consciousness, and for that matter being cautious about the quests for

origins. Rather more important is a concern about Marx's casual analytical

separation of production from consciousness, religion, and so on. There is

a self-evidence to the contention that people have to reproduce their

physical survival that does not sustain the conclusion that production

retains its priority throughout human history. It is from this thesis of the

primacy of production that Marx proceeds to trace the emergence of the

first forms of human communication and social relations. And this leads to

his compelling overview of a theory of stages of historical development.

What I did not notice at the time was that the Moscow editor had inserted

sub-headings on the rather fragmentary sheets that made up the early part

of the manuscript which stressed the phrase `the materialist conception of

history', although the phrase was not used by Marx. This contributed to

my enthusiastic embrace of `historical materialism' with its claim to a

universal social, economic, philosophical world view. It was only much

later that I came to discover the more nuanced, tentative, even

contradictory dimension, not only of The German Ideology, but of his

other major texts.

This richer view of Marx is one which approaches his theory not as a set of

proven conclusion in a world of inevitable determination by the economic or

by the class struggle. First it draws attention to the persistent emphasis on

historical specificity, the need for concrete or empirical analysis of each

circumstance.

[D]efinite individuals who are productively active in a definite way enter into

. . . definite social and political relations. Empirical observation must in each

separate instance bring out empirically, and without any mystification and

speculation, the connection of the social and political structure with

production.

23

601

21 id., p. 41.

22 id., p. 31.

23 id., p. 35.

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The realization of this approach was most successful achieved in his

major treatments of French politics.

24

However, this historicity is

compromised by the most characteristic formulations which have an

`either-or' quality. In Capital III Marx is uncompromising:

It is always the direct relationships of the owners of the conditions of

production to the direct producers ± a relation naturally corresponding to a

definite stage in the development of the methods of labour and thereby its

social productivity ± which reveals the innermost secret, the hidden basis of

the entire social structure.

But this is immediately qualified by:

This does not prevent the same economic basis ± the same from the standpoint

of its main conditions ± due to innumerable different empirical circumstances,

natural environment, racial relations, external historical influences, etc., from

showing infinite variations and gradations of appearance, which can be

ascertained only by analysis of the empirically given circumstances.

25

I do not think it is necessary to seek to resolve this tension between

universalism and particularism, but rather to keep its second side, the

concern with historical specificity and concrete analysis, to the fore. Such

an approach is facilitated by a second orientation towards Marx's theory

by insisting that theory does not state conclusions but rather provides

methodological suggestions about the questions to be asked and where to

start with answering them. This means that inquiry should start, not with

the conclusion that the economy determines social and political outcomes

but, rather, that economic relations should be considered as the

appropriate place to initiate the inquiry. The same approach can be

taken to the weight to be attached to classes and class relations. It is not

that the class struggle is determinant, but that to ask `What class relations

are implicated in the phenomenon under enquiry?' is a good starting

point which sets up and leads into inquiry about what other forms of

social relations are present.

This approach has a distinct benefit when applied to legal phenomena.

The focus on relations helps hold at bay that great vice of legal enquiry

which objectifies law, exemplified as `the Law', which makes it appear as an

objectified entity that pre-exists the instititutional apparatuses and practices

that provide its conditions of continuity and independence. It is in order to

avoid this objectification of law that I have come to refuse to take `law' as

my object of inquiry and instead take as my point of entry either `regulation'

or `governance' (and I have not settled whether these are the same or

different starting points). Both concepts have the merit of being `processes'

that have their point of impact on various forms of `relations'. I am

persuaded that social studies of law should do everything possible to avoid

602

24 K. Marx, The Civil War in France (1960); K. Marx, The Eighteenth Brumaire of

Louis Bonaparte (1963).

25 K. Marx, Capital: A Critique of Political Economy: Vol. III (1959) 772.

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treating law as a entity standing apart because that view is precisely an

ideological tenet of liberal legalism.

The other crucial feature of Marx is the central place he accords to class.

Even if it is conceded that Marx's language often presents classes as

historical subjects acting as self-conscious actors, it is still necessary to

retain the concept `class' as a means of identifying one of the primary and

most persistent sets of social cleavages, never the only one, but nevertheless

one without which no rich analysis of social relations is possible. This is

especially true when some concept of hegemony, most closely associated

with Gramsci, is added which draws attention to the active work undertaken

by social forces in generating alliances and securing viable political

strategies. It is worth recalling that Marx himself in an early text captures the

essential features of the dynamic relation between classes:

Only in the name of the general rights of society can a particular class lay

claim to general domination. For the storming of this emancipatory position,

and hence for the political exploitation of all spheres of society in the interests

of its own sphere, revolutionary energy and intellectual self-confidence are not

sufficient. For the revolution of a nation and the emancipation of a particular

class of civil society to coincide, for one estate to be acknowledged as the

estate of the whole society, all the defects of society must conversely be

concentrated in another class.

26

The indispensability of the concept class is attested to by the fact that

Foucault himself frequently invokes the concept, especially when discussing the

role of the bourgeoisie in nineteenth-century France, even though he normally

goes to considerable lengths to avoid the taint of Marxist terminology. What

Marx provides is attention to and the means of addressing the forms of

aggregation or condensation of social, economic, and other forms of power that

are a typical feature of mechanisms of domination; it is the capacity to grapple

with the reproduction of mechanisms of domination that makes Marx an

essential companion into the twenty-first century.

FOUCAULT'S RESISTANCE

Foucault would undoubtedly have resisted my attempts to situate him much

closer to Marx than he positioned himself. Of course Foucault recognized the

lasting significance of Marx and was, I think, prescient in his observation on

Marx.

It is clear, even if one admits that Marx will disappear for now, that he will

reappear one day.

27

603

26 K. Marx, `Contribution to Critique of Hegel's Philosophy of Law: Introduction'

[1844] Karl Marx Frederick Engels Collected Works: Vol. III (1975) 184±5.

27 M. Foucault, `Structuralism and Poststructuralism: An Interview' in Aesthetics,

Method, Epistemology Vol. 2: The Essential Works of Michel Foucault, ed. J.D.

Faubion; tr. R. Hurley (1998) 433±58, at 458.

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Yet it clear that much of Foucault's intellectual formation was decisively

influenced by the looming presence of Marxism in the post-war France in

which he lived. I suggest that Foucault's engagement and subsequent

estrangement was not so much with Marx, but rather with the French

Communist Party (PCF). He, like so many other French intellectuals, had

briefly been a member of the PCF in the early 1950s, but his growing distaste

for the Soviet Union and the rigid `official' theory promoted by the PCF

made him subsequently conflate Marx with official Marxism, and his

intellectual refusal of the humanist current through which some leading

Marxists sought to distance themselves from Stalinism (but not, it should be

noted, Althusser, who was one of Foucault's mentors). My contention is that

although Foucault's views were often articulated in terms different from

Marx they are by no means incompatible; Foucault's views are much closer

to Marx than he was ever prepared to concede. Indeed he admits that in

reaction against vogue of citing Marx in every footnote, `I was careful to

steer clear of that'.

28

I will proceed by addressing Foucault's differences with Marx; while these

often raise important and difficult issues I will suggest that few, in any, prohibit

a fruitful blending of approaches drawing on both Marx and Foucault.

Probably the major conflict between Foucault and Marx is about the

possibility of causal explanations. In its simplest form, their difference can

be stated as a contest between `why questions' (why did things happen in the

way that they did?) and `how questions' (by what means and actions did

things happen?). Foucault views `why questions' as necessarily being

searches for origins that bring with them the idea of some causal chain which

links the past to the present and this, in turn, leads to the intellectual sin of

functionalism whose error is that it assigns some fixed role to each social

practice or institution. Foucault prefers to refuse origins and to stress the

contingency of history; his world `is a profusion of entangled events'.

29

The reason why it is necessary to persevere with `why questions' is that if

the marker of a critical stance is a concern with how things might be

different then figuring how they came to be as they are is a necessary

component of that engagement. The distance between Foucault and Marx

might not be so great as Foucault suggests. Both are concerned to account for

change and to promote it. Foucault attends to how to `think differently' and

to `conditions of change'

30

but, similarly, Marx focused on the `conditions of

existence' that identify the necessary and sufficient conditions for the

emergence of some social form.

31

Similarly, Althusser's `structural

604

28 id.

29 M. Foucault, `Nietzsche, Genealogy and History' [1971] in The Foucault Reader, ed.

P. Rabinow (1984) 76±97, at 89.

30 M. Foucault, The Use of Pleasure: Vol. II, The History of Sexuality (1984, tr. R.

Hurley, 1985) 9.

31 B. Hindess and P. Hirst, Pre-Capitalist Modes of Production (1975) 314; P. Bourdieu,

The Logic of Practice (1980, tr. R. Nice, 1990).

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causality' serves to avoid any implication of `sequential causality' (X, then

Y, then Z).

32

Through this lens, causality is viewed as being located not in

single `causes', but in the combination or articulation of instances in and

through a complex structure of over-determination. Thus, both Marx and

Foucault share a commitment to historical specificity and to the contingency

of history, while Marx points to a firmer directionality of the historical

process.

Foucault charged Marx with being tainted with a humanism that posits a

self-conscious subject as the primary social actor. Oddly this charge may

legitimately be laid against certain currents within French Marxism, for

example, Roger Garaudy, who were themselves trying to escape from the

determinism of orthodox `Marxism-Leninism'. But Marx himself, from

early on, was clear that his central focus was on social relations and

practices:

The social structure and the state are continually evolving out of the life

process of definite individuals . . . as they actually are, i.e. as they act, produce

materially, and hence as they work under definite material limits,

presuppositions and conditions independent of their will.

33

I have become increasingly convinced of the importance of addressing social

actors `independent of their will' and, in particular, rigorously avoiding

engagement with `intentions' on the grounds that we have no independent

means of gaining access to intention other than through the self-reports of

self-interested social actors. This injunction raises special problems with

respect to law because it is doubly beset by intentions. A primary feature of

legal discourses presumes that law itself is endowed with intentionality so

that legal interpretation asks questions about the intentions of the law-

makers. Similarly the questions so frequently asked of legal subjects in court

proceedings interrogate their intentions. Insufficient attention has been paid

to this fictive character of legal interpretation.

Foucault is persistent in his refusal of Marx's concept of ideology. As

Paul Veyne succinctly articulates it:

Foucault's importance is precisely that he is not `doing' Marx or Freud: he is

not a dualist, he does not claim to be contrasting reality with appearance.

34

There can be no dispute that in his camera obscura formulation and

elsewhere, Marx held to some version of a correspondence theory that

linked an external reality with its mental appearance. Foucault himself

reiterates his own rejection of ideology theory and carefully purges his

account of discourse theory of any hint of ideology analysis. I have argued

more fully elsewhere that there is no necessary opposition between the

605

32 L. Althusser, `Contradiction and Overdetermination' in For Marx (1969).

33 Marx and Engels, op. cit., n. 1, pp. 35±6.

34 P. Veyne, `Foucault Revolutionizes History' in Foucault and His Interlocutors, ed. A.

I. Davidson (1997) 146±82, at 182.

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concepts discourse and ideology.

35

The theory of ideology can supplement

discourse theory rather than being in opposition. The critical thrust of

Marx's theory of ideology is not impeded by his own dualism; its strength

is its focus on the way in which the articulation or interpellation of subject

positions operates systematically to reinforce and reproduce dominant

social relations. While discourse theory is essential to distinguish between

and understand the mechanisms through which legal and other discourses

work, ideology provides the important supplement of directionality in the

sense that ideology can work to favour some and to disadvantage others.

Thus the critical project of a theory of ideology is concerned to explain

how the forms of consciousness and communication arising from the lived

experience of subordinate classes and social groups facilitates the

reproduction of existing social relations and thus impedes the emergence

of forms of consciousness that reveal the nature of their subordination. In

its simplest and most pervasive form, ideology presents the existing social

relations as both natural and inevitable; particular interests become

disassociated from their specific location and come to appear as universal

and neutral; in this respect legal discourses and doctrines are exemplary

instances.

Another objection that Foucault raises against Marxism is that it exhibits a

characteristic preoccupation with the state:

[O]ne cannot confine oneself to analysing the State apparatus alone if one

wants to grasp the mechanisms of power in their detail and complexity. There

is a sort of schematism that needs to be avoided here ± and which incidentally

is not to be found in Marx ± that consists of locating power in the State

apparatus, making this into the major, privileged, capital and almost unique

instrument of the power of one class over another.

36

And Foucault goes on to a valuable exploration of the micro-powers and the

micro-penalties associated with them. But it should be noted that he exempts

Marx himself. Again I suggest Foucault's target is Marxism-Leninism and,

in connection with the state, the way in which it generalized what was

probably a perfectly sound tactic in the hands of the Bolsheviks in striking at

the fragile Czarist state in 1917 into a universal political strategy. It is

interesting that Foucault never criticized Althusser's concept of the

`ideological state apparatuses' thesis which did precisely suggest that

widely dispersed forms of power are orchestrated by the state.

The broader question of how the analysis of power should be approached

is more complex. It seems evident that approaches which both give primacy

to the state and those that deny it should both be avoided. The stimulus

provided by Foucault to examine the complex of local, semi-official, and

606

35 T. Purvis and A. Hunt `Discourse, Ideology, Discourse, Ideology . . . (1993) 44 Brit. J.

of Sociology 473±99.

36 M. Foucault, Power/Knowledge: Selected Interviews and Other Writings 1972±1977,

ed. C. Gordon (1980).

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other exercises of governance, regulation, and disciplinary practices has

proved extremely productive. Perhaps even more important, although this

was not a point stressed by Foucault, is to exorcize the tendency to treat the

state as `the State,' as a unitary set of apparatuses governed and directed

from some central command centre; but, while making this point, we should

not let go of an understanding of the capacity of specific state institutions to

condense and mobilize great power resources and capacities. We should

avoid any suggestion that there is some methodological rule to guide us. All

that can be said is: look to both concentrated and dispersed powers, assume

no priority between these, and pay attention to the empirical detail.

There is a paradox at the heart of Foucault's treatment of power and the

state. His concern to deny any prominence to the state leads him to set up the

polarity of sovereignty/law versus discipline/norms as the primary

constitutive passage from early modern to modern society. While

denouncing the Marxists for their obsession with the state, he commits

precisely the same error with respect to his treatment of the monarchical

state of early modernity by treating its state form as a unitary sovereignty

which is equated with and seen as functioning through law conceived as

commands, interdictions, and sanctions, `a power to say no';

37

the

fundamental historical trait of Western monarchies: they were constructed as a

system of law, and they made their mechanisms of power work in the form of

law.

38

One of the things which makes this view particularly inaccurate is that he

had himself drawn attention to the fact that in the classical/monarchical

period discipline was conducted by religious bodies, but increasingly shifted

to the state and the police apparatus, gradually becoming more permanent,

exhaustive, as an omnipresent surveillance.

I have previously drawn attention to the violence that Foucault's treatment

does to any attempt to grapple with the complexity of forms and

manifestations of modern law.

39

Here I want to add the observation that his

treatment always obstructs an adequate interrogation of the political and legal

forms of the monarchic state. He overemphasizes the unitary nature of the

monarchic regimes; while the project of unification and centralization was

pursued, the reality of the emergent legal regimes, both common law and civil

law, was that they were imprinted with the traces of a variety of legal forms;

for example, common law equity jurisdiction is marked by both feudal

relations and by the newer commodity relations, along with an ethics that has

classical points of reference.

607

37 M. Foucault, The History of Sexuality: Vol. I, An Introduction (1976, tr. R. Hurley,

1978) 85.

38 id., p. 87.

39 A. Hunt, `Foucault's Expulsion of Law: Towards a Retrieval' (1992) 17 Law and

Social Inquiry 1±38; A. Hunt and G. Wickham, Foucault and Law: Towards a New

Sociology of Law as Governance (1994).

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While I remain highly critical of Foucault's treatment of law, and think

this has carry-over effects for his treatment of the forms of power in modern

society, I want to make clear that his errors are those that arise, as is often the

case, from the fact that law and legal relations did not form one of his objects

of inquiry. In other words, this deficiency does not undermine the strengths

of Foucault's contributions to our understanding of modern mechanisms of

rule.

CONCLUSION

My engagement with the complex and historically shifting place of law in

processes of regulation and governance have provided me with the

opportunity to explore a wide intellectual terrain in both the theoretical

issues and historical inquiries through which I have sought to test these

reflections. In these inquiries, both Foucault and Marx contribute important

elements. But we should not think that it is possible simply to bring them

together in order to provide the complete requirements! They have rough

edges such that they do not fit neatly together, but it is precisely out of those

tensions and differences that the stimulus to thought arises. This is especially

the case when Marx and Foucault press us to keep in mind different

dimensions; for example, while Foucault urges attention to the contingency

of the event, Marx points to the processes through which power, and

domination become condensed in specific sites from which decisive contests

are joined. I find it particularly fruitful, despite Foucault's own neglect, to

pay attention to the diversity or plurality of legal phenomena, but not to lose

sight of the complex interplay between political and juridical power, an

interaction which can be so decisive, but which is so often liable to stumble

and in so doing brings the mechanisms of power into sharper focus.

Both Marx and Foucault suffer from major deficiencies. Rather than

catalogue these I want to pick just one, but one of great importance, namely,

that they both have severe deficiencies in their conception of politics.

Foucault's conception of politics is inadequate because it provides no

means of grasping radical or transformative politics or of looking to the

future (what might be? how might it be achieved?). This is because of his

preoccupation with domination and governance; the problematic of

domination takes as its perspective that of the dominator, and looks at the

strategies and techniques whereby that domination is secured and others are

made subject to it. It is significant that this trait has infected governmentality

studies, the main current of English-language Foucauldian work, which has

come to be almost exclusively concerned with the rationalities of the rule of

those institutions and agents concerned with governing others.

40

Foucault

608

40 P. Miller and N. Rose `Governing Economic Life' (1990) 19 Economy and Society

1±31.

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attempts to redress this one-sidedness by inserting the concept of resistance,

but it is a frail concept that lacks substance as to the conditions that give rise

to the possibility of resistance. On the other hand, where Foucault is

especially helpful is in stressing that domination always involves the

interaction of multiple forms of domination such that pure force is for

Foucault uninteresting because it does not involve any relationship between

the dominator and the dominated.

One of the major deficiencies of Marx (and of most major Marxist

traditions) is what I have referred to as the `missing dimension' of Marx's

legacy, namely, the absence of a developed account of the representative

democracy that arose on the basis of capitalist industrialization.

41

This

feature is closely related to the very concept of revolution which is, of

course, so central to Marx's own work and his legacy. This handed down a

pronounced tendency to see the advent of socialism as encapsulated in the

single revolutionary moment.

I find it significant that my attempt to keep both Marx and Foucault in the

frame together leaves me with something of a political vacuum. I have never

warmed to social democratic politics, even in its more exuberant `Third

Way' varieties. And although my contact with everyday politics in the

United Kingdom has waned (and this certainly has not been filled by the

rather tepid politics of Canada), I find myself filled with contempt for Blair,

which continues to nourish a radicalism of the will, but I fear that I find

myself giving a less positive inflections to Gramsci's famous aphorism about

`pessimism of the intellect, optimism of the will'.

42

609

41 A. Hunt, `Taking Democracy Seriously' in Marxism and Democracy, ed. A. Hunt

(1980) 7±20.

42 A. Gramsci, Selections from the Prison Notebooks of Antonio Gramsci, ed. and tr. Q.

Hoare and G. Nowell-Smith (1971) 173.

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