plik


ÿþJOURNAL 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, Â Geoffrey Bindman, Harry Arthurs, and Andre-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 Sexuality2 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 * 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). 592 ß Blackwell Publishing Ltd 2004, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA 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 593 ß Blackwell Publishing Ltd 2004 philosophers themselves. But most significantly I read the Everyman pocket edition of Marx's Capital3 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. 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. 594 ß Blackwell Publishing Ltd 2004 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 595 ß Blackwell Publishing Ltd 2004 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 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). 596 ß Blackwell Publishing Ltd 2004 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 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). 597 ß Blackwell Publishing Ltd 2004 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 State10 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 10 M. Raeff, The Well-Ordered Police State (1983). 598 ß Blackwell Publishing Ltd 2004 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 Veyne11 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 Distinction12 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 Morals15 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 Bourdieu16 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 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. 599 ß Blackwell Publishing Ltd 2004 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 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. 600 ß Blackwell Publishing Ltd 2004 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- sistence22 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 21 id., p. 41. 22 id., p. 31. 23 id., p. 35. 601 ß Blackwell Publishing Ltd 2004 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 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. 602 ß Blackwell Publishing Ltd 2004 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 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. 603 ß Blackwell Publishing Ltd 2004 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 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). 604 ß Blackwell Publishing Ltd 2004 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 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. 605 ß Blackwell Publishing Ltd 2004 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 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). 606 ß Blackwell Publishing Ltd 2004 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. 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). 607 ß Blackwell Publishing Ltd 2004 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 40 P. Miller and N. Rose `Governing Economic Life' (1990) 19 Economy and Society 1±31. 608 ß Blackwell Publishing Ltd 2004 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 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. 609 ß Blackwell Publishing Ltd 2004

Wyszukiwarka

Podobne podstrony:
The Place Of The Political In Derrida And Foucault
Foucault And Deleuze
Foucault And Ethical Universality
Scanned Foucault Pedagogy And Blood
Foucault and The Birth of Biopolitics
EV (Electric Vehicle) and Hybrid Drive Systems
Madonna Goodnight And Thank You
Found And Downloaded by Amigo
2002 09 Creating Virtual Worlds with Pov Ray and the Right Front End
Functional Origins of Religious Concepts Ontological and Strategic Selection in Evolved Minds
Found And Downloaded by Amigo
Beyerl P The Symbols And Magick of Tarot
find?tors and use?sesCB35F0
Found And Downloaded by Amigo

więcej podobnych podstron