Normalizing Mechanisms Lecture

Elevation, section and plan of Jeremy Bentham’s Panopticon penitentiary, drawn by Willey Reveley, 1791

Reading Foucault’s Truth and Juridical Forms

Introduction

The text we are reading, Truth and Juridical Forms, by Michel Foucault, combines five lectures delivered in Brazil in 1974, a year before the publication in France of his book Discipline and Punish, of which it constitutes an earlier draft. Constructed in this text is a genealogy of the concept of normalization and its strategic place in Foucault’s theorization of power-knowledge.

Before we start our reading, let me go over as few aspects of Foucault’s thought that might be helpful to know as we perform the reading; some are peripheral to the text, while others are in it but only manifest themselves gradually, as the text unfolds.

First off, you should keep in mind that the real point of his study is not the past itself, despite his digging up of remote events in time. The vantage point is the present and the goal is to improve our understanding of current conditions. Foucault is less concerned in this text with determining the origin of things and more in tracing how the present came to be shaped as a result of contingent events in the past.

One of the consequences of this genealogical approach is that the present loses its apparent solidity, its appearance of immutable eternity. The contemporary condition presents itself as what it is: a recent point in history. In other words, this is not how things have always been but rather how they have become in a relatively short period of time.

What he does is not the official history of law in the sense of a sequence of the proper names that have authored it. Instead, he links up fragments that have constituted the practice of law at different points in time and sketches out the developments of the body of knowledge that was formulated as a result.

He also does more than simply look at the practice of law, he looks at its very conditions of possibility in the mechanisms society devised to extract truth from conflicting situations; i.e., power relations. Additionally, Foucault also investigates how these mechanisms have come to constitute distinctive new systems of power, a power that operates through processes of subjectivation.

Nietzchean insight

In order to delve deeper into this notion of subjectivization as a form of control, we should start with what Foucault has to say about a type of knowledge of man that took shape in the 19th century. He contends that a knowledge about individuality was invented then and that it was informed by the newly conceived notion of the normal as opposed to abnormal individual. He also says that this knowledge has its foundation in the social practices, more particularly, those practices involved in the control and supervision of individuals.[1]

To reach that insight, that is, in order for him to reach an understanding of the mechanisms at play in shaping the human subject, it was necessary for Foucault to move away from the notion of the subject as simply given–a subject that is simply assumed to exist and on the basis of which knowledge is conceived. He needed to move towards a conception of the subject that is constituted within history and which results from the processes that traverse its being.[2]

That’s why he needs Nietzsche, because Nietzsche is the thinker who conceived of knowledge as resulting from a struggle between instincts,[3] as opposed to something that simply occurs to the subject, unencumbered by other forces. Nietzsche’s Will to Knowledge implies the presence of a driving force. From Nietzsche, Foucault understood that in order to fully grasp how knowledge is formed, he needed to look at its generative stage within relations of power.[4] This task required the thinker to descend from the abstract realm in which subject and knowledge have customarily been thought, and go down to the more mundane level where battles of force are held and organized into practice.

One can then understand why Foucault seizes the juridical practices. As he put it, they are “among the social practices whose historical analysis enables one to locate the emergence of new forms of subjectivity.”[5]

Foucault sums it up, while still referring to Nietzsche: “One can understand what knowledge consists of only by examining these relations of struggle and power, the manner in which things and men hate one another, fight one another, and try to dominate one another, to exercise power relations over one another.”[6] We are here far removed from the language of abstraction and down to the mundane, at times even base, struggles for power.

You will note that it was the practical form these struggles took that constituted the institutional knowledge about them; not the other way around.

Detour to the ancients

But before we reach that point in the logical sequence of the text, Foucault takes a detour in the narrative toward the time of the ancient Greeks, a remote point in relation to the time frame of the rest of the text which broadly goes from the Medieval period to the 19th century .

He situates our attention in Oedipus, a play by Sophocles, whom he sees as orchestrating a theatrical ritualization of law in a series of plays that includes Antigone and Electra.[7]

At stake for Foucault in the Oedipus play is the discursive shift that is effected at the level of what he calls the enunciation of truth. What is introduced in this piece, and what drastically transforms the manner in which the truth was sought until then, is the search for evidence. This new concept occasions a practical reversal in the established forms of prophetic discourse at work then.[8]

War by other means

Having established with the Greek example that the historical sequence is not so linear as one would hope for while trying to understand its developments–in fact the history of knowledge is replete with discontinuous instances–Foucault can then return to his main narrative; he takes us next to the Medieval period.

In order to contrast the developments he is about to cover, he paints an unflattering, while realistic, portrait of the law during medieval times. In plain words, law was simply a means of regulating acts of revenge; i.e., a “regulated way of making war.”[9]

Furthermore, feudal law mediated disputes through a rather bizarre system: the test. The test, or series of tests, was something both parties would agree to take part in, regardless of the irrationality involved in these procedures.[10]

Discovering what had really occurred, what led to the dispute, had no place or meaning in such a context. Resolution had nothing to do with discovering the truth of the situation. It was instead a matter of establishing the “strength, the weight, the importance of the one who spoke.”[11] Victory or defeat were the only significant elements in feudal law. Force, not justice was at stake.[12]

The role authority played was solely the one of a witness to disputes, as to ascertain the properness, indeed the regularity, of the procedure.[13]

All was about to change, and this occurred through the introduction of a new form of knowledge that entered the practice of law: the inquiry.[14] The inquiry is a way of establishing the authenticity of what it discovers through its procedure. The form of the inquiry will allow for the gathering of clues that will comprise the truth of a situation. It is in that sense that it will become a form of knowledge-power.[15]

Something else is introduced along with the invention of the inquiry, and that is the notion of the infraction. That’s when what was before a struggle between two parties, only witnessed by authority, became an offense against the state. We then acquired this notion of a wrong that is committed against society.[16]

A Social Orthopedics

When crime ceases to be a transgression, in the religious sense of being a sin, and becomes a wrong committed against society as a whole, we then arrive at the definition of the criminal as the enemy of society.[17] Revenge and redemption, the established ways for the reparation of crimes under a religiously inflected law, are no longer appropriate forms of redress for this newly conceived crime. If the crime harms society, one needs to find a way to repair this social injury.[18]

An obvious way of protecting society is by diminishing the number of crime occurrences. The manner in which the 19th century chose to do this was by assessing and controlling the level of dangerousness of individuals. To accomplish this enormous task, an entire institutional system was created. Starting with institutions that one would expect to be involved in the segregation of dangerous individuals like the police and the psychiatric asylum, but then extending to hospitals and schools, therefore making clear that what was at stake was not simply the punishment of individuals but shaping and correcting them at the level of their potential actions.[19]

Foucault will call this social project an orthopedics and synthesize its principles by invoking the ominous and pervasive architectural project of the Panopticon. What this circular building, with a central point of observation, permits is an optimum and economical type of surveillance that is equally suitable for the control of prisons, asylums, hospitals, schools, factories and so on.[20]

With the Panopticon we traded the probing, while still relatively superficial, notion of the inquiry for something much more invasive, and therefore more suitable for the job of controlling and shaping the individuals under its gaze: the examination.[21]

The notions of inquiry and examination may seem conceptually close but their procedures could not be more distinct. While the inquiry seeks to uncover if something has happened and if someone is culpable, the examination operates at a different point in the temporal sequence. It seeks to prevent criminal action from occurring by correcting individual behavior at its formative stage. For that, it needs a model to follow. This model is provided by the norm, or the notion of what is understood as the normal state of being, which itself is defined by contrast with that which it is not; i.e., the abnormal.[22]

With this notion of normality, we have completed the trajectory that led from a knowledge of law formed around the need to regulate something that had already happened, all the way to the prospective operation designed to prevent and shape, that which was yet to occur.

In that slippage we also traded the object of knowledge, which before was given by the event and is now offered by the subject. In other words, we traded a focus on actions to one based on the individuals who may or may not commit such actions.

Productive Power

We have arrived at a concise understanding of this type of power that Foucault is, in a shorthand manner, calling Panopticism: it is a type of power characterized by its continuous application to individuals, it is also a power that seeks to correct or mold individuals according to accepted norms. In sum, this power is comprised of three constitutive aspects: supervision, control and correction.[23]

Something that clearly distinguishes Foucault’s conception of power from purely negative or repressive formulations is his notion that power is exercised through productive mechanisms. He states as much directly when he says in relation to the factory that it attaches, rather than excludes, individuals to its production apparatus. This is true even about the prison, in spite of the fact that it excludes individuals from the rest of society. His point is that it does so by attaching them to the normalizing apparatus of the prison, which is itself part of society’s overall system of production.[24]

This more sophisticated type of inclusion, what Foucault calls sequestration, is best understood by comparison with the practice of confinement, widespread in the 18th century. While the latter reinforced marginality, the former aimed to inscribe the individual through a process of normalization.[25]

Economically speaking, as the practice of sequestration turned out to be too inflexible to accommodate the fluctuations of the market, more subtle mechanisms of control were developed. Savings banks and relief funds provided the means to assure control throughout an entire lifespan, as opposed to simply the period of work.[26]

But, in spite of this stress on economic matters, this power is not solely economical, neither it is just political. It is also a judicial power in the sense that, despite its emphasis on training, it really has the ability to apply punishment to those who do not conform to the positive prescriptions of the normalizing apparatus.[27]

Foucault will conclude by saying that power and knowledge are not simply a layer added to the production apparatus. They are rather deeply rooted in it. They are a substantive component of what constitutes relations of production.[28]

Concluding Remarks

It should now be clear why in the title of this text the word truth is juxtaposed to the words juridical forms. Truth provides a stand in for knowledge as in a type of knowledge procedure that seeks to attain the truth of a situation. Juridical forms is a collection of practices that effect a deployment of power by means of a normative regulation of individual behavior. What Foucault attains by this juxtaposition in ‘power-knowledge’ is a synthesized formulation of a continuum between these two realms.

Power-knowledge is the complex space within which a multiplicity of subjectivizing mechanisms like class, gender, ethnicity, and so on, traverses the individual while seeking to maintain control over its normalizing outcome.

The reliance of this power on the norm, on the conception of what constitutes normality in existing situations is also what opens itself up to dispute. The norm, insofar as it informs the application of the law, represents a prime terrain of struggle. Since it provides a privileged framework that creates the conditions of possibility for the practice of law, the norm, or the assumptions that inform it, need to be continually reevaluated for its applicability to our own time.

Seminar by Alex Villar at Art Law Program, Fordham Law School, on February 5, 2013, from 6 to 8 pm.



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