The Political aspect of the Law-Legislation Distinction

There is a law-legislation distinction in Friedrich Hayek and Carl Schmitt, in which there is an argument for the value of law in comparison to legislation. A distinction is made between law and legislation, with law to be accorded high value and legislation to be accorded a lower, and even negative value. We can call this the law over legislation claim.  The law over legislation claim with regard to law is that it states commonly accepted principles, and so is in essence a repetition, refinement and confirmation of already existing codes of rules and punishment for breaking of rules. The law over legislation claim with regard to legislation is that legislation is an essence an edict issued by whatever institution has political power. Since the rise of elected law making bodies, edicts have taken the form of laws passed by consent and can therefore be easily mistaken for law properly speaking. The term for this is legislation. This term is required because ‘laws’ passed by the majority vote of an elected assembly are increasing administrative rules, which award arbitrary power to the state to administer society. These do not describe existing codes of custom and conduct, but instead involve new rules expanding the scope of state action, and the unaccountability of action to law properly speaking. The majoritarian principle in the election to national assemblies, and then in the making of legislation by that assembly, is a deviation from the consensual basis of law, and a means for coercion of the minority, which is likely to undermine law, in the proper sense of that word. The law over legislation claim makes a distinction between: what comes from the will of the political sovereign and what comes from the shared values of a society.  A major issue here is where is that moment of law before legislation or edicts of power? Is not ‘law’ always embedded in political power? Power exercised by judges, and maybe juries, and which is relatively independent of the persons who have governmental power at that moment, but it is still a form of power. The law over legislation claim was directed against the danger of the degeneration of an apparent state of law into a state of the edicts of government, in which any edict is considered a law if it is passed by a national assembly, with some superficial adherence to principles of universality and recognisability. Some discussion of the problem can be found in those who are not adherents of the law over legislation thesis. Examples include Jürgen Habermas and Michel Foucault. For Habermas , the welfare state does tend to become an administrative state outside the real control of law and the national assembly (1986, 225; 232; 235, 241; 242; 250) though Habermas approves of egalitarian welfarism as a foundation for politics, and seeks ways of incorporating the regulation of welfare in law as a whole. For Foucault, Medieval juridification undermined the art of self government as known in antiquity (Hermeneutics of the Self, Wrong-Doing, Truth-Telling). Government of the self becomes tutelage of the Church, with regard to conscience, which itself becomes a source of ‘disciplinarity’ (Discipline and Punish), Foucault’s way of understanding the administered nature of modern life. Foucault is also far from the more conservative aspects of the law over legislation argument, though he is less associated with a a consensual welfarist egalitarian rationalist position than Habermas.

The law over legislation claim has an anti-political impulse within it, which is  that law is above politics. Legislation is held to be illegitimate, so that the law making function of any legislative assembly is restricted to law, which is apparently already in existence as what is accepted in common custom. There is not much on this account for assemblies to do, except perhaps concern themselves with refining existing law. Even that function is maybe understood as exercised  by judges who ‘discover’ law when they work out the best way to apply existing principles to new cases. This kind of account is based on a very ideal picture of law, before the legislating impulse took hold in the late nineteenth century, as the role of elected assemblies in deciding on laws, as well as holding government to account. Even on this ideal account, governmental bodies have always had a tendency to issue decrees, commands, which are based on the will of the political sovereign, rather than considerations of what law is and how it evolves in relation to cases.         Laws have to be ordered, systematise and harmonised and this is work done by sovereign bodies, therefore on the basis of political will.We can see historically that law may change dramatically as a result of invasion and forcible changes in the identity of the sovereign, what Hobbes calls ‘commonwealth by acquisition’. Law in pre-modern times had an aura of divine origins, of cosmic order and beginnings in customs assumed to have existed for time immemorial. However, there are political aspects to this. Godly origins are an ideal way of presenting the monarchy and aristocracy which conceive of themselves as godlike. Back in the 18th century Vico discussed this in the New Science, where unwritten law is associated with the Heroic Age, which is Vico’s way of referring to the aristocratic domination found in societies like the Bronze Age Mycenaean Greeks depicted by Homer. Fundamental issues of debt and property rights were the source of constant political conflict in antiquity. It is an issue long discussed with reference to the late Roman Republic and which was part of the making and execution of law in that time. This might lead us to question how far we can distinguish the making of statute laws from the exercise of political will. It is a statement of the obvious that law as something that can be enforced by the state, is made by the state and that this is a political process. Since laws constrain the state and often survive changes in the identity of those with power, there is a whole sphere of constitutional law which defines the political system, and at least to some degree law refers to widely held beliefs about what actions are so wrong they should be punished, it is inevitable that law is seen as something distinct from the commands of those in power at any one time. We should not see this as making law distinct from, and outside the political process. It is a constraint on uses of power, but also a product of power.                                The advocates of the law over legislation claim do not necessarily oppose any individual suggestion politics entering law, but their  approach is to prefer an idealised law outside the contamination of politics, and to think of law as an extension of natural, or at least deeply embedded, self organising processes which do not rest on conscious design. The idealisation aspect and the self-organising process aspects are not completely compatible. The idealisation of law assumes a monolithic unchanging nature which does not not adapt to the changeable nature of self-organising processes. Self-organising economic and social processes require frameworks of rules, which do provide some stability and predictability, but also require  changes in the nature of those frameworks as the process goes though major changes of self-organisations. Attitudes to property which put inheritable land holdings at the centre may need substantial adaptation to a world of rising and declining industrial enterprises. Changes in law has serious consequences for the beneficiaries of old laws, and creates new beneficiaries. There are inevitable struggles between these groups, who are necessarily drawn towards political ideas which happen to suit their interests. This is politics embedded deeply in law.  The law-legislation distinction is very valuable as a diagnostic tool in certain circumstances, but taken beyond that impedes an understanding of the relation between politics and law, including that way different legal forms interact with political forms.

Montaigne, Hayek and Schmitt on Law

The last post suggested looking at the distinction in Friedrich Hayek and Carl Schmitt between Law and Legislation, and the accompanying claim that Law should be placed above Legislation; and suggested that the claims could be usefully looked at in the context of that legal and political theory which emphasises political contestation. The Law over Legislation claim in Hayek and Schmitt involves some anti-political elements, which undermine their best thought about politics, and that can best be corrected by using that legal theory current, Critical Legal Studies, which seems most remote from their way of thinking. To put it rather crudely, the right wing of Critical Legal Studies overlaps with the left wing of Hayek-Schmitt interpretation. The ‘right wing’ of CLS includes most obviously Max Weber and Hannah Arendt. As I pointed out in the last post, this fits with a reading of Foucault which has appeared in various posts over time, though Foucault is of course a major figure of reference for the ‘left wing’ of CLS. I will add to Foucault, another figure generally placed in  avery left leaning context, Jacques Derrida. Derrida’s contribution to legal theory is most associated with his long paper ‘Force of Law: “The Mystical Foundation of Authority”‘. The idea of the mystical foundation goes back to Blaise Pascal and then to Michel Montaigne. Pascal’s Pensées has close relationship with Montaigne’s Essays, often paraphrasing and transforming passages. Derrida notes such an occasion when Pascal discusses the lack of foundation for law. Pascal refers to the arbitrariness of law, so that it is different on one side of the river from another, where the river coincides with a national frontier. State law has no foundations except in the force that the state can use to enforce law. That arbitrariness itself leads us to perceive the role of the mystical, that is of divine authority. The only real law is the law that comes from God, since that is the only law that can be absolute and free from the arbitrariness of state law. This line of thought is not put forward by Pascal as legal theory, or jurisprudence in the normal sense. Pascal does not mean to deny the authority of human laws, or the need for judges to follow the rules of the legal institution to which they belong. The argument is more designed to lead us to thoughts of the greatness God in comparison to fallen humanity, which has lost something Godlike in itself. Nevertheless Pascal’s thoughts do relate to political and legal thought, corresponding with the weakening of a belief in the unity of human, divine and natural sources of law. Pascal’s discussion draws on Montaigne’s essay on ‘Experience’ which reflects on Montaigne’s time as a judge in Bordeaux. The law cannot be just in his account, as there is always conflict between general judicial principles and the context of any individual case. Montaigne notes the need for consistency in judgement, and the following of previous judgements. Concerns with the stability of the institution of law, and the unity of legal principles place barriers ,n the way of fully accommodating the particular facts of particular cases. The consequence is that the judge has to knowingly make unjust judgements. These tend to particularly affect the poor and lowly who are always treated badly by institutions. As with other sceptical moments in his considerations of the mores, ethics and law of the society in which he lives, Montaigne is more inclined to melancholic resignation than radical change. His own writing might be regarded as an attempt to spread greater sympathy for the unfortunate, and awareness of the harsh consequences for individuals of the operation of power; and it had some success from that point of view, forming a major part of the growing cultural emphasis on human sentiments directed at all individuals since then. We should also consider the possibility of a more radical political reading of Montaigne. His Essays discuss his friend Etienne de La Boétie, who died young, and is most famous as the essay on voluntary servitude, that is on the willingness of the many to serve one man who has power. La Boétie advocates rebellion in contrast with the apparently conservative and moderate Montaigne. Montaigne says that he considered including La Boétie’s essay in his own Essays, but did not do so because it might be misunderstood as a challenge to royal state authority of the time. This does at least raise the possibility that Montaigne is repressing his own more  radical thoughts out of fear of royal censorship, rather than expressing a deep going moderation and respect for authority at that time. These reflections on the contradictory  and unjust  nature of law in Montaigne, suggest a starting point for Derrida and Foucault’s thoughts on similar lines, and suggests that such a way of thinking cannot be limited to left wing anti-capitalist thought. Both Foucault and Derrida have brief, but significant moments of identification with Montaigne: for Derrida that is in relation to the interpretation of interpretation which Montaigne sees as an endless necessity in the discussion of legal and sacred texts; for Foucault that is in relation to awareness of the possibilities of the stylisation of life, and the nature of the self as self-relating. So we can apply to Hayek and Schmitt, those two great believes in the unity, authority and continuity of Law, the scepticism of the Renaissance humanist with regard to those claims about law, and contextualise CLS in that way.

Bringing Politics into Hayek and Schmitt’s Sublime Conception of Law

The last post finished with some sketches of positions in legal theory. The Hayek-Schmitt position in which Law is above Legislation (Laws emerging from social consensus about basic rules of justice is above the changeable often administrative concerns of a sovereign political body in its legislative acts) seems closest to a traditionalist natural law theory, usually traced back to Thomas Aquinas, and most associated amongst current writers on law with John Finnis. Hayek himself notes that his view of law might be taken for natural law theory, but complains that tradition is too rigid. There are two notable things about Hayek’s comments: 1. he does not completely distinguish himself from natural law tradition; 2. he emphasises the need for openness in legal institutions. So perhaps Hayek’s position is one of natural law modified to tae account of the evolution and Law, and by evolution of generally accepted principles of justice.

This can sound like Ronald Dworkin or even Jürgen Habermas. Dworkin (who died very recently) was a left liberal committed to centrally designed schemes of income redistribution, in the context of a large public sector and a highly regulated economy, so not in line with Hayek’s thinking. Habermas might seem even worse from a Hayekian point of view since he emerged from the Marxist Frankfurt School, but in reality his thought fits more with an egalitarian liberal way of thinking than with Marxism of any kind, except for ‘revisionist’ forms which in effect turn Marxist gaols into ideals pursued through political liberalism rather than class struggle, and which are general ethical goals rather than concrete proposals for social reinvention. Both Dworkin and Habermas think of law as formulated, revised and interpreted through an evolving political consensus, which they expect to have an increasingly egalitarian impetus.

The consensual-rationalist way this is framed leaves their theories ill equipped, or so I contend, to deal with individual and social action which does not fit in with their hopes for an egalitarian society based on rational reflection about how to increase individual autonomy through increasing equality. What they have  difficulty in dealing with individualistic action and resistance to state promotion of equality in a society integrated under state guidance. Anti-tax, deregulatory, state shrinking movements look like irrational populism to those of a Dworkin-Habermas frame of mind. The wish to preserve one’s property from increasing state demands to treat private  property as a bit of a public sum of welfare, which the state can dispose of if it so wishes, seems irrationally selfish within that framework, as does the wish of business to reduce regulatory burdens, or  any individual inclination to resist state led attempts to mould individual choices.

The Hayekian approach to social knowledge, on the model of economic action, as dispersed between all actors  and as something that never be aggregated as a guide to state action, does far better as a way of thinking about the ways that political attitudes may emerge from the constant reinvention of the economy and society. It suggests that irrationality comes more from state attempts to define maximum welfare for everyone than from individual resistance to such state activity. It is not that Habermas, Dworkin and the like are completely unaware of such issues, or the need to accommodate them, but that their way of thinking just does not allow for much weight for such considerations, which are always likely to be regard as secondary phenomena.

I outlined major legal theories in the last post. Though I mentioned Critical Legal Studies as the most left leaning stream, and as even disdained by those of other political leaning, at its best and least politically gestural, CLS provides a better fit for Hayek’s understanding of markets as decentralised, self-innovating and challenging to all attempts at top down control. It provides a better fit than Hayek’s own inclination to Law as an institution looming over the economy as the highest representative of mores and shared principles of justice. This elevation of Law to sublime and monumental status can be too easily taken up in the Carl Schmitt tendency to ultra-conservative sacramentalisation of the Order of orders in society, embedded in nationalist and traditional religious ways of thinking.

The CLS approach, like connected work in political and social theory, does draw on thinkers like Max Weber and Hannah Arendt who certainly do not belong on the Marxist or post-Marxist left. Michel Foucault is a frequent reference. I’ve discussed Foucault’s thought, including its political implications, in a large number of previous posts, so I will not go over that again. I will just note that Foucault is often brought together with Weber and Arendt as a theorist of political and social community in the modern world. Framing those three with regard to Hayek and market liberal thought could bring considerable benefits, and would frequently just very obviously be closer to their world view.

As far as CLS takes a position on the standard distinctions in legal theory it leans towards positivism-realism rather than natural law in its more evolutionary or more conservative forms. CLS does this because concern with politics leads it to consider law as expression of power. At its best CLS brings an appreciation of political conflict to positivism-realism correcting a tendency to a reductive view of the role of political power. From this point of view, CLS may bridge the gap between positivism-realism and the more evolutionary forms of natural law, with regard to a concrete detailed investigation of politics, and of political conflict.

Law over Legislation: The Ambiguities of Law

This is the the 4th in a series of post on the law over legislation claim, defined in the first post. The law over legislation claim appears in very political contexts, but is the expression of an anti-political perspective. Perhaps it could be said the law over legislation claim expresses the wish to find some non-political framing for politics, or some non political centre. Some way in which politics is grounded in the non-political. There are some laudable impulses behind this. There must be some limits to politics, in the senses both that there must be some limits to the powers of the political sovereign and some limits to seeing politics in every action and every choice. In particular, law provides some way in which actions of the political sovereign are checked and supervised, and some public criteria are  established for assessing political actions. There cannot be any absolute framing or distancing of politics though. Law can only be relatively distinct, and must contain some legislative element. Law is only fully recognisable and applicable there there is legislation stemming from political institutions. Community standards of justice are too vague to be the basis of well defined law. There are forms of community justice standards which might be clear, but customary law is itself the product of politics and subject to political condition. It does not exist in complete isolation from the political world. Once law is defined and interpreted by judges it has definitely reached the thresh hold of political consciousness and becomes  a matter of political debate which leads to legislation. The more law is institutionalised the more likely it is that it will become subject to legislation, and the more likely it is that legislation had a role in the development of that law. Medieval law becomes entrenched through what Foucault calls ‘juridification’, that is the spread of Roman or Civil law and juristic discussion of laws.

Though the idea of Law as opposed to Legislation is presented ad descriptive and historical, it is really hard to understand it in those terms. It really exist as something like a heuristic device, or what Max Weber called an ideal type, that is an ideal state of affairs which cannot be found in reality but may guide analysis or actions. ‘Ideal’ has two senses which are relevant here. Ideal as in an ideal goal of action, a moral or political goal; ideal as in a pure concept. It is not possible to view Law as just a value free ideal concept of analysis, particularly as the use of Law in this opposed to, and above, Legislation, particularly as those relying on the distinction are advocates of law. It is both action orienting ideal and object of nostalgia, the only paradise for the sane, the lost paradise (Samuel Beckett says something like this in his short book on Proust). That is rather one sided, the other more stimulating side is that Law serves a as means of critique of Legislation which does not match basic standards of justice, including cases in which extends the size of the state, and the scope of its activity, without genuine benefit to the general welfare. Notions of justice and notions of general welfare are not necessarily the same, but presumably everyone wants to try to alit them as far as possible. That critical aspect of Law could be just as well served  by notions of Justice and to some degree the insistence on Law as the goal risks a distraction from the task of discussing justice, and related notions like welfare and liberty.

The idealisation of Law also risks confusing at least two different forms of Law. Law as customary Law, and Law as institutionalised Law according to proper procedures and traditions. These two can come into conflict. The most famous conflicts between customary law and institutionalised law in European history are around the movement from to customary rights of Medieval peasants to collective use of common land and forests for grazing and firewood to the strict application of individual property rights, reserving rights of usage to owners, as part of changes in farming and forestry. The most famous example within that process of late Medieval and Early Modern Europe is the enclosure of land in England, so that it could be used for sheep farming. This could also include removing peasants, their dwellings and entire land usage. Something like this carried on until the 19th century Scottish enclosures. No doubt judges at state law courts were disposed to see the law in the same way as big landowners, but I am not aware of much reason to think judges and juries (which have always given ordinary ‘freemen’, then citizens, a say in English law courts) completely ignored the law as it existed. Courts operating in ways sanctioned over time, with judges following correct procedures, did away with customary law below the horizon of institutional law. Another way of thinking about this is that marriage and divorce were to some degree self-regulating for lower class rural people until 19th century England. This gains famous literary expression in Thomas Hardy’s novel The Mayor of Casterbridge, in which Thomas Henchard sells his wife at the beginning of the novel before becoming mayor. According to  ‘Wife Sales’ by Leeson, Boettke and Lemke this was a recognised procedure for ending a marriage, usually with a lover or admirer of the wife ready to ‘buy’ her, and was considered binding by all involved, though it certainly had no force in statute law, in institutionalised law that is. These are not the kinds of example the advocates of Law over Legislation were interested in, though the paper just cited certainly reflects the influence of Friedrich Hayek, one of the two main advocates of the Law over Legislation claim. There is a tension between Hayek’s celebration of Law which is essentially as a unitary body well above the horizon of perception for the state, and his economic epistemology which refers to the dispersal of value and knowledge between individuals, and which is more suggestive of an informal institutional approach to non-state law.

Law over Legislation: Foucault and Habermas

This post refers back to the last post, and particularly the post before that which is inaugurated this sequence of posts on law over legislation. The last paragraph of that first post refers to Jürgen Habermas and Michel Foucault, referring to the need to detail further what is briefly in that paragraph.

The issue is whether we can talk about law as something distinct from, and superior to, legislation. That idea has precedents in distinctions made between customary law and statute law, or between the recognised laws of a community and the commands of whoever has political power. An awareness of such distinctions, and the deep tension associated with such distinctions, goes back at least to the tragedies of Golden Age Athens. As I am discussing those Attic tragedies in a series of 9 weekly posts, which refer to my teaching, I will not go into that here. I will pick up on Foucault on this point, going back to issues I was posting about quite intensely at some periods last year. Use the search function in this blog to find those posts, I prefer to rely on readers doing that than digging around for large numbers of links to incorporate into my post.

Going back to those posts, but also other thoughts about Foucault, we can see that Foucault has an account, relevant to the law-legislation distinction, of the distinction between something that can be labelled care of the seşf, government of the self, aesthetics of existence, or style of living. This is not a concern with Law, but it does fit with the idea that something precedes statute law with regard to social norms, what we accept as non-institutiıonalised laws of social life, and which tend to be some part of institutions and laws, or at least some part of why we accept them. These accounts of individual conduct fit with an account of free speaking, which itself is understood in relation to equality of the right to address and assembly and equality under law, all seen as parts of democracy. These are all parts of ancient Greek democracy. Since Foucault uses the Greek terms, they should be mentioned here. Free speaking is parrhesia, equality of right to address the assembly is isegoria, quality under law is isonomia. Free speaking is used instead of free speech, because what Foucault refers to is just as much a duty to speak freely in public as a right to free speech. This brief account of Foucault on Athenian democracy brings up an obvious contrast with the law over legislation thesis, that is the value of participation in the political world in which legislation is created.

That last sentence can be qualified though. The two proponents of the law over legislation claim I am considering are Carl Schmitt and Friedrich Hayek. Some of what Schmitt wrote certainly looks like advocacy of existential struggle in the political world as necessary to full human life. The relevant texts here (sticking to the English titles only which do not always correspond exactly to the German titles) include The Concept of the Political, Crisis of Parliamentary Democracy, and Political Romanticism. Some caution is advised in approaching these texts is advised, since they are often emphasised in ways which conceal a concern with law, legislation and constitutions, which can most clearly be found in The Nomos of the Earth, Constitutional Theory, and Legality and Legitimacy.  Both sides need to be taken into account.In Hayek’s case we should note that though there is a pull towards a non-political law, emerging from the processes of legal institutions outside political control, there is also appreciation of Athenian democracy and of modern constitutional democracies, along with a commitment to  finding the best possible rules or a democracy. The Constitution of Liberty and Law, Legislation and Liberty offer ideas of how democracy and political life can be structured in ways that will endure.

For Foucault, the idea of the right to be a citizen and to participate in political life in antiquity, is tied up with the capacity for self-government, for measure and moderation in life, which Foucault discusses as ‘care of the self’, and which he thinks allows for, even demands, capacities for self-creation and variations in that creation. That way of thinking, in which political participation does not come from an abstract right, but from recognisable forms of flourishing of the self is undermined in antiquity. Imperial Rome constrains those aspects of political life in antiquity. The focus turns inward, and that becomes shaped by Christianity which wishes to define and shape and inner self hidden from view in a way that would not have been imagined in earlier antiquity. The practices and institutions which increasing shape conscience in churches and in monasteries acquire a coercive aspect, most dramatically apparent in Crusades and the work of the Inquisition. This kind of dramatic and even cruel power is intertwined with the rise of ‘juridification’. ‘Juridification’ is a term used rather than defined by Foucault, but it can be sen to refer to the Medieval growth of interest in Roman Law as codified by Justinian, itself expressed in the growth of universities which large exist to educate students in şaw and in theology. Roman law influences both canon (church) law and state law, in the work of a growing number of trained jurists. The practices of confession, spiritual discipline and asceticism are also sen by Foucault as part of the path to ‘disciplinarity’ in modern institutions such as the prison, the army, the hospital, the school and so on. That itself feeds into the understanding of law which is not clearly tied up with political sovereignty and the right of the sovereign to exercise power in minute ways throughout society.

In Habermas, the equivalent to the law-legislation distinction can most readily be found in the account of the administration of welfare. Laws which set up public welfare programs and the apparatus to administer them draw on norms, including the norms of equality and rationality. The base norms in Habermas are something like ‘law’ and Habermas is insistent on their transcendental status, that is they are not the product of individual will and cannot be subordinated to the wishes of any individual will. For Habermas, the original political and legal sin is to creates legislation  which does not have universality transmitted from norms, and in its own structure. The consequence of applying norms of equality, in a struggle with the distorting force of differences in economic power is to create a growing state. The right place to debate the laws which constrain the state, and supervise the work of its administrative powers is the elected assembly. However, growth in state activity must lead to an amount of activity which cannot be supervised or constrained by state power. The rules and decisions of the bureaucracy become independent of the democratic process and become arbitrary in their workings, so that we end up with edicts issued by the state in the ways that officials interpret and apply those laws and rules. This is part of a broad tension in Habermas between the legitimacy of the state in its appeal to reason, reason which can be shared  by all, on one side; and the ‘steering’, that is coercive aspects of the the state on the other side.

So a full discussion of law and legislation  might be a full discussion of Hayek and Foucault, Schmitt and Habermas.

Law Over Legislation and Political Form: Defining and Examining a Claim about Law and Politics

There is a law-legislation distinction in Friedrich Hayek and Carl Schmitt, in which there is an argument for the value of law in comparison to legislation. I have addressed their accounts in a draft paper which can be accessed here. If at sometime this link becomes broken an online search for : law, legislation and political forms in Hayek and Schmitt in conjunction with Barry Stocker, or some abbreviated version of this, should lead to the right place. I won’t go over the different arguments in Hayek and Schmitt, the differences and similarities here. I will restrict myself to a brief definition of the general idea,and discuss that general idea in a broader context.

The basic claim under examination is that a distinction is to be made between law and legislation, with law to be accorded high value and legislation to be accorded a lower, and even negative value. We can call this the law over legislation claim.  The law over legislation claim with regard to law is that states commonly accepted principles with regard to limits on actions, and so are in essence more a description, summary and confirmation of already existing codes of restriction and punishment. The law over legislation claim with regard to legislation is that legislation is an essence an edict issued by those who have political power. Since the rise of elected law making bodies, edicts have taken the form of laws passed by consent and can therefore be easily mistaken for law properly speaking. How ‘laws’ passed by the majority vote of an elected assembly are increasing administrative rules which award arbitrary power to the state to regulate individual actions and voluntary co-operation or exchanges between individuals. These do not describe existing codes of custom and conduct, but instead involve new rules expanding the scope of stare action, and the unaccountability of action to law properly speaking.

The law over legislation claim depends on a distinction between: what comes from the will of the political sovereign and what comes from the shared values of a society. That seems close to a natural law understanding in which law comes from an objective structure of morality and justice which precedes states, and is beyond individual choices. However, the law over legislation claim was not introduced by natural law theorists. The law over legislation claim allows for an evolutionary understanding of law, or law as the product of the orders which structure society independently of legislation, apparently. Notions of Law presumably include private property, proper legal process before any punishment, protection of life, and protection from violence, but the shape of these changes over time more than would be allowed for in natural law theory, strictly speaking. A major issue here is where is that moment of law before legislation or edicts of power? Is not ‘law’ another word for political power? Power exercised by judges, and which is relatively independent of the persons who have governmental power at that moment, but it is still a form of power.

The argument for law over legislation, defined itself by way of  reaction to legal positivism, as defined by John Austin (do not confuse with J.L. Austin!), with Thomas Hobbes and Jeremy Bentham generally accepted as precursors. Though a well known  position, straight Positivism is not now a widely accepted legal philosophy. Legal realism is the most obvious continuation, or near continuation. The twentieth century criticisms of Legal Positivism from the Law point of view were directed against Hans Kelsen, who is usually regarded as one of the two big figures in Legal Realism, along with the more recent  H.L.A. Hart, who is the more widely read figure, certainly in Anglophone work. What the law over legislation claim takes as its enemy is positivism, but it is itself not the most obvious enemy of Legal Positivism which is Natural Law theory, itself a rather general term encompassing nearly all Antique and Medieval thought about law, and a large part of early modern thought on the matter. The supposed alternatives to natural law in early modern thought, such as Hobbes and Hume, could easily be seen as drawing on the natural law theory, just emphasising the role of an effective sovereign in making natural law effective in Hobbes; emphasising social, historical and psychological aspects of the institutionalisation and application of law in the case of Hume.

The law over legislation claim was directed against the danger of the degeneration of an apparent state of law into a state of the edicts of government, in which any edict is considered a law if it is passed by a national assembly, with maybe some superficial adherence to principles of universality and recognisability which are not of much relevance in practice.  Some recognition of the problem comes from those who are not adherents of the law over legislation thesis, including Jürgen Habermas and Michel Foucault. For Habermas, the welfare state does tend to become an administrative state outside the real control of law and the national assembly, though Habermas approves of egalitarian welfarism as a foundation for politics. For Foucault, Medieval juridification undermined the art of self government as known in antiquity. Government of the self becomes tutelage of the Church, with regard to conscience, which itself becomes a source of ‘disciplinarity’, Foucault’s way of understanding the administered nature of modern life. More needs to be said about this very compressed paragraph, and over concerns above, along with consequent concerns in future posts.

Truth, Catechism and Surveillance. Foucault’s Lectures on the Government of the Living: 7

Blogging on a very recently published volume of Michel Foucault’s lecture courses at the Collège de France, Du gouvernement des vivants: Cours au Collège de France. 1979-1980 (Paris: Seuil, 2012).

The lecture of 20th February deals with Baptism in early Christianity.  The main point of reference is Tertullian who plays a large part in preceding lectures.  The issue f Baptism is one of dealing with otherness in the self, which as was discussed in the previous lecture has reference to the devil.  However, it also has reference to the transformation that the Christian receives in receiving God within.  What is received is truth, but must refer to a subjectivity which apparently did not have that truth before but becomes open to truth.  Foucault refers to this as a problem already present in Paganism, apparently referring to the more mystery religion aspects of antique Paganism where believers undergo some secret ritualised experience which puts them in touch with a higher truth.  One difference between Paganism and Christianity, presumably, is that the issue of transformation is much more total in Christianity, referring to a divine-cosmic structure and drama which affects everyone.  Foucault sees early ideas of Baptism developing in relation to paganism in various ways.  There is the persecution that Christian experienced from pagan Roman Emperors, and the need to compete with Pagan religions in gathering converts.  Given that Pagan religions often have an initiation rite, Christianity needs to math and exceed those rites in power.  The conversion of adults to Christianity in adulthood rises further questions about what it is.

Baptism, particularly as part of adult conversion, has to deal with the problem of how truth can be recognised, welcome and incorporated into the self.  This is part of a general problem of antique thought, which is that of establishing a connection between truth and subjectivity, an issue which comes up in previous lectures.   Foucault is  possibly a bit ambiguous between saying that there are various kinds of truth including the more subjective kinds; and saying there is a gap between subjectivity and and the objective nature of truth.  I don’t there is any great incoherence though.  Any case of where we may refer to the truth of something refers to the ideas of what is objective compared to subjective experience.  A report of the truth about my inner state is something that has more stability, more objectivity, and more universality, than my pure subjective impressions at any one moment.  The act of reporting on those sensations is to create something less pure subjective, the statement designed to be understood by others.  This is very relevant to what Foucault means by the transformations of inner self and experiences of the entry of truth in the case of baptism.

Baptism requires the entry of a hitherto unperceived truth, which refers to a transformation of inner experience of truth which amounts to a new life.  The idea that Christ calls us to a new life is familiar in Christianity, and applies to those born into a Christian community who have not fully previously properly embraced Christianity, as well as those converted from Paganism in Roman antiquity.  Foucault points out that from early on the double life, the move from one life to another, brings in death.  The new life means the end of the old life which means death.  The idea of death is necessary to the rebirth of baptism, and to Christianity as such.  Christianity demands the death of the old life, in a way which foreshadows the hope of eternal life after our physical death.  The death within life creates an ambiguous situation since life becomes double, and that duality never disappears since we are struggling against the devil, against worldliness and so on.

Foucault argues that another duality is necessary to Christianity from its early days, which is that between my own efforts to find salvation and the grace, or truth, which God gives me.  The relation between those two things is a major issue in Christianity, at the heart of splits, claims of heresy and so on.  Not only is it a major theological issue, it refers to issues about what the self is (which shows the power of debates about what might appear  from a limited perspective to be debates only relevant to Christian believers).  As Foucault wants to show us, Christian ideas come out of earlier discussion of self-relationship, of the care of the self.  How we understand that is affected by how we understand the relation between what comes from inner choice and what comes from forces beyond the control of conscious choice.  An important part of dealing with the relation between types of truth, types of life, inner choice and external force operating within the mind, is the catechism, according to Foucault.  The catechism is a part of Catholic tradition, referring to the basic explanations the Church makes of its doctrines, and the way it teaches those doctrines through getting young Catholics preparing for confirmation (a childhood ritual to establish complete membership of the Catholic church for those baptised as infants) and instructing converts.  The method is that of question and answer, in which the initiate learns to give the appropriate answers various questions about fundamental church doctrines, so learns how to express those doctrines as part of an inner subjective point of view.  Foucault describes these processes as a form of surveillance, so invoking to his work on prison as a model institution in Discipline and Punish (Surveiller et punir)  This arises as a brief remark in the lecture, but does suggest the quite  big thought that his work on ‘disciplinarity’ (‘surveillance’ is much better, sounds much less like some dismal academic argot) since the Enlightenment refers to a series of historical steps  which has  early form in the Christian version of ‘care of the self’.

Christian Renunciation and Illumination. Foucault’s Lectures on the Government of the Living: 6

Blogging on a very recently published volume of Michel Foucault’s lecture courses at the Collège de France, Du gouvernement des vivants: Cours au Collège de France. 1979-1980 (Paris: Seuil, 2012).

In the lecture of February 13th, Foucault focuses on early Christian ideas of Baptism, along with associated notions of sin, confession and so on.  His account partly uses a contrast between Clement of Alexandria and Tertullian.  I’m too ignorant of these two Church Fathers to deal with this.  I would be using an account of texts which I have not read, a hazardous enterprise, so I won’t make any further reference to those two.

Foucault sees Baptism as containing a contradiction.  I should say something about what Baptism is for those from non-Chritian cultures, end even those from Christian cultures who have a secular upbringing and life.  Baptism is a ceremony (a sacrament even) which brings a baby into the Christian community, in which the baby is anointed with holy water (water blessed by a priest).  The ceremony contains references to renouncing Satan which Foucault mentions.  What I am referring to here is the Catholic ceremony, which would be the form most familiar to Foucault.  I’m not competent to say much about variations in all Christian denominations, but I believe all practice baptism.  Some Protestant emphasise adult Baptism, on the grounds that a baby cannot understand and consent to Christian doctrine.  Adult baptism can be a new demonstration of faith for those who have always belonged to that religious community, and it can be for adult converts.  These adult ceremonies typically involve immersion of the whole body in the water of a river.

The ceremony of baptism itself goes bad to a New Testament incident where Christ is baptised by the holy man, John the Baptist, so as Foucault points out was applied to Christ by someone whose teaching preceded the formation of Christianity.  As Foucault also points out, the importance of water in the ceremony refers back to Moses, who found as a baby  in a basket in a river, and who held back the Red Sea, so that the Israelites could escape from bondage in Egypt.  The ceremony also includes the more abstract idea of the Holy Spirt entering the soul of the baptised subject.  The Holy Spirit is part of the trinity, the idea that God is three in one, which also includes Christ the Son and God the Father.  Most Christians are Trinitarians, but there are some who are not including Unitarians.  The Holy Spirit is the aspect of God which communicates God’s message.

Foucault looks at the oddity noted above that Christ was baptised, though baptism is part of the teaching of Christianity and so cannot be administered by someone who is not a Christian, and John could not be a Christian since he was in business as a holy man before Christ started preaching his own message.  Foucault notes that this problem came up in early Christian writing and a solution was offered.  The solution being that baptism has a dual nature and that John had only performed baptisms which included the first nature.  That first aspect is renunciation, renunciation of sin, of the world and of Satan.    The second aspect is illumination with the word, love and light of God, which is only possible after the first stage.

What is renounced in us as satan  is otherness within us according to Foucault.  That is Satan is what enters us from outside to deceive us and distract us from God and goodness.  The idea of Satan itself brings up ambiguities within Christian belief according to Foucault.  Christianity since its early years, and maybe particularly in its early years has dealt with a tension between a soul that is pure and a soul that is always stained by the material world.  The second position has some traces of Platonism and Gnosticism, that is the position in which the material world is deeply flawed, rather than belonging fully to the greatness of divine creation.  The first position allows for the innocence of the infant soul which is baptised, while the second position is mıre trouble d by a position in which the soul can ever be pure in the material world.  The attempted resolution of those two positions in Christianity which have precedents in pre-Christian thought (the Hebrew Bible on one side; Platonist philosophical texts and Gnostic religious texts on the other side) comes through Satan.  Satan can enter the soul, though the soul is by its nature pure (and Satan was an angel who rebelled while dwelling in Heaven).  Satan is what we do not believe to be part of the soul, or our real soul.  Our real soul, by its nature, does not need the worldly pleasures and values that Satan tempts us towards.  Satan marks the ways we do things, want things, and thinks about things,which our soul rejects when it is true to itself.  

Foucault’s account of Satan, as the other in the soul, intersects with the Christian belief in separation of soul and body, and the contamination of the soul by the body.  Baptism is a way in which Christianity tries to resolve these issues by allowing for the innocence of a baptised child, and of illumination following renunciation.  Christianity adds to the ascetic renunciation that is in John the Baptist’s teaching, by allowing for the soul to be flooded by God through the Holy Spirit as a consequence of renunciation, of separation from the inner otherness of Satan, even if it is  a renunciation by proxy and must be undermined by our fallen nature.  Baptism tries to reconcile the fallen nature of existence in the material world, appearing in Christianity as sin inherited from the Edenic Fall, with the Christian hope of grace from God which allows perfection even in this material fallen existence.  All of this builds on pre-Christian notions of subjectivity, care of the self, and the self-relation of the self, which Foucault wrote about at some length.

Truth, Science and Religion. Foucault’s Lectures on the Government of the Living: 5

Blogging on a very recently published volume of Michel Foucault’s lecture courses at the Collège de France, Du gouvernement des vivants: Cours au Collège de France. 1979-1980 (Paris: Seuil, 2012).

The lecture of February 6th moves between discussions of truth in general and the understanding of truth in early Christianity.  In his remarks on truth in general, Foucault defends what we can call a pluralist view of truth.  There is no single definition of truth, there are different regimes of truth.  The explanation of this point leads Foucault from social questions to discussions of the history of philosophy, and of the nature of logic.  The idea of regimes of truth is compared with political and legal regimes.  These are clear in the sense that they apply to a territory where some entity is sovereign, and has the power to enforce political and legal decisions, what is usually known as the state.  The state is not engaged in deciding what is true, or what the truth is in that way.  Decisions about what is true are too numerous and diverse for the issue of a state regime to arise, even where the state is enforcing its power in an extreme way. Truth does enter into state regimes and sovereignty as we can see with the role of confession in the state criminal justice system.

The diverse natıre of the situations in which we can say there are truths in the social context, or different methods of finding  leads Foucault to more general considerations of truth.  He refers to the letters of Benedict de Spinoza with regard to the idea of the the truth which is true of itself, which is the index of itself.  Foucault considers this to have limited application.  He does not reject the idea that the definition of truth must be true of itself (though he is perhaps sceptical about this, it is certainly an issue worth exploring).  The issue is that the truth as a general definition is not king, by which Foucault means it does not adequately cover all the ways we can speak of truth.  Truth is often used in the context of an avocation, witnessing or inner report of some kind, which is an act of communication that creates truth in the act of communication.  My saying I believe something, or something is true on the basis of what I have observed is not open to challenge in  the same way as some other truths are from a neutral position, outside the subjectivity of the individual using that truth referring language.  The religious confessional communication that Foucault deals with in these lectures is a major example of that kind of truth.

Foucault compares these more subjective kinds of truth with truth in Descartes’ Cogito’ and truth in logic.  As I noted in the last post, Foucault discussed Descartes in his first book History of Madness (also known as Madness and Civilisation), which became the subject of a bad tempered debate with Jacques Derrida, who had been his student (apparently on a psychology course at the École normale supérieure ), coming out of Derrida’s long review article ‘Cogito and the History of Madness’, which claimed Foucault had misread Descartes, or at least had missed something that Derrida had noticed.  In the present context, Foucault’s concern is with the famous sentence in Descartes’ Mediations, often referred to in English through its Latin version (Descartes wrote in both French and Latin, and French editions sometimes contain both), Cogito ergo sum.  That Latin sentence translates as ‘I think therefore I am’.  Descartes focuses on the French version, asking the questions: what does ‘therefore’ means? How do we know that it is truthful in this context?  The claim that if I think I must exit, seems obvious, but as others have asked before Foucault, what is the ‘therefore’ doing?  What does it add or smuggle in as unargued assumptions to the connection between my thoughts and my existence? The overall point here is to question the idea of absolute unquestionable truths, particularly as pertaining to issues of subjective experience.

Foucault moves onto a discussion of truth in logic, where it has to be said it does not show any knowledge of formal logic.  This certainly distinguishes Foucault from Paul Feyerabend, who as I mentioned in the last post, is mentioned favourably by Foucault in the context of anarchy in knowledge.  Truth in logic is something that Foucault treats as part of a game, and a  constraint within that game.  I don’t see anything incorrect with what Foucault says there, but does get into any discussion of formalism, use any examples or note any differences of views about logic.  Foucault denies what he regards as the Positivist claim that the definition  of truth is exhausted by logic, and emphasises plurality of kinds of truth, referring bad to the idea of archaeology which he explored at length in is 1969 book, Archaeology of Knowledge.

He also denies a complete separation between ideas of knowledge and politics.  There are always political issues about what ind of knowledge exist, and how knowledge is used, and politics itself must rely on ideas of what is known to be the case, and therefore of what knowledge is.  The different ways in truth can become manifest are to some degree tied up with different forms of power, institution and state.  These are issues that Foucault explored at length elsewhere, the best known example is Discipline and Punish, which brings us back to the idea of confession in Foucault.  The Christian origins of ‘confession’ is taken back by Foucault to one of the founders, Tertullian in this lecture.  Foucault sees Tertullian as combining three kinds of truth in Christianity: the truth of Baptism (the innocence point of view of the young who have washed away sins in the Baptismal water and been brought into a Christian community of truthful behaviour); the truth of the choice between good and evil (truth and falsity); the truth of the Fall (loss of goodness/truth) and the struggle of the Christian to overcome evil/falsity.  Evil and falsity are linked because the devil is a deceiver and the good Christian is truthful, including the meticulous truthfulness of confession.  Foucault refers to the Christian attitude to truth as arising out of Pagan antique concerns with the care of the self, and the active relationship of the self with itself, which Foucault explored in various places including History of Sexuality: Volume Three.

Oedipus and Anarchy. Foucault’s Lectures on the Government of the Living: 4

Blogging on a very recently published volume of Michel Foucault’s lecture courses at the Collège de France, Du gouvernement des vivants: Cours au Collège de France. 1979-1980 (Paris: Seuil, 2012).

In the lecture of 30th January, Foucault continues to discuss Oedipus the King, but also gets into more general discussions.  He addresses the question of knowledge, and its connection wit questions of power.  He suggests that his position can be regarded as ‘anarcheology’, that is as a fusion of anarchy and archaeology.  Archaeology refers to his 1969 book, Archeology of Knowledge, which gives his view of discourse, knowledge, and history of ideas and evidently to the idea of anarchy, of a lack of government.  Foucault refers to the 2accusation’ that his theory of power is anarchic, and does not deny it, but does not exactly embrace the label of political anarchist either.  He more treats the idea of anarchy as part of a sceptical approach to power and government, so the anarchy is an intellectual instrument rather than a program for a stateless society.

On the issue of anarchy as method of knowledge, Foucault refers briefly to the work of Paul Feyerabend, the philosopher of science probably best known for his 1975 book, Against Method.  As it happens the Canadian philosopher of science, Ian Hacking, who has taken a  great deal of interest in Foucault, wrote the introduction to the most recent (2010) edition of Against Method.  I have the 1993 edition on my shelves, and have yet to read the Hacking introduction, which I must do soon to see if it does contain any discussion of a possible connection between the epistemologies of Foucault and Feyerabend.  In Against Method, Feyerabend suggests that anarchy is a bad political position but is a good position in knowledge.  There is no method of knowledge, no empirical or  theoretical basis for selecting scientific theories, because ‘anything goes’ and the best method is to try as many different methods as possible.  Foucault raises Feyerabend’s in contrast with brighter burning names he does not mention.  This could be a jibe at Derrida.  Derrida’s earlier texts contain some discussion of knowledge and social science, including a discussion of Foucault’s own book History of Madness (also known as Madness and Civilisation), ’Madness and Cogito’ which appears in Derrida’s Writing and Difference.  Derrida had been a student of Foucault and Foucault seems to have been particularly touchy about what he perceived as a slight on his philosophical competence.  Apparently Foucault maintained a personally unfriendly attitude until the 1981 episode in which Derrida was arrested in Prague.  Foucault had always been a critic of soviet socialism and was apparently particularly sympathetic to Derrida’s contacts with Prague dissidents.  Of Grammatology, Margins of Philosophy, Voice and Phenomenon, and Introduction to Husserl’s Essay on the Origin of Geometry could all be considered as contributions to an epistemology which undermines all claims to a unified method of knowledge.

In his discussion of anarchy, Foucault refers to the desire to be sceptical of power and the claims of power, he is contesting any claim that power is inevitable, that there is no other way in which power could have been exercised.  He is firmly dismissive of any idea of a social contract, that is any idea that power is justified by an agreement of all members of society.  The social contract theory is itself a product of Medieval juridification, that is the growth of church and state law during the Middle Ages to some degree stimulated by the discovery of the Institutes of Justininian. So in that case, no concept of a super code of law adopted in the transition fr0m nature to culture can be adopted  underlying government and laws.  So for Foucault there is no theory of what is often known as political obligation, that is reasons for obeying government and following the law.

Getting back to Oedipus the King, Foucault refers to the lac of punishment of Oedipus when it is revealed that he polluted the city by unknowingly killing his father and marrying his mother. Oedipus punishes himself through self-inflicted blinding and exile from Thebes.  However, this is not a punishment imposed on Oedipus by the city of Thebes it is Oedipus fleeing from the horror of the situation.  The important thing from the political point of view, from the point of view of the city, is that truth appears.  There is a progression in the play from spectator of truth to witness to truth and finally to confession of truth.  Oedipus himself is aware of the truth when Tiresias explains it in a prophetic-divine mode, but can only accept truth through witnessing, through discussion with those who can report directly on what happened, and then Oedipus can confess.  The stage of the witnessing shows the process of ‘subjectivation’, of the formation of subjectivity through awareness that it is something that can witness truth.  The harmonisation of truth with power is shown to be necessary to the city state.  From Foucault’s point of view, power will always be denying truth in some way, which is where the anarchy becomes relevant.  .

The process of confession is reinforced in medieval Christianity, with increasing demands for thoroughness and complete truth, so that it is structured in such a way as to be legal in form, so connecting religious confession with juridification.  Foucault finishes with the comments of the late Antique Pagan philosopher Philo of Alexandria, who commented on the Hebrew Bible.  Foucault notes that he reads the text in a way that seems to force it into a pattern, but also reveals the way in which there is a commın understanding of the desire for power based on truth, which is experienced in the importance of the sun, of illumination and brightness.  Truth must be revealed as what overcomes  a fault and avoids the need for punishment.  Reformation Protestantism is mentioned by Foucault as what tries to harmonise inner confessional truth with eternal truths through reducing the sort institutional mediation of the church, which as at the basis of Catholicism.