What does Foucault mean by Juridification?

No time to check references right now, but in his writings on antiquity Michel Foucault refers to ‘juridification’ in the Middle Ages.  The point is that he wants to avoid projection of modern assumptions of what law is into antiquity.  The implication is that what we understand by law now is really a Medieval invention, if greatly transformed since.  ‘Juridifcation’ is something Foucault suggested displaced self-government as understood through the techne, style or art of existence or living.  I can’t go to much into what Foucault means by that, but the general thrust is that law as a way of regulating individuals in society was subordinate to ideas of self-govenment  by individuals.  We can see how this works for slavery.  The distinction between free citizen and slave is legal, but doe snot rest on legality, but rather on who the capacity to exercise self-government.  The salve is not someone who just happens to lack some legal rights, the slave is weak in self-government, for reasons which are not just a matter of legal status.  Law tries to capture these relations rather than instituting them, which includes some measure of evasion, but does refer to some kind of reality as well.

Though on first encountering the idea of juridification in Foucault I had some general sense of what he meant, I could not really think of what the details and relevant examples would be.   Some thinking and reading since, just as much noticing details for the fist time of things I had read before, as reading new things, I have some idea of a constellation of references which come under ‘juridification’.  I list some points.

1.  The ‘rediscovery’ of Roman law in western Europe in the Middle Ages, referring to Justinian’s Institutes, a sixth century compilation of Roman law ordered by the Byzantine Emperor Justinian.

2. The ‘rediscovery’ was a major motivation for the formation of universities as independent institutes of learning, from the 11th century onward, though the 13th century seems particularly important in the crystallisation of the system, along with the wish to engage in the systematic study of theology.

3.  Some of the impetus came from the Catholic Church, which dominated universities in their early history, but also from the secular state as kings wanted advisors who knew law and who would formalise their claims authority.  Medieval kings often took a lot of interest in reforming and regularising law in their own short term interest, thereby creating a more defined and growing state apparatus to apply and interpret law, and to carry out the king’s will.  This leaves textual evidence as in John Fortescure’s work on the nature of English law in the 15th century.

4.  The relevant parts of Max Weber’s Economy and Society is a classic text in this area, Weber himself had been a lawyer before becoming what we now call a sociologist.  The discussion is part of Weber’s thinking about the movement of societies towards more centralised states, which control law and the legal use of violence.

5.  Early modern political theory exhibits a high level of consciousness around issues of law. Machiavelli refers to the tendency of his time for codify what the ancients had done in law, which is clearly what he is trying to do in politics, a project itself resting on the definitions of jurists.  The ancients had laws with little reflection, the moderns reflect on those laws, gather them and harmonise them.  A bit later Grotius was engaged in a very comprehensive project of the discussion of legal and state concepts, which feeds in the early modern debates, about sovereignty, consent, nature and society.  In Hobbes we see a legally sophisticated mind applied to political theory and giving us the first fully formulated contract theory (there are already gestures in this direction in Grotius), followed up by Pufendorf, Locke, Rousseau and Kant.

6.  The legalisation of the Medieval and Early Modern state had a political economy dimension noted by Adam Smith and David Hume in which national debt, centrally imposed taxes, wars and transport projects paid for by taxes and national debt, a growing number of privileged people round the court and the capital city, are all part of a growing state apparatus, which benefits from a centralised uniform legal apparatus and needs more state legal activity to protect its property.

7.  Essentially building on Hume, Smith and related thinkers in political economy, but with different emphases introduced, Marx noted the role of law the late Middle Ages and Early Modern period in pushing peasants off old properties and common land.  Customary agreements about use of land are superseded by state law, applied with state violence in ways which benefitted those with large amounts of property in land, and now had wealth spare to invest in the growing capitalist economy.  Marx goes much further in denouncing the evolution in land holdings and the imbalance between classes, but the concerns he brings up are in Hume, Smith and the like.

8.  Friedrich Hayek noted the growth of law in the Middle Ages which he regard with great favour, regarding it as largely the continuation of antique attitudes to state law as the written codified versions of communal intuitions about justice.  The growth of theories of law created by state will, particularly in Hobbes, is seen by Hayek as a move away from the authority of communally agreed justice to the state’s enforcement of its own laws.   Hayek feels some anxiety about the process of writing down and codifying communal rights, as he suggests that documents like the US Bill of Rights threaten to expand state power, because in trying to limit state power they name areas in which the state acts, giving precedents for expanding the role of the state in those areas.  This negative aspect of law, expresses itself as legislation.  Legislation is law created by the political sovereign, which goes beyond any communal consensus on justice, and is an ever large accumulation of ways in which the state intervenes in society, intruding on individual rights, and undermining the state’s proper role as the guardian of genuinely universal rights and welfare.

These are a diverse set of points, and they are not all obviously harmonious with each. I believe they are all aspects of what Foucault meant by ‘juridification’.

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