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 PoliticalCrisis 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.


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