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.

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: 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.

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.

O Fortuna: Foucault, Rawls, Habermas, Nussbaum

Primary version of this post, with visual content, at Barry Stocker’s Weblog.

In Security, Territory, Population, Michel Foucault is concerned, amongst other things, with the way that the early modern state tries to master fortune and chance. I’m not sure if Foucault quotes Machiavelli’s rather notorious suggestion in The Prince that fortune is a woman who needs to be beaten, but he brings The Prince (but unfortunately not The Discourses on the First Ten Books of Livy) into his discussion on the early modern state, and the issue of the state controlling chance is a persistent one. As Foucault suggests in Lecture II, there is a tendency from the Renaissance to Napoleonic times, to think of nature and history containing uncontrollable fortune of a rather personified, something that could be traced back to earlier ideas of a wheel of fortune. and the work of the fates.

Yesterday I posted on Foucault and the Physiocrats, which really approaches the issue of new attitude to fortune, fate and chance, in which allowing the market to work ends the repetition of famines which had seemed like the results of harsh fortune. Chance of one kind is limited by allowing chance of another kind.

A contrast can be made with John Rawls’ concern with minimising chance in A Theory of Justice. Chance is limited in these ways, and possibly more: the initial situation and veil of ignorance attempt to eliminate chance from the rational design of principles of justice; theoretical equilibrium between intuitions and reasoning aims to ensure that the optimal principles will be revealed; the attitude to inequality is that it should be compensated and eliminated where it is the result of chance, which must be an unfair outcome.

I would not want to reject all that Rawls says, but this urge to minimise and eliminate chance is unsatisfactory for various reasons, including the way it must allow extremes of state intervention in the emergent outcomes of market, and other voluntary, networks of actions and decisions. There could be a strong case for wanting to modify some outcomes, some kind of state supported social minimum is something I would support, but Rawls’ approach inevitably leads to a gigantic and ramifying apparatus of intervention and rectification from above.

It is is important that Jürgen Habermas, though more Marxist than Rawls in his formation, shows concern with this possibility, though not while discussing Rawls. I don’t see that Habermas has a solution, but at least he recognises the problem.

Martha Nussbaum’s case is interesting here. She pushes further than Rawls in an interventionist rectifying direction than Rawls, or further than Rawls mentions in A Theory of Justice where Rawls is trying to accommodate neutral comparison between many designs for justice. In that respect, Rawls does allow chance in, through accepting many possible outcomes of the initial position.

However, in Nussbaum’s ethics, certainly as presented in The Fragility of Goodness, she is very concerned with arguing that strong rational control of chance is not the best option for ethics as it lacks sensitivity to chance and the passions. Something argued largely against Plato, or some moments in Plato, with reference to Aristotle, tragedy, poetry and some moments in Plato.

As far as I can see Nussbaum has failed to apply the lessons of her ethics to her political theory. I think she would probably reply that the complex kind of welfarist interventionism she favours is necessary to respond to the complexity of different kinds of human, and human situation, and she would want to add the complexity of allowing for animal rights as well.

I claim that Nussbaum has overlooked the dangers of too much control of chance in the socio-political sphere. It would be a good idea to reflect on what she has written with regard to her ethics, and with regard to Habermas and Foucault.

O Fortuna. Not in the rigid sense of fortune as an agent, but in the sense of pure chance and indeterminacy in the natural and social universes.

Foucault, Libertarianism and Europe

Primary version of this post, with visual content, at Barry Stocker’s Weblog

I’ve pasted in a conference abstract below. It’s an expanded version for the conference book of abstracts and serves as a summary of themes I am interested in around liberal political philosophy, European identity and politics.

‘Political Theory and the End of Europe: Foucault against Habermas’

I’ve taken the opportunity to look at Habermas’ status as a philosopher of the European idea, examine his political concepts critically and take up Foucault from a Classical Libertarian political point of view. Thee Foucault versus Habermas debate is well established, but the the best of my knowledge no one has looked at them in these terms before. I’ll look at how the anarcho-conservative Hoppe takes up Habermas, and the areas of difficulty that suggests in Habermas’ progressive liberal-Marxist synthesis; and look at Foucault’s relation to Antique Republican and Classical Liberal ideas in his later texts. This is in the cause of suggesting that Foucault provides a better basis for European political integration, because it is less reliant on ideal harmonisation than Habermas.

The conference is Beyond Boundaries: Media, Culture and Identity in Europe, hosted by Bahçeşehir University in Istanbul, 2nd to 3rd October 2009. The conference is supported by an EU funded project run by Bahçeşehir University, University of Potsdam, and the University of Applied Sciences, Potsdam.

Jürgen Habermas is almost the uncrowned Philosopher Prince of the emergent European polity (the European Union, and more loosely the Council of Europe, with the EU as its ‘hard core’); and its cultural and media ecology. Habermas’ analysis of deliberative democracy, and cosmopolitanism, is of obvious relevance in constructing a European polity; and is embedded in theories of discourse ethics and communicative action which provide strong, ethical, and epistemological context for his political theories. Habermas tries to overcome two polarities: hierarchy of the political system versus democratic participation; individual rights versus economic egalitarianism. He works on this through notions of ethics, and rationality, in which it is assumed that both lead the individual to act according to the rules of the public sphere and a cosmopolitan political order. Habermas is sometimes troubled by the relation between the consensual aspect of the state and its more coercive ‘steering aspect’; and the difficulties of instituting democratic, and legal, accountability for the complex bureaucracy, which administers the social state through administrative orders, rather than to democratic political decisions, or court judgements, in accordance with legal norms. Habermas’ analysis also, more indirectly, suggests a problem with harmonising democratic decision with the power of judges in a law governed democracy. These tensions in Habermas’ work find expression in the work of Han-Hermann Hoppe, who wrote his doctorate with Habermas, but has since turned discourse ethics into a foundation for a ‘propertarian’ anarcho-conservative position. Without endorsing Hoppe’s position, it does give a very useful indication of how Habermas touches on areas of concern to Classical Liberal and (free market) Libertarian thought. Foucault’s thought is better adapted to these problems. From Society Must be Defended onwards, Foucault distinguishes between the more despotic forms of power and the more limited form of power; between absolutism, or totalitarianism, and govermentality. The idea of governmentality is not the idea of a perfect liberal consensus based on government by consent; it is investigated itself with regard to attacks on the body in biopower and disciplinarity (power over life and death; imposition of regularised activity). Foucault’s approach to liberal government is highly critical, but his analyses of political and ethical thought, and practices, since Antiquity, strongly suggest that he finds individualistic liberty, market economics and limited government to be the best possible counter to the most coercive aspects of power. Comments by associates like Jacques Donzelot on Foucault’s later thought, and the social theory of associates like François Ewald, confirm the impression that Foucault was aiming for balance of individualistic market liberalism, and welfarism. His late comments on Austrian School free market economics, certainly suggest Classical Liberal, and Libertarian, sympathies. The cultural, and media, legitimacy of the emergent European polity can be best elaborated through this kind of analysis, which address those aspects of trans-national European sovereignty which cause most disturbance to critics of European integration. Foucault allows us to avoid the utopian dream of a seamless relation between individualism and collective welfare, between democratic participation and political hierarchy, because he sees legal sovereignty and coercive power, autonomy and mastery as intertwined, in an unavoidable paradox. This establishes a way of thinking in which European sovereignty, including its cultural, and media context, can be both affirmed and seen as in need of restraint, and dispersion. Though Foucault did not directly address issues of the emergent European polity, his later texts are deeply concerned with pan-European ideas of sovereignty and government, including the way that modern European nations emerged as fragments of Roman sovereignty, which they saw themselves as preserving.