Cover, Benjamin, Agamben and Foucault all contributedto the critical approach towards the power imposed by modern law. These theoristsand their models of law contribute to the configuration of human nature, thestate and the law through the power made through modern law. By looking from the Foucauldian perspective, you wouldsee that law produces an effect for a population.
Through researching empirically,you see the effects that come out of the application of a given law and thebroader narrative which is repeated in different legal contexts. For MichelFoucault, he shifts his view of law from being something that orders society toone that contains different characteristics. He views a society as one that is becomingrather than being and focused on the becoming of different forms of law andsociety. He looks at how individuals become rather than the theoretical of who wesupposedly are.
Law for Foucault accepts the use of violence and it is exemptedfrom the rule of law. Since violence is accepted, law is used to justifyactions used to protect society when these means are put into practice. So, whenextra-legal forces such as torture are used, they are exempted from the rule oflaw and accepted. For Foucault, the emergence of the use of prisons bringsforth a new kind of technology and in turn a new type of power called discipline. This moves away from the spectacle of tortureinto putting individual bodies into individual cells. With this, you see a moveaway from physical punishment inflicted to cause pain on the body to takingaway a person’s freedom in order to reflect on the actions they have committed.Through imprisonment, individuals come into being and produce subjectivitythrough activities appropriate for that individual.
This is seen as the productof exercising disciplinary power on the body and shapes an individual’s self-perception.This type of power shapes individuals and collective bodies and is no longerseen as top down power. Foucault bringsabout the concept of disciplinary power which is a discipline that acts upon usand the human will. Instead of looking at laws that are embedded in structures,made by the power of the state, there are norms that are practiced acrossvarious institutions such as schools and the workplace that teach us how to actthrough repetition and a decentralized manner. This is an effective form ofgovernment if people impose their will upon themselves that goes against asovereign power. Therefore, the concept of disciplinary power is connected topower and is exercised through our will.
For him, the focus of his question ishow the law is working as opposed to whether law is effective in solving socialproblems. Human nature for him, is something that is found independentlyand comes into being during different points in time that are modified. Foucaultbelieved that there were two concepts that were intertwined with one anotherwhich was subjectivity and biopower. He believed that individuals create powerand it is not imposed on them. Power forhim is seen as a certain type of relationship that exists between individualsand this power cannot exist without refusal or revolt. This type of power needsto be constantly organized and maintained. If there is no ability to act uponthe power then all you get is violence.
Hediffers from other theorists because he doesn’t see power being exercised by powerfulpeople that restrains individuals in a top down approach. For Foucault, in thisconfiguration, there is no relevance of who holds power. Foucault’s form ofpower sees discipline as being incompatible with sovereignty. He doesn’t seenpower as a weapon of the ruling class but instead is a strategy of governance.
Forms of government were no longer linked to the forces of economics but had tobe linked to the economy of the body. He sees power as nominally which meansthat actions are directed to structuring the actions of another subject. He focuseson the instruments of power and actions.
that are not directed at others but onactions. This shaping of actionsproduces way of becoming and being. Hesees a power called governmentality.
This form of power creates new forms oflaw and is used to shape and manage a population. The shaping of life processesis what he referred to as biopolitics or biopower which is the power to managelife and improve a population’s health. He therefore calls upon people togovern themselves instead of formal institutions. Foucault viewed modern law asconstraining and limit preserving. Law was a productive revision that in orderto be seen as effective it needs to be related to the changing nature ofsociety. Foucault sees the arrangement of the state as being the justification foritself and justification for power is the product of historical outcomes.
For Agamben, he disagreed with Foucault. He said thatthe social contract theory allows for the creation of human nature whichtherefore allows every move made to be joined together. For him he sees thatthe notion of pre-political or a natural state is placed upon us in order tojustify a political form. However, heagreed with Foucault that sovereignty contained biopower.
He believed that theconcept of biopolitics is not a modern phenomenon that emerged with the use ofprisons as Foucault believed but has emerged a long time ago in ancient Greeceand cannot be separated from sovereignty. For Agamben, natural life is seenbeing described retroactively and negatively as a life devoid of a politicalform. He saw law as being violent and that natural law was subjected tosovereign violence which he called bare life. Bare life was to be understood asnot having relation to political order. Agamben sees bare life in modernpolitics as beginning to coincide with political order.
Political life doesn’t replacenatural life but instead it is sovereignty that creates natural law that has itbe subject to the law. For Agamben, he believed that the sovereign is someonewho is able to decide what the exception is. Part of the sovereign’s power is to produce laws that cannot be brokenor passed over. Agamben concluded that the logic of sovereignty was one thatmade absolute laws while excluding itself from those laws. For him the state isconstantly existing in the state of exception and is how modern societyfunctions.
The state is seen as exempting itself when it is seen acting outsideof the ruling law. When it imposes certain laws such as marital law it becomesobvious but the power to exempt is always available. He believed that law thatwe see today is the product of law making violence. The law exists not topromote life and wellbeing but its purpose for the law is its power to kill. Agamben views bio-political sovereign power ascreating the concept of bare life and having that be subjected to the sovereignpower. By looking at the different ways that the state exempts itself then youcan see the ends justifying the means.
Agamben draws upon the relation ofexception stating that something is included due to its exclusion. Therefore,natural life was seen as a paradox because it was both excluded and includedwith political life. Unlike Foucault, Agamben saw bio-politics as the origin ofthe power of sovereignty.
He believed that law existed everywhere and thatthere was no way to get outside of the relation. Laws are therefore written butnot practiced. Instead, law is used as a force and is taken away from itsnormative content.Benjamin’s critique of power in relation to modern lawis one that sees law as being unjust. The law only serves the interest of thestate with the end goal of preserving power. Therefore, the State is seen asboth the ends and the means of preserving power.
For him, the power derivesfrom the state which is preserved by the use of violence. This type of power didn’tallow individual violence that would pose as a threat to the order of thestate. This meant that for Benjamin, most acts of violence were seen asnon-sanctioned unless it correlated with the power of the state.
He sees modernlaw as the product of law making violence and not the social contract. in orderto understand power and law, he looked at pairs of opposition such as naturallaw and positive law. These two laws work against one another to secure certaintypes of law. Natural law is concerned with the justice of ends where aspositive law is concerned with the justice of means. If these relations arepresupposed, Benjamin argues that it impossible then to raise critiques ofviolence but only the applications of violence.
He states law is all around usand it is either law making violence or law preserving violence. This meansthat laws either want to go beyond the present law or maintain and approve thelaw that has already been put into place. He states that these two types of violence arenot separable.
Any act that contains law preserving violence also has lawmaking violence within it. He sees that the only way get rid of sovereign lawis by the destruction of the law without the emergence of a new kind of law. He points out that the state’s interest inviolence is the preservation of the law which is different from other goals of preservinga legal system. He turns to the police in order to see that both the forms ofpower manifested from police power. Their main purpose is to maintain socialorder but based on the situation, they have to exercise discretionary powerwhich goes beyond the law which results in law making violence. In modernity, the police practicing both lawmaking power and law preserving power is the result of the decline of sovereignpower. The goal of the police is to preserve the law but in certain cases wherethere is no law, police practice law making violence as the solution. Both Benjaminand Cover agree with Agamben that modern law no longer looks at perusingnormative ideals and moral content.
He resonates with Cover stating that theuse of violence in modern law is no longer associated with justice but is usedfor self-preservation and power. Modern law cannot be seen without the use ofviolence. He differs from the other theorists in that he believed in divine power.This divine power replaces what he called mythic violence. Mythic violenceemerged arbitrarily through acts of violence that were continuously found.
Hebelieved that law had to be replaced with violence that always served justice. Itdiffers from mythic violence because it breaks laws and its boundaries. It becomesthe power over life for the purpose of living that exists outside of law. Foucault believed that power should be exercised to disciplineindividuals instead of using coercive torture. Agamben saw law as always in astate of exception acting above the rule of law; no longer practiced forjustice but is used as a force.
Lastly, Benjamin believed that law had no wayof redeeming itself in modernity since it has no attachment to normativecontent and cannot exist without law preserving violence and law-makingviolence which are inseparable. Through these theorists’ critical approaches, itis shown how power is imposed through modern law and shapes the configurationsof nature, society and the law. Bibliography Pavlich,George.
Law and SocietyRedefined. OxfordUniversity Press, 2011