So, there is a shift of the center of gravity of public law. The fundamental problem of public law will no longer be the foundation of sovereignty, the conditions of the sovereign’s legitimacy, or the conditions under which the sovereign’s rights can be exercised legitimately, as it was in the seventeenth and eighteenth centuries. The problem becomes how to set juridical limits to the exercise of power by a public authority. Schematically, we can say that at the end of the eighteenth and the beginning of the nineteenth century there were basically two ways of resolving this. The first I will call the axiomatic, juridico-deductive approach, which was, up to a point, the path taken by the French Revolution—we could also call it Rousseau’s approach. In what does it consist? It does not start from government and its necessary limitation, but from law in its classical form. That is to say, it tries to define the natural or original rights that belong to every individual, and then to define under what conditions, for what reason, and according to what ideal or historical procedures a limitation or exchange of rights was accepted. It also consists in defining those rights one has agreed to cede and those, on the other hand, for which no cession has been agreed and which thus remain imprescriptible rights in all circumstances and under any possible government or political regime. Finally, on this basis, and only on this basis, having thus defined the division of rights, the sphere of sovereignty, and the limits of the right of sovereignty, you can then deduce from this only what we can call the bounds of governmental competence, but within the framework determined by the armature constituting sovereignty itself. In other words, put clearly and simply this approach consists in starting from the rights of man in order to arrive at the limitation of governmentality by way of the constitution of the sovereign. I would say that, broadly speaking, this is the revolutionary approach. It is a way of posing right from the start the problem of legitimacy and the inalienability of rights through a sort of ideal or real renewal of society, the state, the sovereign, and government. Consequently, you can see that if, historically and politically, this is the revolutionaries’ approach, we can call it a retroactive, or retroactionary approach inasmuch as it consists in taking up the problem of public law that the jurists had constantly opposed to the raison d’État of the seventeenth and eighteenth centuries. In this respect there is continuity between the seventeenth century theorists of natural law and the jurists and legislators of the French Revolution.
The other approach does not start from law but from governmental practice itself. It starts from government practice and tries to analyze it in terms of the de facto limits that can be set to this governmentality. These de facto limits may derive from history, from tradition, or from an historically determined state of affairs, but they can and must also be determined as desirable limits, as it were, as the good limits to be established precisely in terms of the objectives of governmentality, of the objects with which it has to deal, of the country’s resources, population, and economy, etcetera. In short, this approach consists in the analysis of government: its practice, its de facto limits, and its desirable limits. On this basis, it distinguishes those things it would be either contradictory or absurd for government to tamper with. Better still, and more radically, it distinguishes those things that it would be pointless for government to interfere with. Following this approach means that government’s sphere of competence will be defined on the basis of what it would or would not be useful for government to do or not do. Government’s limit of competence will be bounded by the utility of governmental intervention. The question addressed to government at every moment of its action and with regard to each of its institutions, old or new, is: Is it useful? For what is it useful? Within what limits is it useful? When does it stop being useful? When does it become harmful? This is not the revolutionary question: What are my original rights and how can I assert them against any sovereign? But it is the radical question, the question of English radicalism; the problem of English radicalism is the problem of utility.
Don’t think that English political radicalism is no more than the projection of a utilitarian ideology on the level of politics. It is, rather, an attempt to define the sphere of competence of government in terms of utility on the basis of an internal elaboration of governmental practice which is nevertheless fully thought through and always endowed and permeated with philosophical, theoretical, and juridical elements. In this respect utilitarianism appears as something very different from a philosophy or an ideology. Utilitarianism is a technology of government, just as public law was the form of reflection, or, if you like, the juridical technology with which one tried to limit the unlimited tendency of raison d’État....for English radicalism, “radical” designates a position which involves continually questioning government, and governmentality in general, as to its utility or non-utility.
So, there are two approaches: the revolutionary approach, basically structured around traditional positions of public law, and the radical approach, basically structured around the new economy of government reason. These two approaches imply two conceptions of the law. In the revolutionary, axiomatic approach, the law will be seen as the expres sion of a will. So there will be a system of will-law. The problem of the will is, of course, at the heart of all the problems of right, which again confirms the fact that this is a fundamentally juridical problematic. The law is therefore conceived as the expression of a collective will indicating the part of right individuals have agreed to cede, and the part they wish to hold on to. In the other problematic, the radical utilitarian approach, the law is conceived as the effect of a transaction that separates the sphere of intervention of public authorities from that of the individual’s independence. This leads us to another distinction which is also very important. On one side you have a juridical conception of freedom: every individual originally has in his possession a certain freedom, a part of which he will or will not cede. On the other side, freedom is not conceived as the exercise of some basic rights, but simply as the independence of the governed with regard to government. We have therefore two absolutely heterogeneous conceptions of freedom, one based on the rights of man, and the other starting from the independence of the governed. I am not saying that the two systems of the rights of man and of the independence of the governed do not intertwine, but they have different historical origins and I think they are essentially heterogeneous or disparate. With regard to the problem of what are currently called human rights, we would only need look at where, in what countries, how, and in what form these rights are claimed to see that at times the question is actually the juridical question of rights, and at others it is a question of this assertion or claim of the independence of the governed vis-à-vis governmentality.
So, we have two ways of constituting the regulation of public authorities by law, two conceptions of the law, and two conceptions of freedom. This ambiguity is a characteristic feature of, let’s say, nineteenth and also twentieth century European liberalism. When I say two routes, two ways, two conceptions of freedom and of law, I do not mean two separate, distinct, incompatible, contradictory, and mutually exclusive systems, but two heterogeneous procedures, forms of coherence, and ways of doing things. Michel Foucault, 17 January 1979, lecture 2 The Birth of Biopolitics. translated by Graham Burchell, 39-42
The other day I said that this second lecture by Foucault is dazzling. In this long quote he sketches an interpretation of liberalism as the complex working out of two traditions, which are simultaneously enacting two concepts of freedom/liberty. The working out takes place within each tradition and in their interactions (and distant shadowing). It would be tempting to treat these as geographically distinct, but I don't think that's Foucault's purpose. Part of the dazzle is to see Foucault rewrite Constant, Green, and Berlin (although as I have noted, it is not necessary to efface the mothers of liberalism when doing so). And this rewriting raises a fascinating (and somewhat familiar) question.
The rewriting of a tradition is simultaneously a means of extending it. Of course, it can also be a form of ideology critique or unmasking. But Foucault is explicit that this is not his current enterprise.* Rather, he wishes "to make reality intelligible" and this "is simply showing that it was possible; establishing the intelligibility of reality consists in showing its possibility." (34) This is the kind of passage that analytic philosophers like to mock (if X exists X surely is possible). But one need not be a British Idealist in order to recognize that social reality is, at least in part, constituted by intentional objects (and our beliefs and narratives about them, ad infinitum). And at minimum, Foucault is saying that there is a sense in which the very liberal tradition(s) he is constructing are not fully self-conscious or self-aware. For prior to his articulation the reality they aim to be co-constituting are not fully intelligible (to themselves).
While there is much more to say about the nature of modality and intentionality Foucault is presupposing here (and which sit uneasily with the theories of concepts and modality fashionable in analytic philosophy [and which are not very useful in thinking about social reality)], we should also marvel at the rationalism inherent in Foucault's project. This is easily missed by all the ways one can assimilate Foucault and his focus on the conditions of possibility (of intelligibility) to a variety of neo-Kantianisms. But that reality is intelligible is the axiomatic commitment of philosophical rationalism.** That is to say, Foucault opens up the possibility for a liberalism that understands how its own art of governance and, thereby, become mature.
On Foucault's view, liberalism really starts once the questions of sovereignty and constitutions are settled or, more cautiously, can be assumed to be safely settled. That is, liberalism is (recall this post on Hume) a post-revolutionary enterprise. Or to put it differently, it comes to its own when it is safe to ignore foundations and when expectations can be thought reasonable. Foucault, thus, is tracking the liberal's philosophically problematic tendency not to question everything (recall Kofi Bright on logical empiricism (and Zizek on Kant)).
The previous paragraph may be obscure, but note how one conception of freedom starts "from law" (which I will call contractualist-republican) and the other utilitarian one starts "from governmental practice." Yes, Foucault calls the former a revolutionary approach, but the key point is that it occurs "within the framework determined by the armature constituting sovereignty itself." That is a polite way of saying, after revolutionary violence. So, liberalism makes reality intelligible by taking the violence that makes it possible for granted. To put it in Spinozistic terms: the state of nature remains latent in liberal civilization. And what Foucault is saying, is liberalism need not be deceptive about this at all.
The second key claim here is that liberalism is, thus, a mitigating project. (I have repeatedly noted (recall) this is true to its proper self-understanding.) And it does so by generating technologies of government. Foucault is a bit too quick in assuming that these technologies are intrinsically liberal. But from this perspective civil unrest and riots are (here; here; and also here) part of the technology of government or a signal that governance is malfunctioning.
The problem -- to which Foucault understands himself as a salutary corrective is -- that neither the contractualist-republican tradition (focused on securing rights 'of man') and the utilitarian tradition (focused on independence within the extensive division of labor it embraces) always understand itself primarily as a technology of governance (this is less true of 19th century utilitarianism which did theorize itself like this). And so what both strands of liberalism would gain from self-awareness is that within the liberal art of governance it should secure the proper regulation of itself as a technology. It's as if Foucault is playing Turing to a robot to nudge it to became aware of itself and then formulate and thereby impose the laws of robotics as a subject on itself.
*Just before the passage I quoted, Foucault takes on methodological competitors (e.g., Adorno and Deleuze (35)); and I hope to return to this soo.
**There is a peculiar shadowing of Deleuze going on in this lecture.
+We see utilitarian technologies of government also under the late Roman empire. I thank David Duffy for the reference.
Comments