I have been busy. I picked up a gig at RealClearHistory as a ghost editor, and I also write a weekly column there. I have a baby daughter (she’s 8 months old). My musings here at NOL have been sporadic, but I have been learning a lot. Bill (morality) and Federico (law and liberty) continue to make me smarter.
Tridivesh’s thoughts here so far have a heavy element of “democracy-is-best” in them. I find this to be the case for most South Asian liberals. I wonder if this community has had the time to ponder Fareed Zakaria’s The Future of Freedom…, which laments the fact that most liberals worldwide have eschewed the “liberty” in the phrase “liberty and democracy.” One is surely sexier than the other, and there are probably many pragmatic reasons for this phenomenon, but it’s worth repeating here that you can’t have liberal democracy without liberty. China holds elections all the time, but this doesn’t mean the Chinese are free.
Michelangelo’s most recent note on race is interesting, as always. If it’s just the US Census then I agree with Thomas: eliminate the race question. Matt’s idea, to leave it blank and let people fill it in themselves, is a good idea, too, provided the Census continues to pry too much into the lives of people living in the US. As far as race goes in general, the American system of classification is ridiculous (to be fair to us, I’ve never come across a good one). However, the US government has committed some heinous crimes based on racist classifications and as such I do think there is a need to continue asking race-based questions. My approach would be much simpler, though. I’d ask:
- Do you identify as African-American?
- Do you identify as Native American?
- Do you identify as Japanese-American?
That’s it. Those are the only 3 questions I would ask about race. These three groups are groups because the US government, at some point in time, classified them as such and then proceeded to implement plans that robbed them of their labor, or their land, or their freedoms, and justice has yet to be delivered.
Good to see you’re studying Foucault Brandon.
I agree that nationalism is an issue in Foucault and that his work is very Gallocentric. However, it is Gallocentric in ways that tend to be critical of various forms of nationalist and pre-nationalist thought, for example he takes a very critical line of the origins of the French left in ethnic-racial-national thought. Foucault does suggest in his work on Neoliberalism that Neoliberalism is German and American in origin (which rather undermines claims that Thatcherism should be seen as the major wave). He also refers to the way that Giscard d’Estaing (a centre-right President) incorporated something like the version of neoliberalism pursued by the German Federal Chancellor, Helmut Schmidt, from the right of the social democratic party.
Thoughts about the relations between France and Germany going back to the early Middle Ages are often present in Foucault, if never put forward explicitly as a major theme. I don’t see this as a version of French nationalism, but as interest in the interplay and overlaps between the state system in two key European countries.
His work on the evolution of centralised state judicial-penal power in the Middle Ages and the early modern period, concentrates on France, but takes some elements back to Charlemagne, the Frankish king of the 8th century (that is chief of the German Franks who conquered Roman Gaul), whose state policies and institutional changes are at the origin of the French, German and broader European developments in this are, stemming from Charlemagne’s power in both France and Germany, as well as other areas, leading to the title of Emperor of the Romans.
Getting back to his attitude to neoliberalism, this is of course immensely contentious, but as far as I can see he takes the claims of German ordoliberals to be constructing an alternative to National Socialism very seriously and sympathetically and also regards the criticisms of state power and moralised forms of power with American neoliberalism in that spirit. I think he would prefer an approach more thoroughly committed to eroding state power and associated hierarchies, but I don’t think there is a total rejection at all and I don’t think the discussion of ordoliberalism is negative about the phenomenon of Germany’s role in putting that approach into practice in the formative years of the Federal Republic.
Here is more Foucault at NOL, including many new insights from Barry.
I’ve been slowly making my way through Michel Foucault’s The Birth of Biopolitics, largely on the strength of Barry’s recommendation (see also this fiery debate between Barry and Jacques), and a couple of things have already stood out to me. 1) Foucault, lecturing in 1978-79, is about 20 years behind Hayek’s 1960 book The Constitution of Liberty in terms of formulating interesting, relevant political theory and roughly 35 years behind his The Road to Serfdom (1944) in terms of expressing doubts over the expanding role of the state into the lives of citizens.
2) The whole series of lectures seems like a clever plea for French nationalism. Foucault is very ardent about identifying “neo-liberalism” in two different models, a German one and an American one, and continually makes references about the importation or lack thereof of these models into other societies.
Maybe I’m just reading too deeply into his words.
Or maybe Foucault isn’t trying to make a clever case for French nationalism, and is instead trying to undercut the case for a more liberal world order but – because nothing else has worked as well as liberalism, or even come close – he cannot help but rely upon nationalist sentiments to make his anti-liberal case and he just doesn’t realize what he’s doing.
These two thoughts are just my raw reactions to what is an excellent book if you’re into political theory and Cold War scholarship. I’ll be blogging my thoughts on the book in the coming weeks, so stay tuned!
The last post focused on the distinction between civil and common law, with regard to Britain’s position as a common law country in contrast with the civil law tradition of the rest of Europe. The promise at the end was to move onto laws, charters, and constitutions in this post. However, I have found it necessary to discuss the idealisation of common law further and look at how a large part of this looks back to a world which is lost, regardless of predominant legal system as societies have roughly speaking moved from customary law to ‘juridification’ (state centred comprehensive law penetrating all social relations), and then the world we live in now of the administrative state.
The British sovereigntist and Eurosceptic position tends to emphasise a supposed unique British exception from the statist rationalism of civil law, in the ‘common sense’ of the accumulation of law arising from judicial precedent in the decisions of judges in previous cases. This supposedly British exception looks rather challenged when we consider the thoughts of the influential German philosopher Hans-Georg Gadamer in his 1960 book Truth and Method. Gadamer refers to French rationalist Enlightenment in contrast with a German form of Enlightenment based on the original understanding of ‘prejudice’.
Prejudice, in Gadamer’s account, did not begin as a negative term for the constraints of false assumptions, but in a legal process in which the court forms a preliminary opinion in an early stage of proceedings. For Gadamer this represents the continuity of custom and the communal sense of justice in contrast to abstract rationalism. What he describes is not the same as the common law tradition, but represents another way in which the apparent underlying advantages of common law can appear in another system.
The idealisation of common law is really a claim to prolong the role of custom in law into the age of state statutes and deliberately constructed legal codes. Not that an age can be identified in which pure custom operated and no state created laws existed. It can be said that laws used to be less in number and articulated in terms of defending the wisdom of ancestors as part of a generally shared sense of justice.
However, the destruction of such a world, which depends on accepting fictions about the harmonious origin of laws outside the interests of power, was not from the triumph of civil law. The heroic moments of civil law in the process that leads from 1789 French Revolution through constitutional monarchy, republic, and Bonapartist autocracy, are the product of the decay of traditional societies in which localised and regionalised kinds of authority operated in ways which mixed statute and customary law, and where even in conditions of political autocracy the state ruled over either a very small community unified by common experience, or larger units which aggregated such communities rather than enforcing a very uniform and unitary form of sovereignty back by a hierarchical bureaucratic-military state machine.
There were of course elements of the latter, as in the eleventh century Norman Conquest of England, but even this established only a minute state machine by modern standards, which recognised the ‘privileges’ and ‘liberties’ of the City of London, the church, the barons, and so on. The idea of civil law is generally traced back to Rome, bracketed by the Twelve Tables of fifth century BCE Rome and the Corpus Juris of Civilis (often identified with the Institutes which form just one part of it) Justinian promulgated in the New Rome of Constantinople in the sixth century CE.
This civil law prevailed in Roman Britain for four centuries as it did from the Rhine to the Euphrates. The Roman world, including the Greek empire governed from Constantinople, that emerged in the sixth century, was nevertheless a world of localised traditional authority in which central state institutions were more like connecting threads rather than an all inclusive structure.
The Middle Ages saw a process of juridification, as Roman law continued in the church and was revived for the state, in which the uniform administration of justice became strong enough for a system of dominating unifying state military-bureaucratic power to emerge underneath sovereignty that was beginning to become more distinct from the person of a king (or occasionally the persons of an aristocratic assembly).
All European states went through a process, which has been implemented elsewhere, leading to what is now known as an administered society, administrative state, biopower, and all the other terms referring to the inclusive, comprehensive and unifying power of state law and state bureaucracy in relation to society. This was simultaneous with the development of capitalism as a dominant economic system working through unified national markets and trade between states.
A lot of what is said about the difference between common law and civil law represents a wish to return as far as possible to go back to a time before administered societies and even before juridification. There is no time at which law was purely traditional and consensual and no current possibility of even approaching that ideal. Concerns about the administered-juridified society have to be addressed with that world.
The common law tradition might or might not on average be better than the civil law tradition from that point of view, but common law is not what its strongest defenders wish it was and it is not obvious that civil law states in northern Europe including Switzerland, the Netherlands and Denmark, and in a slightly more qualified but real way, Germany are doing worse for liberty and prosperity than the English speaking common law countries. France, the homeland of modern civil law, is itself not doing at all badly compared with most countries in the world as it is and certainly in terms of human history.
For the next post the intention is to finally get onto charters and constitutions.
(This text was written for the European Students for Liberty Regional Conference in Istanbul at Boğaziçi University. I did not deliver the paper, but used it to gather thoughts which I then presented in an improvised speech. As it was quite a long text, I am breaking it up for the purposes of blog presentation)
There is a tendency within liberty oriented though which sees the intrusions of the state in the modern world as something to do with republicanism and the democratic political spirit. The development of what has been called the administrative state, administered society, the iron cage of bureaucracy, disciplinarity (generalised power throughout society), biopower (sovereignty over life and health), and so on, has taken place in all state forms. It is deeply embedded in the emergence of modern industrial world, where traditional authority structures and customary laws are eroded by city life, national and international markets and technological innovation.
This process has one aspect the emergence of a modern state in which we see national debt financing an investor class, and the expanded central state enforcing uniform legal codes. There is a political economy of this which ties interest groups to the state, and tries to find ways in which everyone could be defined as belonging to a group that benefits from state action. At any time we see states in the double process of maintaining such a political economy and using state power to protect the associated institutions.
There are periods in which such developments of the state take place at a heightened pace, usually due to war of some kind and maybe a collapse of attempts at peaceful balance between groups in a society. Groups which seem marginal or even as the source of violent resistance are assimilated or subject to maximum state force. in practice has always gone along with these developments, in all forms of state.
A lot of this has come out of the pre-modern monarchical state reinforcing its traditional power. Resisting he administrative-bureaucratic state means engaging in politics, in citizen movements, in peaceful civil disobedience where necessary to defend basic rights. That is not looking back to pre-modern forms of law, authority and statehood, in which pluralism exists in rigid state enforced hierarchies, and tradition limits individual self-creation. In the modern world republicanism has sometimes acquired a ‘Jacobin’ form of intense and violent state creation, but as Tocqueville pointed out in The French Revolution and the Old Regime, it carries on the work of the old monarchy in doing so.
The republican political tradition has to some degree acquired a tainted reputation due to association with the most violent aspects of the French Revolution, and Machiavelli’s frankness about what can happen when regimes change. However, the violence attributed to the republican moment was always at work before in the strengthening of central political institutions and the unified ordering of the society concerned. There have been such moments throughout history, but the shift to the modern administrative state has made them much more thoroughgoing in their influence on social relations.
Republicanism is a way of coping with this that tries to bring in the restraints of law and accountability to the public in various forms. It has not been an escape from the modern administrative state, or the violence accompanying much of the historical emergence of that state, but no other way of doing politics has escaped either, and the republican way even in its worse moments has at least emphasised the principles of law above persons, the non-passive rights of citizens, and the importance of instruments of political accountability. The monarchist and depoliticised forms of thinking about liberty have also sometimes collapsed into state terror, without the message that a better way exists. The conservative empire and the traditionalist state have used, maintained, and intensified violence in reaction to real and perceived threats without being able to offer the prospect of better political forms and structures than the hierarchies of tradition. The differences are not absolute, as Tocqueville indicates, and at times republican city governments have existed within traditional hereditary states, and monarchist reformers have attempted to bring in ideas with republican origins. A republic can collapse into a permanent system of personalised authority, but it is the republican tradition which tells us what is wrong with that.
In any case, republicanism as it exists now in political thought is concerned with restraints on power not intensification of state power. Its engagement with historical situation and concrete politics, its appeal (at least in the form associated with Hannah Arendt) to individuality and contestation in politics is the best way of making a complete application of the principle of liberty to the political and historical world.
Michel Foucault (1926-1984) was a French writer on various but related topics of power, knowledge, discourse, history of thought, ethics, politics, and so on. His name to some summons negative associations of French intellectual fashion, incomprehensibility, and refinements of Marxist anti-liberty positions.
However, his influence in various fields has become too lasting, and too much taken up by people who do not fit into the categories just mentioned, for such reactions to be considered adequate. Foucault himself resisted and mocked labels, which was a serious issue for him because in his work he tried to question the absolute authority of any one system of knowledge and the authority of isolated great thinkers.
He said that once he had written something it was no longer what he thought, which is in part a playful attempt to resist labelling, but also a rather serious point deeply embedded in his thought, about the nature of subjectivity, how it is always more than what we say or more than the identity that power relations impose on us.
It seems to me that any ethics of subjectivity has pro-liberty implications, and despite the image some might have of Foucault as morally irresponsible or indifferent, he increasing developed the idea of self-invented subjectivity, based on care of the self, the art of existence, and related terms.
The self-invention does not mean that Foucault thought we can arbitrarily will our self to be anything, it does mean that he thought we have possibilities to cultivate ourselves to live in a way that relates to, and challenges our existing strengths and goals.
Despite the image for some of intellectual fashion round Foucault, these ideas were partly developed through study of Ancient Greek and Roman ideas about ethics and style of living, which included interaction with scholars in the field.
Another theme he developed through his interests in antique knowledge and culture was that of ‘parrhesia’, Greek word that refers to free speaking, which in the context of ancient city states, particularly the Athenian democracy, had strong overtones of courage in truth telling before the city assembly, a prince of any other source of power.
The ethic of truth telling relates to Foucault’s own work on the language of knowledge and the history of science, as well his political ideas. He did not believe in absolute final systems of knowledge, autonomous of context, but he did believe that trying to find truths within whatever perspectives was an ethical enterprise connected with the kind of self cultivation he advocated.
Foucault’s own father had been a doctor and on at least one occasion Foucault suggested his own work was a continuation of the doctors work that evidently combines ethical and scientific aspects. It must also be said that Foucault was a great critic of the authority of experts, including doctors, so he might also be seen as struggling with the memory of his father.
The ambiguity and the personal involvement in ideas suggested there is very much at work throughout Foucault’s writing, in its tension and energy. It is part of his ‘difficulty’, which also comes from the philosophical and literary interests he had, which relate to the creative possibilities of linguistic disruption. We can see that in the most obvious way when he quotes literary texts of Borges, Beckett and so on.
The existential commitments in Foucault’s work is clear if we think about the book that made him famous, History of Madness (also known as Madness and Civilisation), and his personal experience of mental ill health and psychiatric treatment, particularly in his student years.
We can also think about his constant critique of power and his individual willingness to physically confront power, as in the beatings he received from the police at demonstrations for rights in both France and in Tunisia (where he taught for a few years just after becoming a celebrity public intellectual in France).
Returning to the topic of experts and power, one of Foucault’s most pervasive ideas now is of ‘biopolitics’, that is the way that power expresses itself through prolongation of life. As the state has moved from a basis in the power of death over criminals and other supposed enemies, to a promotion of population, public health, and prolongation of life, it has demanded corresponding powers of intervention and control.
At the extreme this means the ‘racial hygiene’ ideas that German National Socialists used to justify the Holocaust, and in a more routine way means expanding state activity justified by public health goals. We can readily see the contemporary significance of Foucault’s ideas here in relation to ever expanding state and ‘expert’ attempts to limit smoking, drinking alcohol and supersized fizzy drinks, eating sugary and fatty foods, and so on.
The ideas about biopolitics builds on the discussion of modern power in maybe his most widely read book, Discipline and Punish, which deals with the way that the prison becomes the central means of punishment after the eighteenth century Enlightenment, and suggests the dangers of Enlightenment becoming a controlling form of rationalism.
The way the prison works, around observation, or surveillance, of prisoners to ensure adherence to prison routine was the model of modern power for Foucault including factories, schools, and armies, in a model of ‘disciplinarily’. Again Foucault’s intellectual interests correspond with life commitments, as he was a prominent campaigner for prisoner rights, under the inspiration of the man with whom he shared his life, the academic sociologist Daniel Defert.
Foucault’s analyses in Discipline and Punish, and related material, draw on the ‘classical sociology’ of Emile Durkheim and Max Weber with regard to norms and authority, as his views on the emergence of the modern state draw heavily on the ‘pre-sociology’ to be found in the historical and social work of the classical liberal thinkers Charles-Louis de Secondat, Baron of La Brède and Montesquieu and Alexis de Tocqueville.
There is some drawing on Marx, but one should be wary of those left socialist inclined advocates of Foucault who emphasise this strongly, since they don’t mention the other points of orientation so much. The same applies to remarks Foucault made about the importance of the twentieth century Marxist theory of the Frankfurt School, as those who emphasise such remarks ignore accompanying remarks about the importance of Max Weber and ‘Neoliberalism’ (i.e. classical liberal and libertarian thought since the Austrian Liberal school of Menger, Hayek, Mises etc).
Strange as it might seem, Foucault suggests we take Marx, Weber, the Frankfurt School, and Neoliberalism together as attempts to explore liberty and power. Maybe it shouldn’t seem so strange, however awful the consequences of Marxist ideas coming in power have been, that does not mean we should ignore Marx and Marxism, which starts by drawing heavily on classical liberalism and does have some noteworthy things to say about constraints on liberty in a capitalist society, even if offering bad solutions.
Certainly Foucault is not your man if you think a pro-liberty position means uncritical embrace of the links between private enterprise and state power, but since the liberty tradition has in a very significant way been concerned with criticism of rent seeking and crony capitalism, of the drives within capitalism to betray itself, then I don’t think we need to reject Foucault in this area. Indeed it is even a part of the liberty tradition to reject ‘capitalism’ as tied to the state and concentrations of power and argue for markets, property, and association rights liberated from state alliances with economic power.
This is the core of left-libertarianism, and even Foucault’s most Marxist leaning fans would find it hard to deny that left-libertarian is an appropriate label for Foucault. Clearly he was a natural maverick and critic of all power, including state socialist power. I suggest his life, his activism, and his writing, can be taken as an inspiration for all liberty-inclined people. Even on the more conservative side, Foucault’s thoughts about self-cultivation are a version of virtue theory, of an emphasis on cultivating virtue, so Foucault has a lot to offer to all streams of liberty thought.
Those Foucault texts most relevant to political thought about liberty
History of Madness (also published as Madness and Civilisation)
Discipline and Punish
History of Sexuality (3 volumes: Will to Knowledge, The Uses of Pleasure, The Care of the Self)
(Foucault’s rather early death means that much of his work was in lectures that would have been later revised into published material. The task of bringing those lectures into print is still underway).
The Government of Self and Others
The Birth of Biopolitics
Security, Territory, Population
Hermeneutics of the Subject
Society Must be Defended