Magazine: LAW & SOCIETY REVIEW, December 1994
Section: Review Essay: Comment
Record: 1
95022057330023921619941201
Title: Between power and knowledge: Habermas, Foucault, and the future
of legal studies.
Subject(s): HABERMAS, Jurgen -- Criticism & interpretation; FOUCAULT,
Michel -- Criticism & interpretation; CRITICISM
Source: Law & Society Review, 1994, Vol. 28 Issue 4, p947, 15p
Author(s): Simon, Jonathan
Abstract: Opinion. Examines the relationship of the work of Jurgen
Habermas to the work of Michel Foucault. Implications of the Habermas
and Foucault debate on legal studies; Attractiveness of Habermas'
works to American scholars in the field of epistemology, political
theory and social theory; Foucault's concept of power to describe
modern society.
AN: 9502205733
ISSN: 0023-9216
Full Text Word Count: 6792
Database: Academic Search Elite
Section: Review Essay: Comment
BETWEEN POWER AND KNOWLEDGE: HABERMAS, FOUCAULT, AND THE FUTURE OF
LEGAL STUDIES
The forthcoming publication in English of Between Facts and Norms:
Contributions to a Discourse Theory of Law and Democracy by Jurgen
Habermas comes at a time when the nature and role of legal studies in
the United States is being problematized. In both law schools and in
the broader scientific and humanistic discussion of law (the totality
of which, for the sake of brevity, I call legal studies), the
consensus of more than a generation is breaking down, and a broad
debate over what counts as interesting problems, adequate research,
and useful results is emerging. This timing is central because
Habermas has been a key figure in an important debate about the nature
and prospects of social knowledge; a debate which has everything to do
with the debate about the future of legal studies.
As my colleague Ken Casebeer (1994) notes, Habermas's work has been
largely ignored in legal studies (a surprising fact given his general
renown as one of the leading philosophers of his generation). Between
Facts and N0nns, a book specifically about legal theory, is likely to
change that. But if the substance of this latest book is the occasion
for Habermas's introduction into legal studies, it is his writings on
social theory and epistemology that may be of the most relevance to
the emerging debate over the future of our discipline. Of particular
importance, in this regard, is Habermas's dialogue with the work of
the late Michel Foucault.1 Fortuitously, MIT Press, which is
publishing Between Facts and Norms, has just recently published
Critique and Power: Recasting the Foucault/Habermas Debate, a new
volume edited by Michael Kelly which reprints some of the most
significant elements of this dialogue and related commentaries (Kelly
1994a).
In what follows I want to explore the implications of the
Habermas/Foucault debate for the future of legal studies. Habermas's
epistemological assumptions are likely to be highly attractive to
those who feel most uncomfortable with the very existence of
fundamental debate about the prospects and purposes of legal studies
and who would like to return to the perceived benefits of the
increasingly unstable modernist settlement.2 For those who find the
breaking up of settled positions stimulating, Foucault's
epistemological posture may be the more appropriate one for legal
studies at this juncture. While I place myself solidly in the latter
camp, I want to suggest here that taking this debate seriously may be
more productive for both sides than simply adopting a giant of
European critical theory as a banner or mascot.
Habermas
James Bohman's (1994) description of the development of Habermas's
social theory (while not uncritical) helps make clear why Habermas and
his project have already been so attractive to U.S. scholars in fields
like epistemology, political theory, and social theory; and why his
approach is likely to be welcomed by many in law. Habermas has been
the strongest contemporary defender of the Enlightenment faith in
Reason. Against those who would catalogue the atrocities produced by
Reason and its technological spin-offs, Habermas has sought to define
a form of communicative reason (the kind that makes it possible for
people to understand one another's speech acts) distinguishable from
its more destructive cousin instrumental reason (the kind that makes
electric razors and freeway off-ramps work) (Habermas 1984, 1987).
Habermas's theory of "discourse ethics" builds on this theory of
communicative reason to suggest that only practices that permit truly
undistorted and uncoerced communication are capable of generating
legitimate controls over conduct. Although Between Facts and Norms
concedes that social complexity may require that large segments of
social life be governed more instrumentally, Habermas still believes
in the priority of communicative reason and looks to law as the
crucial field for enforcing this priority.
At a time of "culture wars" in American academic life, when the
epistemological right is held by analytic moral philosophers and
rational choice theorists and the left by feminists and postmodernists
(like Foucault), Habermas occupies a strategic position? Over the past
decade and a half he has pursued a significant engagement from the
left with the philosophy of language, ethics, psychology, and rational
choice theory. At the same time Habermas has been perhaps the leading
critic of postmodernist theory, which he has attacked for abandoning a
commitment both to reason and to social reform (Habermas 1989; Fraser
1985). From this perspective Habermas appears as a progressive
intellectual who shares the conservative response to those who seem to
be "trashing" the West's intellectual inheritance, its belief in
"truth" and in the possibility of rigorous justification for social
action.
Habermas is also an attractive figure in more directly political
terms. As my colleague David Abraham points out in his comment,
Habermas is the leading figure on the German political scene
advocating American versions of civil rights and civil liberties? That
is an enormous relief to many who feel that, epistemology aside, they
would rather not see the Germans throwing reason and bureaucratic
legal norms out the window once again. Just as many once thought that
belief in God (whatever its validity) was necessary to keep the social
order intact, some now see belief in reason and in liberal legalism as
a necessary bulwark against future atrocities. Even if one is willing
to test the capacity of ethics to operate without visible guarantees
of reason and law, it is unlikely that many would choose the Germans
to be the first experimental subjects.
Habermas has also played a significant role in mediating that other
great paranoid complex of American intellectuals in the post-World War
II era. He is, after all, the leading living version of the Frankfurt
School line of critical theorists whose works provided the main link
to a humanist side of Marxism at the height of Cold War anticommunism
in the United States and of Stalinism in the Soviet Union. In more
recent times, Habermas has managed to sustain a public commitment to
social justice and radical transformation of the social order while
striving mightily to articulate a broad common front with liberals in
an era of conservative national politics exemplified by Reagan,
Thatcher, and Kohl.
Habermas's effort to describe a theory of discourse rationality which
would provide foundations for both social policy choices and norm
evaluation brings these virtues together. By linking the most
respected area of contemporary philosophical research--language--with
the key aspirations of European democratic traditions, Habermas has
managed to span the leading cultural gaps that threaten the position
of Western intellectuals at the end of the 20th century. This is all
the more powerful since language is just the place where (in different
ways) postmodernist discourses demonstrate the intractability of power
and of desire.
Foucault
Summarizing Foucault in a piece this short is likely to be equally
impossible and unhelpful.5 That part of his work best known in the
United States consists of brilliant and highly contentious revisionist
histories of the development of modern practices involving the insane
(1965), the criminal (1977), and the sexual deviate (1978). As a
philosopher, Foucault may be best known for his use of the concept of
power to describe modern society. In contrast to the long-running
assumption that truth and power are adversarial, Foucault has argued
that the two are always deeply intertwined. While Foucault's usage of
power is actually quite subtle and complex (Honneth 1991; Winter
1994), many read him as an unrelenting critic of all reforms who views
power as inevitable and intractable.
Unlike Habermas, Foucault never tried to assemble a comprehensive
system that addressed both a theory of society and one of knowledge.
That did not stop him, however, from making sweeping and often highly
pejorative statements about the structure of both political and
intellectual authority in modern society. The combination of these
statements and Foucault's avant-garde image have helped turn him into
a symbol of postmodern barbarism. I have heard colleagues who have
never read a word of Foucault bitterly denounce his noxious influence
on the lives, language, and research projects of their students and
(usually younger) colleagues.6 Habermas, in contrast, comes off as a
veritable Heidi's grandfather providing comfort and security during
these dark times of skepticism. For others, of course, Foucault has
boldly created spaces for new ethical and political projects, while
Habermas seems a virtual coupon-clipping pensioner in the long
twilight of Western civilization. These too brief descriptions,
perhaps even caricatures, will, I hope, suggest why the
Habermas/Foucault debate is so important (both intellectually and
symbolically) to disciplines, including legal studies, where the
modernist settlement is being destabilized and challenged.
Law, Modernism, and the Discursive Turn
The "discursive turn" is a term used to describe the trend in the
humanities and the social sciences toward prioritizing the context of
meanings around which human actors communicate and behave? Western
philosophy has always paid a lot of attention to language as a medium
through which representations passed between subjects and objects.
What seems different now is that the medium has increasingly come into
the foreground blurring the lines between subjects and objects
altogether. In fact, this trend is not all that new; it was heralded
by Nietzsche in the 19th century and by American pragmatists like
Dewey at the start of the 20th century (Rorty 1991:3). But for much of
the mid-20th century, the trend was contained by what I call here the
modernist settlement, a formation encompassing both the quantification
of knowledge about subjects and objects and reform-oriented normative
objectives. We tend to think of this formation as most embodied in
Progressive era intellectuals (among whom we could include Dewey
himself; see Westbrook 1991), but it remained a dominant posture
revitalized by the public culture of the Cold War and the Great
Society until the 1970s at least?
Law, always having been about language and about nasty ethical
problems, should have been among the most vulnerable discourses to the
"discursive turn." This did not happen because the formidable
institutional structure of the American law school succeeded
remarkably well until recently in assuring something close to academic
autarchy. Traditional academic writing on law largely ignored the
status of law as ideology, language, text, and narrative; and those
dissident strains that failed to expunge themselves, like some of the
Realists, were squeezed out during the 1950s (Horwitz 1992).
For some time now scholarship has been highlighting specifically these
aspects, but at the cost of breaching the barriers that once kept law
relatively autonomous from theoretical ferment in other fields.
Focused analyses of specific policy or doctrinal problems in the
service of legislative or judicial reform remains a prominent part of
legal writing, but it now competes for journal space with scholarship
that is theoretically reflexive and interested in making issues of law
and policy more rather than less problematic (Alfieri 1991; Coombe
1989, 1991; Cornell 1991; Edwards 1992; Peller 1985; Schlag 1991;
Winter 1991).
It might be possible to write off the new theoretical reflexivity in
law schools as an unintended consequence of lucrative law school
salaries and stagnation in the job market for literary critics,
political theorists, and philosophers if it were not that a similar
shakedown is going on in law and society. The founding of the Law and
Society Association some 30 years ago reflected the prestige of the
positivistic social sciences and the promise of scientifically guided
institutional reform. Statistical analysis of standardized data was
never the sole methodology of law and society scholars (e.g., Selznick
1969; Skolnick 1966), but it claimed a dominant position in defining
the credibility of policy-relevant legal studies research. As any
recent conference program for the Law and Society Association
demonstrates, this is no longer the case. There are a variety of
developing research programs in the Association today that do not
employ standardized observation methodologies or policy-oriented
problem definition (e.g., Constable 1994; Harrington & Merry 1988;
Sarat & Kearns 1993; Scheppele 1988) but that claim an empirical
orientation toward legal discourses, practices, and institutions.
While many do not welcome these developments, few can pretend that
what we study and how we study it is not more up for grabs than it has
been for a long time.
Transformations in both the doctrinal and empirical wings of legal
studies are linked to a third problem--the relationship between
scholarship and social reform (Handler 1992). The success of both law
and society research and reformist doctrinal scholarship from the
1920s through the 1960s was premised on a set of assumptions about the
role of knowledge in achieving social transformation. Those
assumptions have been eroded from both the intellectual and the
political side. Many of those developing new research strategies have
also been skeptical of the traditional models of the relationship
between research and policy established in both doctrinal law review
articles and empirical books and articles (Sarat & Silbey 1988).
Law, Norms, and Power
The theory of law Habermas offers in Between Facts and Norms (as
summarized by Bohman 1994) seeks to defend the now classic modernist
vision of law as achieving social integration, channeling political
participation, and subordinating power to democratic purposes. In
contrast to recent critiques of rights theory from the left, Habermas
affirms:
[T] he system of rights that is the basis of the rule of law assures
that the conditions of public and private autonomy enter into the
formation and use of power throughout society. Without the law as
medium and institution, communicative interaction is simply too weak
an integrative force not to be overwhelmed by other more efficacious
sources of social power. But when communicative power is connected to
the capacities for bureaucratic organization, such sources of power
can be brought under public control. (Bohman, p. 916)
In these terms it is easy to see why Habermas's intervention may be
most welcome by legal scholars who feel that epistemological attacks
on the tradition of modern legal theory risk undermining both
political reform and the authority to isolate and criticize moments of
extralegal coercion and domination. Habermas offers a theory of law
that affirms its unique status as a system of authority and invites
the possibility of reform.
Foucault, in contrast, by focusing on power leaves the role of law in
considerable uncertainty. Habermas has criticized Foucault's "theory
of power" as "utterly unsociological" (Habermas 1994a:57). Habermas
grants that Foucault's historical analyses of the asylum, the prison,
etc., succeed brilliantly at highlighting disturbing features, but he
argues that they fail at the task of providing a coherent and
plausible account of social order. Habermas accuses Foucault of
leveling the role of culture and politics to the immediate application
of violence, and social life to a series of occasions for power to be
exercised over bodies (Habermas 1994b:101).
If this is right, Foucault's use of power as a critical tool is a
failure and a costly one. The role of "values, norms, and processes of
mutual understanding" in "stabilizing domains of action" (ibid.) is
ignored. This leaves Foucault unable to provide an adequate account of
how the totality of struggles and confrontations creates a network of
power, let alone creating a social order that could be called just and
defended as such (see also Hunt 1992). In contrast, what Habermas
calls communicative action "with its interlacing of the performative
attitudes of speakers and hearers" (Habermas 1994b:99) focuses heavily
on values, norms, and the experience of mutual understanding.
According to Habermas, Foucault's privative view of power also makes
it difficult to conceive of the relationship between the individual
and the social order. Foucault's analysis of law ignores the internal
development of the constitutional order and the gains in liberty and
security that have been attained in the 19th and 20th centuries
(Habermas 1994b:102).9
The increasingly individualizing formative processes that penetrate
ever broader social strata in societies with traditions that have
become reflective and with action norms that are highly abstract, have
to be artificially reinterpreted to make up for the categorical
poverty of the empowerment model. (Ibid., p. 00)
On this account, it is easy to see why legal scholars of various sorts
would put some distance between their work and Foucault's. The latter
seems to dismiss law, norms, and ethical principles as instruments of
social order and emphasize only the chain of molecular coercions to
provide stability. The most relevant defense of Foucault here10 is to
challenge the view that his work is a theory of power at all rather
than a strategy for critical historical research. There are places
where Foucault seems very much to want to offer a theory of power
through his substantive studies. "It is better to advance step by
step, examining different fields one at a time, in order to see how a
theory of power might be elaborated" (Foucault 1991:150).11 There are
other places (indeed in the same interview) where he indicates a much
more limited horizon of interest: "I am led to raise the question of
power by grasping it where it is exercised and manifested, without
trying to find fundamental or general formulations" (ibid., p. 164).
As I have argue elsewhere (Simon 1992), reconstructing what he
actually might have believed about this may be a pointless and futile
process; we can learn more by observing his research practice.
Foucault did not leave a methodology? if that means a precise set of
techniques. He did, however, leave a substantial body of statements
about how to study the same kinds of social prac-rices that legal
studies scholars are almost invariably interested in. The most famous
of these is his call for examining the "posi-tivity" of power, its
productivity in social life, rather than associating power exclusively
with repressive functions (Foucault 1978:9). Few now would disagree
with Foucault's argument that the "repressive hypothesis" (ibid., p.
10) that power is primarily negative and deductive has blinded us to
the role of power in enabling ways of life. Equally well absorbed by
the larger intellectual culture is his call to recognize resistance
and power as entailing each other (Foucault 1983:221). Power, from
this perspective, is not something possessed or held in reserve, it is
always in circulation creating the possibilities of resistance that
further invoke it (see Winter 1994). A third call was to study power
at its points of application rather than at its central places of
legitimation (Foucault 1980:96). Few in the law and society movement,
at least, would disagree with his invitation to examine the
"capillary" actions of governments and other strategic formations
(ibid.).
Less well observed are the limits implied by the scope of Foucault's
projects. The prevailing pressure is to read Foucault back into the
production of social theory. Whatever Foucault's ambitions in this
regard, his discussion of power may be most useful as a strategy for
conducting a kind of postmodern version of "middle range" research
(Simon 1992)? His studies pick out specific technologies of power that
operate in particular social practices with the aim of analyzing their
genealogical development from earlier strategies and struggles. His
most insightful discussions are almost always in describing some
cluster of practices. Take him away from the specific contexts he is
studying in order to generate evaluative principles and you will end
up with provocative but often silly things to say.
In brief, Habermas may be precisely right when he says that Foucault's
use of the concept power is "utterly unsociological" if sociology
codifies for Habermas a commitment to providing a comprehensive
account of social ordering. Others have made similar points. Alan Hunt
(1992:12) argues that Foucault's account needs a concept like
"hegemony," while Axel Honneth (1991) views Foucault as irrationally
rejecting any role for inter-subjectivity in social integration.
Habermas, in contrast, has long placed intersubjectivity at the center
of his account of the social order (although Between Norms and Facts
may be a retreat on that line (Bohman 1994)).14
If Foucault's analysis of power is more useful as a methodology for
legal studies than as a theory of power to be contrasted with a theory
of law, it might be productive to see it as a supplement to rather
than as an alternative for Habermas's normative social theory.
Habermas's own "reconstructive" approach, as outlined by Bohman
(1994:899), involves isolating "idealizations" of the norms that
govern social action systems, which are then philosophically explored,
leading to a reconstructive analysis of actual social practices. It's
interesting in this regard that in Bohman's account Habermas has
eschewed discussion of empirical research on law and society in favor
of philosophical exercises in modeling in his theory of law.[15]
The Role of Critical Theory
Habermas seems to be able to offer legal scholars a strategy for
playing a limited but unambiguously positive role in democratizing
modem society. While language is just what makes law in the work of
postmodern theorists look dangerous and weird, Habermas offers it as
the reason why law is such a privileged site for reforming society.16
One of Habermas's most sustained criticisms of Foucault has been
precisely about the relationship between his critical analysis of
social institutions and the process of social transformation. His
critique raises two distinct points of interest for legal studies.
First, Foucault's historical studies document the role the normalizing
discourse of "scientific" experts on human life plays in constructing
some of the most undemocratic aspects of modem society, but he is
unable to provide an account of how critical social theory (including
his own work) escapes from the interlocking of knowledge and power he
describes (Habermas 1994a:55). In contrast, Habermas wants to take a
redemptive and reconstructive approach to the tradition of rational
inquiry into human affairs that has produced the modern social
sciences.
Second, Foucault is unable to provide justificatory or normative
evaluation. His empirical studies of power practices may offer useful
tools for those engaged in conflict, but they provide no answers to
how such conflicts should be resolved.
If it is just a matter of mobilizing counter-power, of strategic
battles and wily confrontations, why should we muster any resistance
at all against this all pervasive power circulating in the bloodstream
of the body of modem society, instead of just adapting to it? Then the
genealogy of knowledge as a weapon would be superfluous as well. It
makes sense that a value-free analysis of the strength and weakness of
the opponent is of use to one who wants to take up the fight--but why
fight at all? (Habermas 1994b:96)
In contrast, Habermas subordinates empirical investigation to the
philosophical construction of procedural tests that can be used to
determine whether particular institutional orders are legitimate.
Habermas's critique of Foucault is likely to be highly attractive to
those who feel the greatest loss in the clouding of the relationship
between science and political reform. Indeed, the intellectual who
produces middle-range studies of how power is exercised in particular
domains and through a highly specific context of social action, is not
in a position to offer critical social theory in the sense of a theory
that explains why certain practices or even whole social orders must
be changed. You can say things like "down with disciplinary society,"
but they sound silly?
But this is fatal in this regard only if one believes that what
philosophers or other intellectuals can hope to do is produce tests
which people can apply to determine the acceptability of various
social arrangements. The plausibility of developing such tests that
produce more than purely. tautological truths should be highly
questionable at this point to legal scholars (Gaskins 1993). In the
end, however, refutation of this position may be less important than
showing that it does not fit our own traditions of practice and that
attractive alternatives remain for scholarship even if that of
guaranteeing the validity of social struggles is out.
Knowledge and Human Interests
Foucault believed that his work could help people actually engaged in
resistance to power by illuminating the relationship between their
problems and the way power is exercised within the specific domains
they inhabit. "What do the mentally ill say? What is life like in a
psychiatric hospital? What is the job of nurse? How do the sick
react?" (Foucault 1991:151). A colleague who represents mental
patients and worries precisely about how to engage them in dialogue
about their real interests and needs noted that the problems that
patients raised often reflected their own sense of how much of their
universe they saw as changeable (see Gaventa 1980 for an account of
this process among Appalachian coal miners). They complain about caps
on the number of cigarettes they could have in a day, rather than
about why they were in confinement. Such issues are bound to
disappoint the lawyer or legal scholar who cares about freedom and
justice.
But rather than leaping from cigarettes to talking about the
legitimacy of confinement, one might follow the patients' complaints
in the direction of an analysis of how power is exercised. What kind
of power is it that must control how much a person smokes for their
own good? What relationship do such rules have to the staff's more
general domination of the patients? What is the nature of a daily
regimen in which smoking would loom as such a central measure of
autonomy and self-nterest for the patients? These questions may not
yield definitive judgments about the legitimacy of particular
institutions, but they may drive deep and wide cracks in the solidity
of their authority claims--cracks in which alternative arrangements
may become far more plausible.
Likewise, we should ask of Habermas's theory of law what it would
contribute to such strategic problems of lawyers and legal studies. It
is troublesome, in this regard, that Habermas's theory of law in
Between Facts and Norms is set at such an abstract level. On Bohman's
account it is a treatment of law as a broad and universal practice,
not grounded to the analysis of any specific institutions or examined
in the light of any particular historical struggles.
An example of the kind of possibilities and limits of social reform
based on middle-range genealogical work is provided by the career of
legendary community organizer Saul Alinsky (see generally Horwitt
1989). Alinksy was trained in the sociology department of the
University of Chicago whose founders, men like Robert Park and Ernest
Burgess, were intent (and largely successful) on turning out
progressive experts anxious to help produce official knowledge for
reform. Alinsky broke away from the Chicago path, however, and began
to work directly with community groups. His projects were subversive
but recognizable mutations of Park's and Burgess's sociology. He
deployed the same techniques to produce counter-flows of knowledge
that established more efficient ways of exercising power from below.
Originally he had been assigned by Park's and Burgess's student
Clifford Shaw to organize neighborhood councils to combat juvenile
delinquency in Chicago's slum neighborhoods. The Shaw strategy was
itself quite radical in the light of the prevailing views of
delinquency in the 1930s. Shaw viewed delinquency as an outgrowth of
disempowered communities that could not effectively generate social
control over their young, but his aspirations remained in line with
the classical normalizing goals of official criminology. Shaw's
strategy involved building a base of social science knowledge about a
community in order to identify the critical elements of community
power that could be realigned in support of antidelinquency efforts.
After building a number of such neighborhood coalitions for Shaw,
Alinsky used the same techniques to build a community organization in
the notorious Back-of-the-Yards neighborhood in Chicago (Horwitt
1989:56-76). But rather than following Shaw's strategy of binding such
organizations to normalization goals and civic elites, Alinksy created
a community organization with broad goals of resistance to exploitive
employers and banks and with ties to radical union leaders. His
strategies managed, at their best, to enact a direct seizure of social
science power/knowledge for subaltern classes he identified with.
It is important, of course, to recognize that not having a social
theory has its costs. One is that anyone doing local work of this kind
needs to worry about who is deploying the technologies of power and
for what ends; the genealogy of power itself will tell them little
about that. Another is that genealogy may lead one to ignore the way
in which people become attached to their own subordination. If Alinsky
can be pointed to as an exemplar of how creating alternative
knowledge/power flows may support viable social movements, his
experience also reveals the pratfalls of not having a larger
counterhegemonic strategy. Some of his most successful community
organizations, like the Back-of-the-Yards Neighborhood Council,
utilized the mechanisms he helped innovate to pursue agendas, like
racial segregation, that he never supported (ibid., p. 367).
Part of what Habermas objects to about Foucault's genealogy is that it
cannot provide a guarantee of its own freedom from dangerous uses.
This is accurate, but its bite depends on how much you believe that
anything interesting and useful could provide such a guarantee.
Conclusion
Legal studies scholars are engaged in a (frustrating to some) growing
debate about how to study legal practices and what the aims of a
critical study of law might be. Habermas's engagement with the work of
Michel Foucault is particularly relevant to legal studies at this
crossroads. If nothing else, it will deepen a debate that needs to be
deepened before a useful resolution will be achieved. More
ambitiously, it might be hoped that an emergent expansion of empirical
work influenced by Foucault's research strategies will find itself
called by Habermas to a necessary ethical reflection; while those who
mourn the passing of the modernist settlement on political and ethical
grounds will find in Foucault's genealogies of modern power/knowledge
formations new purchase on the significance and future possibilities
of the reform tradition.
Likewise, we need not assume that the normative implications of these
two great thinkers run in opposite directions. We might find, for
example, that an administrative regime constituted along the lines of
Habermas's discourse ethics would create precisely the counterflows of
knowledge that a Foucault (or an Alinsky) would use to empower
traditionally subordinated groups; or that the fruits of political
struggles enriched by genealogical research include the creation of
those spaces of uncoerced and unmanaged public discourse that Habermas
strives so rightly to create and preserve.
I would like to thank David Abraham, Kenneth Casebeer, and Steven L.
Winter for their comments on earlier drafts. Of course they bear no
responsibility for the views expressed herein. Address correspondence
to Jonathan Simon, School of Law, University of Miami, P.O. Box
248087, Coral Gables, FL 33124-8087.
[1] Foucault's untimely death in 1983 cut off what would surely have
become a significant engagement between the two great thinkers. It has
continued through Habermas's engagement with Foucault's published work
and through a growing secondary literature.
[2] I use the term "settlement" as roughly analogous to, but more
tentative than, "paradigm" (Kuhn 1962). Kuhn was describing natural
sciences which seem to experience episodic periods where a successful
model of research practice and theorizing wipes the field of
opponents, a condition that Kuhn calls "normal science." It remains
quite unclear whether social sciences, including legal studies, are
even capable of normal science. At any rate, I do not mean to imply
that what I call the modernist settlement (described below) was ever
as totalizing or stable as paradigms that have been described in the
natural sciences.
[3] I use "postmodernist" to describe Foucault and other thinkers for
convenience' sake because Habermas (1980) has used that term in
describing them. In fact, Foucault rejected that appellation (Foucault
in Kelly 1994a:124).
[4] A version often far more progressive than is commonly accepted
here.
[5] The best single secondary source on Foucault remains Dreyfus &
Rabinow 1983. For an informative analysis of Foucault's work as it
pertains to law see Hunt 1992.
[6] Ironically, Foucault's political life bears some important
resemblances to Ha-bermas's. Both have been ardent supporters of civil
liberties and protections for ethnic minorities in their respective
countries (Gandal 1986; Miller 1993).
[7] Some of the works most influential in spreading the discursive
turn in the United States include Geertz (1973), Thompson (19ca4), and
Berger & Luckmann (1066). Influential as well were translations of
Foucault, Jacques Lacan, Jacques Derrida, Antonio Gramsci, and other
European theorists that began to enter American academic life in the
1970s.
[8] In Simon 1993, I try to make this case for a narrow slice of this
formation concerned with penology.
[9] Habermas explicitly relies on Axel Honneth's (1991) critique of
Foucault's theory of power. A similar critique has also been raised,
somewhat more sympathetically to Foucault, by Alan Hunt (1992).
[10] See Kelly 1994b for a sustained defense of Foucault against
Habermas's general critique.
[11] Honneth (1901:200) suggests, correctly in my view, that
Foucault's most general statements about power, if seen as serious
elements of a social theory of power, point to a systems theory of
power in which the system of one epoch is succeeded in the next by a
more complex and efficient system.
[12] "I don't construct a general method of definitive value for
myself or for others. What I write does not prescribe anything,
neither to myself nor to others. At most, its character is
instrumental and visionary or dream-like" (Foucault 1901:20).
[13] Middle range in the sense that such work is not deductively
related to a theory of the social order or a phenomenology of
individual or group consciousness. The term was used most
influentially by Robert Merton (1968).
[14] The closest Foucault comes to thematizing this problem is in his
oft-cited formulation that "power relations are both intentional and
nonsubjective" (Foucault 1978: 94-95). Hunt (1992:1:5) argues the
Foucault wrongly conflates the aggregation of tactics with strategy.
As a result, in Hunt's view (p. 14), Foucault either sneaks a
strategic agent back in through an underthematized view of the ruling
class or is left with a standard social science finding about
unintended consequences. Hunt would be right if Foucault is to be read
as constructing a comprehensive theory of the social order. Genealogy
as a middle-range practice points in a different direction, however.
From that perspective the analysis of strategies does not preclude a
history of strategists but privileges the history of the technologies
of power that such strategists deploy. In other words, only if
Foucault's results are stretched to account for the overall social
order do they produce the obviously unsatisfactory claims that Hunt
derives from them.
[15] Given the current prestige of rational choice theory, this will
hardly be counted against it among political scientists and
sociologists.
[16] Habermas (1994b:84) cites Foucault's inability to provide an
account of the liberating potential in legal rights as an example of
how sterile his critiques of power really are in helping to formulate
goals for social transformation.
[17] Foucault walked away from the concept (although typically by
denying he ever held it) of a disciplinary society, telling journalist
Duccio Trombadori in 1978: "I have never held that a mechanism of
power is sufficient to characterize a society" (Foucault 1991:170).
[18] Of course, we are increasingly seeing issues like smoking and
drinking become matters of first priority for all kinds of
institutions.
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~~~~~~~~
By Jonathan Simon
Jonathan Simon is Associate Professor of Law at the University of
Miami. His book, Poor Discipline: Parole and the Social Control of the
Underclass, 1890-1990 (University of Chicago Press, 1995), was the
co-winner of the 1994 Distinguished Book Award given by the Sociology
of Law section of the American Sociological Association. He is
currently studying the emergence of risk as a pervasive framework of
evaluation in contemporary society.
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Source: Law & Society Review, 1994, Vol. 28 Issue 4, p947, 15p.
Item Number: 9502205733
