Hi, this is the first post of the series of posts which will discuss core philosophical concepts that critical international law scholars regularly invoke. This might seem like a strange topic to start with since Foucault himself expressly refused to develop an overarching theory of power. Please note that this is not a replacement for actually reading the text. I am not an expert on this by any means. I’m just hoping that we can collaboratively learn theory and make it less intimidating.
International lawyers love Foucault. You will find his work in “post-structuralist”, “post-modernist”, “postfeminist”, “post-Marxist” and “post-colonial scholarship”. It almost goes without saying that there are several different ways in which these approaches work. But one aspect in which people regularly invoke Foucault is to question the traditional division between politics (relating to power) and law (concerning norms).
What do we mean by power?
It is crucial to note that Focault’s understanding of power changes between his early work on institutions (Madness and Civilization, The Birth of the Clinic, Discipline and Punish) and his later work on sexuality and governmentality.
Side note: This changing nature of his beliefs is actually a hallmark of his scholarship. But he has a response to it. In an interview in nineteen eighty three, he responds: “Well, do you think I have worked (like a dog) all those years to say the same thing and not be changed“
In the early work, Foucault sometimes gives a sense that power somehow inheres in institutions themselves rather than in the individuals that make those institutions function. He analyses a range of different institutions such as the hospital, the clinic, the prison and the universal practice of disciplinary techniques. This was a departure from the classical theory of sovereignty which has a clear specification of the source, legitimacy, and limits of state power. For instance, Max Weber had argued that state power consisted in a ‘monopoly of the legitimate use of physical force’ and Thomas Hobbes saw the essence of power as state sovereignty. This classical theory failed to recognize that power extends beyond the state. What is more, the state actually relies for support on these localized relations of power. “The state,” Foucault explains, “is superstructural in relation to a whole series of power networks that invest the body, sexuality, the family, kinship, knowledge, technology, and so forth.” Even if physicians, psychiatrists, correctional officers, scientists, and even parents may work in the service of the state, they do so not because their power derives from state sovereignty, but because their power has been brought under state control.
Now all this might be confusing because we are so used to thinking of power as domination. However, for Foucault, power is the complex network acts of domination, submission and resistance. Power constrains actions, not individuals. Foucault criticises traditional power models; power is not about simply saying no and oppressing individuals, social classes or natural instincts, instead power is productive. It shapes forms of behaviour and events rather than simply curtailing freedom and constraining individuals. He argues in The History of Sexuality, Volume. One: “if power was never anything but repressive, if it never did anything but say no, do you really believe that we should manage to obey it?” . There must be something else, apart from repression, which leads people to conform. Foucault suggests that power is intelligible in terms of the techniques through which it is exercised.
That being said, Foucault also talks about the positive aspects of power. He says:
“We must cease once and for all to describe the effects of power in negative terms: it ‘excludes’, it ‘represses’, it ‘censors’, it ‘abstracts’, it ‘masks’, it ‘conceals’.In fact, power produces; it produces reality; it produces domains of objects and rituals of truth. The individual and the knowledge that may be gained of him belong to this production.”
In this context Foucault calls for a move beyond the negative juridico-political face of power, embodied in the sovereign, to the productive face of power, which he also refers to as disciplinary power. It is perhaps best to clarify that by using the term “discipline” here, Foucault is not simply talking about when people act under threat of corporal punishment, but their behaviour being constantly sculpted to ensure they fully internalise the dominant beliefs and values.
This disciplining is made possible by accumulating knowledge by observing others. For Foucault, power is based on knowledge and makes use of knowledge. Surveillance enables every movement supervised and all events recorded. The result of surveillance is
acceptance of regulations. Further, human sciences, the innovation of intricate disciplinary technologies and the production of the psychological subject produce power in the process of producing knowledge. For instance, knowledge as a modality of power produces profiles of troublesome persons and related behaviours. The study of abnormality is one of the main ways in which power relations are established in the society.
For example: The psychologist tells about madmen, the physician about the patients, the criminologist talks about the criminals, but people never expect to hear the latter talk about the former. In this way, certain people’s idea of who they are starts getting touted as the truth.
This brings us to the broader point post-structuralists e challenges the validity of absolute truth claims of the human sciences which are articulate within the confines of a particular discourse and regime of truth. For Foucault, truth is a product of power.
The second practice of objectification Foucault describes has to do with separation and distinction such as those drawn between mad and sane, criminals and law abiding citizens (notions offered in his “Discipline and Punish” or “Madness and Civilization”).
One of the effective techniques in the exercise of disciplinary power is the examination associated within the institutions such as school, hospitals and asylums. The examination is able to combine both surveillance and normalisation and turn people simultaneously into objects of knowledge and power. Through the examination, individuals are required to reproduce certain types of knowledge and behaviour. Similarly, one of the most important devices in the deployment of sexuality is confession. In confession, individuals objectify their desires, pleasures, and fears. Once objectified, desires, pleasures, and fears are amenable to theoretical analysis and assessment. Confession establishes specific subject defining power relations, for one does not confess without a partner who is not simply the interlocutor but the authority that requires the confession.
The third mode of objectification has to with the manner in which individuals turn themselves into subjects by identifying themselves in relations to larger structures, like for example sexual orientation (discussed in Foucault’s “History of Sexuality”)/ Further, in The History of Sexuality the focus is on how classification and regulation of various activities came to be the control of sexual behaviour. Marriage, for instance, has become a procreative partnership and the contractual bundling of two families. Alliances of this kind involve complex rules on sexual behaviour (monogamy etc).
Foucault retrieved an almost-forgotten scheme of the English moral philosopher Jeremy Bentham whose invention of the Panopticon represents a major episode in the history of technologies and architecture. The design of the Panopticon consists of a tower in the centre surrounded by a ring-shaped building composed of cells. The Panopticon
allows for the continuous observation of inmates, while simultaneously requiring few supervisory resources. Now according to Foucault, a major effect of the panopticon is to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power. Thus, panoptic surveillance is able to create and sustain power relation independent of the person who exercises it. One does not have to be in an actual prison for such surveillance. Foucault himself wryly points out: ‘Is it surprising that prisons resemble factories, schools, barracks, hospitals, which all resemble prisons?
However, this focus on the technology of power or the panoptic machine tends to “disindividualize” power, making it seem as if power inheres in the prison, the school, the factory, and so on.The effect of this tendency to disindividualize power is the perception that power resides in the machine itself rather than in its operator. In fact when I was halfway through some chapters of Discipline and Punish I started to feel paranoid that I (along with other individuals) are ultimately powerless. That’s a depressing thought.
However, Foucault makes clear in his later work, that power ultimately does inhere in individuals, including those that are surveilled or punished. He challenges the idea that power is wielded by people or groups by way of ‘sovereign’ acts of domination or coercion, seeing it instead as dispersed and pervasive. Further, power must be analysed as something which circulates, or rather as something which only functions in the form of a chain. It is never localised here or there, never in anybody’s hands, never appropriated as a commodity or piece of wealth.
What this means is that no one can escape from power relations. To act in defiance is to act within power, not against it. In order to escape from power one would have to be utterly alone and free of all the encumberances that makes social beings.
Examples in Literature:
“Foucault’s study of the relationship between power and knowledge provides a way of further understanding how the idea of the market took such a firm hold on dictating what was necessary and normal in structuring the international system…Using Polanyi and Foucault, TWAIL scholars can continue to craft studies of an international institution or examine several institutions and ask how these institutions are structuring ideas that concern the Third World and affecting the interests of the Third World. They can also better understand how ideas and interests are also, in turn, structuring international institutions. ”
-Michael Fakhri, Law as the Interplay of Ideas, Institutions, and Interests: Using Polyani (and Foucault) to Ask TWAIL Questions
“International law cannot be home to a unitary conception of ‘good life’ purveyed by global capital, even when it is appropriated and lived in diverse ways. The existing diversity of unity has to be replaced by the diversity of diversity. On the other hand, admittedly, what is an authentic life is difficult to answer. As Michel Foucault and others have shown, a particular conception of ‘good life’ may be wedded to particular forms of domination.”
-BS Chimni, The Past, the Present and the Future of International Law: A Critical Approach