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  • 1. Power Dialogic lectures on social and legal theory Sabine Frerichs & Samuli Hurri Helsinki, December 2009
  • 2. Day-to-day Programme of the Lecture Series
    • Tue 01.12. Concepts / Preconceptions of Power
    • Thu 03.12. Social Action: Microcosm of Power
    • Fri 04.12. Social Order: Macrocosm of Power
    • Mon 07.12. Classical Sociology: Culture and Power
    • Tue 08.12. Critical Sociology: Power and Conflicts
    • Thu 10.12. Rational Discourse and Political Power
    • Mon 14.12. Economy of Power and Symbolic Violence
    • Tue 15.12. Truth Regimes and the Legal Subject
    • Wed 16.12. Recapitulation and Summary
    • Exam: Fri 18.12.09, 12-14 h / Wed 13.01.10, 14-16 h, PIV
  • 3. Lecture 1 (Tue 01.12.2009) Part II (Sabine): Sociological Notions of Law and Power
  • 4. An Ordinary Compass
  • 5. A Sociological Compass Macro Micro Inside Outside subjective view objective view individual action collective order
  • 6. Understanding Society Macro Micro Inside Outside subjective view objective view individual action collective order Ego / I Culture Structure Alter / Me shared ideas monadic self dyadic self external forces objectification interaction institutionalization internalization
  • 7. Notions of Law and Power Ego / I Culture Structure Alter / Me shared ideas monadic self dyadic self external forces State Sovereignty Public security Realism Community Solidarity Cultural identity Conservatism Market Autonomy Private interest Liberalism Civil Society Discourse Universal reason Rationalism
  • 8. Segmentary Differentiation
  • 9. Functional Differentiation
  • 10. Stratificatory Differentiation
  • 11. Lecture 2 (Thu 03.12.2009) Part II (Sabine): Social Action: The Micro Level
  • 12.  
  • 13. Introduction: Today’s Focus Macro Micro Inside Outside subjective view objective view individual action collective order Ego / I Culture Structure Alter / Me shared ideas monadic self dyadic self external forces objectification interaction institutionalization internalization
  • 14. Rational Choice Theory
    • ” The theory specifies that in acting rationally , an actor is engaging in some kind of optimization.”
    • ” It compares actions according to their expected outcomes for the actor and postulates that the actor will chose the action with the best outcome.
    • ” [T]he actor takes the ’optimal’ action, that is the action that maximizes the differences between benefits and costs.” (James S. Coleman)
    •  homo oeconomicus (monadic self)
  • 15. Prisoners’ Dilemma (I)
    • The police have arrested two suspects, put them in isolation cells and are now interrogating them in separate rooms.
    • Each can either confess (=betray his/her accomplice), or remain silent (=stay faithful to his/her accomplice).
    • No matter what the other suspect does, each can improve his/her own position by confessing.
    • Yet, if both follow their preferred strategy and confess, the collective outcome is only second-best.
  • 16. Prisoners’ Dilemma (II) Prisoner B remains silent, proves faithful (=’co-operation’) Prisoner B confesses, is ready to betray (=’defection’) Prisoner A remains silent, proves faithful (=’co-operation’) Prisoner A: low sentence (1) Prisoner B: low sentence (1) Prisoner A: harsh sentence (10) Prisoner B: will be released (0) Prisoner A confesses, is ready to betray (=’defection’) Prisoner A: will be released (0) Prisoner B: harsh sentence (10) Prisoner A: moderate sentence (5) Prisoner B: moderate sentence (5)
  • 17. Prisoners’ Dilemma (III; added)
    • How to ’read’ the table (referring only to the columns and rows with the results, that is the four fields in pale blue):
    • Imagine you are Prisoner A and want to take your best choice – which is contingent on Prisoner B’s choice.
    • If you anticipate Prisoner B to remain silent (left column), it would be best for you to confess since you would be released then (second row) which is even better then a low sentence (first row): 0 is preferred to 1.
    • If you anticipate him/her to confess (right column), it would, again, be best for you to confess since a moderate sentence is better than a harsh one: 5 is preferred to 10.
    • You get to the same result if you take the position of Prisoner B. Again, the ’dominant strategy’ is to confess.
  • 18. Symbolic Interactionism
    • "Human beings act toward things on the basis of the meanings they ascribe to those things.“
    • "The meaning of such things is derived from, or arises out of, the social interaction that one has with others and the society.“
    • "These meanings are handled in, and modified through, an interpretative process used by the person in dealing with the things he/she encounters.“ (Herbert Blumer)
    • homo micro-sociologicus (dyadic self)
  • 19. Becoming a Marihuana User (I)
    • ” The novice […] picks up from other users some concrete referents of the term ’high’ and applies these notions to his own experience.”
    • ” It is only when the novice becomes able to get high in this sense that he will continue to use marihuana for pleasure .”
    • ” The taste for such experience is a socially acquired one, not different in kind from acquired tastes for oysters or dry martinis.” (Howard S. Becker)
  • 20. Becoming a Marihuana User (II)
    • ” If a stable form of new behavior toward the object is to emerge, a transformation of meanings must occur, in which the person develops a new conception of the nature of the object.”
    • ” This happens in a series of communicative acts in which others point out new aspects of his experience to him, present him with new interpretations of events, and help him to achieve a new conceptual organization of his world, without which the new behavior is not possible.” (Howard S. Becker)
  • 21. End-Rational vs Value-Rational Action
    • “ End-rational action strives for the actor's own ends through expectations of the behavior of other person[s] or objects in the external situation. This action makes use of these expectation as ‘conditions’ or ‘means’ for rationally calculated ends.”
    • “ Value-rational action orients to purely a certain behavior for its own sake through the conscious belief in its unconditional value (ethical, atheistic, religious or other meaningful value). Such value does not depend on its result.” (Max Weber)
  • 22. Strategic vs Communicative Action
    • Strategic action: “The central concept is that of decision among alternative courses of action, with a view to the realization of an end, guided by maxims, and based on an interpretation of the situation.” ”[T]he agent’s calculation of success [relies on] the anticipation of decisions on the part of at least one additional goal-directed actor.“
    • Communicative action: “The central concept of interpretation refers […] to negotiating definitions of the situation which admit of consensus.” “The actors seek to reach an understanding about the action situation and their plans of action in order to coordinate their actions by way of agreement .” ( Jürgen Habermas)
  • 23. Linking Micro and Macro Levels
    • ” Coleman’s Boat (or: Bathtub)”
    Macro level Micro level ” religious doctrine” ” capitalism” ” values” ” economic behaviour” methodological collectivism methodological individualism micro foundation methodological interactionism micro translation
  • 24. Power in Social Action
    • Power is "the probability that one actor within a social relationship will be in a position to carry out his own will despite resistance , regardless of the basis on which this probability rests“. (Max Weber)
    • Where is power ‘hidden’ in goal-rational / strategic action?
      • resources, restraints, preferences are taken as given
      • the ‘law of the market’ obscures these preconditions
    • Where is power ‘hidden’ in value-rational / communicative action?
      • certain ideas, values and skills have to be presumed
      • ‘ established truths’ usually have a dogmatic core
  • 25. Lecture 3 (Fri 04.12.2009) Part II (Sabine): Social Order: The Macro Level
  • 26. Introduction: Today’s Focus Macro Micro Inside Outside subjective view objective view individual action collective order Ego / I Culture Structure Alter / Me shared ideas monadic self dyadic self external forces objectification interaction institutionalization internalization
  • 27. Consensus vs Conflict Paradigm
    • consensus paradigm
    conflict paradigm understanding social order focus on class conflicts, social inequality (’structural violence’) and the state’s monopoly on physical force focus on the common culture (’collective conscience’), functional necessities and the social foundations of law
  • 28. Law in the Consensus Paradigm
    • ” The law develops in the very intestines of society , and the legislator only consecrates the work already done without him.”
    • ” One has to teach how law emerges under the pressure of social needs , how it establishes little by little, the degrees of crystallization it goes through, how it transforms.”
    • ” One has to illustrate how the grand juridicial institutions, such as family, property, contract, came into being, what caused them, how they differ, how they will probably develop in future.” (Émile Durkheim)
  • 29. Law in the Conflict Paradigm
    • “ [T]he trial represents a paradigmatic staging of the symbolic struggle inherent in the social world […] in which differing, indeed antagonistic world-views confront each other.”
    • “ What is at stake in this struggle is monopoly of the power to impose a universally recognized principle of knowledge of the social world – a principle of legitimized distribution.”
    •  ” [J]udicial power […] demonstrates […] the sovereign vision of the State . For the State alone holds the monopoly of legitimized symbolic violence.” (Pierre Bourdieu)
  • 30. Schools of Legal Thought (I)
    • Positivism: ”law as […] a political instrument, a body of rules promulgated and enforced by official authorities, representing the will , the policy, of the lawmakers”
    • Naturalism: ”treat[s] law as […] a moral instrument, an embodiment of principles of reason and conscience implicit in human nature”
    • Historicism: ”law as […] a manifestation of the group memory, the historically developing ethos, of the society whose law it is” (Harold J. Berman)
  • 31. Schools of Legal Thought (II) legal text legal subtext (implied meaning, moral principles) legal context (embeddedness in history and culture) doctrinalist approaches; positivist school normativist approaches; natural law theory contextualist approaches; historical school
  • 32. Lived Norms vs Enforced Norms (I) (based on Brian Z. Tamanaha) Concept of Law ’ Legal’ Mechanism ’ Social’ Mechanism Effective Moment Lived norms (customary law, community law) Complex of social obligations Socialization, effects of culture (internal control, conformity) Proactive (shaping regular conduct) Enforced norms (positive law, state law) Institutionally imposed sanction Coercive means, effects of power (external control, government) Reactive (following disruptive conduct)
  • 33. Lived Norms vs Enforced Norms (II) Lived Norms Enforced Norms Law & Society customary law; legal commitments before or outside the state; ” living law” enforced law; ’real’ effects of state law (i.e. ”law in the books”); ” law in action” Law & Economics spontaneous, ’natural’ order (bottom-up); abstract principles; ” rules of just conduct” designed, ’artificial’ order (top-down); concrete regulations; ” rules of organization”
  • 34. Notions of Law and Power (I) Ego / I Culture Structure Alter / Me shared ideas monadic self dyadic self external forces State Sovereignty Public security Realism Community Solidarity Cultural identity Conservatism Market Autonomy Private interest Liberalism Civil Society Discourse Universal reason Rationalism
  • 35. Notions of Law and Power (II) oikos nomos physis polis social constitution economic constitution political constitution security constitution State Sovereignty Public security Realism Community Solidarity Cultural identity Conservatism Market Autonomy Private interest Liberalism Civil Society Discourse Universal reason Rationalism
  • 36. Lecture 4 (Mon 07.12.2009) Part II (Sabine): Classical Sociology: Culture and Power
  • 37. Perspectives of Law and Society Society Law Law Society Social embeddedness of law Legal construction of society Primacy of the social context Relative autonomy of the law  Law reflects social reality Primacy of the legal text(ure) Society as a legal projection  Law performs social reality
  • 38. Comparing Law and Sociology
    • Positivism – distinct views
      • legal positivism (text-based)
      • positivism as empiricism (context-based)
    • Normativity – shared contents
      • legal (re-)production of the normative order
      • ’ normative paradigm’ ( homo macro-sociologicus )
    • Rationality – common grounds
      • rationalization of/through the law
      • law as a prototype of modern reasoning
  • 39. Unity of Legal and Social Theory?
    • Karl Marx (1818-1883)
    • focus on law and capitalism (  economy)
    • Émile Durkheim (1858-1917)
    • focus on law and morality (  community)
    • Max Weber (1864-1920)
    • focus on law and domination (  state)
    • Talcott Parsons (1902-1979)
    • Niklas Luhmann (1927-1998)
    • Jürgen Habermas (born 1929)
  • 40. Durkheim’s Notion of the Law
    • ” The law develops in the very intestines of society , and the legislator only consecrates the work already done without him.”
    • ” We find it [here: the structure of the family] in those ways of acting which have been consolidated by habit or by what we call custom, law, and mores .”
    • ” Solidarity […] does not lend itself to precise observation […]. We must therefore substitute for the internal given which escapes our view, an external fact which symbolises the other. […] This visible symbol is the law.” (Émile Durkheim)
  • 41. Durkheim’s Theory in a Nutshell structural change: division of labour semantic change: moral convictions ” collective conscience” traditional (mechanical) solidarity ” cult of the individual” modern (organic) solidarity secularization re-sacralization competition specialization moral crisis ( anomie ) legal change
  • 42. Weber’s Notion of the Law
    • Power is "the probability that one actor within a social relationship will be in a position to carry out his own will despite resistance“.
    • Domination is “the probability that certain specific commands (or all commands) will be obeyed by a given group of people.” “Every genuine form of domination implies a minimum of voluntary compliance”.
    • ” An order will be called […] law if it is guaranteed by the probability that physical or psychological coercion will be applied by a staff of people in order to bring about compliance or avenge violation”. (Max Weber)
  • 43. Weber’s Position on Values
    • The distinction ” between ‘ value-judgments ’ and ‘empirical knowledge” points to “the existence of an unconditionally valid type of knowledge in the social sciences ”.
    • “ The type of social science in which we are interested is an empirical science of concrete reality. Our aim is the understanding of the characteristic uniqueness of the reality in which we move.”
    • “ [C]ultural science […] involves ‘subjective’ pre-suppositions insofar as it concerns itself only with those components of reality which have […] cultural significance .” (Max Weber)
  • 44. Lecture 5 (Tue 08.12.2009) Part II (Sabine): Critical Sociology: Power and Conflicts
  • 45. Marx’s Notion of Law (I)
    • “ In these customs of the poor class, […], there is an instinctive sense of right; their roots are positive and legitimate, and the form of customary right here conforms all the more to nature because up to now the existence of the poor class itself has been a mere custom of civil society ”.
    • “ [T]he state amputates itself whenever it turns a citizen into a criminal. Above all, the moral legislator will consider it a most serious, most painful, and most dangerous matter if an action which previously was not regarded as blameworthy is classed among criminal acts.” (Karl Marx)
  • 46. Marx’s Notion of Law (II)
    • “ In the social production of their existence, men inevitably enter into definite relations, which are independent of their will, namely relations of production ”.
    • “ The totality of these relations of production constitutes the economic structure of society, the real foundation, on which arises a legal and political superstructure and to which correspond definite forms of social consciousness.”
    • “ [T]hese general ideas are further elaborated and given a special significance by politicians and lawyers, who […] are dependent on the cult of these concepts ”. (Karl Marx)
  • 47. Economic Sociology of Law Economics Law Sociology Economic Sociology of Law Economic Sociology of Law Law & Society Law & Economy Economy & Society
  • 48. Classic Views of Market Society
    • Liberal dream
      • British tradition of utilitarian individualism
      • ‘ civilizing markets’ that further peace and democracy
    • Commodified nightmare
      • German tradition of Marxian collectivism
      • ‘ destructive markets’ that undermine social cohesion
    • Between liberalism and socialism
      • French tradition of communal associationalism
      • ’ feeble markets’ that are embedded in moralities
  • 49. Durkheim’s Theory in a Nutshell structural change: division of labour semantic change: moral convictions ” collective conscience” traditional (mechanical) solidarity ” cult of the individual” modern (organic) solidarity secularization re-sacralization competition specialization legal change moral crisis ( anomie )
  • 50. Polanyi’s Theory in a Nutshell Modern market society dis-embedded markets, fictious commodities, ’ economic constitution’ Pre-modern economy embeddedness of economic functions in custom and law, magic and religion Towards a liberal socialism? re-embedding markets through de-commodification, ’social constitution’ political economic crisis (culminating in WW II) legal change ” The Great Transformation”
  • 51. Liberal Socialism vs Economic Liberalism Bottom-up argument Top-down argument And the role of the law? Polanyi  social constitution ’ self-protection’ of society through social movements that promote social policies ’ self-regulating’ markets as artifical orders imposed on ’commodified’ individuals focus on the restrictive functions of ’enforced law’ ( re-embedding market society) Hayek  economic constitution markets as spontaneous orders that emerge from ’free’ economic decisions socio-political interventionism is considered a coercive and inefficient form of order focus on the enabling functions of ’customary law’ (furthering self-organization )
  • 52. Levels of Social Embeddedness Micro level : individual actors, social interaction Meso level : social networks, institutional fields Macro level : socio-economic regimes, cultural communities Meta level : scientific rationalities, ’deep’ culture / structure
  • 53. Lecture 6 (Thu 10.12.2009) Part II (Sabine): Rational Discourse and Political Power
  • 54. Strategic vs Communicative Action
    • Strategic action: “The central concept is that of decision among alternative courses of action, with a view to the realization of an end, guided by maxims, and based on an interpretation of the situation.” ”[T]he agent’s calculation of success [relies on] the anticipation of decisions on the part of at least one additional goal-directed actor.“
    • Communicative action: “The central concept of interpretation refers […] to negotiating definitions of the situation which admit of consensus.” “The actors seek to reach an understanding about the action situation and their plans of action in order to coordinate their actions by way of agreement .” ( Jürgen Habermas)
  • 55. Habermas’ Notion of Law
    • Law as a medium:
      • regulates bureaucratic and economic systems
      • legitimized through a ’positivistic’ reference to procedure (  legality)
    • Law as an institution:
      • forms part of the legitimate orders of the lifeworld
      • substantive justification in rational discourse (  morality)
    • ” Law as a medium […] remains bound up with law as an institution.” (Jürgen Habermas)
  • 56. Law / Society in Systems Theory Parsons centred notion of law / society ( interpenetration ) Luhmann de-centred notion of law / society ( autopoiesis ) economy (money) polity (power) community (norms) culture (values) economic system (money) political system (power) legal system (law) scientific system (truth)
  • 57. Habermas’ Theory in a Nutshell culture shared cultural background and common values society social order and solidarity based on shared norms personality formation of social identities through socialization rationalized lifeworld ( discursive power ) economic system ( monetary power ) bureaucratic system ( administrative power) LAW law as a medium strategic action, juridification law as an institution communicative action, justification market economy, economic constitution welfare state, social constitution public sphere, political constitution
  • 58. Habermas’ Notion of Power (I) Macro Micro distribution of power (independent variable) emergence of norms (dependent variable) strategic (inter-)action juridification / colonialization Systems (norms ’enforced’ by the state) Lifeworld (norms ’lived’ by the community) Illegitimate power: from facts to norms
  • 59. Habermas’ Notion of Power (II) Macro Micro distribution of power (dependent variable) emergence of norms (independent variable) communicative (inter-)action justification / reconstruction Systems (norms ’enforced’ by the state) Lifeworld (norms ’lived’ by the community) Legitimate power: from norms to facts
  • 60. What about Legal Theory / Sociology? Humanistic Sciences Natural Sciences Social Sciences dualism
    • nomothetic approaches
    • ’ explanation ’ (abstract, statistical descriptions, general ’ laws‘, quantitative methods, observer perspective)
    • behavioural sciences
    • idiographic approaches
    • ’ understanding ’ (concrete, ’ thick‘ descriptions, unique events, qualitative methods, participant perspective)
    • cultural sciences
  • 61. Reconstructive Legal Theory / Sociology (I) Humanistic Sciences Natural Sciences Social Sciences dualism hermeneutic objectivism objective knowledge possible (psychologism) radical hermeneutics no objective knowledge possible (deconstruction) hermeneutic reconstructionism both objective/empirical and normative/theoretical knowledge possible (critical re- construction and rational re- construction)
  • 62. Reconstructive Legal Theory / Sociology (II)
    • The approach of rational (or: normative, critical) reconstruction can be understood as an attempt to combine an empirically informed diagnosis of the age with a normative social theory.
    • While the natural (behavioural) sciences generate objective / empirical knowledge about the general structures of an observable reality (through description)…
    • … reconstructive (cultural) sciences generate normative / theoretical knowledge of the deep structures of a symbolically pre-structured reality (through interpretation).
  • 63. Between Facts and Norms (I)
    • ” [T]he tension between facticity and validity [is] built into language and its use”.
    • ” The validity claimed for propositions and norms transcends spaces and times […]; but the claim is always raised here and now , in specific contexts, and is either accepted or rejected with factual consequences for action.” (Jürgen Habermas)
  • 64. Between Facts and Norms (II)
    • ” Law [can be understood] as a categorie of mediation between facts and norms ”.
    • ” The positivity of law is bound up with the promise that democratic processes of lawmaking justify the presumption that enacted norms are rationally acceptable .”
    • ” Enacted law cannot secure the basis of its legitimacy simply through legality , which leaves attitudes and motives up to the addressees”. (Jürgen Habermas)
  • 65. Lecture 7 (Mon 14.12.2009) Part II (Sabine): Economy of Power and Symbolic Violence
  • 66. Bourdieu’s Notion of Law
    • “ [T]he trial represents a paradigmatic staging of the symbolic struggle inherent in the social world […] in which differing, indeed antagonistic world-views confront each other.”
    • “ What is at stake in this struggle is monopoly of the power to impose a universally recognized principle of knowledge of the social world – a principle of legitimized distribution.”
    •  ” [J]udicial power […] demonstrates […] the sovereign vision of the State. For the State alone holds the monopoly of legitimized symbolic violence .” (Pierre Bourdieu)
  • 67. Symbolic Violence
    • “ It is necessary […] to overcome the opposition between a physicalist vision of the social world that conceives of social relations as relations of physical force and a […] semiological vision which portrays them as relations of symbolic force , as relations of meaning or relations of communication.”
    • “ The most brutal relations of force are always simultaneously symbolic relations. And acts of submission and obedience are cognitive acts which as such involve cognitive structures, forms and categories of perception, principles of vision and division .” (Pierre Bourdieu)
  • 68. Economy of Power
    • „ [T]he immersion of economy in the social dimension is such that […] the true object of a real economics of practices is nothing other, in the last analysis, than the economy of the conditions of production and reproduction of the agents and institutions of economic, cultural and social production and reproduction or, in other words, the very object of sociology in its most complete and general definition.“ (Pierre Bourdieu)
  • 69. Social Space and Field of Power field of class relations + – field of power + – + – + – field of cultural production economic capital cultural capital
  • 70. Economic vs Cultural Field field of class relations + – field of power + – + – + – cultural field economic capital cultural capital + – + – economic field autonomy heteronomy
  • 71. Legal Field and Field of Power
    • “ The juridical field is the site of a competition for monopoly of the right to determine the law.”
    • “ Given the determinant role it plays in social reproduction, the juridical field has a smaller degree of autonomy than other fields, […] that also contribute to the maintenance of the symbolic order and, thereby, to that of the social order itself.”
    • “ External changes are more directly reflected in the juridical field, and internal conflicts within the field are more directly decided by external forces.” (Pierre Bourdieu)
  • 72. Symbolic Violence and the State
    • “ [T]he state […] claims the monopoly of the legitimate use of physical and symbolic violence […].”
    • “ [I]t incarnates itself simultaneously in objectivity , in the form of specific organizational structures and mechanisms, and in subjectivity in the form of mental structures and categories of perception and thought.”
    • “ The state is the culmination of a process of concentration of […] capital of physical force […], economic capital, cultural […] capital, and symbolic capital [including juridical capital].” (Pierre Bourdieu)
  • 73. Jurisprudence and the State (I)
    • “ [M]ost of the writings devoted to the state partake, more or less efficaciously and directly, of the construction of the state , i.e., of its very existence.”
    • “ [J]uridical writings […] take their full meaning not only as theoretical contributions to the knowledge of the state but also as political strategies aimed at imposing a particular vision of the state […].”
    • “ [S]ocial science itself has been part and parcel of this work of construction […]. […] [T]he question of the latter's autonomy from the state [arises].” (Pierre Bourdieu)
  • 74. Jurisprudence and the State (II) Humanistic Sciences from history to philosophy Natural Sciences from mathematics to biology Social Sciences from economics to sociology Faculty of Medicine health code Faculty of Theology holy scripture Faculty of Jurisprudence positive law Faculty of Philosophy state power scientific authority natural order individual bodies cultural order individual minds social order social relations naturalism culturalism
  • 75. Symbolic Violence and the Law (I)
    • Juridicial capital “is an objectified and codified form of symbolic capital”.
    • “ This capital is the basis of the specific authority of the holder of state power and in particular of a very mysterious power, namely his power of nomination .”
    • “ By stating with authority what a being […] is in truth ( verdict ) according to its socially legitimate definition, that is what he or she is authorized to be, what he has a right (and duty) to be, […] the State wields a genuinely creative, quasi-divine, power.” (Pierre Bourdieu)
  • 76. Symbolic Violence and the Law (II)
    • “ To understand the symbolic dimension of the effect of the state, […] [o] ne must focus in particular on the structure of the juridical field and uncover both the generic interests of the holders of […] juridical competence, as well as the specific interests imposed on each of them by virtue of their position”.
    • “ One must understand how […] they were led to produce a discourse of state which, by providing justifications for their own positions, constituted the state – this fictio juris which slowly stopped being a mere fiction of jurists to become an autonomous order “. (Pierre Bourdieu)
  • 77. Inside and Outside the Legal Field (I)
    • “ The relative power of the different kinds of juridical capital […] is related to the general position of the juridical field within the broader field of power.”
    • “ Thus, the hierarchy in the division of juridical labor , visible in the hierarchy of professional specializations, varies over time, if only to a limited extent”.
    • “ The hostility between the holders of different types of juridical capital, who are committed to very divergent interests and world-views in their particular work of interpretation, does not preclude the complementary exercise of their functions.” (Pierre Bourdieu)
  • 78. Inside and Outside the Legal Field (II)
    • “ [T]he practice of those responsible for "producing" or applying the law owes a great deal to the similarities which link the holders of this quintessential form of symbolic power to the holders of worldly power in general, whether political or economic.”
    • “ The closeness of interests , and, above all, the parallelism of habitus , arising from similar family and educational backgrounds, fosters kindred world-views. Consequently, the choices which those in the legal realm must constantly make between differing or antagonistic interests, values, and world-views are unlikely to disadvantage the dominant forces .” (Pierre Bourdieu)
  • 79. Inside and Outside the Legal Field (III)
    • “ In order to take full account of the symbolic power of the law, it is necessary to consider the effects of the adaptation of legal supply to legal demand .”
    • “ This adaptation is less the result of conscious transactions than of structural mechanisms such as the homology between different classes of producers and sellers of legal services and different classes of clients .”
    • „ [P]aradoxically, […] these struggles between lawyers of different countries striving to impose legal forms […] contributed towards unifying the world legal field and the world market of expertise in law“. (Pierre Bourdieu)
  • 80. Lecture 8 (Tue 15.12.2009) Part II (Sabine): Truth Regimes and the Legal Subject
  • 81. Politics of Truth
    • ” [W]hat I am doing […] is not history , sociology , or economics . […] [W]hat I am doing is something that concerns philosophy , that is to say, the politics of truth , for I do not see many other definitions of the word ’philosophy’ apart from this.”
    • „ So, insofar what is involved in this analysis of mechanisms of power is the politics of truth , […] I see its role as that of showing the knowledge effects produced by the struggles, confrontations, and battles that take place within our society, and by the tactics of power that are the elements of this struggle.“ (Michel Foucault)
  • 82. Two Histories of Truth
    • “ The first is a kind of internal history of truth , the history of a truth that rectifies itself in terms of its own principles of regulation: it's the history of truth as it is constructed in or on the basis of the history of the sciences .”
    • “ On the other hand, […] there are in society (or at least in our societies) other places where truth is formed , where a certain number of games are defined – games through which one sees certain forms of subjectivity, certain object domains, certain types of knowledge come into being – and that, consequently, one can on that basis construct an external, exterior history of truth .“ (Michel Foucault)
  • 83. Truth and Judicial Forms
    • “ Among the social practices whose historical analysis enables one to locate the emergence of new forms of subjectivity , it seemed to me that the most important ones are juridical practices .“
    • “ Judicial practices , the manner in which wrongs and responsibilities are settled between men, […] seem to me to be one of the forms by which our society defined types of subjectivity , forms of knowledge, and, consequently, relations between man and truth which deserve to be studied. “ (Michel Foucault)
  • 84. Genealogy as a Method
    • ” By de-institutionalizing, […] de-functionalizing [and de-objectifying] relations of power we can grasp their genealogy , i.e., the way the are formed […] and […] transformed”.
    • This means ”[1] to free relations of power from the institution , in order to analyze them from the point of view of technologies; [2] to distinguish them also from the function , so as to take them up within a strategic analysis; and [3] to detach them from the privilege of the object , so as to resituate them within the perspective of the constitution of fields, domains, and objects of knowledge.” (Michel Foucault)
  • 85. Genealogy of the State
    • ” first, the state of justice , born in a feudal type of territoriality and broadly corresponding to a society of customary and written law, with a whole interplay of commitments and litigations”
    • ” second, the administrative state that corresponds to a society of regulations and disciplines”
    • ” finally, a state of government […] which […] calls upon and employs political economy as an instrument, would correspond to a society controlled by apparatuses of security” (Michel Foucault)
  • 86. Government Based on Economics
    • ” The essential issue of [the state of] government will be the introduction of economy into political practice.”
    • ” The possiblity of [self-]limitation and the question of truth are both introduced into governmental reason through political economy .”
    • ” The fundamental question of liberalism is: What is the utility value of government and all actions of government in a society where exchange determines the true value of things?” (Michel Foucault)
  • 87. From Justice to Truth
    • ” [F]rom being a site of jurisdiction , […] the market, through all the techniques [of political economy] […] is becoming […] a site of veridiction . The market must tell the truth […] in relation to governmental practice.”
    • ” Consequently, the market determines that good government is no longer simply government that functions according to justice . […] The market now means that […] government has to function according to the truth .”
    • ” [A]ll these cases […] involve taking up a history of truth […] that is coupled, from the start, with a history of law .” (Michel Foucault)
  • 88. From Truth to Justice
    • ” [T]he […] form of rationality that made possible the self-limitation of governmental reason was not the law . […] [I]t is political economy.”
    • ” Limited by respect for the truth, how will power, how will government be able to formulate this respect for truth in terms of laws which must be respected?”
    • At issue is thus ”the juridical structure ( économie juridique ) of a governmentality pegged to the economic structure ( économie économique )”. (Michel Foucault)
  • 89. Genealogy of the Subject
    • ” It must be possible to do the history of the state on the basis of men’s actual practice, on the basis of what they do and how they think .”
    • ” [I]f one wants to analyse the genealogy of the subject in Western civilisation, one has to take into account […] the interaction between […] two types of techniques – techniques of domination and techniques of the self .”
    • ” Homo oeconomicus is someone who is eminently governable.” (Michel Foucault)
  • 90. Homo Oeconomicus vs Subject of Right (I)
    • ” [W]hat characterizes this new art of government […] would be much more a naturalism than liberalism , inasmuch as the freedom that [the economists] talk about is much more the spontaneity, the internal and intrinsic mechanics of economic processes than a juridical freedom of the individual recognized as such.”
    • ” Is homo oeconomicus an atom of freedom in the face of all the conditions, undertakings, legislation, and prohibitions of possible government, or […] a certain type of subject who precisely enabled an art of government […] according to the principle of economy […]?” (Michel Foucault)
  • 91. Homo Oeconomicus vs Subject of Right (II)
    • ” [T]he sovereign is not in the same position vis-à-vis homo oeconomicus as he is vis-à-vis the subject of right .”
    • ” The subject of right may well […] appear as that which limits the exercise of sovereign power.”
    • ” But homo oeconomicus is not satisfied with limiting the sovereign’s power; […] he strips the sovereign of power […] inasmuch as he reveals an essential, fundamental and major incapacity of the sovereign, that is to say, an inability to master the totality of the economic field.”
  • 92. A Tentative Summary STATE courts as sites of justice / truth SUBJECT markets as sites of justice / truth Mechanisms of Power LAW ECONOMY techniques of domination techniques of the self Knowledge Effects classic rule of law classic subject of right modern political economy modern homo oeconomicus