In his lectures titled 'birth of biopolitics', Foucault avers that there was a
new art of government that began to be formulated, reflected upon, and outlined around the middle of the eighteenth century.
Foucault is wrong. Under Henry I, who had a liberal education, the role of the Justiciar and the Exchequer took on the form ancestral to all subsequent governmental and judicial functions. The roots of English utility, if not liberty, lay in the battlefields of France. The absence of the monarchy meant that governance could not be arbitrary or capricious without risk of alienating the King's feudatories who would allege usurpation of power. After all, the King was the Principal. The Justiciar or Chancellor was merely an agent. Agents must act in the best interests of the principal. Thus, it is by way of delegation that the notion of 'limitation of powers' was arrived at.
At a later point, in England, the principle was established that Parliament needed to approve a new tax. The question then became, in the seventeenth century, whether the Bench and the Church would side with the Crown or with Parliament.
What changed over the course of the eighteenth and early nineteenth century was the increased use of fossil fuel. This created a virtuous circle whereby globalized markets permitted the employment of capital intensive techniques of production and the substitution of coal power for muscle or horse power. This in turn meant more scientific research and more technological innovation. It was this increased productivity which increased effective demand for highly Income elastic 'club goods' provided by Governments out of collective insurance schemes and tax revenue. As Government spending as a proportion of the GNP rose, there was naturally an interest in professionalizing the civil service and raising its efficiency.
Foucault thinks that first there was absolutism and then there was a battle to restrain arbitrary power in the name of liberty and utility. However, there had been a previous separation of sovereignty, which remained absolute, from delegated authority and the machinery of Government where actions had to be intra vires. This safeguarded the Crown from usurpers even more than it safeguarded the subject.
I think an essential characteristic of this new art of government is the organization of numerous and complex internal mechanisms whose function—and this is what distinguishes them from raison d’État—is not so much to ensure the growth of the state’s forces, wealth, and strength, to ensure its unlimited growth, as to limit the exercise of government power internally.
This is nonsense. Western European monarchies had traditionally had limited powers. The Church and the Barons had countervailing power. At a later point (the seventeenth century in England) the Bench and Parliament took over this role. In France, however, under Napoleon, the power of the State increased. To this day, it retains some unique or anomalous features. Britain is more like the 'bicycling monarchies' of North Europe.
[ ] This art of government is certainly new in its mechanisms, its effects, and its principle.
No. Foucault can't quote a single instance of any new 'mechanism' or principle even in France.
But it is so only up to a point, because we should not imagine that this art of government is the suppression, obliteration, abolition, or, if you prefer, the Aufhebung of the raison d’État
Gibberish! A defeated country may give itself a constitution which forbids all but defensive war no matter what 'reason of state' might arise. But the vast majority of countries have no such constitutional provision. In an emergency, the State has an immunity to break any law or treaty.
In fact, we should not forget that this new art of government, or this art of the least possible government,
has never existed. In England, after the National debt had been paid off and income tax had been abolished, there was a period when some politicians said they wanted a 'night-watchman state'. But there were some reasons peculiar to England- in particular the reluctance of 'Dissenters' to pay for State aided Anglican or Catholic schools- for this ideology. In fact it was the Conservative Party which reversed this laissez faire policy.
this art of governing between a maximum and a minimum, and rather minimum than maximum, should be seen as a sort of intensification or internal refinement of raison d’État;
Don't be silly! The aim is economic. Spend less, achieve more. Governments provide services in return for tax revenue. If they do stupid shit, they will get less money assuming they aren't kicked out of office. Reasons of State involve things like invading foreign countries, killing rebels, stripping a section of the population of civil rights, etc. It has nothing to do with 'ways and means' or the management of government budgets.
it is a principle for maintaining it, developing it more fully, and perfecting it. It is not something other than raison d’État, an element external to and in contradiction with raison d’État, but rather its point of inflection in the curve of its development.
Rubbish. A highly improvident country with a vast and utterly useless bureaucracy can still launch wars or do ethnic cleansing under the rubric of 'reasons of state'. Fuckall could not understand why people with power don't spend all their time torturing and killing innocent victims. Look at the Pope. I bet what he really wants to do is shove pineapples up the bums of his Cardinals. Why isn't he doing so? Foucault has discovered that the Pope has come to believe that
it is the reason of the least state within and as organizing principle of raison d’État itself, or again: it is the reason of least government as the principle organizing raison d’État itself.
In other words, since the Pope runs the Vatican- which is a State- therefore there is a reason of state which is preventing his shoving pineapples up the bums of Cardinals. More generally, suppose you have been kidnapped by a sadistic maniac. He has a large pineapple which he plans to shove up your bum. How can you stop him? The answer is that you can say 'I am the Secretary General of the UN. I am pleased to inform you that we have decided to recognize you as an independent State. This means you now have a reason of state to desist from shoving pineapples up my bum.'
There is someone, unfortunately I’ve not been able to find his name in my papers, but when I do I will tell you, but certainly from the end of the eighteenth century, who spoke about “frugal government.”
No guy working for the Government promises that he and his chums will piss away vast sums of money. Everybody claims to be 'frugal' if they are tasked with managing other people's money.
Well, I think that actually at this moment we are entering what could be called the epoch of frugal government, which is, of course, not without a number of paradoxes, since during this period of frugal government,
Governments became more frugal when the opportunity cost of pissing money away increased. I suppose in a simple agricultural economy, if there is a good harvest, you can waste that surplus because you can't store it or turn it into capital goods.
which was inaugurated in the eighteenth century and is no doubt still not behind us, we see both the intensive and extensive development of governmental practice,
not really. Bureaucracies grew during war-time but could shrink as Income Tax and other emergency imposts were abolished or had lower and lower yield.
along with the negative effects, with the resistances and revolts which we know are directed precisely against the invasive intrusions of a government which nevertheless claims to be and is supposed to be frugal.
Foucault thinks the only 'invasive intrusions' which people should welcome involve pineapples shoved up your arse by the Pope while the Secretary General of the UN stands by laughing maniacally.
Let’s say—and this will be why we can say that we are living in the age of frugal government
Being economical does not necessarily mean being frugal. What matters is if the benefit exceeds the cost. In England, there was an utilitarian Political Arithmetic which had empirically estimated the demand curve by the end of the seventeenth century.
The question of frugality has, if not replaced, at least overtaken and to an extent forced back and somewhat marginalized a different question which preoccupied political reflection in the sixteenth and seventeenth centuries
not in England. The Tudors created a meritocratic bureaucracy. To get or retain the monarch's favor, officials needed to minimize costs while maximizing visible outcomes pleasing to the monarch. Things may have been different in France which was richer and more populous.
and even up to the start of the eighteenth century, which was the problem of the constitution. Certainly, all the questions concerning monarchy, aristocracy, and democracy do not disappear.
Pope summed up the wisdom of his century- 'For forms of Government let fools contest/ That which is best administered is best. '
But just as they were the fundamental questions, I was going to say the royal questions, in the seventeenth and eighteenth centuries, so starting from the end of the eighteenth century, throughout the nineteenth century, and obviously more than ever today, the fundamental problem is not the constitution of states, but without a doubt the question of the frugality of government.
No. It is the economic policies of the Government. If they are stupid or shortsighted the country will decline.
[The] question of the frugality of government is indeed the question of liberalism.
No. Any and every political ideology wants to do things in an economical manner. At least that is the claim it makes.
Foucault insists
' that the appearance of political economy and the problem of least government were linked.
This is not the case. If the Barons have power, they will extract rents at the local level. The Center will be starved of resources. There will be invasions and civil wars. Laissez faire policies reduce rent extraction at the local level. So long as the Center can tax imports and exports, it will be solvent. But it too must cut down on wasteful or stupid bureaucratic practices. In France, the chief exponent of sound economic principles was the great military engineer Vauban. He proposed what we would call an income tax but the King banned his book and banished him.
But I think we should try to be a bit clearer about the nature of this connection. When I say connecting up of political economy with raison d’État, does this mean that political economy put forward a particular model of government?
Speaking generally, yes. It was only in from the Thirties onward that you had a mathematical type of 'positive' economics.
Does it mean that statesmen were initiated into political economy or that they began to listen to the economists?
There were experienced bureaucrats who helped 'statesmen'
Did the economic model become the organizing principle of governmental practice?
People who do more with less are considered to be good managers. Economics merely economizing on the use of scarce resources.
This site of truth is not in the heads of economists, of course, but is the market.
There is no truth. There is only utility. Governments exist because of 'market failures' or 'missing' markets. If the Government does not provide defense and law and order, it may face an invasion or an insurrection.
Let’s put it more clearly. The market, in the very general sense of the word, as it operated in the Middle Ages, and in the sixteenth and seventeenth centuries, was, in a word, essentially a site of justice.
No. If you wanted Justice you went to the Courts or appealed to the King or the local Baron.
In what sense was it a site of justice?
None.
In several senses. In the first place it was, of course, invested with extremely prolific and strict regulations:
So what? Schools had stricter regulations. So did nunneries. They weren't 'sites of justice'. Nor were places you went to buy vegetables.
it was regulated with regard to the objects brought to market, their type of manufacture, their origin, the duties to be paid, the procedures of sale, and, of course, the prices fixed.
Some were. Some weren't. If the rules were too onerous or the prices too low in one market, supply went elsewhere.
So, the market was a site invested with regulations.
So were schools and nunneries.
It was also a site of justice in the sense that the sale price fixed in the market was seen, both by theorists and in practice, as a just price, or at any rate a price that should be the just price,
Rubbish! People were always complaining that prices were too high and the quality was defective.
that is to say a price that was to have a certain relationship with work performed, with the needs of the merchants, and, of course, with the consumers’ needs and possibilities. The market was a site of justice to such an extent that it had to be a privileged site of distributive justice, since as you know, for at least some basic products, like food products, the rules of the market operated to ensure that, if not all, then at least some of the poorest could buy things as well as those who were more well-off.
This is called 'price-discrimination'. It happens with or without 'regulations'. Speaking generally, there has to be some way to segment the market to prevent 'leakages'.
So in this sense the market was a site of distributive justice.
It wasn't. If the King tried to lower the price of bread by beating bakers- bread disappeared from the market. This actually happened in Iran under the Shah. That's one reason he lost his throne. Suppose the King decides to get rid of hunger and homelessness by issuing an order saying rich people must feed and house all the poor people in the vicinity? What will happen? Those with powerful connections will take over the wealth of those not so fortunate who have to flee the jurisdiction.
What the English did was more interesting. They confined the 'vagabonds' in 'Workhouses'.
Finally, what was it that essentially had to be ensured in the market, by the market, or rather by the regulations of the market, and which makes it a site of justice?
The Baron or Local Authority on whose land the market was held, charged the traders there. They offered some policing and dispute resolution services. Regulations of various types ensured there was greater trust and thus more transactions occurred. It simply isn't true that markets or schools or nunneries were sites of justice- distributive or otherwise.
Was it the truth of prices, as we would say now?
Nobody would speak in so absurd a fashion. Prices are signals. They convey information. On open markets they equalize supply and effective demand.
Not at all. What had to be ensured was the absence of fraud. In other words, it was the protection of the buyer.
and the seller- including the wholesaler or exporter. If your traders get a reputation for not paying their suppliers, then your market loses out to the market in the next town.
The aim of the regulation of the market was, on the one hand, a distribution of goods that was as just as possible,
This was never the case. Suppose you had been reduced to poverty by some unjust act of a person in a particular town, you did not go to the market and ask the market-inspector to punish the guilty party and to restore your fortune. You went to the Judge or the Mayor or the lord of the Manor.
then, on the other hand, the absence of theft and crime.
this service might be provided by the police rather than the operator of the Market.
In other words, the market was basically seen at this time as a risk, maybe for the merchant, but certainly for the buyer.
All transactions, whether or not they occurred in a market carried such a risk. Moreover, when saying hello to someone, there is a risk he may shove a pineapple up your bum because distributive justice has made your rectum a site of truth.
The buyer had to be protected against the danger of bad goods and the fraud of the person selling them.
Similarly, the student has to be protected from being sodomized by an illiterate teacher
It was necessary then to ensure the absence of fraud with regard to the nature of the objects, their quality, and so forth.
Also true of a school. Nuns too need to be protected from Satan
This system—regulation, the just price, the sanction of fraud—thus meant that the market was essentially, and really functioned as, a site of justice,
just like schools, nunneries, toilets, cats, fat people, pineapples etc.
a place where what had to appear in exchange and be formulated in the price was justice.
Only in the sense that the pineapple is place where what has to appear in exchange for it being shoved up your arse is justice.
Let’s say that the market was a site of jurisdiction.
In the sense that the toilet is a site of jurisdiction. What has to appear out of your article is the the truth of the turd formulated as Foucault's understanding of justice.
Now this is where the change takes place for a number of reasons that I will mention shortly. In the middle of the eighteenth century the market no longer appeared as, or rather no longer had to be a site of jurisdiction.
It never was any such thing. European merchants generally adhered to a pragmatic ex aequo et bono type of arbitration or disposal of cases and the 'lex mercatoria' or 'merchant Law' sought to keep things simple. In England the feeling was that while merchant law could not be above that of the King still, the latter appeared ''according to the laws of nature' (secundum legem naturae) and so it would be foolish to interfere with it. Now it is true that scholastic philosophy did discuss 'the just price' and displayed concern for 'distributive justice', but the lex mercatoria completely avoided or omitted any such doctrine.
On the one hand, the market appeared as something that obeyed and had to obey “natural,” that is to say, spontaneous mechanisms.
Commercial law had to be consistent with the nature of commerce which does occur spontaneously enough. Laws regarding sex have to be consistent with what actually happens when people bump uglies. Since nobody goes to market to gain justice or to seek the redistribution of wealth, it follows that commercial law needs to understand why people may want to buy and sell stuff.
Even if it is not possible to grasp these mechanisms in their complexity, their spontaneity is such that attempts to modify them will only impair and distort them. On the other hand—and this is the second sense in which the market becomes a site of truth—not only does it allow natural mechanisms to appear, but when you allow these natural mechanisms to function, they permit the formation of a certain price that Boisguilbert
condemned and exiled like Vauban
will call the “natural” price, the physiocrats will call the “good price,' and that will later be called the “normal price,” that is to say, a certain price—natural, good, normal, it’s not important— which will adequately express the relationship, a definite, adequate relationship between the cost of production and the extent of demand.
Foucault does not understand that the classical economists were seeking for the long term equilibrium price. Boisguibert and Vauban suspected that regressive taxes were depressing effective demand and this meant that the incentive to increase productive efficiency and hence supply was lacking.
When you allow the market to function by itself according to its nature, according to its natural truth, if you like, it permits the formation of a certain price which will be called, metaphorically, the true price, and which will still sometimes be called the just price, but which no longer has any connotations of justice.
A fair or just price is one which does not discriminate against you. This is important for foreigners or people new to the market.
This does not mean that prices are, in the strict sense, true, and that there are true prices and false prices.
There is a true price which you find out by Googling. A false price may be evidence of a fraud. If someone says he will sell you a genuine Rolex for ten dollars, chances are he is lying.
But what is discovered at this moment, at once in governmental practice and in reflection on this governmental practice, is that inasmuch as prices are determined in accordance with the natural mechanisms of the market they constitute a standard of truth which enables us to discern which governmental practices are correct and which are erroneous.
Nonsense! If a 'Governmental practice' succeeds and costs less than any other way of achieving the same object, then it is 'correct'. This has nothing to do with any market.
In other words, it is the natural mechanism of the market and the formation of a natural price that enables us to falsify and verify governmental practice when, on the basis of these elements, we examine what government does, the measures it takes, and the rules it imposes.
The two are wholly unconnected. The Government exists because of 'missing' markets or market failure. True, there are certain markets- e.g. the forex market or the market for consols- where expectations re. government policy are expressed. But those markets can be manipulated.
In this sense, inasmuch as it enables production, need, supply, demand, value, and price, etcetera, to be linked together through exchange, the market constitutes a site of veridiction,
only in the sense that toilets and giraffes are a site of veridiction more particularly if a pineapple has been shoved up your arse by the Pope while the Secretary General of the UN stands by laughing maniacally.
I mean a site of verification-falsification for governmental practice. Consequently, the market determines that good government is no longer simply government that functions according to justice.
because it is a giraffe which is also a toilet which has had a pineapple shoved up its arse.
The market determines that a good government is no longer quite simply one that is just.
A good government provides good public goods- including justice. Ceteris paribus, at the margin, markets will move to, or develop more strongly in, countries with good governments.
The market now means that to be good government, government has to function according to truth.
No. The market doesn't care if the politicians running things are lying their heads off.
In this history and formation of a new art of government, political economy does not therefore owe its privileged role to the fact that it will dictate a good type of conduct to government.
It has no privileged role- save in countries which it very quickly fucked up.
Political economy was important, even in its theoretical formulation, inasmuch as (and only inasmuch as, but this is clearly a great deal) it pointed out to government where it had to go to find the principle of truth of its own governmental practice.
No. Political economy is not interested in truth. It is concerned with utility.
When I spoke of the coupling carried out in the eighteenth century between a regime of truth and a new governmental reason,
you were lying. There was no 'regime of truth'. There was a search for profit and power unchecked by theological or juristic considerations.
In fact, in order to reach an understanding of how the market, in its reality, became a site of veridiction for governmental practice,
it did so by letting Pope shove pineapple up its bum-bum.
we would have to establish what I would call a polygonal or polyhedral relationship between: the particular monetary situation of the eighteenth century, with a new influx of gold on the one hand,
there was no new influx. American bullion had been arriving from the sixteenth century onward.
and a relative consistency of currencies on the other;
specie money will be consistent (after Newton's innovations) but there were fluctuations in the price of bullion.
a continuous economic and demographic growth in the same period;
as had happened in previous centuries
an intensification of agricultural production;
ditto
the access to governmental practice of a number of technicians who brought with them both methods and instruments of reflection;
ditto
and finally a number of economic problems being given a theoretical form.
ditto
In other words, I do not think we need to look for—and consequently I do not think we can find—the cause* of the constitution of the market as an agency of veridiction.
Because it was never any such thing.
If we want to analyze this absolutely fundamental phenomenon in the history of Western governmentality, this irruption of the market as a principle of veridiction, we should simply establish the intelligibility of this process by describing the connections between the different phenomena I have just referred to.
That connection is that they are the veridical site of the pineapple being shoved up Foucault's bum by the Pope.
.. Let’s say that what enables us to make reality intelligible is simply showing that it was possible; establishing the intelligibility of reality consists in showing its possibility.
It is possible that the Pope tries to shove pineapples up the rectums of those who annoy him.
Speaking in general terms, let’s say that in this history of a jurisdictional and then veridictional market
no such history exists because no such markets ever existed
we have one of those innumerable intersections between jurisdiction and veridiction
or Pope's, pineapples and your rectum
that is undoubtedly a fundamental phenomenon in the history of the modern West.
because this nutter says so
It has been around these [questions] that I have tried to organize a number of problems—with regard to madness, for example. The problem was not to show that psychiatry was formed in the heads of psychiatrists as a theory, or science, or discourse claiming scientific status,
it was actually a pineapple inserted in their rectum
and that this was concretized or applied in psychiatric hospitals. Nor was it to show how, at a certain moment, institutions of confinement, which had existed for a long time, secreted their own theory and justifications in the discourse of psychiatrists. The problem was the genesis of psychiatry on the basis of, and through institutions of confinement that were originally and basically articulated on mechanisms of jurisdiction in the very broad sense—since there were police type of jurisdictions, but for the present, at this level, it is not very important—and which at a certain point and in conditions that precisely had to be analyzed, were at the same time supported, relayed, transformed, and shifted by process of veridiction.
Unless they weren't. If a guy paid to have a relative committed to an asylum, there might be no fucking veridiction. Money talks.
Equally, a chap who keeps running around naked trying to chop people's heads off may be confined to a padded cell even if no Doctor was consulted.
In the same way, studying penal institutions meant studying them first of all as sites and forms where jurisdictional practice was predominant and we can say autocratic. [It meant studying] how a certain practice of veridiction was formed and developed in these penal institutions that were fundamentally linked to a jurisdictional practice, and how this veridictional practice—supported, of course, by criminology, psychology, and so on, but this is not what is essential—began to install the veridictional question at the very heart of modern penal practice, even to the extent of creating difficulties for its jurisdiction, which was the question of truth addressed to the criminal: Who are you? When penal practice replaced the question: “What have you done?” with the question: “Who are you?” you see the jurisdictional function of the penal the birth of biopolitics system being transformed, or doubled, or possibly undermined, by the question of veridiction.
In English speaking countries, Courts pass sentences based on what what was done. It verifies the identity of the criminal only so as to ensure that the right person is put behind bars. Foucault may not have realized that even in France, he could not be confined in a prison or an asylum just because he was mad and evil. There had to be evidence that he had done or would do bad things to others or himself.
In the same way, studying the genealogy of the object “sexuality” through a number of institutions meant trying to identify in things like confessional practices, spiritual direction, the medical relationship, and so on, the moment when the exchange and cross-over took place between a jurisdiction of sexual relations, defining the permitted and the prohibited, and the veridiction of desire, in which the basic armature of the object “sexuality” currently appears.
Again, this is linked to acts. I may have a lot of posters of naked girls on my walls but if I invariably have a dick in my mouth I'm probably gay.
You can see that all these cases—whether it is the market, the confessional, the psychiatric institution, or the prison—involve taking up a history of truth under different angles, or rather, taking up a history of truth that is coupled, from the start, with a history of law.
The law focuses on acts. It is not concerned with truth but what is admissible evidence.
While the history of error linked to a history of prohibitions has been attempted fairly frequently, I would propose undertaking a history of truth coupled with a history of law.
provided it has a pineapple up its tushy.
It is true that the Sun King's France was a bit more centralized and 'absolutist' than England. But it did not feature 'unlimited governmentality'. I suppose one might say Cromwell's England could be characterized in that manner. But that's why the Brits restored the Monarchy.
In a sense, governmentality was unlimited. This was precisely the main characteristic of what was called at the time police and which at the end of the eighteenth century will be called, already with a backward glance, the police state.
Rubbish! Robert von Mohl introduced the term in 1851.
The police state is a government that merges with administration, that is entirely administrative, and an administration which possesses, which has behind it, all the weight of a governmentality.
Not in English. The phrase means a totalitarian state like Nazi Germany.
I have tried to show how this complete governmentality, this governmentality with a tendency to be unlimited, had in fact, not exactly a limit, but a counter-weight in the existence of judicial institutions and magistrates, and in juridical discourses focusing precisely on the problem of the nature of the sovereign’s right to exercise his power and the legal limits within which the sovereign’s action can be inserted.
This stupid man does not get that Kings might appoint 'hanging judges'- like the notorious Jeffreys. Juries, however, might refuse to convict.
So, governmentality was not completely unbalanced and unlimited in raison d’État, but there was a system of two parts relatively external to each other.
Not if judges were appointed by the King or the Crown in Parliament. In any case, Judges are obliged to act in accordance with the law. Britain only got a Supreme Court about fifteen years ago.
I also pointed out that in the new system of governmental reason perfected in the eighteenth century, frugal government, or the reason of the least state,
this did not exist. If the government got more revenue, it spent it like a drunken sailor. At a later point, there was a philosophical libertarianism which, in the words of Lord Acton, held that the best government was the one which governed least. The older attitude was that the Government, like the Clergy, extracted rents and an 'office of profit' was precisely that. You were legally entitled to keep a percentage of the money that passed through your hands. Some such offices could be sold. But this was also true of the advowson of a Vicarage.
entailed something very different.
pineapple up bum-bum- right?
This was a limitation on the one hand, and an internal limitation on the other. Nevertheless we should not think that the nature of this internal limitation is completely different from law. In spite of everything it is always a juridical limitation, the problem being precisely how to formulate this limitation in legal terms in the regime of this new, self-limiting governmental reason. As you can see, this is a different problem. In the old system of raison d’État there was a governmentality with its tendency to be unlimited on one side, and then a system of law opposing it from outside, but within concrete and well-known political limits: the contrast was between royal power [on one side], and those upholding the judicial institution on the other.
This was not the case. Kings appointed Judges. They had no power to defy the King. Fuckall may be confused by the fact that though French Parliaments registered the King's law, they did not verify they were in consonance with what went before.
In the new system we are dealing with a different problem: How can the necessary self-limitation of governmentality be formulated in law without government being paralyzed,
if the government aint paralyzed you don't need to formulate shit. Don't fix what isn't broken. If it is paralyzed, you need to sack the guys currently running things and bring in new people. If that doesn't work chances are the country is economically unviable.
and also—and this is the real problem—without stifling the site of truth which is exemplified by the market and which must be respected as such?
Don't stifle markets because markets are useful. Sites of truth may have to be suppressed. Nobody wants to see naked pictures of me.
In clear terms, the problem raised at the end of the eighteenth century is this: If there is political economy, what is its corresponding public law?
Laws re. taxes, cesses, monopolies, patents, tariffs, quotas, repugnancy markets and commercial law.
Or again: What bases can be found for the law that will structure the exercise of power by public authorities when there is at least one region, but no doubt others too, where government non-intervention is absolutely necessary, not for legal, but for factual reasons, or rather, for reasons of truth?
Laws which delegate authority normally stipulate what is intra or ultra vires. Government non-intervention isn't necessary in any field. You may say, 'Government must stop shoving pineapple up by butt'. But your Doctor will tell you, you are a fucking lunatic.
Public law increased the power of Government officials. They were granted Hohfeldian immunities not granted to ordinary people. However, as employees of the State, they may have been required to show a superior adherence to public policy.
A number of precise and concrete things are proof of this moreover. After all, the first economists were at the same time jurists
No. They were businessmen or else they managed the business of a magnate. At a later point, some Jurists defended what we would term a Utilitarian approach
and people who addressed the problem of public law.
No. As Voltaire pointed out, they were stupid and corrupt.
Beccaria,
who gave an argument against gun-control which impressed Jefferson
for example, who was a theorist of public law, basically in the form of penal law, was also an economist.
No. He was a jurist of a utilitarian type. His argument against the death penalty was influential.
You only have to read The Wealth of Nations, and not even his other works, to see that the problem of public law runs through all of Adam Smith’s work.
No. Smith was not a jurist. He brought together what we call 'production economics' with the theory of Trade and Development.
Bentham, a public law theorist, was at the same time an economist and wrote books on political economy.
But it was Ricardo and Malthus who contributed to actual economics.
In addition to these facts, which show the original link between the problem of political economy and the problem of limiting the power of public authorities,
The power of Public Authority increased. The power and emoluments of public servants decreased.
there is ample proof in the problems raised during the nineteenth and twentieth centuries concerning economic legislation, the separation of government and administration, the constitution of administrative law, whether specific administrative courts are needed, and so on.
But those problems did not exist in the eighteenth or nineteenth century. Fuckall probably didn't know about the Coase/Posner 'Law & Econ' school then coming into vogue.
The fundamental problem of public law will no longer be the foundation of sovereignty, the conditions of the sovereign’s legitimacy, or the conditions under which the sovereign’s rights can be exercised legitimately,
This was never a problem for 'public law'. Either the Sovereign killed his enemies or he wasn't much of a sovereign.
as it was in the seventeenth and eighteenth centuries. The problem becomes how to set juridical limits to the exercise of power by a public authority.
That problem only arose where there was dual sovereignty- as there was in the US or parts of France which claimed to be in 'personal union' with the rest of the country.
Schematically, we can say that at the end of the eighteenth and the beginning of the nineteenth century there were basically two ways of resolving this.
The 'Social Contract' approach and the Napoleonic 'Might is Right' approach.
The first I will call the axiomatic, juridico-deductive approach, which was, up to a point, the path taken by the French Revolution—we could also call it Rousseau’s approach.* In what does it consist? It does not start from government and its necessary limitation, but from law in its classical form. That is to say, it tries to define the natural or original rights that belong to every individual, and then to define under what conditions, for what reason, and according to what ideal or historical procedures a limitation or exchange of rights was accepted.
You give up a Right to something in order to gain a specific benefit. That's how contracts are made.
It also consists in defining those rights one has agreed to cede and those, on the other hand, for which no cession has been agreed and which thus remain imprescriptible rights in all circumstances and under any possible government or political regime.
But if no remedy to their violation can be obtained they are not effective rights. One may say a slave has an inalienable right to run away but this doesn't change the fact that he can't run because he has heavy chains on his legs.
Finally, on this basis, and only on this basis, having thus defined the division of rights, the sphere of sovereignty, and the limits of the right of sovereignty, you can then deduce from this only what we can call the bounds of governmental competence, but within the framework determined by the armature constituting sovereignty itself.
This is pointless. The Government will disappear if a superior force invades or overthrows it.
In other words, put clearly and simply this approach consists in starting from the rights of man in order to arrive at the limitation of governmentality by way of the constitution of the sovereign.
Perhaps Fuckall was thinking of Rawls. But Rawls lived in a country which could blow up the world. It didn't have to worry about losing sovereignty.
I would say that, broadly speaking, this is the revolutionary approach.
It may be a Utopian approach. But it isn't 'revolutionary'. For a revolution to succeed, revolutionaries actually have to kill or chase away those in power. Writing a book isn't enough.
Consequently, you can see that if, historically and politically, this is the revolutionaries’ approach, we can call it a retroactive, or retroactionary approach inasmuch as it consists in taking up the problem of public law that the jurists had constantly opposed to the raison d’État of the seventeenth and eighteenth centuries.
Revolutionaries may have recruited people with different types of grievance. But their aim was regime change. This could be relatively conservative- e.g. replacing the monarch with a more liberal nephew or cousin. But it could be very radical and involve a major redistribution of wealth- especially of real estate.
In this respect there is continuity between the seventeenth century theorists of natural law and the jurists and legislators of the French Revolution.
Both were useless. Napoleon crowned himself Emperor. At his peak he far outshone the Sun King. France would have to slowly and painfully catch up with England whose Glorious Revolution was bloodless.
The other approach does not start from law but from governmental practice itself.
Such practices change dramatically under conditions of Total War or Levée en masse.
It starts from government practice and tries to analyze it in terms of the de facto limits that can be set to this governmentality.
There are no such limits. Total War means killing any minion who says there is a limit to what can be done.
These de facto limits may derive from history, from tradition, or from an historically determined state of affairs, but they can and must also be determined as desirable limits, as it were, as the good limits to be established precisely in terms of the objectives of governmentality, of the objects with which it has to deal, of the country’s resources, population, and economy, etcetera.
Foucault is wrong. Governmentality is about control of territory. Economic considerations only arise in so far as they sustain a military machine. North Korea and South Korea may have different 'governmentalities' but neither respected any supposed 'limits' on how they could grow or what they could achieve.
In short, this approach consists in the analysis of government: its practice, its de facto limits, and its desirable limits.
This would only be the case if a government was maximizing an Expected Utility function of some type. Since Governments tend to be monopolists and Knightian Uncertainty is ubiquitous we would expect 'regret minimizing' satisficing. Moreover, absent some pressing emergency, the cost of redistributing rents outweighs the benefit.
On this basis, it distinguishes those things it would be either contradictory or absurd for government to tamper with. Better still, and more radically, it distinguishes those things that it would be pointless for government to interfere with.
Foucault thinks there is a type of Analyst who advises Governments that they should not regulate how people fart or how often they scratch their bollocks. This is because some such Civil Servant must be constantly admonishing President Macron not to shove pineapples up the poop-hole of the Secretary General of the United Nations.
Following this approach means that government’s sphere of competence will be defined on the basis of what it would or would not be useful for government to do or not do.
This is also true of the sphere of competence of cats, giraffes and Pizza Delivery boys.
Government’s limit of competence will be bounded by the utility of governmental intervention.
The behavior of giraffes is bounded by what it is useful for giraffes to do.
The question addressed to government at every moment of its action and with regard to each of its institutions, old or new, is: Is it useful? For what is it useful? Within what limits is it useful? When does it stop being useful? When does it become harmful? This is not the revolutionary question: What are my original rights and how can I assert them against any sovereign?
Fuck off! The revolutionary question is how do we get rid of the current regime and install a government more to our liking.
But it is the radical question, the question of English radicalism; the problem of English radicalism is the problem of utility.
No. British Radicals were concerned with Social Justice. They wanted a radical redistribution of wealth- in particular the ownership of land- and an end to hereditary privilege of various types.
Don’t think that English political radicalism is no more than the projection of a utilitarian ideology on the level of politics.
Nobody does. Bentham and the Mills weren't Radicals. The Chartists were.
It is, rather, an attempt to define the sphere of competence of government in terms of utility
Fuck off! Governments have existed for thousands of years. Their spheres of competence are as well understood as the sphere of competence of dicks and vaginas.
on the basis of an internal elaboration of governmental practice which is nevertheless fully thought through and always endowed and permeated with philosophical, theoretical, and juridical elements.
Nothing of the sort occurred. The distinctive feature of British politics in the Nineteenth century was the small size of the bureaucracy. In America, on the other hand, there was the 'spoils system'. The German 'beamten' was completely different and, truth be told, a bit crap as the Great War showed.
In this respect utilitarianism appears as something very different from a philosophy or an ideology.
It is a pineapple crammed up Foucault's poop-hole.
Utilitarianism is a technology of government,
No. A management information system may be a 'technology of government. Socialism or Capitalism or Niceism isn't.
just as public law was the form of reflection, or, if you like, the juridical technology with which one tried to limit the unlimited tendency of raison d’État.
This cunt doesn't get that 'reason of state' involves sovereign immunity which is un-fucking-limited.
A comment with regard to this word “radicalism” or “radical.” The word “radical,” which I think dates from the end of the seventeenth and the start of the eighteenth century, was employed in England to designate—and it is this that is quite interesting—the position of those who, faced with the sovereign’s real or possible abuses, wanted to assert those famous original rights supposedly possessed by the Anglo-Saxons prior to the Norman invasion (I talked about this two or three years ago14). This is radicalism.
No. It just means uprooting and replacing something that exists. Charles James Fox is credited with coining the term radical reform at the end of the eighteenth century. But the mid seventeenth century had seen plenty of very radical thought.
So it consisted in the assertion of original rights in the sense of basic rights identified by the historical reflections of public law.
I suppose Foucault means the Bill of Rights of 1689.
However, for English radicalism, “radical” designates a position which involves continually questioning government, and governmentality in general, as to its utility or non-utility.
No. Radicalism was about extending the franchise, getting rid of rotten boroughs, ending disabilities imposed on Dissenters and Catholics etc.
So, there are two approaches: the revolutionary approach, basically structured around traditional positions of public law, and the radical approach, basically structured around the new economy of government reason.
No. There was a 'radical' tradition which culminated in Chartism but it was not concerned with retrenchment. There was a quite separate 'utilitarian' drive for reform which involved getting rid of obsolete institutions and practices and streamlining the administration. This was driven by the voter's rational self-interest in paying less tax.
These two approaches imply two conceptions of the law.
Not in England. Over the course of the Nineteenth Century, the three types of Court- i.e. Canon, Common Law and Equity- were rolled into one. But there was no change in the status of the Crown in Parliament which remained supreme. It is only recently, on EU insistence, that Britain got a Supreme Court.
In the revolutionary, axiomatic approach, the law will be seen as the expression of a will.
Foucault confuses two different things. One is a rights based jurisprudence whereas the other is pure, positive, Law as Command. Though, in England, the latter prevailed, in practice, Juries might disregard the law and refuse to convict or else Magistrates used their discretion and made a more liberal provision than the Law mandated.
So there will be a system of will-law.
Command, not Will. There is little point issuing a command which won't be obeyed but you are welcome to will yourself to be a super-hero who can defy gravity and soar up into the sky.
The problem of the will is, of course, at the heart of all the problems of right, which again confirms the fact that this is a fundamentally juridical problematic.
In which case lawyers and judges would have heard of it.
The law is therefore conceived as the expression of a collective will indicating the part of right individuals have agreed to cede, and the part they wish to hold on to.
No. The Law has to do with rights, immunities, obligations etc under a vinculum juris. Foucault is thinking of public policy, not law. I may be against Brexit, but I have to accept that is what my country has chosen.
In the other problematic, the radical utilitarian approach, the law is conceived as the effect of a transaction that separates the sphere of intervention of public authorities from that of the individual’s independence.
No. Utilitarianism is concerned with public policy not the Law. True, Bentham did want legal reform but those ideas died with him.
I suppose what Foucault is getting at is an 'ordoliberal' European approach which was meant to guard against a return of Fascism.
To be fair to Foucault, he may have been under the impression that Europe was following Anglo-America down a well-trodden path to Utility and Common-sense and everybody being terribly polite and uninterested in shoving pineapples up your poop-hole. The truth was quite different. The working class had rebelled against redistribution because they themselves had come into the tax net. Human Rights was about getting in immigrants under the pretense that they were 'refugees'. Also rights based entitlements were a good way to do price and service provision discrimination in line with Director's Law- i.e. serving the economic interests of the well connected middle orders.
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