Law and Power 3/4

What the individual must acquire at the personal level – a sense of our shared dignity and human fraternity – communities and societies must organize through laws and regulations. Every individual must be treated equally before the law, without any discrimination as to sex, colour, religion, social status or anything else. This is as much a universal principle as an ideal: as we have said, certain philosophies and/or certain interpretations of spiritual or religious traditions sometimes make distinctions (either internally or with respect to those who follow a different tradition) between the status of individuals, thus legitimising de facto discrimination. In contemporary democracies, the application of equality of rights is still quite imperfect and sometimes borders on being purely theoretical where the poor, marginalized populations or populations that are perceived as foreign are concerned. This ideal in fact means that we must always adopt a critical approach to the way societies apply the law. The law is not an abstraction that applies to individuals who are socially ‘free’ and politically ‘neutral’: socio-economic relations, relations of power and domination, and control of the symbolic apparatus and the media are so many givens that influence the equal application of the law.

If we look beyond the complexity of all these analyses and positions, we find two basic theses that contradict one another. Some take the view that, whilst social equality implies that all individuals are equal in the eyes of the law, that must not prevent them from fully developing their potential and abilities. Equality cannot be enforced through the denial of individual specificities. On the other hand, there are those who, like Marxists, prioritize the community and argue, in the name of the equality of all, that individual aspirations must be subject to controls, or at least that the needs of society must take priority. Even though the ideological basis for the latter thesis appears to have lost its attraction in the course of recent history (due mainly to the general erosion of communist systems, of course), the issue remains the same: how can we defend both equal rights and recognize individual specificities and potentialities without perpetuating, whether we mean to or not, the natural or structural inequalities we claim we are trying to overcome? Nietzsche saw the defence of equality as a sort of egalitarianism of mediocrity produced by jealous weaklings who were primarily interested in seizing power. Without going to such extremes, Karl Popper, who saw Plato, Aristotle and Marx as the precursors of totalitarian thought, advocated an ‘open’ society or democracy in which indeterminacy is the rule and in which the individuals must have the power to make the best of their freedom and its potential.

Rejecting the ideal and deliberately ‘anti-historicist’ image outlined by Popper, Michel Foucault not only reintroduces history into the argument, but identifies the relations of power that orient, disorient and undermine relations of authority by projecting social mechanisms through time and distributing them across different spheres of authority. When it comes to the relationship between institutions and individuals, relations are always subject to a seizure of power, and Foucault argues, the emergence of a real ‘biopower’: politics takes charge of the entire existence of individuals, from their leisure activities to their emotional lives and even their economic productivity. What is more, he argues, we are no longer dealing with common laws that are socially neutral, but with the establishment of norms whose tenor is subject to the discursive power (‘micro-power’) that gives them their authority. Even if laws were egalitarian, those who control discourse and have the power to give existence and meaning to norms are the real masters of the egalitarian system. According to Foucault, the historical process and the complex order of the social system determine competences and powers that should leave us with no illusions as to the real nature of social equality. By developing his theories of ‘capital’ and ‘fields’, Pierre Bourdieu demonstrates that powers are exercised in parallel and interact, and that there can never be a ‘pure’ relationship between the individual and the community and/or institutions. Not to mention the fact that their ‘habitus’, or that ‘structured structure predisposed to become a structuring structure’, naturally determines the potential of human subjects both in history and at the heart of society. What we thought was a law that regulated interpersonal relations and gave us access to equality is, in other words, actually a potential product and instrument of powers that are exercised through the interplay between the political, economic, religious and social ‘fields’, and the ‘capital’ that is invested in them. A most complex reality. Relations of domination are inevitably established, and they establish, legitimate and reproduce social hierarchies that are experienced as a ‘symbolic violence’ that it is all the more effective in that its victims are sometimes unaware of its existence. A complex reality indeed.

The law supposedly regulates powers, but there is already an actual power in the very fact of drafting, mastering and applying laws. Given the density of history, the organization of the legal and social system and the reality of both structural and symbolic powers, we can understand that the legal response cannot be the only response when it comes to managing the equality of citizens. The reality of the inequality that lies at the heart of our democratic (and supposedly egalitarian) laws would appear to begin at school, and the intuitions of Foucault and Bourdieu have been confirmed by many studies. Despite all the egalitarian laws that apply to schools, schools reproduce inequalities rather than doing away with them. Jeannie Oakes’s study of American schools,^[1] like the research of so many educationalists in Europe, reaches the same conclusions about both modern and traditional societies: educational systems reproduce and legitimate class and race inequalities. The discourses that celebrate freedom and equality of opportunity sometimes tend to mask the symbolic violence of the relations of domination that operate with the actual legal realm. We must therefore go still further. As we have seen, a law without a priori moral sense and that does not relate to fraternity is empty, whereas a law that is unaware of the power relations that are established a posteriori can become inoperative or even dangerous because of the illusions it fosters. Without an awareness and a continuous and systematic critique of the power relations that exist within society, be they symbolic (language, communications, the media, etc.), structural (schools, occupations, social spaces, etc.) or cultural (codes, clothes, religions, etc.), the principle of equality cannot be a reality. The law is a means and never an end, and equality is a very demanding ideal.

[1] Jeannie Oakes, Keeping Tracks: How Schools Structure Inequality, New Haven: Yale University Press, 1985.