Thursday, April 23, 2009



Friedrich Nietzsche (1844-1900) did not attract fame or fortune during his lifetime. His ideas were ahead of their time; the world was simply not ready for him. He lost his mind in 1888; he died twelve years later, embittered and alone. Interestingly, you can sense his desperation in his late writings, such as On the Genealogy of Morals (1887). In his Prologue to the Genealogy, Nietzsche wonders why people criticize him for “readability.” He defends his aphoristic style, but he seems to want others to understand him. In his last essay, Nietzsche even ventures an “interpretation” of his own writing. He reaches out to the reader as if to say: “Look! It’s not that complex; this is what I am trying to say.”

Nietzsche explained that there really is no explanation. Truth depends on power and judgment. It depends on the narrator, the legislator and their values. Every story is to some extent a judgment; a story gives voice to only one perspective on unique events. That was Nietzsche’s core point in all his writings. During the 19th Century, people had difficulty grasping that concept. After all, most “good bourgeois citizens” in the Victorian era believed that there was a “single good” and a “single evil.” There was no room for debate. The Bible and “popular morality” told them about right and wrong. They comfortably viewed the world equipped with these metaphysical assumptions. Against such entrenched resistance, Nietzsche was bound to fail. He was too progressive for his time. He was a relativist in an absolute world.

But Nietzsche’s influence survived. Within decades after his death, his ideas took root in numerous intellectual fields. Authors such as Franz Kafka and Albert Camus followed in his footsteps. Psychiatrists such as Sigmund Freud formulated scientific theories that substantiated his thought. And 20th Century philosophers such as Michel Foucault and Martin Heidegger all paid tribute to Nietzsche’s groundbreaking “polyperspectivism.” In death, Nietzsche’s relativism triumphed over metaphysics. For all these disciples, Nietzsche’s message was clear: “Truth is illusory. Only raw power and judgment declare truth. Life is a constant battle between individual perspective and constraining powers that impose rules on the individual in all social circumstances, from education to employment to family to law. In the end, it is a war for individual souls; and in most cases, the individual loses badly.”

Michel Foucault theorized extensively about the “power relations” that constrain individuals in modern society. In that sense, he took up Nietzsche’s mantle and more closely analyzed his general ideas about power and judgment. I admire Foucault because he carried on Nietzsche’s original theories about power. My own life experience confirms to me that both Nietzsche and Foucault were right about power relationships in our world. We live amid unfairness, subjected to power from all directions. As individuals, we have little chance to realize our own potential without in part surrendering to massively more powerful forces that can impact our bodies and our property. These forces cannot directly impact our souls, but by impacting our bodies and our property, they can indirectly affect the way we value ourselves. We may not want to work at a certain job for our soul’s sake, but power relations (the landlord, the tax collector, the family, the student loan creditor) indirectly force us to work in order to satisfy their property demands. By forcing us to do things we do not want to do, these superior forces impact our souls. It is not a direct influence on us, but it is an influence nonetheless.

But it is no easy task to read Foucault. In that sense, he differs from Nietzsche. Nietzsche wrote in extremely clear, accessible prose. Even his aphorisms cut to the heart of a question, sometimes with irony, other times with pure rhetorical clarity. Nietzsche could argue as well as a lawyer and ruminate as well as a theologian; but he was too profound to be either a lawyer or a theologian. He was both cogent and creative. He used many voices. He could imitate other writers and mock them. Nietzsche’s facility as a writer makes him easy—and joyful—to read. With Nietzsche, you never know exactly what style you will get. Yet in the end you know you will get an unmistakably Nietzschean message about power, individuality and judgment.

By contrast, Foucault wrote in a much more stilted, academic style. Unlike Nietzsche, Foucault did not write real literature; he wrote academic criticisms. Nietzsche criticized with lively prose or ironic musings; Foucault criticized with analytical university-speak. This is not to say that Foucault did not write excellent criticism. Quite the contrary; Foucault’s work places him among the most cogent 20th Century philosophers. But he is not a writer’s philosopher. It is harder to read his books than it is to read Nietzsche. You need to pore over each page longer. It is worth the effort to read him, of course. It simply takes a bit more work to grasp his points because his language is more obscure and technical than Nietzsche’s.

I enjoy any criticism about law. Foucault wrote extensively about the law because law is an institution of power. During law school, I spent countless hours learning American legal doctrine without really reflecting on the power that created it. Since my last months in law school, I have reflected intensely on that very question. What is law? Where did it come from? How does it operate? Intuitively, I did not buy the American rhetoric about “equality under law” and the neutral “rule of law” that supposedly nullifies all human caprice. No, I thought. Law is not neutral, nor does it apply equally. Law is neither objective nor fair, although it claims to be both.

Why is law so flawed? Simple: Because it is a human invention. Human beings are deeply flawed creatures. They want nothing more than to enrich themselves and win as much power as they can before dying. To achieve that goal, they invent whatever mechanisms necessary to obtain and maintain power. Law represents a way to obtain and maintain power without alienating everyone else. By law, powerful people protect their values and assure their domination over the population. At the same time, the law espouses a superficial appeal that convinces its subjects that they are getting a fair deal, and that the law actually serves them. This encourages them to stay at work, pay their taxes and continue to support a system that really does not care whether they advance or not. In short, I learned that law simply codifies value systems and uses it to cement prevailing power relationships.

When I picked up Foucault, I found confirmation for many of the ideas I formulated after law school. Foucault provided me with additional insights into the power-law connection. Most strikingly, Foucault reminded me that the law is essentially crude and unimaginative. In The History of Sexuality : An Introduction (1976), Foucault asserts that Western discourse about human sexuality has never been repressed. Rather, he argues, we constantly talk about sex; we simply channel our discussions to conform to various power influences. The law is one such “power influence” that channels discussion about sex. In analyzing the law, Foucault writes: “[The law] is defined in a strangely restrictive way, in that, to begin with, this power is poor in resources, sparing of its methods, monotonous in the tactics it utilizes, incapable of invention and seemingly doomed always to repeat itself. Further, it is a power that only has the force of the negative on its side, a power to say no; in no condition to produce, capable only of posting limits, it is basically anti-energy.” The History of Sexuality (Vintage Books Edition 1990) at p. 85.

What a searing critique! Every law professor, lawyer and judge should read that passage and think about it. Why praise the law for its subtlety when it is actually so pathetically simple? When you get right down to it, what is the law except a crude mechanism of repression? What does the law really produce? It does nothing but forbid, then threaten punishment for infractions. It is remarkably simplistic. It is little more than a compendium of general “do’s” and “don’t’s.” Structurally, the law is no different than a kindergarten list that forbids such behavior as “eating crayons,” “punching your neighbor in the face” or “going wee-wee on the floor at nap time.” The lawgiver forbids; he then enforces obedience by punishing those who trespass against his word. It is a power relationship: One speaks; the other obeys. The powerful party inflicts pain; the weaker party submits.

But here we see another weakness in the law. After all, if the law can only say “no” to various human behavior, then the law must also observe and stop the behavior it prohibits. It is one thing to abstractly forbid conduct; it is quite another to find that conduct and punish it. Put simply, it is extremely easy to evade the law because the law has the burden to seek out the prohibited behavior. It is “poor in resources” because there is no way the police can be everywhere all the time. If the law cannot find a violation, it cannot punish. If it cannot punish, it cannot write its power on its subjects. Thus, its general, prohibitory statements mean nothing in practice. On the other hand, if it does find a violation, it punishes. In Foucault’s words, it is “monotonous anti-energy.” You know how it operates. It is simple. It is not subtle. It is not inventive. It “posts limits.” The lawgiver says: “Drive 55.” You drive 56. You transgress. Moreover, law creates nothing. Put simply, we should hesitate before speaking highly about noble legal principles. There is nothing special going on here; the law is little more than a glorified kindergarten “do and don’t” list.

There is reason for all this. The law is simple because it reflects an earlier time. Foucault explains that western legal systems as we know them evolved during the Middle Ages; and they have not essentially changed in the 1000 years since. See History of Sexuality at pp. 86-88. He argues that the law arose around the same time as modern nation-States. Modern nation-States replaced feudal chaos, in which fractured fiefdoms squabbled incessantly because each local prince had his own laws and customs. National Kings, however, imposed uniform rules on the warring nobles, bringing uniformity and peace to splintered realms. Foucault explains: “Faced with a myriad of clashing forces, these great forms of power functioned as a principle of right that transcended all the heterogeneous claims…forming a unitary regime, identifying its will with the law, and [acting] through interdiction and sanction.” Id. at p. 87. In this way, Kings imposed “pax et justitia (peace and justice)” on the land. Their royal courts replaced disruptive private vendettas between aggrieved nobles. Id. at p. 87. The people obeyed their father the King. The King forbade; the people listened. When a child disobeyed the law, the King punished him, assuming he found the transgressor.

This basic structure has not changed. While modern States no longer look to Kings for law, they put their faith in “replacement monarchs,” namely, written Constitutions. As Foucault eloquently points out: “In political thought and analysis, we still have not cut off the head of the King.” History of Sexuality at pp. 88-89. In sum, western societies still follow the “law model” to formulate power. The law has always been simplistic. It still is, even if we make a “Constitution” our sovereign father rather than a King.

Legal theorists applaud the law because it provides “fairness, justice and uniform procedure” for redressing public and private wrongs. In short, these theorists praise “the rule of law,” as if that phrase makes it impossible for tyranny to exist anywhere in a society committed to law. But these theorists unjustifiably elevate the law to a loftier station than it should occupy. They think that the “rule of law” makes it impossible for individual caprice to influence human relationships. Put simply, “rule of law” theorists dress a pig in fine clothes. The law is not ethereal or flawless. It does not provide infallible justice or equal results for all. In fact, contrary to all “rule of law” rhetoric, the law does not apply in all cases to which it should apply. Instead, exemptions, exceptions and immunities to the law are as old as the law itself. This is entirely consistent with the law as a system of power relationships, since powerful people will always treat themselves better than those who must obey. In short, the law is only uniform in theory; in practice, it is exceedingly inconsistent.

Foucault calls this phenomenon “tolerated illegality.” He reasons that every legal system does not enforce laws against certain “unlawful conduct.” It does not matter that certain conduct is “illegal;” power operates by suspending the law in its own favor. See Discipline & Punish (1975) (Vintage Books, 2nd Ed. 1995) at pp. 82-87. In short, every legal system purposely enforces the law in a discriminatory manner in order to favor those who control the system. After all, powerful interests create the law; they will not suffer punishment under rules they created to secure their own advantages. Why become powerful if you are subject to the same laws as the masses? The allure of power lies precisely in the right to play by “different, preferential rules.” In this sense, “rule of law” supporters completely misunderstand the law. The law does not exist to secure common justice and equality. Rather, it preserves the will of powerful interests, and if powerful interests technically violate the law, they will not face punishment. After all, they created the law; it exists to secure them in their superior positions. On this point, Foucault writes: “[The] bourgeoisie was to reserve to itself the illegality of rights: the possibility of getting round its own regulations and its own laws, of ensuring itself an immense sector of economic circulation by a skillful manipulation of gaps in the law—gaps that were foreseen by its silences, or opened up by de facto tolerance.” Id. at p. 87. At the same time, these powerful interests ensured that lower classes faced inexorable punishment for breaking “property rules:” “[This] illegality [of property]…was intolerable in commercial and industrial ownership...the development [of modern commerce] necessitated a severe repression of illegality [against property].” Id. at p. 85. In short, the powerful classes ensured that their conduct would not be punished, while they made every effort to punish conduct that affected their economic interests.

On the whole, then, what is law? A crude, predictable, exception-riddled and ancient system that does little more than “say no,” and even then only selectively. And it is precisely the law’s “selectivity” that makes it so suspect. After all, if all people do not face equal treatment under the law, it supports the argument that law embodies the will of the powerful. Powerful people impose their will on others; they do not allow others to impose their will on them. Law provides a superficially appealing—and straightforward—way for power to maintain itself while allaying popular discord with nice-sounding rhetoric about “equality.” In many individual cases, of course, the law works. It enforces everyday private promises and provides some redress for various wrongs. But this does not make it thematically spectacular, nor does it embody metaphysical truth. It is merely a convenient way to channel power in society. Its goal is not to provide justice or equality. Its goal is to enshrine dominant values in a familiar, awe-inspiring manner: As the father who commands obedience from his children. Yet upon closer inspection, we see that our father is not infallible, nor does he embody metaphysical truth. Instead, he is simply a metaphor for power.

There is nothing grandiose about human attempts to obtain and maintain power. This is law’s function, and the law operates crudely. This is why I disagree with the starry-eyed “rule of law” fanatics. There is nothing spectacular about the law. It is merely power incarnate. And its methods are easy to decipher. As Foucault said, law is “monotonous” and “uninventive.” Power, too, is “uninventive.” It has two simple goals: (1) To stay where it is; and (2) to restrict others from joining its ranks. The law facilitates these two goals.

No comments: