Law and the Condensation of Power: [Rejoinder]

American Bar Foundation

Law and the Condensation of Power: [Rejoinder]Author(s): Alan HuntSource: Law & Social Inquiry, Vol. 17, No. 1 (Winter, 1992), pp. 57-62Published by: Wiley on behalf of the American Bar FoundationStable URL: http://www.jstor.org/stable/828640 .

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REJOINDER Foucault's Expulsion of Law: Toward a Retrieval

Law and the Condensation of Power

Alan Hunt

Susan Silbey and Jonathan Simon in their responses to my article have been generous in finding merit in my general thesis that there are grounds for attempting a "retrieval of law" from the initial expulsion that it suffers in the main body of Foucault's work. I am thus excused from the need to offer a general defense of my thesis. The issues that they respec- tively raise present me with the opportunity to take my project a step for- ward by exploring the implications of some of the positions sketched in my article. While both commentators start from different positions, I hope I will be excused for identifying a common strand in their responses.

I. On the Condensation of Power

The central thrust of my essay argued against the most visible face of Foucault's treatment of law, what I termed his expulsion of law, in which the modern disciplines supplant and displace the premodern monarchical law. The retrieval I proposed is organized around a concern to explore the engagement and interconnection between law and the disciplines. Some version of this project is at the core of a number of strands of recent work. As Susan Silbey observes, this concern is central to contemporary legal pluralism.' In a less direct way it is also important in Gunther Teubner's application of autopoeitic theory to explore the role of social law in the welfare state.2 What is involved in these reconceptualizations of law and

Alan Hunt is professor of law and sociology, Carleton University, Ottawa. 1. See, for example, Stuart Henry, Private Justice: Towards Integrated Theorising in the

Sociology of Law (London: Routledge & Kegan Paul, 1983). 2. Gunther Teubner, ed., Autopoietic Law: A New Approach to Law and Society (Berlin:

Walter de Gruyter, 1988).

© 1992 American Bar Foundation. 0897-6546/92/1701-0057$01.00 57



58 LAW AND SOCIAL INQUIRY

discipline is the coexistence of a legal pluralization alongside the juridification of disciplinarity.

Beyond an attempt to explore the complex interrelationship of law and discipline, I wanted to find a way of combining these concerns, which

point to dispersion and pluralization, with an attempt to hold on to the dimensions of "condensation" or "aggregation" of power, which manifests itself most clearly at the level of the state and of the economy. Although Foucault himself did not use my term "condensation," it is possible to read his accounts of the institutionalization of prisons, asylums, and the medicalization of sexuality as forms of condensation in which law and the disciplines act as unintentional but mutual supports in producing ex- tended and more penetrative forms of power. It is in this connection that I suggested the analytic capacity of the idea of structural coupling, even

though I have reservations about the Luhmannian systems theory within which this concept has been developed.

I was at pains to find a way of making clear that my concern with the condensation of power or of "bringing the state back in" was not just an

attempt to turn back the agenda. Rather, my concern has been to find an

appropriate form in which to combine the agendas of legal and discipli- nary pluralism with the role of the state and of state law in condensing power. The interconnection between these processes can be further illus- trated through the thesis that it is in "processes of condensation" that both sites and forms of political struggle are created. The contentious fea- ture of this thesis is that it does-without apology, but with some hesita- tion-claim that there is a centripetal process at work. "Sites" of political contestation exhibit a tendency to shift from the local to the regional, to the national and global. Similarly the "forms" of struggle, manifest in the formation of institutional policy and of legislation, whether of economic institutions, the local state, or the national state, exhibit a movement from the local to the global.

This thesis of the "centripetal processes of condensation" is not in- tended to undermine the importance which properly attaches to the signif- icance of the "local politics" to which Foucault and other commentators draw attention. Rather it serves to insist that "the local" does not remain local. The important implication is that analysis must always engage with the articulation between different sites and forms of political struggle.

II. The Turn to Governance

In advancing a case for focusing attention on the condensation of power I see this as part of a broad trend in contemporary scholarship-in which Foucault was a major player-toward the adoption of a general stra- tegic focus on the problematic of "governance." Despite any implication



Law and the Condensation of Power 59

that I espouse a state-centered perspective, I contend that this perspective helps to "put the state in its place"3 (and by extension the same point applies to state law) not at the hierarchical pinnacle of power but rather as a complex and multilayered continuum of processes of governance. One important implication which undermines any lapse into state-centered as-

sumptions is that the focus on governance needs to take account of the "limits of governance"; for legal studies this requires continuing attention to the issue of the "limits of law," since the "reach" of state power and state law is subject to specific conditions and always falls short of its ideo- logical pretensions.

The adoption of the problematic of governance has important implications for the projects of sociolegal studies. It enjoins a specific decenter- ing of the taken-for-granted category "law." It implies that as specifically legal phenomena enter into the picture, they do so as but one of a number of coexisting forms of governance. I have attempted to give more sub- stance to this contention by articulating a regulation perspective organized around a conception of "modes of regulation."

III. A Return to the Structure-Agency Dichotomy?

Susan Silbey draws attention to a perennial dilemma of social theory which seems to doom it to constant reworking of polarized conceptualiza- tions.4 She raises the anxiety that my focus of attention on the condensation of power which tends to be located at the level of structures may revive the structure-agency dichotomy in a manner that is inflected toward structure and away from agency. She advances a cogent and well-illus- trated case that the recent body of research on what might be called "legal culturalism" offers the prospect of escaping from the structure-agency dichotomy.

The problem with the dualisms that haunt social theory is that they impose a separation or distance between the poles; in the most simple terms they impose a naive "either-or" choice. The most banal example which has still not been entirely abandoned is the conflict vs. consensus model through whose pernicious lens so much North American sociology has viewed the world for over two decades. While the names of the dualisms change, they have an invariant form; on the "hard" side is an objectivism which seems to exclude the conscious participation of people and on the "soft" side a subjectivism which seems to forget the involuntary structures within which consciousness is constrained. Each specific form

3. I borrow this phrase from Bob Jessop, State Theory: Putting the Capitalist State in Its Place (Cambridge: Polity Press, 1990).

4. Susan Silbey, "Making a Place for Cultural Analyses of Law," 17 Law & Soc. Inquiry 39 (1992).




of dualistic analysis tends to prioritize one side or the other. Thus the

history of social theory can be written as a ritual engagement between ob-

jectivism and subjectivism. Attempts to escape dualistic theorization abound. Susan Silbey most

effectively mounts a case for a version of cultural theory that insists upon the materiality of culture and the cultural construction of structures as a vehicle for transcending the structure-agency problematic. Jonathan Si- mon draws attention to Foucault's own resistance to the conceit of theory by his renunciation of the seductions of all metatheory (but I remain far from convinced that Foucault succeeded in giving up metatheory). Si- mon's preferred solution is the espousal of the "middle range." Let me be careful in distinguishing between the sense in which I both agree and disa- gree with his position. I agree with the importance of the middle range when it comes to the selection of objects of inquiry for research projects. But my reservation is that invoking the "middle range" can involve the assumption that the researcher can remain neutral as between the conflicts between the grand theories; in this sense commitment to the "middle range" amounts to a sophisticated empiricism. Alternatively focus on the "middle range" can lead to the hidden importation of the assumptions of some grand theory. In short, while appeal to the "middle range" has obvi- ous merit, it does not solve the larger dilemma about the place of theory.

I readily confess to a certain indecision about how to proceed once confronted with this big perspectival question. I am much tempted by the possibility of transcendence (I read Susan Silbey as espousing the view that constitutive theory holds out the prospect of transcending the structure- agency dichotomy). But I also find myself attracted to some version of Foucault's response. I paraphrase Foucault as saying something along the following lines: there is no possibility that grand theory can solve the problems it sets itself, and it follows that one must avoid the language and concepts bequeathed by the grand theories (hence his refusal to "debate" with Marx or to use his concepts). The best that can be done-and Fou- cault's own work attests to how much can be achieved-is to tackle the problems which we encounter, to engage with the "history of the present"; and, maybe, late in the evening we can review the lessons of that work, whether it be on prisons or psychiatry or the Gulag, but we should not hope that this will yield some transformative general social theory.

It is in his resistance to the conceits of theory that Foucault's post- structuralism shares most in common with the more radical "antitheoreti- cism" which is one of the hallmarks of postmodernism. I resist the lure of postmodernism because I detect in it a certain flawed moralism that treats "theory" as if it were akin to smoking, a residue of the Enlightenment, that can be "given up" by an act of will. I have certainly learned to be much more modest in my expectation about how much we can expect



Law and the Condensation of Power 61

from theoretical "solutions." But it is not possible to escape theory. My preferred approach is to pose the question: What can we reasonably ex-

pect theory to contribute? What are the "limits of theory"? I make no

pretense to offer any substantive contribution to these questions in the confines of this reply.

I suggest that there is good reason why current debates run up against real conceptual and theoretical difficulties. A quick characterization of the

present agenda is that it is making a valiant attempt to keep hold of "both ends of the stick." It strives to find an appropriate way of articulating the

specificity and dispersal of social life that is captured by the preoccupation with the "sociology of everyday life" while, at the same time, locating that

experiential particularity within the persisting and nonvoluntary conden- sations of power that manifest themselves at the institutional level of the state, law, and economy. To sustain such a project is intrinsically more difficult than to grasp only just one end of the stick.

I wonder whether we should search for theories that are capable of

providing us with a way of holding on to both ends, ones that are capable of transcending the dichotomous separation of the poles of objectivism and subjectivism, structure, and agency. Susan Silbey certainly thinks that constitutive theory provides such a tool. Sometimes I have argued in very similar terms.5 Currently I tend to the view that the best that we can achieve is to make use of theoretical positions or concepts that serve to remind us of the desirability of holding on to both dimensions; and I would wish my invocation of Gramsci's concept of hegemony to be under- stood in this way. I hope that my predilection for this concept is not

merely theoretical or political nostalgia. I do not wish to be taken as com-

mitting myself to the view that Gramscian theory is in any sense a "solution" but rather to claim that "hegemony" can serve as an ever present reminder of the interdependence of consciousness and structure. There are, of course, other theoretical devices that can serve a similar role; for

example, Bourdieu's concept of "habitus," Marx's "ideology," or Fou- cault's "discursive formation" come to mind without in any way exhaust-

ing potential candidates.6 If theory can only play this more modest role, then the burden of

intellectual inquiry must revolve around the substantive analysis that our chosen concepts can do no more than nudge us in a fruitful direction. I am only too aware that my project in "Foucault's Expulsion of Law" pro-

5. See, for example, Alan Hunt, "Marxism, Law, Legal Theory and Jurisprudence," in Peter Fitzpatrick, ed., Dangerous Supplements: Resistance and Renewal in Jurisprudence (London: Pluto Press, 1991), and id., "The Ideology of Law: Advances and Problems in Recent Appli- cations of the Concept of Ideology to the Analysis of Law," 19 Law & Soc'y Rev. 101 (1985).

6. For a discussion of the potentiality of the concepts of ideology and discourse see Trevor Purvis & Alan Hunt, "Discourse, Ideology, Discourse, Ideology . . . " Brit. J. Sociol- ogy (forthcoming).




vides only a rough sketch; what it does not do (but neither was it my intention) is to provide a mapping of the mechanisms of translation, medi- ation and interruption between the "little powers" and the "big powers" and the role that plural legal discourses play in these processes. Here I fully endorse Jonathan Simon's point that we should eschew any pretence that we can provide anything like a "continuous map" embracing the whole gamut of micro and macro powers.7

My proposed strategy is, I believe, consistent with Simon's program of middle range analysis and with Silbey's pluralistic cultural analyses of law. To this style of work it is possible to add an extra dimension (and it is one that I suspect neither Silbey nor Simon would dissent from). I suggest a number of ways of keeping in mind how the "big picture" might be sketched, even if not fully mapped.

My stress on the always unfulfilled, but always present, "project of unity" associated with state law provides an injunction to consider the processes of aggregation that emerge from the concrete processes of the juridification of disciplines. Similarly, the focus on the condensation and massification of power serves as another reminder. The merit I claim for these concepts and the strategy they help to form is that they provide an impetus toward work which self-consciously moves backwards and for- wards between different levels of analysis. If it achieves nothing else, it provides encouragement to those working, for example, on local studies of the formation of legal consciousness to reflect upon the wider implication of their contributions. In the same way, the strategy proposed provides incentive to those whose starting point is with societal or global processes of law, regulation, or disciplinarity to pay attention to the local processes that instantiated the general thematics of law and power.

7. Jonathan Simon, "'In Another Kind of Wood': Michel Foucault and Sociolegal Studies," 17 Law & Soc. Inquiry 49 (1992).



Law and the Condensation of Power: [Rejoinder]

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