Abstract
The general claim advanced in this article is that Foucault’s genealogy of the modern state traces two ideal-typically different power arrangements at the origin of the modern state, roughly referred to as ‘sovereign power’ and ‘governmentality’. They are ideal-typically different in that they operate according to a different logic, including different ends, means and modi operandi. The more specific claim, then, is that due to this different logic, their ever changing interpenetration on the level of the state is imbalanced. In order for ‘governmentality’ to operate according to the law, it must be backed by the juridical frameworks provided by sovereign power, but then again these juridical frameworks prove inadequate and insufficient to curb ‘governmentality’s’ operational procedures as well as the modalities and intensities of its implementation. In other words, in his genealogy of the modern state, Foucault tracks down ‘governmentality’ as a distinctive form of power which, although intertwined with the state, cannot juridically be contained by the state. It cannot be appropriately restrained by its legal regulations and, as such, constitutes an excess vis-à-vis those regulations.
1. Aims and claims
From the very start of his career at the Collège de France in 1970, Foucault begins to engage with power. During the next decade, he will develop a variety of power concepts which by now stand as hallmarks of his writing. They include notions such as ‘power-knowledge’, ‘disciplinary power’, ‘biopower’, ‘pastoral power’ and ‘governmentality’. In developing these power concepts, Foucault wanted to move away from the traditional centralized, coercive and repressive understanding of power, as paradigmatically exemplified in state power. Given this focus, it is not surprising that until the mid-1970s, there is no substantial reflection in his work on the state or on state power. Only from 1976 onwards, beginning with ‘Society Must Be Defended’, and then more thoroughly in Security, Territory, Population, Foucault starts to deal at length with state and state power (2003a, 87–98, 223–28; 2009, 116–19). It is in the latter lecture series that Foucault famously coined the notion of ‘governmentality’ (2009, 108–9). In the wake of the new perspectives opened up by this notion, Foucault ventured upon the possibility of ‘a genealogy of the modern state’ (2009, 354).
This essay intends to examine Foucault’s intimations of this genealogy of the modern state. For that purpose, I will broaden the scope and consider more or less the entire body of work of the 1970s, starting from Penal Theories and Institutions (1971–1972) to The Birth of Biopolitics (1978–1979). Obviously, I cannot reconstruct this genealogy in detail. I merely aim to uncover its underlying scheme of thought, outline what is at stake in this project and point to its broader philosophical significance. Accordingly, the ambitions of this essay are limited. It seeks first and foremost to get a grip on Foucault’s thinking about the state and its origins, which means that it is above all an exercise in interpreting Foucault. The outcome of this hermeneutic endeavour should be a clear grasp of the interrelatedness of the essential intuitions underlying Foucault’s conceptualizations of the modern state.
The general claim advanced in this article is that Foucault traces two ideal-typically different power arrangements at the origin of the modern state, roughly referred to as ‘sovereign power’ and ‘governmentality’. They are ideal-typically different in that they operate according to a different logic, including different ends, means and modi operandi. The more specific claim, then, is that due to this different logic, their ever-changing interpenetration on the level of the state is in a specific way imbalanced. In order for ‘governmentality’ to operate according to the law, it must be backed by the juridical frameworks provided by sovereign power, but then again these juridical frameworks prove inadequate and insufficient to curb ‘governmentality’s’ operational procedures as well as the modalities and intensities of its implementation. In other words, in his genealogy of the modern state, Foucault tracks down ‘governmentality’ as a distinctive form of power which, although intertwined with the state, cannot juridically be contained by the state. It cannot be appropriately restrained by its legal regulations and, as such, constitutes an excess vis-à-vis those regulations. This does not imply that ‘governmentality’ is beyond all constraint; yet it does imply that mere legal regulations will not suffice and that forms of resistance against it must differ from merely claiming rights.
The essay consists of two main parts. In the first part, I will concentrate on the ‘lineages of the modern state’. I will focus on its dual descent from ‘sovereign power’ (section 1) and ‘governmentality’ (section 2). Special attention will be paid to how both power arrangements relate to the law and to each other. In addition, the section on ‘governmentality’ will reveal that Foucault’s genealogy of the modern state is less concerned with how the modern state came to be through practices of governmentality than with the way in which it gradually became ‘governmentalized’, that is, intertwined and eventually colonized by those governmental practices. In the second part, I will discuss this ‘governmentalization of the modern state’ more thoroughly, thus examining what is at the heart of Foucault’s genealogy of the modern state. Accordingly, I will focus on the interpenetration of ‘sovereign power’ and ‘governmentality’ and – in view of living up to my claims – indicate how and to what extent ‘governmentality’ indeed exceeds the boundaries of the law.
Yet before starting, a number of methodological remarks are due. First of all, talking about ‘the state’, ‘sovereign power’ or ‘governmentality’ in the singular is highly un-Foucauldian. As a genealogist, Foucault is a nominalist, which means that universal concepts, such as the state, sovereignty or governmentality, do not exist as such. What exists are a variety and multiplicity of heterogeneous historical (power) practices and arrangements which eventually make up what is considered to be the state, what is called sovereign power or what can be referred to as governmentality. Nevertheless, I will continue to use notions like ‘state’, ‘sovereignty’, ‘law’ and ‘governmentality’ in the singular for reasons of convenience. It is easier for the author and the reader alike to refer to complex sets of discourses, practices and institutions by a single noun. But, there is also a more substantial reason. When Foucault deals with notions such as the law, the state or sovereignty, he is not primarily interested in their technical juridical and/or political meaning. He does not primarily consider the law as a system of rights and liberties, or sovereignty as the supreme political and juridical authority. His approach, as is well-known, is above all geared to an analytics of power. This means that in sovereignty, for example, Foucault sees first and foremost a specific power arrangement, and in law, a peculiar power technology – the general characteristics of which can be described or rendered in an ideal-typical way, that is, abstracted from the variability and multiformity of their concrete historical manifestations. 1 In brief, despite their indisputable inner multiplicity and even historical overlap, sovereign power and governmentality can be treated as distinct types of power with a different pedigree and inner logic, involving disparate ends, means and ways of proceeding (Biebricher 2014, 22, 28). References below to these and kindred notions in the singular only intend to give prominence to the typological distinctions between them, without, obviously, wanting to deny their inner complexity and actual multifariousness.
2. Lineages of the modern state: Sovereignty and governmentality
The basic intuition underlying Foucault’s genealogy of the modern state is that its common view is still unilaterally bound up with the juridico-political concept of sovereign power (1978, 86–89; 2001b, 150–51). This view, however, conceals the modern state’s other lineage out of the development of a variety of governmental techniques and practices, which are rooted in what Foucault calls ‘pastoral power’ and for which he eventually coined the term ‘governmentality’. Foucault’s genealogy of the modern state, therefore, above all intends to unearth this governmentality as the modern state’s hidden lineage and to point to the ways in which it has shaped and modified the development and current outlook of the modern state.
This is typically a task that a genealogical approach would set for itself: to delve into history and point to the multiple, conflicting and often hidden origins of existing discourses, practices and institutions. 2 Yet apart from this general characterization, Foucault’s idea of genealogy contains more idiosyncratic features. Two of them are specifically useful for my argument. First of all, as I have already hinted earlier, Foucault’s genealogy relies on a methodological nominalism (Foucault 1978, 93; 2001b, 1398; 2008, 2–3; Lemke 2007, 51–4). Political universals like the state (or civil society, or the people) have no essence. In order to understand these universals, one has to trace back their content and meaning to the historical practices that brought them about. Accordingly, Foucault’s genealogical approach does not start from the state as a given, but looks at the multiple governmental practices that made it possible. Secondly, Foucault’s genealogical approach also dispenses with the subject (2001b, 147). It wants to explain the coming about of institutions without any appeal to an underlying, consciously steering, intentional subject. On the contrary, Foucault’s genealogical efforts are geared to showing that subjectivities must be understood as the effect of discursive and non-discursive (governmental) practices and/or (power) technologies. Here again, he is a nominalist. There is no subject; there are only subject-constituting practices and technologies. Accordingly, there is no constituent subject at work behind the state. The state, so to speak, has no architect; it is ‘the mobile effect of a regime of multiple governmentalities’ (Foucault 2008, 77–78; Saar 2007a, 31–36; 2011). These governmental practices and technologies should be considered as intentional in nature, but their obvious intentionality can be perfectly understood without having recourse to a consciously steering (individual or collective) subject behind it (Foucault 1978, 94–95).
Applied to the genesis of the modern state, then, Foucault claims that it originated from the mutual interplay and interpenetration of sovereign power and governmentality as two different power arrangements. In the next sections, I will discuss both arrangements as two different ideal types of power and ascertain how they relate to one another.
Sovereign power
The significance of the concept of sovereign power in Foucault has often been underestimated. 3 Many Foucault scholars refer to the concept only in passing (e.g. Elden 2016; Kelly 2009) or point to it mainly as the horizon against which Foucault conceived of power in different ways (e.g. Biebricher and Frieder 2012; Gehring 2007; Lemke 2007, 2010; Oksala 2007). At the same time, though, there has been a huge controversy concerning the status of the law in Foucault, which actually involves his views on sovereignty. This debate unfolded in reaction to the so-called expulsion thesis, first launched by Hunt (1992) and then again by Hunt and Wickham (1994). In brief, the thesis stated that ‘Foucault expelled law from his analysis of power relations in modernity by marginalizing it and subordinating it to other modalities of power’ (Golder and Fitzpatrick 2009, 11). 4 Although in contemporary scholarship the thesis is no longer accepted, at the time it was launched, it was quite influential. 5 Indeed, it seemed to chime with Agamben’s critique of Foucault’s underestimation of sovereignty and its alleged replacement by governmentality (Agamben 1998, 10–1) – a criticism, which still resonates in Agambian circles today (e.g. Dean 2013, 32; Dean and Villadsen 2016, 103–4). 6 Foucault is criticized for erroneously downplaying the persistent role of sovereignty and law in modernity while giving too much weight to other forms of power, like disciplinary power or governmentality. By not giving sovereignty and law their due thought, his view of the modern era would be by and large defective.
Against these views, I hold that the concept of sovereign power is fundamental in Foucault’s thought to the extent that he never downright stated that it would be replaced by governmentality. 7 An indication of its central role is that at every stage in his theorizing of power, Foucault always relates it to sovereign power. 8 In other words, the latter is more than just an occasional, mostly negative reference in Foucault’s work. On the contrary, it constitutes one of the major narratives throughout Foucault’s lectures at the Collège de France.
Sovereign power is a complex and multifarious phenomenon. For the purpose of this essay, however, I am not primarily interested in its historical manifestations, but in how it can be accurately distinguished and demarcated from governmentality as a specific power arrangement. In view thereof, I briefly outline the origins of sovereign power, highlight its distinctive general features and point to some of their implications.
According to Foucault, the idea of sovereign power is rooted in the development of medieval judicial practices (2015a, 127–95). More specifically, it is rooted in the gradual intertwinement of jurisdiction, taxation and armed forces (the military). Since in the course of the medieval period, the judicial settlement of conflicts becomes economically interesting (due to payments for the justice being done, for the costs of the procedure and for the subsequent legal protection), acquiring juridical authority becomes profitable. Yet to uphold and extend that juridical authority, one needs armed forces to secure the payments and levies and to acquire new jurisdictions. But then again, in order to maintain a standing army, one needs revenues, and to secure those revenues, one needs to secure and extend one’s territorial jurisdictions. This circular intertwinement, this accumulation and integration of judicial, military and tax levying power within a specific territory constitutes, according to Foucault, the very backbone of sovereign power, irrespective of its further developments and refinements in the modern age (2001b, 1445–48).
This brief outline of sovereign power’s origins already reveals its distinctive features as a particular power arrangement. The first and most basic one, according to Foucault, is its conjunction with the law (Foucault 1978, 88; 2001b, 124, 146, 150). Apart from being the supreme principle of the juridical order, sovereign power is not only conceived of as a system of legal obligations and prohibitions, that is, having the form of law; it is also exerted by means of, that is, through the medium of law (Foucault 2003a, 43–4; 2009, 99). Secondly, as a system of collectively binding rules, laws claim general validity. Yet at the same time, laws interfere in a discontinuous manner: they only intervene when the law is violated. 9 So, although the law may hold generally, and permanently for that matter, the legal system actually only interferes when there is an infringement of the law. Thirdly, the force of law is always backed up by physical force, that is, by the threat of (legitimate) violence if one does not comply with the law (Foucault 2006, 43). Fourthly, sovereign power aims at upholding the legal state order within a given territory (which obviously may include modifying that order) (Foucault 2009, 11).
As the above-mentioned already intimates, in Foucault’s view, the basic structure of sovereign power is one of subjection and obedience, that is, of domination, even though this domination is mediated by the law (Foucault 1978, 84–5, 88–9; 2001b, 178; 2003a, 26–27, 44–45, 109). In actual fact, the latter conceals the relation of domination (Foucault 2001b, 177, 187). Sovereign power, in Foucault’s reading, conceals its dominating power by casting itself as the result of legitimate procedures and legal arrangements (Foucault 2003a, 26). Eventually, this structure of domination also explains sovereignty’s implied conception of power (Foucault 1978, 81–102; 2015b, 227–37). Power is considered a property, owned by the sovereign. Accordingly, power is conceived of as having its origin in a subject (the sovereign, or its substitute: the state, the father, the master) (Foucault 1978, 85), and as located within a specific institution. Furthermore, power is by and large considered as negative: it forbids, it censors, it restricts and it suppresses; in addition, it levies, charges services and so on in exchange for protection (Foucault 2006, 42–43).
Yet according to Foucault, sovereignty’s essential bond with the law also has a reverse side in that the legal framework, and eventually the idea of sovereignty itself, can be used to limit, confine and restrict sovereign power (2001b, 176–7; 1004; 2003a, 25–26, 34–35; 2008, 7–9, 39). This is what we have been witnessing since the 18th century. By attributing sovereignty to the people, that is, by according rights and liberties to citizens, sovereign power has been confined and contained within legal boundaries in order to prevent its possible relapse into despotism or in other forms of excessive power. This observation is crucial, for it implies that in the legal framework, Foucault not only observes the medium of sovereign power but also observes the medium for resisting and containing it (2001b, 1002–4).
Governmentality
A completely different story must be told with regard to governmentality. Foucault famously introduced this neologism in Security, Territory, Population in the context of a reflection on a new ‘art of governing’ which originated in the 16th and 17th centuries (2009, 87–114). According to Foucault’s definition, ‘governmentality’ refers to a specific form of power which has the population as its target, political economy as its major form of knowledge and ‘apparatuses of security’ as its technical instruments (2009, 108). Here, ‘apparatuses of security’ refer to all kinds of norms, regulations and institutions established to enhance the welfare of the population in order for it to prosper. But whereas ‘governmentality’ had initially this rather restricted historico-political meaning, from The Birth of Biopolitics onwards, it receives a more general definition as the ‘conduct of conduct’ (conduire les conduites), which then is used to conceive of all kinds of ‘governing the self and others’ in a variety of contexts, both political and non-political (Collier 2009, 99; Foucault 2008, 186; Golder and Fitzpatrick 2009, 31–2; Rafnnsøe et al., 2016a, 244, 252). Since we focus here primarily on ‘governmentality’ as part and parcel of the genesis of the modern state, we first and foremost operate with its initial meaning as a specific art of governing, which by and large co-originated with the birth of the early modern state. It goes without saying, though, that governmentality’s later generic conceptualization in terms of ‘conduct of conduct’ is already perfectly discernible in its initial meaning. 10
Like ‘sovereignty’, ‘governmentality’ is a container concept, now grouping together a multiplicity of heterogeneous and historically shifting ensembles of governmental institutions, practices and power arrangements, geared towards governing the population (Foucault 2009, 108–9; Revel 2008, 67–8). Yet again, I am not interested in the multiplicity and historical heterogeneity of governmentality’s devices and manifestations, but in how it can be clearly differentiated from sovereignty as a separate power arrangement. For that purpose, I will outline the origins of governmentality, highlight its distinctive features and point to some of their implications. And since Foucault conceives of governmentality as in many ways the exact opposite of sovereign power (2003a, 36; 2006, 46), I will also pay attention to the differences between both.
Immediately after the introduction of ‘the ugly word “governmentality”’ in Security, Territory, Population (2009, 115), Foucault points at its origins in pastoral power (2009, 123–24). Pastoral power, according to Foucault’s genealogical narrative, has its origins in the shepherd communities of the Middle-East; was later on adopted by Christianity and in the wake thereof introduced into the West by the Church. Eventually, it was incorporated into the modern state from the 16th century onwards in the new ‘arts of governing’, referred to by Foucault as ‘governmentality’ (2001b, 953–80; 2009, 163–65; 2015c, 35–6). So in order to understand what governmentality is about and how its power structure is designed, we have to return, or so it seems, to the distinctive features of pastoral power. In ‘“Omnes et singulatim”: Towards a Criticism of Political Reason’, Foucault succinctly sketches these features and contrasts them with sovereign power. Pastoral power, he points out, is (a) the power over a flock-in-motion, unlike a sovereign king who rules over a territory. The shepherd guides and leads his herd; he does not rule. (b) Accordingly, pastoral power is a salutary, beneficent and caring power, dedicated to serving the flock, unlike sovereign power which subjects through obligations and prohibitions. (c) Furthermore, pastoral power aims at the well-being of each and all (omnes et singulatim). And since the prosperity of the collective is dependent on the conduct of the individual, pastoral power manifests itself as the prototype of an individualizing power – which is again unlike sovereign power which primarily aims at upholding the established public state order (Foucault 2001b, 956–58, 1048; 2009, 125–29). (d) The focus on the well-being of each and all implies also a thorough knowledge of each and all (Foucault 2001b, 958, 965–66, 1048; 2009, 183–85). This again marks a vital difference with sovereign power, which operates predominantly through the law.
One of the central claims of Foucault’s genealogy of the modern state is that pastoral power eventually made its way into the inner structure of the modern state. By the intermediary of pastoral structures and practices within the medieval Church, the power technology of pastoral power was ultimately reconfigured into various new ‘arts of governing’ targeted at governing the population, and was as such integrated in the setup of the early modern state. This process, documented as the birth of governmentality, is considered by Foucault as a major event in the development of the modern state since it substantially complemented its primeval sovereign power structure by a variety of new and distinctive power arrangements, the scope and significance of which has ever since only increased.
But how could pastoral power make its way into the inner structure of the modern state? How could the modern state, in line with pastoral power, become itself an individualizing power, aiming at the well-being of each and all and based on the knowledge of each and all (Foucault 2001b, 1049)? Although Foucault is at pains to show how governmentality and its shifting manifestations in the course of the modern state’s development is indeed an heir and continuation of pastoral power, it is not obvious at all to see a power structure that is so thoroughly stamped by the personal concern of the shepherd for his flock transplanted to the impersonal relationship between the modern state and its subjects. Unsurprisingly, precisely concerning the transition between the pastoral scheme of medieval ecclesiastical power and the incipient governmentalities of the early modern state, Foucault’s genealogy is remarkably reticent and possibly deeply equivocal. 11 Foucault basically ventures upon two different narratives: a straightforward one, which he develops at length in Security, Territory, Population, and a non- or underdeveloped one, which is suggested and referred to in a number of passages, scattered throughout his work of the 1970s. In the first narrative, Foucault points out how modern science induced the break-up of the medieval cosmo-theological continuum in the transition to the modern era. To the extent that this development marked the end of the divine pastor-like government of the world, it urged the secular sovereign to compensate for it by developing his own kind of governing, which had to supplement sovereign power without, however, coinciding with mere pastorate (Foucault 2009, 234–37). References to the ‘art of governing’ in the literature of the 16th and beginning of the 17th century reflect, Foucault argues, the quest for this new type of governing. This first narrative is a classical, one could say: Blumenbergian one. The rise of modern science breaks down the cosmo-theological continuum, expels God from the world into a transcendent realm and by the same token urges mankind to come up with new views and practices in order to reassure its security and self-preservation within the modern predicament (Blumenberg 1996). The second narrative is more Weberian, more ‘Foucauldian’ too, if you like, and for my purposes more apt. Unfortunately, Foucault never developed it as a full-fledged account of how pastoral power and governmentality are historically linked. Significantly, this narrative starts with the crisis of the pastorate, that is, with the multiple forms of resistance against the pastoral power deployed by the Church. These forms of anti-pastorate resistance, which already date back to early Christianity, became particularly intensified during the 14th century and would eventually result in the heydays of the Reformation in the 16th century. The target of these religious revolts – irrespective of their internal differences – was the direction of (individual) conduct, as imposed by pastoral power. They aimed at being ‘conducted differently, by other leaders (conducteurs) and other shepherds, towards other objectives and forms of salvation, and through other procedures and methods’ (Foucault 2009, 194–95). 12 In other words, these movements of religious ‘counter-conduct’, as Foucault named it, wanted to get rid of the very precondition of the Church’s pastoral power: the position and authority of the pastor and the corresponding duty of obedience (2009, 204–16). Instead, they wanted to define their code of conduct themselves. On the rebound, this claim to self-directed religious conduct engendered a disciplinary ethos, which every single individual had to strictly observe and which, in the end, was both supervised and warranted by the religious community as a whole. Eventually, this communal enforced disciplinary ethos would become the hallmark of all protestant communities. It comes as no surprise, therefore, that Foucault, when tracing the origins of disciplinary power in Psychiatric Power, returned in detail to the history of these (proto-)protestant communities, in order to show that, as self-directing communities, they succeeded in warranting the disciplinary conduct of each and all, in the absence of any classical priesthood (2006, 63–8). As such, they may have constituted an essential link between the Church’s pastoral power, which relied on the authoritative role of the pastor, and its modern version, governmentality, in which the pastor’s authoritative role is erased and replaced by an ensemble of institutions and apparatuses which have their stakes and origins within political society at large. Unfortunately, Foucault did not pursue or clearly establish this particular link between pastoral power and governmentality, although it would have been worth having done so, as Philip S. Gorski (2003) has indicated. 13
Conceptually, Foucault connects pastoral power and governmentality by drawing some notable parallels between both. Pastoral power, Foucault points out, is intended to lead to salvation. Yet it only does so on condition of complete obedience from the side of the believers, which in turn presupposes full knowledge of who they are, what they do and how they think and desire. In the early modern state of the 16th and 17th century, along with the growing focus on the ‘art of governing’, Foucault observes a gradual intensification and proliferation of various techniques of conduct that revolve exactly around these very dimensions: salvation, obedience and truth (2009, 230–31, 261). Of course, the meaning of these notions has meanwhile dramatically changed, since we are now in the era of the ‘reason of state’, in which the art of government exclusively aims at the conservation, expansion and felicity of the state. Salvation, in this context, has no longer to do with an other-worldly vocation. Salvation means salvation of the state and the art of governing is designed to bring it about. In view of that goal, governmental techniques dealing with economic development (mercantilism) and the direction of public opinion are deployed to prevent seditions and instill obedience in the population. In addition, to purposively govern in view of the conservation and prosperity of the state, the authorities had to come to know the ‘status’ of the state. They had to build a science of the state – a ‘statistics’ – including all sorts of data concerning the state’s population and its wealth, its natural resources and their economic potential, the economic effects of its tax system, its trade balance with other states and so on (Foucault 2009, 261–78). In brief, mapping the art of government deployed by the mercantilist reason of state, indeed reveals striking resemblances with pastoral power’s prototypical focus on salvation, obedience and truth.
One of the central governmental apparatuses of the 17th-century and early 18th-century reason of state in which this parallelism can be most concretely observed is the ‘police’. 14 At the time, the police was established as an additional, separate state administration, next to the classical administrations of sovereign power: the judiciary, the army and the tax system (Foucault 2001b, 972–74, 1640; 2009, 312–21). Its governmental authority covered a variety of societal domains and was not merely restricted to the sphere of public security, as it is today. In line with the demands of the reason of state, it aimed at governing every domain that could contribute to the wealth and prosperity of the population and hence to the strength of the state. For instance, the police was responsible not only for the regulation of the production, quality and distribution of food, but also for healthcare and education, for employment and the regulation of the professions and so on (Foucault 2001b, 975–76; 2009, 320–28, 333–35). Significantly, the police accomplished its governmental tasks, as a rule, by means of extralegal regulations and prescriptions – which was moreover in line with the logic of the reason of state. The latter was indeed not a reason of law, but a reason of necessity: the imperative that the salvation of the state must always prevail implied that the reason of state, if need be, should stand over and above the law (Foucault 2009, 261–67). In the same vein, the police did not primarily operate according to the law (Foucault 2009, 339–41), but via regulations based upon the collected data concerning the state and its population. In so doing, the police, as a modern re-enactment of pastoral power, aimed to steer individual and collective conduct in view of enhancing the life of the population and reinforcing the strength of the state (Foucault 2001b, 977–79; 2009, 313–28).
The arrival of 18th-century liberalism marks the next major shift in the development of governmentality. Together with physiocracy, its immediate predecessor, it fiercely rejects the unrestrained and unlimited governmental art of the mercantilist police state (Foucault 2009, 345–48, 379). In order to counter the police state’s suffocating grip on society’s socio-economic ins and out, les économistes, as Foucault refers to the 18th-century physiocratic and liberal theorists alike, insist on the naturalness of society (2008, 61; 2009, 70–2, 349). Society, they state, is the result of a multiplicity of natural, that is, spontaneous socio-economic interactions and processes that do not require (state) intervention. On the contrary, excessive and/or inappropriate interventions might seriously harm and disturb the natural socio-economic fabric, resulting in the economic downfall of the population, which is the exact opposite of what the police state actually aimed at (Foucault 2009, 341–44). Accordingly, les économistes argue for a new art of governing, in which the state limits itself in order to provide the required free room for these natural societal processes to develop. This self-limitation of the state thus gave rise to the birth of civil society as the seemingly self-contained realm in which these processes freely unfold. According to Foucault, this retreat of the state within its self-imposed boundaries, complemented by civil society as its necessary counterpart constitutes the hallmark of liberalism as a governmental art. Its baseline is ‘not to govern too much’. In order to determine what this means, it relies on political economy as the ‘science’ of the natural interplay of interests within civil society, the regularities of which are perfectly apt to be mapped like any other natural process. Liberal governmentality thus builds on the insights of political economy and the ‘veridiction’ of the market (Foucault 2008, 31–34) to restrict its interventions in civil society’s economic life. In reverse, liberal governmentality ensures the required (political and entrepreneurial) liberties both by producing (enabling) and destroying (restricting), that is, by managing freedom as the indispensable ‘natural’ element of economic life (Foucault 2008, 63–65; 2009, 48–49, 350–53). Although in many respects the complete reversal of police state governmentality, we after all encounter in liberal governmentality, once again a pastoral power-like art of governing directed towards the conduct of ‘each and all’ (by providing the required ‘freedom’ to enable the economic process), based upon an extraction of truth (generated by political economy’s reading of the market), in view of the prospering of society at large.
Very much the same can be said about neo-liberalism, the final stage in Foucault’s genealogy of governmentality. Although quite different from the liberal art of governing, neo-liberal governmentality, too, exhibits the main features of pastoral power. In line with liberalism, neo-liberalism subscribes to the self-limitation of government, but gives it a different twist. In contrast to the classical liberal view of the naturalness of free exchange on the market, neo-liberal governmentality considers competition between entrepreneurs as the essence of the market. Yet unlike exchange, competition is not a natural given; it is a highly artificial mechanism that produces beneficial effects only under optimal working conditions. The organization of the market according to the principle of competition therefore implies sustained efforts (Foucault 2008, 118–21). Here lies the task for neo-liberal governmentality. The government should not intervene in the market but in its social preconditions. It should organize the social context in such a way that economic competition can perform optimally (Foucault 2008, 132–34, 145–46). This includes at least two measures. First of all, the government should generalize competition by creating market-based transaction contexts for individuals, groups and institutions by strengthening and implementing competition and entrepreneurship wherever possible (Foucault 2008, 146–47). Second, it should create a society of entrepreneurs in which every individual would become an entrepreneur of oneself backed up by one’s own human capital. In both cases, neo-liberal governmentality would appeal to the behavioral recalibration of political economy as rational choice theory in order to provide the theoretical underpinnings for conceptualizing and supporting both processes (Foucault 2008, 219–23). Here again, the contours of pastoral power are discernible: the direction of conduct of individuals (by inculcating the molds of competition and entrepreneurship) based upon and in accordance with knowledge (the findings of rational choice theory).
What does the above-mentioned outline of governmentality’s multifarious history reveal about its features as a distinctive power arrangement? First of all, whereas the form and medium of sovereign power is the law, the various arts of governing we have discussed suggest that their form and medium is knowledge. Obviously, this does not imply that there is no knowledge involved in sovereign power. It means most importantly that the relationship between the arts of governing and knowledge is a constitutive one: ‘they cannot function unless knowledge, or rather knowledge apparatuses are formed, organized, and put into circulation’ (Foucault 2003a, 24, 33–34) – very much analogously, moreover, to sovereign power which must produce laws in order to operate. So, however different, all forms of governmentality build on knowledge, albeit in various ways.
For example, in the mercantilist police state, police interventions in the price settings of grain were based upon collected data concerning the correlation between grain shortage, price rises and the outbreaks of famine and revolts (Foucault 2009, 30–33). But the arts of governing also produce knowledge. Governmental interventions constitute learning processes, the results of which are included in the knowledge upon which subsequent governmental interventions are based. To stick with the previous example, every statistics-based police intervention with regard to price settings results in new data which are integrated into new statistics upon which subsequent police interventions are based.
Secondly, whereas sovereign power aims at upholding the prevailing juridical state order within a given territory, governmentality has a predominant economic purport (Foucault 2009, 94–5, 106, 107–8, 379). It tries to further the economic advancement of the population, and in view thereof, it concentrates on directing the behavior of individuals.
Thirdly, in contrast to sovereign power, governmental power does not direct the conduct of individuals by means of laws, but by means of norms. Especially in his discussions of disciplinary power, Foucault has repeatedly pointed at the contrasts between norms and laws (1995, 183–84; 2001b, 374; 2003a, 37–8). Unlike laws, norms are standards, used to both direct and assess individual or collective behavior. Setting a norm means setting the standard that a certain behavior should meet, and hence, against which the actual displayed behavior can be measured. Accordingly, norms always include a principle of correction and are linked to techniques of transformation (Foucault 2003b, 49–50). In addition, in contrast to laws, norms do not claim general validity, but only apply to specific forms of behavior of definite individuals or groups in particular situations. Norms can therefore be used to very precisely differentiate between individuals. In opposition to laws, norms can therefore be said to hold on the level of the individual (Foucault 1995, 184). Furthermore, having individuals or collectives complied with norms requires permanent and meticulous observation and apposite interventions (Foucault 2006, 47; 2015b, 195–96).
To sum up, the distinctive common feature of the varied forms of governmental power is that they aim at directing (individual) conduct on the basis of norms which result from processing knowledge. This particular interplay within governmentality between exerting power and the processing of knowledge makes it into a never-ending learning process. The knowledge-based norm setting, which informs the direction of conduct, is to be complemented by the outcome of this process, which in turn will inform the subsequent process of directing the conduct, and so on. The persistent interplay between governmental power and knowledge thus results in aligning the actual conduct increasingly better with the norms set. 15 This means that governmentality is open to rationalization, and not just to some rationalization, but in principle to an endless and immoderate (i.e. excessive) rationalization (Foucault 2001b, 954, 1043–44) because the alignment of the actual conduct with the intended norm can always be improved.
However, Foucault’s point, regarding the predicament of the excessive potential of governmental reason, lies above all in its contrast with sovereign power. Time and again, Foucault explains that governmentality is incompatible with sovereign power and vice versa (2008, 273–75, 283; 2009, 165; 2014, 229–31). This does not mean, though, that they exclude one another or that they cannot go together in one way or another. For this is precisely what typifies the modern state. As pointed out earlier, the modern state is precisely the result of a peculiar intertwinement of sovereign power and governmental practices (Chevallier 2013, 3–5; Foucault 2001b, 963, 1009–12, 1047–48; 2003a, 34–39). What Foucault means by their incompatibility is that neither power arrangement can be reduced to the other, or can be described or translated into the other’s terms, since their principles and inner logics are too different. Due to their different setup qua aims, techniques and procedures, governmental practices do not in any way establish legal relations or exert power by legal means. As a distinct power arrangement, governmentality operates, so to speak, beyond the confines of the law. Yet this again does not mean that governmentality is illegal or that its operations are against the law. Rather, the domain in which it exerts power – namely, individual conduct – and the means it uses – knowledge-based norm settings – fall beyond the scope of the law (Foucault 1978, 88–89; Gehring 2007, 157–58). On various occasions, Foucault indeed points out that governmentality operates within an extralegal or infra-legal domain (1995, 178, 222; 2001b, 204, 385; 2003a, 27–28; 2006, 50–51; 2009, 340). Talking about disciplinary power, Foucault states even more clearly that it ‘covers a domain that the law leaves blank’ (1995, 178), that is, it exerts power precisely within those areas that fall outside the jurisdiction of the law.
This indeed sharpens the predicament of the excessive potential of governmentality. If governmental power cannot be framed in terms of the law because it operates in areas which fall outside the reach of the law, then one might infer that governmentality cannot be contained by the law either. The law might indeed be incapable of curbing or restraining governmental power because the latter operates on a different level (down to individual conduct), with different means (expert- or knowledge-based norm setting) and different goals (the transformation of individual conduct). From this perspective, we may encounter a decisive ideal-typical difference between governmentality and sovereign power. While the latter obviously can also become excessive or despotic, it is possible to contain, curb or restrain it by the very medium through which it is exerted – that is to say, by the law. Granting rights and liberties to citizens or delineating a juridically warranted private sphere, protecting the individual from excessive intrusions by the law, exemplify how this may go about. Yet this does not seem to be an option for governmental power. Due to governmentality’s extra- or infra-legal character, the law actually seems unsuited as a means of containing, curbing or resisting governmental power, which – if true – would make the law virtually powerless against governmentality’s built-in tendency towards excess. 16
Eventually, this dynamic brings into view the intricacies of the governmentality/law relationship. Obviously, governmental power techniques are never deployed within a juridical vacuum. As a rule, they operate within broader legal frameworks which support them, even if only by providing them with legitimacy (Golder and Fitzpatrick 2009, 24). Police interventions in the mercantilist police state, the production of freedom in the age of liberalism and the neo-liberal generalization of competition in all societal domains have all been backed up by legal frameworks. One might even add that much legislation has arisen in the slipstream of these and other governmental schemes and programs in view of upholding, reinforcing and authorizing them (Foucault 1978, 187–88; 2003a, 38–39; 2009, 102; Golder and Fitzpatrick 2009, 27, 33–34). However, this juridical embedding does not say the least about the concrete operational procedures, the intensity and the scope of these governmental power techniques: how they are applied, in what detail, with which rigor and consistency and so on. And it says nothing at all about their inbuilt immoderateness. Foucault already discussed this issue in Discipline and Punish by pointing to the distinction between the legal provisions of criminal law and the penitentiary regime (1995, 129–31, 182–83, 247–48; see also below). Whereas the law stipulated that criminals had to be imprisoned and thus subjected to a penitentiary regime, it said nothing about the what and the how of that regime: about its disciplinary techniques, the way these techniques were applied and implemented, the intensity and scope with which the inmates were subjected to them and so on. Very much the same could be stated about the governmental techniques of surveillance and control within the mercantilist police state or regarding the society-wide implementation of competition and entrepreneurship in neo-liberalism. Although these governmentalities are equally supported and framed by legal provisions, the latter do not disclose anything about the modalities of the former’s application nor about the (infinitesimal) level of their implementation. In fact, these legal provisions do not even have the slightest control over it, since they are not designed for it. They provide the general juridical framework, but unlike governmentalities, they do not direct and/or monitor individual behavior. The law constitutes at most an external limit to these governmentalities, as Foucault puts it, but not an internal one (2008, 9–10). The inbuilt immoderateness of governmental techniques cannot, therefore, be appropriately blocked or contained by mere legal regulations; they always inevitably manifest an excess vis-à-vis those regulations. 17
In addition, it is because of this inbuilt immoderateness of governmental techniques, which makes their inner drive and final outcomes uncontainable by the law, that Foucault was forced to conceive of their resistance in terms of counter-conduct. In a most clarifying passage in Security, Territory, Population, Foucault points out how only the concept of counter-conduct aptly expresses the particular kind of ‘struggle against the [pastoral or governmental] procedures implemented for conducting others’ (2009, 201). Precisely, because governmental techniques are geared towards the transformation of individual conduct, resistance against them inevitably engages the individual as such, including its attitudes and mode of life. Therefore, more classical notions like ‘revolt’, ‘dissidence’, ‘insubordination’ or ‘disobedience’ do not capture this ethico-existential dimension of the struggle against governmental directions of conduct. For the same reason, one could argue, with Arnold I. Davidson, that claiming rights or appealing to the law is equally insufficient to counteract the invasive power of governmental techniques. Such counteracting eventually implies the invention of alternative conduct, a new way of life, a new subjectivity and thus a new relation to self and others. In brief, it engenders a new ethos (Foucault 2009, xxix–xxx). 18
3. The governmentalization of the state
Now that I have characterized sovereign power and governmentality as the two distinct power arrangements which, according to Foucault, are at the origin of the modern state, it is time to indicate how they ended up being intertwined. I will do so by pointing out the nature of the intertwinement and illuminate it by two examples, in which I will not only indicate the how of the intertwinement, but also exemplify my general claim that governmentality techniques give rise to an excess of power which can neither be legally curbed nor controlled.
As indicated in the introduction, Foucault’s narrative on the genealogy of the modern state is not so much about how the modern state came to be through governmental practices, but rather about the constitutive interplay between sovereign power and governmentality ensuing in the gradual ‘governmentalization of the modern state’. With the latter formula, he contends that the state as we know it today is the result of the progressive and increasing ‘absorption’ of governmental practices and techniques by the state. In Foucault’s own words, the state as we know it today is the result of the progressive ‘statification’ (étatisation) of ‘governmentalities’ (2008, 77, 191–92). More specifically, Foucault argues that the medieval, juridical state and the early modern administrative state of the 16th and 17th centuries, in which sovereign power was still overwhelmingly predominant, gradually morphed into the state as we know it today, in which the ongoing integration of governmentalities – and especially those that were developed since the 18th century – has outgrown by far the original sovereign framework. Foucault even claims that it is precisely this process of governmentalization that has allowed the sovereign state to survive (2009, 109). Be that as it may, the problem is how to understand this ‘governmentalization of the state’. This question is all the more pressing given that, as we have argued earlier, the logic of sovereignty is fundamentally different from the logic of governmentality.
The overall picture is rather clear. Foucault conceives of state power as a meta-power (2001b, 151), that is, as a second-order power which relies on pre-existent power relations. As a rule, state power gradually incorporates and assimilates governmentality practices and techniques that were originally developed outside the state. 19 By integrating those governmentalities with other forms of state power, a double effect ensues. In the first place, these governmental practices and techniques are reinforced by state power: they are vested with legitimacy, they are embedded in and receive additional support from the established legal powers within the state apparatus, and by the same token, they obtain a wider outreach, a wider implementation. Secondly, the state itself is transformed. By time and again adopting and inserting new governmental practices within its own operations, state power is continually morphing into new forms (Skornicki 2015, 56–57, 62). Considered from this perspective, the relation between state power and existing governmentalities is circular. On the one hand, the actual state apparatus is dependent on those governmentalities to develop and extend its authority; on the other hand, those governmentalities are dependent on state power to be legitimized, widely spread and broadly implemented.
However, this circularity in itself does not yet address the issue of how exactly sovereign, that is, legally entrenched state power and governmentality interconnect. Eventually, the answer is to be found in their different logics. As indicated earlier, governmentality’s singularity lies precisely in its ability to exert power even within those areas which by necessity fall outside the jurisdiction of the law. If sovereign state power and governmentality interconnect, this can only mean that governmental practices and techniques are typically inserted in the blanks, niches and interstices of the state’s legal framework. As a result, they become part of the state’s overall functioning and share in its legitimacy, yet without their inner dynamics and excessive outcomes being contained, curbed or restrained by the state’s legal provisions, due, precisely, to their infra- or extralegal modi operandi and domains of application.
To illustrate this particularly complicated relationship, I will turn to two examples that concretize the intertwinement of sovereign state power and governmental techniques, as outlined earlier. Only in a few cases, did Foucault actually demonstrate how governmental practices and techniques became intertwined with the legal system of the sovereign state. The most complete and elaborate account of the interplay between both is still to be found in Discipline and Punish. 20
The penitentiary regime in the prison system
Although I have already referred to disciplinary power as a particular prefiguration of what Foucault would eventually conceptualize as governmentality, 21 it may still come as a surprise that I indeed consider disciplinary power as a particular form of governmentality. Governmentality, in Foucault’s writings, is a container concept which comprises very different types of governmental practices and techniques. In addition, Foucault was not always clear nor consistent regarding its scope. Thus, in Security, Territory, Population, immediately after launching the concept of governmentality, Foucault clearly differentiates between governmentality – which he primarily relates to biopolitical security dispositifs geared towards governing the population – and disciplinary power – which he above all associates with continued surveillance of imposed behavioral precepts in view of keeping control over the body of the individual (2009, 110; see also 44–46, 55–57). At the end of the course, however, when he discusses the disciplinary practices and techniques of the mercantilist police state, it is clear that he conceives of this disciplinary power as a form of governmentality (2009, 340–41). Be that as it may, it should be clear that disciplinary power perfectly matches the idea of governmentality, as Foucault readily admitted in his first Dartmouth Lecture (1993, 204). Disciplinary power shares with governmentality its origin in religion and specifically in pastoral power (Foucault 1995, 149, 161–62; 2006, 40–41, 52). Like governmentality, it can be considered as a modern manifestation of pastoral power, which especially during the administrative and mercantilist state informed the then prevailing arts of governing. In line with its pastoral pedigree, disciplinary power aims at transforming the individual by ‘improving’ his or her behavior and attitudes. In order to do so, disciplinary power relies on knowledge-based norm settings, and it does so predominantly for economic reasons, as Foucault demonstrated in detail throughout Punitive Society. In brief, disciplinary power exhibits essential features of the art of governing the self and others, that, from 1978 onwards, Foucault preferably refers to in terms of governmentality.
By focusing on the penitentiary regime in the prison system, Foucault points out how and in what way disciplinary power actually operates beyond the scope of the judicial system (Foucault 1995, 22), and therefore cannot be properly contained nor controlled by it. Crucially, in this respect, is the distinction between the penal system and the penitentiary regime (Foucault 1995, 247–48; 2015b, 149). By the penal system, Foucault refers to criminal law and the penal code, that is, the code that specifies the various offences and their corresponding penalties. Decisive for the legitimacy of the penal system is, of course, that the judge only sentences the offence: the criminal act, and nothing beyond that. However, as soon as the convict enters the prison to serve his sentence, he or she is subjected to the prison’s penitentiary regime. By this notion, Foucault refers to the disciplinary power arrangement that is operational within the prison system. This penitentiary (or disciplinary) regime meticulously determines the spatial distribution of the convicts, their daily routines and activities, the type of labor they have to perform and the required attitudes necessary to properly perform all of the above. In addition, the penitentiary regime arranges a permanent multistaged surveillance scheme and the development of a system of individual files to closely keep track of whether and how the convict makes progress (Foucault 1995, 231–56). From this concise description, it is clear that the penitentiary regime serves other objectives than simply punishing the crime (Foucault 1995, 22; 2008, 249–50). Indeed, in actual fact, the penitentiary regime aims at transforming, that is, correcting the conduct and dispositions of the convict (Foucault 1995, 179–80, 250–55; 2015b, 99–100, 139–40, 161–62). Yet the means and techniques it develops and employs to do so are neither deduced nor even deducible from the law, let alone from the verdict (Foucault 1995, 183). They constitute a surplus to the law and cannot be reduced to it.
This is exactly the point Foucault wants to make. The penitentiary regime, which is legally made possible by imprisonment, constitutes an excess in comparison to legal detention (Foucault 1995, 247–48). The surplus by which the penitentiary regime exceeds mere detention is situated in its disciplinary techniques. The object of the penitentiary regime is not the offence against the public order, but the deviant behaviour of the criminal (Foucault 1995, 251–52, 299–300). Since, as is assumed, this behavior is the real danger for society, it is necessary to normalize the criminal individual by means of disciplinary techniques (Foucault 1995, 182–83). However, as it is impossible to exactly determine what it means for a convict to be sufficiently normalized, those disciplinary techniques are liable to endless refinements and diversifications (Chevallier 2013, 7). Because of the individualized level at which they operate, these disciplinary techniques inevitably fall outside the scope of the law, which means that they cannot be controlled nor contained by it. 22
The entrepreneur of oneself in the neo-liberal state
The second example focuses on neo-liberal governmentality. Here again, the aim is to point to the inbuilt tendency towards excess within the neo-liberal art of governing and to demonstrate that this excessiveness is legally neither containable nor controllable.
Methodologically speaking, neo-liberalism is behavioral economics (Foucault 2008, 222–23). It seeks to incite and propel the economy by altering individual behavior. Neo-liberalism is therefore first and foremost an art of governing. More substantively, neo-liberalism aims at reconfiguring society in line with the market model. And since the essence of the market in the neo-liberal view is competition and market players are essentially conceived of as enterprises, this neo-liberal reconfiguration of society eventually comes down to strengthening the competition in those areas where it exists, implementing it wherever it is absent, and extending the model of entrepreneurship unto the very level of the individual (Foucault 2008, 117–21, 146–47, 224–26). Yet to be an entrepreneur of oneself within a competitive environment requires a continuous and in principle endless rationalization of one’s own conduct. One has to continuously augment and innovate one’s human capital (Foucault 2008, 230–33) and invest it rationally, in order to realize a ‘return on investment’. In view thereof, a variety of entrepreneurial techniques and practices have been developed which are open to endless rationalization and improvement (Foucault 2008, 268–69). Yet again, this inbuilt drive towards excessive optimization cannot be contained nor controlled by any legal means since it is enacted on an infra-legal level.
Just to illustrate the latter, let me give one example, taken from the current neo-liberal regime in academia: the upsurge of all sorts of self-assessment practices, like the creation of career portfolios, the introduction of performance interviews and so on (Dardot and Laval 2009, 309–13, 409–26; Lazzarato 2011, 75, 98–109). Individual academics invoke this technology to enhance their performances and visibility, all the while academic authorities impose these technologies as good practices of quality control. The point is that these technologies are not legal provisions, nor are they legally binding. In actual fact, they operate on an infra-legal level, beyond the confines of the law. This does not mean, though, that they are less coercive. On the contrary, they effectuate a binding commitment on the part of the individual. They commit individuals to take full responsibility for their own (past) achievements and (future) performances. Although these kinds of self-assessment practices and technologies may perfectly fit into contemporary academic policies and may even be supported by a wider legal framework to build competitive academic institutions, we encounter here governmental power relations which are infra-legal and therefore reach far beyond the mere contractual relationship. Furthermore, the development and refinement of these governmental techniques are subject to an internal dynamics which, on the one hand, is disconnected from legal provisions – thus making them ungovernable by any such provisions – and which, on the other hand, allows for endless improvement and rationalization. Eventually, it is the entanglement with these never-ending processes of improvement and rationalization, combined with being deprived from the possibility to appeal to any protecting legal measure, which today exerts an unrelenting subjecting and dominating power over the individual, more than any legal provision or sovereign power possibly could.
4. Conclusion
Foucault’s intimations of a genealogy of the modern state are indeed on to something new. They reveal governmentality as the modern state’s forgotten pedigree, next to, yet in its actual operations disconnected from sovereign power. As such, Foucault uncovers governmentality as a neglected and underestimated form of governmental power which challenges head-on the alleged power containing, controlling and restraining capacity of the law and its legal provisions. The conjoined observation that governmentality is liable to endless rationalization which in turn results in ever increasing relations of domination brings Foucault’s view of governmentality close to Weber’s and the early Frankfurt School’s bleak visions of the Western rationalization process. In contrast to these predecessors, however, and in the absence of any legal measures to counter this typically modern form of domination by governmental techniques and practices, Foucault ventures upon the politico-ethical concept of counter-conduct as its proper and viable form of resistance. In retrospect, Foucault’s observation that governmentality cannot be contained by legal provisions may have been a major trigger to closely re-examine the genealogy of pastoral power in the early 1980s. By backtracking the latter into Antiquity and the late Roman Empire, he may have envisaged deepening and refining his view of governmental techniques and of the potentialities of counter-conduct as their inevitable counterpart.
