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5994926 - Iosif Boancă – Ethics, Globalization and Sustainability

Legitimation of the power in the state.Theory of Power in the


Foucaldian understanding of the Sovereignty;

Introduction

In this modern society, the theory of power can be used as tool of analysis for predicting
actions and prospecting in the social sciences field. At the same time, in order to fully understand
the relationship between the governor and governed, citizen and state, it is important to analyze
the nature of the social contract and intrinsic, the report of power. One of the most interesting
aspects of the analyses made by Foucault concerning the modern political theories, shows that
there is something like a modern paradigm of the relationship between truth (knowledge) and
power, and this paradigm is common and needed to understand liberalism and anti-liberal
totalitarianism. The direction in which Foucault conducts his critique towards liberalism
concerns the classical theory of sovereignty, as it appears in Hobbes and Locke.

Foucault shows that the liberal theory of power is representative, in two ways. First,
power is seen as having a substance that can be communicated (representativeness)1 which can
also be correlated as a model to the participative democratic type of governance (i.e.
Switzerland) and second communicating this essences - actually giving up the right to the
sovereign - is seen as a representation of the individual into the power of the sovereign
(representation)2, displaying the conceptual frame for representative democracies. This paper will
debut with propaedeutics of one crucial concept such as power its distribution understood by
authors such as Hobbes. After that the inquiry will evolve with presenting the theory emitted by
the French author Michel Foucault, using two main text as tool of interpretation, Discipline and
Punish and Society Must be Defended.

2
5994926 - Iosif Boancă – Ethics, Globalization and Sustainability

Genealogy of concept of power from Hobbes to Foucault

Hobbes conceives human nature as violent and aggressive, "a known mood for fighting
when there is no assurance of the opposite meaning" 3. Natural individuals are in the "state of
nature"4, which is a war of all against all. Two principles characterize this natural state: the desire
to have all the goods for their own, that nature has given to each person and avoiding, through
every mean, a violent death.5 He conceives human nature as violent and aggressive, "a known
mood for fighting when there is no assurance of the opposite meaning". Natural individuals are
in the "state of nature", which is a war of all against all.6

The social contract is a cartel on the establishment of a "monopoly on violence" (the


definition belongs to Max Weber). The sovereign is not part of the contract and, therefore, the
withdrawal of obedience towards the Sovereign is illegitimate. He has the right of life and death
on his subjects. In case a Sovereign dies, his subjects are in the state of nature until the
appointment of a new Sovereign.7

Hobbes tends to reduce acquisition to convention, saying that submission determined by


fear of death has the value of a contract8. Ultimately, in the case of sovereignty established by the
transfer of the right, the natural cause is also the fear of violent death, and the one who
succumbed his right can no longer return to his "decision". The same is true in the case of war
between sovereigns; only this time, the states are in the natural state (the sovereigns), not the
individuals. The exposition of Hobbes' theory provides the answer to the question of if it can be
interpreted the relationship between established sovereignty and despotic sovereignty in the
opposite direction of Hobbes, without forcing the text of “Leviathan”. Namely, if the Sovereign
is not part of the contract, the establishment may appear as a sanctioning and freezing of a
preliminary force imbalance.

3
Thomas Hobbes, The Leviathan or the Matter, Form and Power of a Commonwealth Ecclesiastical and Civil, Sir
William Molesworth, 1839-1845, London,p.151; (accesed at http://oll.libertyfund.org/titles/hobbes-the-english-
works-vol-iii-leviathan)
4
Idem;
5
Idem, p.154;
6
Idem, p.154;
7
Idem;
8
Idem, p. 196;
5994926 - Iosif Boancă – Ethics, Globalization and Sustainability

At the same time, Hobbes doesn't propose a theory of the human species' improvement,
proving that, as soon as the sovereign disappears, people are back again in the natural state of
war of all against all. Therefore, the Sovereign has the permanent mission of disciplining the
human nature, because "not nature, but discipline makes a man capable of society" 9. Thus,
discipline means "the defeat" of the violent and aggressive human nature; its condition is "the
acquisition" of subjects by force, which is possible in the case of an unilateral situation of the
sovereign in the state of nature: he exercises a civil right through a natural violence. The
sovereign is always in a "war" of disciplining and intimidating his subjects, which requires the
formation of a "device" of forces that can guarantee the permanence of the established
imbalance.10

Then, people's natural inclination is to gain as much power as possible. Society offers the
model of the greatest possible power, a power that man cannot conceive in their natural state.
The effort to acquire or control this power means nothing more or less than admitting that social
peace is an organized and disciplined war, "neither of all against all, nor destitute of help", as
Hobbes quoted. In other words, any peace that follows a state of war means sanctioning and
freezing a force ratio. As the faculty alchemy in the constitution of individuals differs from one
to another, there will always be people willing to risk in order to redefine the contract in their
favor. And this is equivalent to saying that "politics means the continuation of war by other
means".

Governance under the Theory of Power. Foucaldian understanding of


the Sovereignty

Foucault reactivates the Nietzschean (post-modernist) hypothesis that no moral


construction or social convention can stop or intimidate the agonistic game of body forces.
Despite this closeness of appearances, Foucault explicitly rejects the idea of a link between the
Hobbesian theory and the interpretation of society as a game of opposing forces. Foucault refers
to Hobbes as the most prominent representative of the classical theory of sovereignty 11,
addressing the question of the social contract at a double level: firstly, concerning its theoretical
9
Idem;
10
Idem, p.116;
11
Michel Foucault, Il faut défendre la société, Gallimard-Seuil, 1997, p. 14;
5994926 - Iosif Boancă – Ethics, Globalization and Sustainability

bases, then concerning its historical foundations. It is about discussing the social contract as a
legal theory of power and constitution of sovereignty and revealing its dependence on a
particular historical situation, in which it appeared and in which it fulfilled a certain function.
Concerning the first issue, the French author shows that the contractualist theory of sovereignty
makes use of an essentialist assumption in the definition of power: “In the case of the legal
theory of power, power is considered to be a right that we possess as a certain good and which,
as a consequence, we may transfer or alienate, wholly or partially, by a legal act or a founding
act of law, which would be equivalent to cession or contract”12.

Power, in a concrete, physical understanding, that every individual possesses and which
they would end up yielding, wholly or partially, “in order to constitute a power, a political
sovereignty"13. Foucault names his theory of the contract "economical" 14, because the founders of
the liberal tradition have conceived the constitution of civil power according to the model of free
exchange, of exchange between individuals. As if power was something that existed extrinsic to
the relationship of power, and sovereignty was constituted by the representation or the staging of
this "something". He believes that history should be understood as a tense force ratio. And then,
"shouldn't we consider power first and foremost in terms of battle, confrontation, or war" 15? This
understanding of power is incompatible with the idea that society was born through a peace
treaty between equal individuals, who have decided to put an end to the state of war.

The birth of civil society would rather be equivalent to sanctioning an established


imbalance, at some point, within the general confrontation. But it is not a hopeless war, without a
winner, but a conflict decided either by the victory of a party or by the freezing of the force ratio
in its favor. Combining the idea of the violent human nature with the supposition of sanctioning,
by civil law with an imbalance of forces at some point, between the fighting forces, will result
into a “political power which does not begin when war is over."16 On the contrary, civil peace is
nothing but a continuation of war; The "final" decision can only come from the instauration of a

12
Idem, p. 16;
13
Idem, p. 63;
14
Idem;
15
Idem, p. 22;
16
Idem;
5994926 - Iosif Boancă – Ethics, Globalization and Sustainability

new imbalance or the continuous restoration of the original one. And that takes us back to the
saying "politics is nothing more than the continuation of war by other means"17.

Hobbes consider that faced with the threat of death, everyone has a natural right to defend
themselves. This right is inalienable and social contract cannot abolish it. But the problem is
elsewhere: everyone is free to defend or resist, in other words to die defending one’s own life,
but if someone decides to obey, by virtue of their freedom, this obedience must be regarded as
the act of a free will, so as a contract. It does not matter under what conditions submission took
place; the fact that it took place means the recognition of the sovereign's right of life or death.
Foucault shows that, in Hobbes' opinion, sovereignty through acquisition is reduced, eventually,
to a contract or to an establishment. Having the air of proclaiming war all over, at the beginning
and even at the end, Hobbes's discourse was actually saying the opposite. He was saying that,
with or without war, defeat or not, conquest or agreement, things are the same: "you have willed,
you, the subjects have constituted the sovereignty that represents you."18

In this context, the classical sovereignty analysis carried out by Foucault in Discipline
and Punish, acquires the significance of some historical evidence directed against the classical
contractualist theories, pointing out their historical character, located or hired.The Foucaldian
genealogy of power highlights the "utopian" character of the contractualist scenario: even if it
was a free-will establishment, ultimately, a relationship of domination and force is reached,
unless institutionalization only means seizing the will of those who consented, by a stronger will.

Thus, in Discipline and Punish, Foucault analyzes the classical sovereignty in its
exercise of restoring the order compromised by the criminal action. The image of the civil
society in the 17th and 18th centuries is that of a disciplined and controlled military field by the
sovereign's eye. If in the political philosophy there was a natural model of the civil state, built on
a theory of the natural state, it is no less true that it was doubled by "a military dream of society",
consisting of the project of building a war machine, by the disciplined and rigorous composing of
all its elements. The Hobbesian “Leviathan” is precisely this machine that disciplines human

17
Idem;
18
Thomas Hobbes, The Leviathan or the Matter, Form and Power of a Commonwealth Ecclesiastical and Civil, Sir
William Molesworth, 1839-1845, London,p.151; (accesed at http://oll.libertyfund.org/titles/hobbes-the-english-
works-vol-iii-leviathan);
5994926 - Iosif Boancă – Ethics, Globalization and Sustainability

nature. "It is possible that war, as a strategy, may be the continuation of politics. 19 But we must
not forget that "politics" was conceived as a continuation, if not exactly and directly of the war,
at least of the military model, as a fundamental mean to prevent the civil war. Politics, as
technology of peace and inner order, sought to develop the perfect army device, of disciplined
mass".

As a result, justice is based on the power of the sovereign, and the punishment of those
who are guilty of the disturbance of order is a ceremony where the power of the sovereign takes
place after a perfect ritual. Foucault analyzes the double significance of the public executions
that punish murder and do justice, but at the same time they do the public demonstration of the
sovereign's power. If the violation of law gets the meaning of an assault against the person of the
sovereign, the restoration of justice is equivalent to the revenge of the injured person: "the
torture's ceremony brings to light the power ratio that confers its power to the law. Public
execution has two faces: one [celebrates] victory, the other [continues] the fight". The main
character of public executions is the people, says Foucault. 20 As if the murderer himself was not
the only one guilty of the failure of order and authority, public repair is needed. The "contract"
has been violated, its restoration requires the presence of "witnesses". But this restoration is done
in terms of war and violence: the sovereign marks the signs of his authority on the convict's
body, and obedience to the conqueror presupposes the public confession and recognition of guilt.

Conclusion

By analyzing criminality and justice, Foucault shows us that, in fact, beyond the terms of
the contract, there is violence, conquest, cruelty or dependence. If Hobbes believed that
sovereignty was being established legitimately even where conquering is concerned, Foucault
points out that classical society denies this thesis; on the contrary, the establishment or the
contract itself means the permanence and sanctioning of a preliminary conquest. We can see here
the degree in which Foucault uses, in Hobbes' analysis, the common positions of the “Discourse
on (...) the inequality of people”. Paradoxically, Rousseau serves this hypothesis better than
Hobbes, and that because of his sensitivity to historicity. As a result, Foucault follows in Hobbes

19
Foucault, Surveiller et punir, Editions Gallimard, 1975, p. 171;
20
Idem p. 178;
5994926 - Iosif Boancă – Ethics, Globalization and Sustainability

the same gap between the discourse and the state of affairs that Rousseau had noticed: it is not
about equality and freedom, but about inequality and servitude; at stake it's not the free will, but
the force transfigured into law.

Concluding, this paper focused on the evolution power, proposing this even thing: to
show how exactly classical sovereignty meant the transformation of force into law (by
recognizing the right of life and death of the sovereign) and how it was disguised in the order of
the political philosophy discourse, in Hobbes, task that Foucault pays off in Discipline and
Punish and in Society Must be Defended. Even if nowadays the conceptualization of power is
fluid and it got different forms, accordingly with the correspondent type of governance, the
quintessence of human nature and the power report will remain a crucial factor.
5994926 - Iosif Boancă – Ethics, Globalization and Sustainability

Bibliography

 Foucault Michel, Il faut défendre la société, Gallimard-Seuil, 1997;


 Foucault Michel, Surveiller et punir, Editions Gallimard, 1975;
 Hobbes Thomas, The Leviathan or the Matter, Form and Power of a
Commonwealth Ecclesiastical and Civil, Sir William Molesworth, 1839-1845,
London;