Limits to Legal Reasoning and

Critical Legal Theory

　　

From Critical Theory to

Critical Legal Theory,
Gender and Law, and
Legal Orientalism
Michael Foucault

“The Subject and Power”

Power and Law
The Birth of Prison
https://www.book komiyama.co.jp/booklist_detail.php?item_id=80607
 Reading
Turkel, G.
Michel Foucault: Law, Power, Knowledge
Via HerinOnline.org, 170-193.

Michael Foucault
“The Subject and Power”
Critical Inquiry, V. 8 (4) 1982, 777-795
 Additional optional reading:

17 Chicano-Latino L. Rev. 118 (1995)

Critical Race Theory and Proposition 187: The Racial Politics of Immigration Law; Garcia, Ruben J.
A professor at Harvard gets arrested while trying
to enter into
his own house

https://www.nytimes.com/
2009/07/21/us/21gates.html
Following the legal reasoning?

A neighbor in a prominently white

neighborhood

A black man trying to enter into a house

 Burglary
Legal elements to establish burglary as a crime
1. Breaking
2. Entering
3. Of a dwelling
4. Of another
5. At nighttime
6. With intent to commit a felony therein
 Power before Reasoning

The notion of power

Dichotomized powerful and powerless category
 Powerful vs Powerless

1. Speech styles
2. High register v. Low register
3. The symbols which represent power
Ex: Red and Black
4. Fair trial without a court interpreter?
Yes and no answers (JPN/ENG)
 Law as Social Control

Customs
Cultural practice
Historical context
Ex: Foot Binding
 Dichotomy

Benefit Burden
Supply Demand
Credit Debit
Lessor Lessee
Assignor Assignee
 Dichotomized Structure
• Powerful • Powerless
• West • Non-West/East
• Civilized • Barbaric
• Formal Education • Informal Education
• Men • Women
• Financially prominent • Poor
• Professional • Non-professional
• Colonizer • Colonized
• Self • The Other
 Empowerment

Is empowerment possible?

Historical context
When did a word “harassment” appeared?
Employment tracks
 Predisposed

Pre-conception

Common Sense?

To Be To Be TEN Made To Be

Same サメ
 Brown v. Board of Education

Separate but equal?

De-segregation

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954),was a landmark decision
of the U.S. Supreme Court in which the Court ruled that U.S. state laws establishing
racial segregation in public schools are unconstitutional, even if the segregated
schools are otherwise equal in quality.
Handed down on May 17, 1954, the Court's unanimous (9–0) decision stated that
"separate educational facilities are inherently unequal", and therefore violate the
Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.
However, the decision's 14 pages did not spell out any sort of method for ending
racial segregation in schools, and the Court's second decision in Brown II (349 U.S.
294 (1955)) only ordered states to desegregate "with all deliberate speed“
(https://en.wikipedia.org/wiki/Brown_v._Board_of_Education)
　 Lexis/Nexis 　　 Search engine
 Racial Profiling

• Racial discrimination
• Establish a profile according to the pre-
conception
• “Stop and frisk” by a police
 Foucault
1. Reason, science, exclusion
2. Reason, madness, and confinement
3. Law and medicine
4. Madness and Civilization
5. Discourse and exclusion
6. Law and discipline
7. Law, truth, body of the accused
Ex: Public torture, prison, etc.
 Foucault

1. Docile bodies, knowledge

2. Social usefulness
3. Norms of behavior – correct behavior
4. Discourse of repression
 Panopticon

The Center v. The Periphery

Men v. Women - Patriarchy
Major v. Minor
West v. Non-West
English v. Second Language
 Why study power?

The question of the subject

Objectification
False Consciousness

Production and signification

Legitimate power – institutional models
 Why Study Power?

…….. first of all, what has been the goal of my work

during the last twenty years. It has not been to analyze
the phenomena of power, nor to elaborate the
foundations of such an analysis. My objective,
instead, has been to create a history of the different
modes by which, in our culture, human beings are
made subjects. My work has dealt with three modes
of objectification which transform human beings into
subjects (Foucault, 1982, 777).
1. It is a form of power whose ultimate aim is to
assure individual salvation in the next world.
2. Pastoral power is not merely a form of power
which commands; it must also be prepared
to sacrifice itself for the life and salvation of
the flock. Therefore, it is different from royal
power, which demands a sacrifice from its
subjects to save the throne.
3. It is a form of power which does not look
after just the whole community but each
individual in particular, during his entire life.
4. Finally, this form of power cannot be
exercised without knowing the inside of
people's minds, without exploring their souls,
without making them reveal their innermost
secrets. It implies a knowledge of the
conscience and an ability to direct it (p.783).
 How Power is Exercised
… a power relationship can only be articulated on
the basis of two elements which are each
indispensable if it is really to be a power
relationship: that "the other" (the one over whom
power is exercised) be thoroughly recognized and
maintained to the very end as a person who
acts; and that, faced with a relationship of power,
a whole field of responses, reactions, results, and
possible inventions may open up.
 Dichotomized Structure
• Powerful • Powerless
• West • East
• Civilized • Barbaric
• Formal Education • Informal Education
• Men • Women
• Financially prominent • Poor
• Professional • Non-professional
• Colonizer • Colonized
 The Exercise of Power
The exercise of power can produce as much
acceptance as may be wished for: it can pile up
the dead and shelter itself behind whatever
threats it can imagine.

In itself the exercise of power is not violence;

nor is it a consent which, implicitly, is renewable.
It is a total structure of actions brought to bear
upon possible actions; it incites, it induces, it
seduces, it makes easier or more difficult; in the
extreme it constrains or forbids absolutely; it is
nevertheless always a way of acting upon an
acting subject or acting subjects by virtue of
their acting or being capable of action. A set of
actions upon other actions (Foucault, 1982,
780).
 Analysis of Power
First, the fact that an important part of the
mechanisms put into operation by an institution
are designed to ensure its own reservation
brings with it the risk of deciphering functions
which are essentially reproductive, especially in
power relations between institutions (780).
Second, in analyzing power relations from the
standpoint of institutions, one lays oneself open
to seeking the explanation and the origin of the
former in the latter, that is to say, finally, to
explain power (780).

系普
 The system of differentiations which permits one to
act upon the actions of others: differentiations
determined by the law or by traditions of status and
privilege; economic differences in the appropriation
of 　 riches and goods, shifts in the processes of
production, linguistic or cultural differences,
differences in know-how and competence, and so 　
forth. Every relationship of power puts into operation
differentiations which are at the same time its
conditions and its results (780).
2. The types of objectives pursued by those who
act upon the actions of others: the maintenance
of privileges, the accumulation of profits, the 　
bringing into operation of statutary authority,
the exercise of a function or of a trade (780).
3. The means of bringing power relations into
being: according to whether power is exercised
by the threat of arms, by the effects of the word,
by means of economic disparities, by more or
less complex means of control, by systems of
surveillance, with or without archives, according
to rules which are or are not explicit, fixed or
modifiable, with or without the technological
means to put all these things into action (780).
 Panopticon

https://en.wikipedia.org/wiki/Panopticon
4. Forms of institutionalization: these may mix traditional
predispositions, legal structures, phenomena relating to custom
or to fashion (such as one sees in the institution of the family);
they can also take the form of an apparatus closed in upon itself,
with its specific loci, its own regulations, its hierarchical structures
which are carefully defined, a relative autonomy in its functioning
(such as scholastic or military institutions); they can also form
very complex systems endowed with multiple apparatuses, as in
the case of the state, whose function is the taking of everything
under its wing, the bringing into being of general surveillance, the
principle of regulation, and, to a certain extent also, the
distribution of all power relations in a given social ensemble.
5. The degrees of rationalization: the bringing into
play of power relations as action in a field of
possibilities may be more or less elaborate in
relation to the effectiveness of the instruments and
the certainty of the results or again in proportion
to the possible cost (be it the economic cost of the
means brought into operation or the cost in terms
of reaction constituted by the resistance which is
encountered, Foucault, 1982, 792).
 The dangerous reason

1. Rationalization
2. Power relations
(1) Transversal struggles
(2) Exercise of uncontrolled power
(3) Immediate struggles
Ex: Movie, Camille Claudel
 How is power exercised?

1. Symbolic medium
2. Systems of communication
Production of meanings
3. Preeminence to power relations and
obedience
Ex: Labor unions?
 Relations of power

Strategies
Direct confrontation as a winning strategy?
Violence?
Force?
Overcoming the domination
Empowerment
 Power in AI Era

How would the notion of power change in the

age of AI?
 Application of Critical Theory
• What is Critical Legal Theory?
• Formalism /Anti-Formalism
• What is the definition of culture in
CLT ・ F/ ・ AF?
• Provide one or two examples.
• Examples can be from newspaper articles or
books or actual legal cases.
 
 
Critical legal theory integrates the study of law
with social or cultural theories. Traditionally,
law focused on legal principles and the “black
letter law.”
The black letter law means each legal principle
has a set definition and issues are analyzed
only within the parameter of legal rules.
An apologetic statement can be a good example.
If a legal rule states that an apology is one’s
voluntary admission of his or her wrong
doings, the person who actually apologizes
would be considered as admitting wrong
doings
The problematic point here is that the legal rules
can be culture bound. Critical legal theory
challenges problematic and limited
interpretations in legal rules and legal notions.
In critical legal theory, traditional boundary of
law is no longer valid because the world is
becoming more global and societies are
getting diverse. Suppose a Japanese person
made an apologetic statement in front of the
American court, the consequence would be
profound. In critical legal theory, cultural
differences and particular cultural notions
become the central concept.
The definition of culture in CLT is diverse and
interdisciplinary. Critical legal theory often
seeks the notion of culture in relation to the
use of the language or rhetoric. The construct
of the language is sometimes expressed as
“discourse.”
An example: Suppose a woman accountant
came to a professional association and was
rejected at the reception because she was
considered as not an invitee.
In fact, she was actually a certified accountant
and the member of the association. The
problem was that the person at the reception
was not used to see a lady member since the
association is predominantly composed of
men. From the CLT perspective, the woman
can initiate a cause an action (sue) for an
official apology or discrimination against
gender.
 Limits of Formalism
• A judge will unilaterally define what culture is
based on his own knowledge and experience
• What if his/her knowledge is culturally-
limited?
• Apology would be taken as a face-value
• Apology would be interpreted only from the
American or given jurisdiction’s due process
 Limits of Anti-Formalism
• Lack of a judge’s cultural knowledge
Liberal interpretation would be not relevant.
How can a non-existing legal concept be applied
to a person from a different culture?
Punitive Damage is an example
A need for a global legal standard?
American style of law school – LSAT, jury system
 比較判例
http://www.soumu.go.jp/iicp/chousakenkyu/sei
ka/houkoku/pdf/houkokusho.pdf