Contributions to a Post-Sovereigntist Understanding of Law: Foucault, Law as Governance, and Legal Pluralism
| Author | Kevin Walby |
| DOI | 10.1177/0964663907082735 |
| Date | 01 December 2007 |
| Published date | 01 December 2007 |
| Subject Matter | Articles |
CONTRIBUTIONS TO A
POST-SOVEREIGNTIST
UNDERSTANDING OF LAW:
FOUCAULT, LAW AS
GOVERNANCE, AND LEGAL
PLURALISM
KEVIN WALBY
Carleton University, Canada
ABSTRACT
This article proposes an understanding of law that goes beyond the popular association
of law with sovereignty, constitutionalism and representative political institutions. By
drawing on insights provided by the law as governance and ‘non-essentialist version
of legal pluralism’ approaches, the focus is on retrieving the specificity of plural
legal and normative ordering strategies. The law as governance approach proposes a
modest role for law where law is conceived as connectively situated among a multi-
plicity of other constitutive modes of regulation. The ‘non-essentialist version of
legal pluralism’ is a conventionalist rearticulation of the hitherto unproblematized
tradition of legal pluralism. Comparing the law as governance and ‘non-essentialist
version of legal pluralism’ approaches contributes to a post-sovereigntist understand-
ing of law. A post-sovereigntist understanding of law focuses on the state as a site for
the unification of regulatory projects, but, inspired by Michel Foucault’s later works,
finds it important to place analyses of law within the context of a decentered economy
of productive power and extensive government. This post-sovereigntist understanding
not only provides a clearer depiction of the way legal and normative ordering and
their interrelations work in the everyday, but raises questions regarding the future of
legal pluralism in socio-legal theory.
KEY WORDS
Foucault; governance; Hunt; law; legal pluralism; post/sovereignty; Tamanaha
SOCIAL &LEGAL STUDIES Copyright © 2007 SAGE Publications
Los Angeles, London, New Delhi and Singapore, www.sagepublications.com
0964 6639, Vol. 16(4), 551–571
DOI: 10.1177/0964663907082735
INTRODUCTION
Law, as a unified phenomenon governed by certain general principles is a fiction.
(Rose and Valverde, 1998: 545)
THE WORDS ‘norm’ and ‘law’ (it is assumed that the former predates
the latter) are shorthand idioms referring to the plural operation of
normative and legal ordering across multiple sites of social conduct.
Norms are associated with moral orders of interaction, culturally bound
modes of channeling individual drives and emotions (Giddens, 1993/1976).
Law refers more to calculative attempts at achieving conformity with an
historically received norm, where a staff is specifically ready for legal ordering
activities. This impression of a staff of people holding themselves ready for
the application of law comes from Max Weber’s (1954: 5) definition of law.
None of this should be taken to imply that there is some sort of mutual exclu-
sivity between laws and norms. The two are always interrelated, resulting in
a substantial coordination of behavior. Modes of social ordering (be they
legal or normative) make people able to be acted upon. Though the inter-
relationship between norms and laws has been central to many analyses of
law (see Durkheim, 1997/1933; Ewald, 1991; Habermas, 1998; Tadros, 1998;
Twining, 2000), we still do not understand well the complexity of social
ordering and its irreducibility to legal ordering.
A ‘remarkable gap’ exists between sociological accounts and legal discussions
of analogous legal phenomena (Twining, 2005: 239). Despite being discon-
nected from one another, recent sociological (the law as governance approach)
and legal studies (the ‘non-essentialist version of legal pluralism’) writings have
made advances in terms of conceptualizing law in relation to norms as they
connect to broader processes of social ordering. These recent writings, as I
detail below, come from divergent theoretical traditions but are converging
on a number of issues. I read these two approaches against each other so to
propose a post-sovereigntist understanding of law. By ‘sovereigntist’, I am
not referring to a secessionist will but to the lay and scholarly tendency to
conceive of the political as agonistically dueled out between civil society and
the state or states themselves, which posits law as made and judged by the
legislative and judicial branches of state-government then enforced by the
policing agencies of the executive. By ‘post-sovereigntist’ I am referring to
the way power is immanent in our social practices and conduct. A post-
sovereigntist understanding of law continues to focus on the state as a site
for the unification of regulatory projects, but finds it important to put our
analyses of law within the context of a decentered economy of power and
governance. The benefits of this post-sovereigntist approach are that: (1) law
is always conceptualized as a process; (2) the specificity of legal and normative
ordering is retained yet their interpenetrating tendencies are acknowledged;
and (3) the hegemonic fiction of law as a unified phenomenon is broken.
The article begins with an analysis of Michel Foucault’s concern with law
in Discipline and Punish as well as The History of Sexuality, Volume I.
Foucault has been accused of conflating monarchy-law-sovereignty as against
552 SOCIAL & LEGAL STUDIES 16(4)
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