Foucault on “Avowal”: Theatres of Truth from Homer to Modern Psychology

FOUCAULT, MICHEL. 2014 . Wrong‐Doing, Truth‐Telling: The Function of Avowal in Justice . Ed. Fabienne Brion and Bernard Harcourt, trans. Stephen Sawyer. Chicago, IL: University of Chicago Press. Cloth $35.00, E‐book $7.00 to $30.00. The publication of a previously unknown set of lectures delivered by Foucault in 1981 at Louvain's criminology institute constitutes a major revelation for legal and criminological scholars (Wrong‐Doing, Truth‐Telling: The Function of Avowal in Justice, 2014). The lecture material includes an extended discussion of the techniques used by Oedipus to establish the truth of his familial crime, a reflection on the beginnings of the inquisitorial justice system (which Foucault here argues paved the way for the scientific revolution), and analyses of contemporary forensic confessions. Throughout these meticulously edited lectures, the scientific and philosophical “inquiries” that revolutionized modern European knowledges are shown to be rooted in embodied practices of confession and avowal that go back to ancient Greece.     

Does the Australian Competition and Consumer Commission Engage in “Trial by Media”?*

In recent years, heated debate has arisen concerning the media practices of Australia's competition and consumer regulator (“the ACCC”), with a number of industry leaders asserting that the ACCC engages in “trial by media.” The public disquiet surrounding the ACCC's use of the media was so significant that the Australian Parliament established an independent committee of inquiry (“the Dawson Inquiry”) to investigate (amongst other things) whether Australian competition legislation “provides adequate protection for the commercial affairs and reputation of individuals and corporations.” In its report, the Dawson Inquiry observed that widespread misgivings about the ACCC's media practices had emerged from the submissions that it had received. In its recommendations to the Australian Parliament, the Dawson Inquiry recommended that the ACCC should develop a media code of conduct to govern its use of the media, particularly in relation to enforcement proceedings. In making these recommendations, the Dawson Inquiry drew from a hitherto unpublished research study conducted in 2002 that sought to identify the extent to which the ACCC engages in “trial by media.” This article documents the design, methodological bases, and findings of that study in order to facilitate broader dissemination of the research findings upon which the Dawson Inquiry's policy recommendations concerning the ACCC's use of the media were based.     

Libertarian Paternalism,Externalities, and the “Spirit of Liberty”: How Thaler and Sunstein Are Nudging Us toward an “Overlapping Consensus”

In their 2008 book Nudge: Improving Decisions about Health, Wealth, and Happiness, Richard Thaler and Cass Sunstein use research from psychology and behavioral economics to argue that people suffer from systematic cognitive biases. They propose that policy makers mitigate these biases by framing people's choices in ways that help people act in their own self‐interest. Thaler and Sunstein call this approach “libertarian paternalism,” and they market it as “the Real Third Way.” In this essay, I argue that the book is a brilliant contribution to thinking about policy making but that “choice architecture” is not just a solution to the problem of cognitive biases. Rather, it is a means of approaching any kind of policy making. I further argue that policy makers must take externalities into account, even when using choice architecture. Finally, I argue that libertarian paternalism can best be seen as motivated by what Sunstein has celebrated in his work on constitutional theory: a humility about the possibility of policy‐maker error embodied in Learned Hand's famous aphorism about the “spirit of liberty” and an attempt to reduce social conflicts by searching for what John Rawls called an “overlapping consensus.”     

“Great Men,” Law,and the Social Construction of Technology

Is Alexander Graham Bell's fame owed to law and lawyers? Two recent histories argue that some popular tales of invention originated with lawyers and judges as part of patent litigation battles (Stathis Arapostathis and Graeme Gooday , Patently Contestable: Electrical Technologies and Inventor Identities on Trial in Britain [2013]; Christopher Beauchamp , Invented by Law: Alexander Graham Bell and the Patent That Changed America [2015]). Bringing law into the historical project of understanding the social construction of technology, the authors unsettle “great man” narratives of invention. A tale of a recent patent war is a case study in the persistence of such narratives, highlighting the uses of legal storytelling (Ronald K. Fierstein , A Triumph of Genius: Edwin Land, Polaroid, and the Kodak Patent War [2015]). Together, these works invite consideration of the cultural power possessed by invention origin stories, the role of narratives in law and history, and the judicial performance of truth finding in Anglo‐American law .     

War and International Order in Kant's Legal Thought“*

Abstract. Kant's writings on international law and especially his Toward Perpetual Peace have been interpreted both in a “statist” and a “cosmopolitan” manner. In this article it is argued that these interpretations stem from an ambiguity in those writings. In the course of proposing a resolution of this ambiguity, the first question to be examined is the extent to which war forms a part of human history and of human nature. Secondly, Kant's arguments against the realistic position and the conditions for a lasting peace are presented. An interpretation is then offered both of the proposed league of nations and of the situation that exists when such a league is still absent. According to the interpretation offered here, Kant's writings fit partly within the tradition of the “just war.”¹     

Holmes, Langdell and Formalism

Both Holmes and Langdell believed that science was the model for all human inquiry and the source of all human progress. Langdell was influenced by an unsophisticated scientism, which led him to attempt to identify the true meaning of legal doctrines. Holmes was influenced by the sophisticated positivism of John Stuart Mill, which led him to attempt to reduce legal rules and doctrines to scientific laws of antecedence and consequence, justified only by their social consequences. Both Holmes and Langdell concluded that judges ought to decide a case by applying the rules established by precedent, without appeal to any special claims of justice and without appeal to any higher-order normative principle.     

Hate Speech,Group Libel,and “Ford's Megaphone”

Woeste, Victoria Saker. 2012 . Henry Ford's War on Jews and the Legal Battle Against Hate Speech . Stanford, CA: Stanford University Press. Pp. xv, 408. $55.00, cloth; $24.95, paper. This essay on Victoria Saker Woeste's Henry Ford's War on Jews and the Legal Battle Against Hate Speech (2012) emphasizes that what made Ford's broadsides against Jews in the 1920s so dangerous was technology—his command of an unparalleled network of distribution, through his nationwide Ford dealerships. In addition, at the time of Ford's libels, US legal culture had not yet absorbed the idea that ideological and psychological subordination of minority groups was the principal harm worked by what would later be called “hate speech.”     

Enacting the “Incomprehensible China”: Modern European Jurisprudence and the Japanese Reconstruction of Qing Political Law

The great ambition of Japanese colonialism, from the time of its debut at the end of the nineteenth century, was the reformulation of Chinese law and politics. One of the most extraordinary examples of this ambition is The Administrative Law of the Qing Empire [Shinkoku Gyōseihō], a monumental enterprise undertaken by the Japanese colonial government in Taiwan intended not only to facilitate Japanese colonial administration of Taiwan but also to reorder the entire politico‐juridical order of China along the lines of modern rational law. This article examines the legal analysis embraced in The Administrative Law of the Qing Empire and recounts its attempt to reconstruct the Qing's “political law” (seihō) by a strange, ambiguous, and hybrid resort to “authenticity.” The strangeness of this Japanese colonial production comes from Japan's dual position as both colonizer of Taiwan and simultaneously itself colonized by “modern European jurisprudence”(kinsei hōri). In uncovering the effects of modern European jurisprudence on the Japanese enterprise, we will discover Japan's pursuit of its own cultural subjectivity embedded in The Administrative Law of the Qing Empire, epitomizing the campaign of national identities observable in the process of East Asian legal modernization.     

Asking the Sovereignty Question in Global Legal Pluralism: From “Weak” Jurisprudence to “Strong” Socio‐Legal Theories of Constitutional Power Operations

The article examines recent theories of legal and constitutional pluralism, especially their adoption of sociological perspectives and criticisms of the concept of sovereignty. The author argues that John Griffiths's original dichotomy of “weak” and “strong” pluralism has to be reassessed because “weak” jurisprudential theories contain useful sociological analyses of the internal differentiation and operations of specific legal orders, their overlapping, parallel validity and collisions in global society. Using the sociological methodology of legal pluralism theories and critically elaborating on Teubner's societal constitutionalism, the author subsequently reformulates the question of sovereignty as a sociological problem of complex power operations communicated through the constitutional state's organization and reconfigured within the global legal and political framework.     

THE “TRUE” JUVENILE OFFENDER: AGE EFFECTS AND JUVENILE COURT SANCTIONING

Age is the only factor used to demarcate the boundary between juvenile and adult justice. However, little research has examined how age guides the juvenile court in determining which youth within the juvenile justice system merit particular dispositions, especially those that reflect the court's emphasis on rehabilitation. Drawing on scholarship on the court's origins, attribution theory, and cognitive heuristics, we hypothesize that the court focuses on youth in the middle of the range of the court's age of jurisdiction—characterized in this article as “true” juveniles—who may be viewed as meriting more specialized intervention. We use data from Florida for court referrals in 2008 (N = 71,388) to examine the decision to proceed formally or informally and, in turn, to examine formally processed youth dispositions (dismissal, diversion, probation, commitment, and transfer) and informally processed youth dispositions (dismissal, diversion, and probation). The analyses provide partial support for the hypothesis. The very young were more likely to be informally processed; however, among the informally processed youth, the youngest, not “true” juveniles, were most likely to be diverted or placed on probation. By contrast, among formally processed youth, “true” juveniles were most likely to receive traditional juvenile court responses, such as diversion or probation.     

Fatal Wounds by “Manja” to a Motorbike Rider in Motion

“Kite fights” are quite popular throughout Asia. Most kite variations, including the fighter kites of India, Pakistan, and Japan, are small, flat, roughly diamond‐shaped kites composed of paper, with a tapered bamboo spine and a balanced bow. They are flown with the help of a “Manja,” which is a thread made of cotton or nylon, and coated with fine glass powder using glue and other chemical adhesives to cut down opponent's kite string. The nylon “Manja” is particularly more dangerous, as it not only cuts down opponent's kite string but also causes bodily injuries to humans, which may be at times fatal. The pattern of injuries by Manja is underreported in literature. In the present case, the deceased had encountered fatal injuries by “Manja” while riding on his motorbike. This case discusses the pattern of injuries caused by Manja when the victims are in motion on their two‐wheelers.     

“It's Just Black,White, or Hispanic”: An Observational Study of Racializing Moves in California's Segregated Prison Reception Centers

This article takes as its launching point a 2005 U. S. Supreme Court case, Johnson v. California (543 U.S. 499), which ruled that the California Department of Corrections' unwritten practice of racially segregating inmates in prison reception centers is to be reviewed under the highest level of constitutional review, strict scrutiny. Relying on observational data from two California prison reception centers, this research is grounded in an interactionist perspective and influenced by Smith's work on “institutional ethnography.” I examine how racialization occurs in carceral settings, arguing that officers and inmates collaborate to arrive at a “negotiated settlement” regarding housing decisions. They do so working together (but not always in agreement) to shape how an inmate is categorized in terms of ‘race’/ethnicity and gang/group affiliation, within a framework established by official Department of Corrections and Rehabilitation paperwork and related institutional understandings of housing needs. The findings demonstrate that administrators, officers, and inmates alike have influence over the process by which people are categorized and ‘race’ is produced, even as they derive their power from different sources and are both enabled and constrained by the relationship between them. I conclude that California prisons are, as Wacquant has put it, “the main machine for ‘race making’” (2005:128), and that the fuel for that machine—a series of patterned, negotiated settlements—happens in real time, “on the ground,” and with important consequences for inmates, officers, and administrators.     

Machiavelli,Guicciardini and the “Governo Largo”

Niccolò Machiavelli's support for what he calls governo largo, or popular government, is usually contrasted with the diffidence towards it of Francesco Guicciardini, the Florentine aristocrat. The article argues that both these authors grounded their vision on Polybius' theory of “mixed government,” though adapting it in different directions. In examining this difference, the article reaches the conclusion that it concerns far less the degree of popular participation in political decision‐making and government than the value that Machiavelli and Guicciardini respectively ascribe to it in comparison with that of safety‐liberty (or legal certainty). In this respect, their theories may be viewed as anticipating the tensions between democracy and the rule of law, the co‐presence of which provides the essential foundation of the structure of present‐day constitutional democracies.     

On Two Distinct and Opposing Versions of Natural Law: “Exclusive” versus “Inclusive”

Abstract. This paper takes the dichotomy between “exclusive” and “inclusive” positivism and applies it by analogy to natural‐law theories. With John Finnis, and with Beyleved and Brownsword, we have examples of “exclusive natural‐law theory,” on which approach the law is valid only if its content satisfies a normative monological moral theory. The discourse theories of Alexy and Habermas are seen instead as “inclusive natural‐law theories,” in which the positive law is a constitutive moment in that it identifies moral rules and specifies their meaning. The article argues that inclusive theories of natural law are better suited to expressing an authentic “republican” attitude. *

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How the Party Can Win in Personal Vote Systems: The “Selectoral Connection” and Legislative Voting in Lithuania

Electoral rules can motivate politicians to cultivate a “personal vote” through their legislative voting records. However, I argue that candidate‐selection procedures have the ability to overpower these electoral incentives. This study—the first systematic study of how candidate selection and electoral rules interact—takes advantage of Lithuania's unique mixed electoral rules and fortuitous candidate‐selection procedures. Regardless of electoral rules, MPs whose future careers depend on getting renominated by central party leaders vote against the party less than those whose careers do not. This evidence of a “selectoral connection” suggests candidate‐selection procedures must be studied much more seriously.     

The Idea of “Free Public Reason”

Abstract. In this paper the nature and the role of Rawls's idea of a “free public reason” are examined with an emphasis on the divide between the private and the public spheres, a divide which is the hallmark of a liberal democracy. Criticisms from both the so-called Continental tradition and the Communitarian opponents to liberalism insist on the ineffectiveness of such a conception, on its inability to establish a political consensus on democracy. But it would be a mistake to see a contractarian theory of justice, such as Rawls's justice as fairness, as grounding the social contract in a public use of reason. Such a contract would indeed be susceptible to endless conflicts and renegotiations and would never achieve consensus. Therefore, a distinction must be made between the values of justice that are present in and through the “original” contractual position and the that regulate the public sphere and guarantee its stability.     

The “Discourse” of International Law and Humanitarian Intervention

This essay analyzes the doctrine of “humanitarian intervention” in the frame of international law in the second half of nineteenth century and identifies the ground of legitimation of this intervention in the violation of presumed universal laws of humanity. The analysis emphasizes the transformation of the paradigm of “humanitarian intervention” into the current doctrine of the “responsibility to protect,” which under the rubric of “responsibility” legitimizes limitations on a state's sovereignty in cases where the state fails to guarantee the protection of its own population. This reconstruction of the genealogy of “humanitarian intervention” illustrates the continual exceptions to the principle of nonintervention, which means that the Westphalian principle of sovereignty has always been violated. Both doctrines—humanitarian intervention and the responsibility to protect—can be considered “hegemonic techniques” that use so‐called universal concepts in order to legitimize unilateral power interests.     

“Critical Legal Histories Revisited”: A Response

The author responds to comments reappraising “Critical Legal Histories” (CLH) (1984). CLH critiqued “evolutionary functionalism,” the idea that law is a functional response to a typical modernizing process. CLH argued that “society” was partly constituted of legal elements and that law was too indeterminate to have reliably regular functional effects. CLH has been misinterpreted as calling for a return to internal histories of “mandarin” doctrine: all it said was that some doctrinal histories were valuable, without privileging them. This response clarifies that the relations of law to society and social change, and of high‐level official law to everyday local law are distinct issues. CLH is mostly moot today, since social‐legal historians have incorporated its insight that legal concepts are embedded in everyday social practice. But other fields have revived deterministic Whiggish accounts of progressive development and of law functional to it—to which CLH's critique still seems relevant.     

A Criticism of M. Siderits and J. L. Garfield’s ‘Semantic Interpretation’ of Nāgārjuna’s Theory of Two Truths

This paper proposes a critical analysis of that interpretation of the Nāgārjunian doctrine of the two truths as summarized—by both Mark Siderits and Jay L. Garfield—in the formula: “the ultimate truth is that there is no ultimate truth”. This ‘semantic reading’ of Nāgārjuna’s theory, despite its importance as a criticism of the ‘metaphysical interpretations’, would in itself be defective and improbable. Indeed, firstly, semantic interpretation presents a formal defect: it fails to clearly and explicitly express that which it contains logically; the previously mentioned formula must necessarily be completed by: “the conventional truth is that nothing is conventional truth”. Secondly, after having recognized what Siderits’ and Garfield’s analyses contain implicitly, other logical and philological defects in their position emerge: the existence of the ‘conventional’ would appear—despite the efforts of semantic interpreters to demonstrate quite the contrary—definitively inconceivable without the presupposition of something ‘real’; moreover, the number of verses in Nāgārjuna that are in opposition to the semantic interpretation (even if we grant semantic interpreters that these verses do not justify a metaphysical reconstruction of Nagarjuna’s doctrine) would seem too great and significant to be ignored.