New APPS

I’m teaching a course on privacy and surveillance this fall, and one of the things I’ve been doing is reading up on aspects of privacy theory that I didn’t know much about, such as the feminist critique of privacy.  The basic feminist argument is that “family privacy” has been historically used as a cover to shield domestic abuse from legal scrutiny (and not only against women – see this disturbing Supreme Court case about a stepfather who beat a four year old into serious and permanent cognitive disability; the Rhenquist Court argues that state social services had no enforceable obligation to intervene because of family privacy).  It is in this context that I ran across Reva Siegel’s (Law, Yale) fantastic article on the way that claims of domestic privacy emerged out of the collapse of a husband’s legal right to “chastise” (beat) his wife.  Siegel’s larger purpose is to study the ways that legal reforms can serve to “modernize” status regimes, a process in which old hierarchies are given new justifications and (perhaps) weakened, but not eliminated.  It’s not that the legal reforms don’t achieve anything – it’s that it’s very, very difficult to dismantle regimes of social privilege, and that (as Foucault noted), power always entails resistance.

Here, I want to focus briefly on the move from chastisement to privacy, because I think it suggests something important for our understanding of biopolitics.  As Siegel outlines it, the basic story is that, over the course of the nineteenth century, a couple of groups made substantial inroads into the old common law right of chastisement: temperance groups used stories of horrific abuse of women by drunk husbands to advocate banning alcohol, and feminist groups use the same stories to advocate for the banning of wife-beating.  The feminists eventually won, and a pair of state supreme court cases around 1870 (one in Alabama and one in North Carolina) emphatically – perhaps a little too emphatically – pronounced wife beating to be the unwelcome vestige of a primitive, bygone era.

Of course nothing that happened in the Reconstruction South should be taken at face value.  As Siegel illustrates, the Alabama case became an occasion for the racialization of chastisement: prosecutions against men for beating their wives were largely directed at lower class and (especially) black men.  So the legal repudiation of chastisement both responded to and entrenched cultural stereotypes about the fundamental inferiority of non-whites (Ladelle McWhorter’s book is essential reading on those stereotypes and their epistemic power).  In that sense, the criminalization of wife-beating was as much about men as women; as Siegel suggests, “we might even speculate that criminal prosecution of wife beaters during the late nineteenth century served at least in part to construct ‘the vicious classes’ as vicious and rude, and thus to justify distinctions of authority and status among men” (2161).

One of my interests is what happens when biopolitics and juridical power intersect in the legal system (see, for example, here on a death penalty decision by the Supreme Court last term, and here and here on Hobby Lobby).  It’s very easy to propose that the judicial system gets displaced with the decline of juridical power.  Foucault himself seems to be somewhat unsure; compare these statements from the same page of History of Sexuality I:  (a) “another consequence of this development of bio-power was the growing importance assumed by the action of the norm, at the expense of the juridical system of the law [système juridique de la loi];” but he then clarifies that  (b) “I do not mean to say that the law [loi] fades into the background or that the institutions of justice tend to disappear, but rather that the law operates more and more as a norm, and that the judicial institution is increasingly incorporated [la loi s’efface ou que les institutions de justice tendent à disparaître; mais que la loi fonctionne toujours advantage comme une norme, et que l'institution judiciaire s'intègre] into a continuum of apparatuses … whose functions are for the most part regulatory” (144; 189-90 in the French.).* There is also surprisingly little literature on the topic of Foucauldian biopower and law.  Certainly most of the literature on biopower focuses on developments in fields like medicine, the neoliberalization of work, the function of state racism, and so forth.  But even a moment’s reflection on the sheer volume of litigation on socially controversial topics that uses rights-talk as an strategy says that courts are still significant, and that Foucault’s clarification in (b) is closer to correct than the more programmatic statement at (a).**

Here, I think, Siegel’s analysis provides an interesting example: as the juridical construction of male supremacy waned, a biopolitical one emerged in its place, both of them within the courts.  The change in legal reasoning, in other words, was also a change in the type of legal reasoning.  Over the course of the 19^th century, as evidenced by popular tracts on the subject, marriage had come to be seen increasingly in terms of affection, and less of authority.  At the beginning of the century, men claimed legal authority over their wives as sole representative of their household (this is the same theory that said all of a wife’s property became her husband’s, and so on).  In parallel with the introduction of marriage reforms – allowing divorce in some cases, allowing women to own property in their own names, etc. – the marriage relation itself was reconceived as a matter of emotion.  On that theory, women should show deference to their husband out of affection, and not submission.  As Mrs. Henry Ward Beecher put it in her The Home: How to Make it and Keep It (1883), the wife “willingly acknowledges him as the head … but she yields – not through authority, but love” (qt. at 2146). Of course, in no other social relation is one supposed to submit through love, and so “with the rise of liberalism, it became commonplace to define the family in terms of its differences from other social relationships” (2147).

In this context, consider the 1868 North Carolina case of State v. Rhodes, where the Court rules:

“The courts have been loth to take cognizance of trivial complaints arising out of the domestic relations – such as master and apprentice, teacher and pupil, parent and child, husband and wife.  Not because those relations are not subject to law, but because the evil of publicity would be greater than the evil involved in the trifles complained of; and because they ought to be left to family government” (qt. at 2154).

Or, as Siegel glosses it, judicial intervention was “injurious because it encroached upon the authority of [the household’s] master” (2155). The court then engages in a bit of social theorizing:

“Every household has and must have, a government of its own, modelled to suit the temper, disposition and condition of its inmates.  Mere ebullitions of passion, impulsive violence, and temporary pain, affection will soon forget and forgive; and each member will find excuse for the other in his own frailties.  But when trifles are taken hold of by the public, and the parties are exposed and disgraced, and each endeavors to justify himself or herself by criminating the other, that which ought to be forgotten in a day, will be remembered for life” (qt. 2155).

The result, of course, was repeatedly to deny women recourse against abusive husbands.  Hence the feminist critique of privacy.  Siegel: “we can even read the Rhodes opinion as translating the old common law of chastisement into the discourse of companionate marriage” (2155).  It’s also worth pointing out here the extent to which Foucault is talking about the regulation of sexuality and families as he develops the conceptual tools of biopower.

Siegel’s interpretation seems profoundly correct to me, and it suggests something important about the relation between juridical and biopower in the courts: even early on, courts are willing to use biopolitical reasoning to achieve legal results.  Further, as she notes, it is “useful to consider just how large a role the legal system played in constructing the aspects of society to which it claimed to defer” (2183).  If this is the case, however, Foucault’s dismissal of law is both premature and too simple.  In this case, the legal construction of marriage as affectionate and not juridical helped to create a social reality in which marriage was seen as affective; this social reality then in turn could be used to buttress the legal claims used in its justification. In other words, the Foucauldian dismissal takes a law-society separation too uncritically. Thus, it seems to me that examples like the one here underscore that any Foucauldian analysis of power and subjectification practices is going to need to take the role of law seriously, even if the law is not trafficking in juridical power.  Perhaps I am overreading the passages above (or there’s other ones I haven’t thought of yet), but there’s a bit of a residual base-superstructure feel to Foucault’s own remarks in HS 1, and that strikes me as an invitation to more precise work.

[* I include the French because it strikes me as potentially significant that this is loi in the systemic sense and not droit (in the sense of “right”).  That distinction, of course, is picked up by Derrida’s “Force of Law” essay in 1989 (i.e., well after Foucault), but Derrida is responding to Benjamin’s “Kritik der Gewalt,” which is from 1927.  I don’t know if this sort of line of thought will actually go anywhere; someone whose French is better than mine could tell me if the distinction means anything outside of Derrida’s essay).]

[** Latour has a book out on The Making of Law that presents an ethnography of judges working in French administrative law.  I haven’t read it yet, but I expect it to be useful.  It seems to me that administrative law is going to be central to any genealogy of the role of law in the modern state.  It’s the unsexy work of statutory interpretation and implementation, though we’re seeing its importance now: does the EPA, for example, have the authority to regulate carbon emissions under the clean air act (yes it does, well, maybe sort-of)?  Does an evident drafting mistake doom the ACA subsidies (the DC Circuit’s decision in Halbig is horrendously reasoned and should be overturned) soon).]