Ewald Norms, Discipline and The Law

Norms, Discipline, and the Law Author(s): Franois Ewald Source: Representations, No.
30, Special Issue: Law and the Order of Culture (Spring, 1990), pp. 138-161 Published by: University of California Press Stable URL: http://www.jstor.org/stable/2928449 . Accessed: 22/04/2014 14:45
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FRAN(:OIS
EWALD
Norms, Discipline, and the Law

volume of TheHistory the first THAT CONCLUDES IN THE TABLEAU "Rightof Death and Power over Life,"Michel Foucault develops the ofSexuality, new mechanismsfor the exercise of "biohypothesisthat,ever since antiquity, power"-disciplines of the body and attemptsto regulate the population-have developed in Westernsocieties.'The juridical mode of governance,characterized in death, is by forcibleseizure, abduction,or repressionand usuallyculminating replaced by bio-power,"whichaims to produce, develop, and order increasingly on life,undertaking a power thatexertsa more positiveinfluence social strength," of regulationsand preit,and impose upon it a system to administerit,multiply in the mechanisms of cise inspection. Having noted that this transformation Foucault conpower signifies"nothingless than the entryof life into history," of bio-power this development of consequence "another that suggesting by cludes the expense at norm, of the the action by assumed importance was the growing law."2 of the of thejuridical system Foucault does not mean to suggesthere thatthe developmentof bio-power makes it clear that commentary is accompanied by a decline of law. His further of a normalizingsocietyin no waydiminishedthe power of law or the formation tendsto be accomto disappear. In fact,normalization caused judicial institutions speaking,legisof legislation.Practically panied by an astonishingproliferation as in the age of bioor as extensively latorsnever expressed themselvesas freely power. The norm,then, is opposed not to law itselfbut to what Foucault would power. of law as the expressionof a sovereign's call "thejuridical": the institution If, as Foucault puts it,"the law cannot help but be armed,"and if itsweapon par is death, thisequation of law and death does not derive fromthe essenexcellence tial character of the law. Law can also functionby formulatingnorms, thus measure,appraise, sortof powerthat"has to qualify, becomingpartof a different In the age and hierarchizeratherthan displayitselfin itsmurderoussplendor."3 of bio-power,thejuridical,which characterizedmonarchicallaw, can readilybe in constitutions, whichcomes to the foremosttypically opposed to the normative, of the legislature."4 legal codes, and the constantand clamorous activity Foucault's ideas have a dual consequence for the philosophy of law. They law and itsformalexpressionfromthejuridical. The encourage us to distinguish
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30 - Spring 1990 C) THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA
itself, juridical served as a "code" thatenabled monarchicalpower to constitute and reflect upon itsown workings.However,such a code formalizeits structure, is not the only possible form the law can take. Neither the "regressionof the juridical," which accompanies the rise of bio-power,nor the fact that the most typicalmechanismsofjuridicalpowercan no longerbe representedin legal form, signalsthe disappearance of the law. necessarily of law thatwould givemeaning and funcWe can and mustimaginea history tion to the law's varyingmodes of formalexpression.Foucault also compels us to whichhe places among the arts ofjudgment. reconsiderwhat we mean bynorm, Undoubtedly the norm is related to power,but it is characterizedless by the use upon its logic thatallows power to reflect of forceor violence than byan implicit own strategiesand clearlydefine its objects. This logic is at once the force that enables us to imagine life and the livingas objects of power and the power that can take "life"in hand, creatingthe sphere of the bio-political. Thus, in opposing the "action of the norm" to "thejuridical systemof law," to borrow Foucault's Foucault suggeststwo possible paths of inquiry.The first, It asks: What is modernity terminology, is "ontological"and concernsmodernity. in the logic of the norm?What can we learn if we understand it as participating about the modern by approaching it in termsof the norm and the practicesof power and knowledge organized around the norm? The second concerns the shiftin the relationshipbetween knowledgeand power and its influenceon the statusand functionof legal thoughtin modern societies.Withinthe framework of "the regressonof thejuridical,"whatis the place of law? Is a theoryor practice of law articulatedaround the norm possible?If so, whatformwould such theory or practice take, and what would be the risksand possibilitiesassociated with them? holds certainsurprisesand Georges Canguilhem has noted that etymology "When forour contemporary understandingof the word norm: disappointments means peris the Latin word for T-square and thatnormalis we know that norm pendicular,we know almost all thatmustbe knownabout the area in which the Historisches and normal JoachimRitter's originated."5 meaning of the termsnorm recalls the technicaloriginof the term.Vitruviusused Wirterbuch derPhilosophie used to draw right to indicate the instrument it in his treatise On Architecture angles. Through metaphor,the termwould be taken up to designate the rule of regurelies on the Stoic referenceto the architectural law. Cicero, in particular, larityof nature, speaking of nature as the "norm of the law" (normalegis).The norm had a long career as a synonymfor the rule. Jean Calvin, for example, writesin his Institutes Religion:"God has determinedby His laws oftheChristian what is good and right,and by this means has meant to hold men to a certain norm."
Norms,Discipline,and the Law
139
thereis a radicalchange century, However,at thebeginningof thenineteenth in the relationshipbetween the rule and the norm. Normcan no longer stand simplyas another name for rule; rather,it comes to designate both a particular of varietyof rules and a way of producing themand, perhaps most significantly all, a principleof valorization.Of course, the norm stillrefersto a standard meawiththe rule fromwhat is whatis in conformity sure thatallows us to distinguish linked to the notionof rectitude.Its is no longer directly not,but thisdistinction essential referenceis no longer to the square but to the average; the norm now refers to the play of oppositions between the normal and the abnormal or pathological. The vocabularyassociated withthe termexpands as well: in French,normal (1834), It isjoined by normalite is no longer the only word to derive fromnorme. norm's of the extension This remarkable (1920). (1868), and normalisation normatif domain will affecta wide varietyof fieldsconcerned with economics and technology. It will also have a major influenceon the moral,juridical, and political sciences, which at the close of the nineteenthcenturywill establishthemselves sciences. in Germany)as "normative" (particularly led a quiet, unremarkableexistence, Thus, two centuriesago the word norm whereas today,along withits panoply of derivationsand associated terms,it has vocabulary, become one of the mostused and abused termsof our contemporary bynorms We are intimidated whetherwe speak colloquiallyor as social scientists. feelingashamed to considerourselvessimply and contemplatethemsuspiciously, efforts to establish and sociologistshave made persistent normal. Psychologists norms whose constraining effectscan be felt everywhere-even where we In a sense, virtue imagine our behavior to be least susceptibleto determination. has become normalized: the virtuousindividual can delude himselfor herself into believing that he or she acts out of a sense of duty while in realitysimply health can making his or her behavior conformto a particularnorm. Similarly, be envisioned as the absence of illness,while in actualityit is merelya sign of Even taste,whichappears to be a product of purely normal organic functioning. simplyrepeats internalizednorms in the reguaesthetic judgments, subjective measures against of itsassessments.Public hygiene,urban planning,safety larity and qualitycontrolhave all come about as pollution or nuclear contamination, the resultof normativedecisionsof one sortor another.What is the significance of this extensionof the normative,and what risksand potentialbenefitsdoes it hold forthe future? One set of normativepracticeswe mightwish to examine in this contextis andPunish,FouIn Discipline society." whatFoucault has describedas "disciplinary cault suggeststhatthe prison is in some sense the purestexpressionof the discito be based society plinaryorder.But thisis notto saythathe believeddisciplinary In fact,for Foucault the gradual spread of various on generalized confinement. the school, the hospital,or the barracks)indicatesthat disciplines(to the factory, 140
REPRESENTATIONS
nor withthe segregation concerned withconfinement, disciplineis not primarily of its subject population. Rather,disciplinetends not to divide or compartmentalize societybut worksinstead to create a homogeneous social space. The norm is the principlethatallows disciplineto develop froma simple set the neginto a mechanism;it servesas the matrixthattransforms of constraints of thejuridical into the more positivecontrolsof normalization ative restraints of discipline.The normis also the means and helps to produce the generalization the society communicates with itself. The norm disciplinary which through relates the disciplinary institutionsof production-knowledge, wealth, and it finance-to one another in such a way thattheybecome trulyinterdisciplinary; provides a common language forthese various disciplinesand makes it possible idiom intoanother. to translatefromone disciplinary In Disciplineand Punish,Foucault returnsagain and again to the idea that discipline "produces" individuals. It not only manages them and makes use of them as its object. Withinthe disciplinaryframethem but activelyconstitutes whilealso servingas in thislogic of individualization work,the norm participates created the individuals bydisciplineand allows them the forcethat joins together to communicatewithone another. and discipline. Disciplinesare It is essentialto avoid confusingthe termsnorm while the norm is a measurementand concerned withthe body and itstraining, a means of producing a common standard. Discipline is not necessarilynormacoincideswiththe comingof a normative tive.Accordingto Foucault,modernity fromdisciplineas age. The normalizationof the various disciplinesand the shift constraint to discipline as a regulatorymechanism are symptomaticof this societyfounded on a new kind of change, as is the formationof a disciplinary self-contained. homogeneous, and entirely social space thatis supple, flexible, norm influence of the is local; primarily Withinthe disciplinary order, the Withthe appearance practicesand institutions. normsremainattachedto specific kindsof actuof insurance,the norm willserveas a means of managingdifferent of a Social Securitysystemit will arial populations,6while with the institution become a way to manage the entirepopulation of a given state.The shifthere is Risk playsthe to thatof thebio-political. fromthe level of the micro-instrumental stratof disciplinary same role in insurancethatthe normdoes in theconstitution egies. The conceptual categoryof risk,which makes insurance possible, is the norm. precise homologue of the disciplinary risk forestimating is an equivocal termthatcomprises1) a technique Insurance of damages and indemnification in actuarial terms;2) the practices of restitution public and thatstructure thatset thistechnique in motion; and 3) the institutions privateinsurance schemes. I intend to discuss only the first-the techniques of risk. In common parlance, the termis a synonym for danger, peril, What is risk? or the unexpected misfortunes that mighthappen to anyone; it also implies an
Norms,Discipline,and the Law 141
objectivethreatof some sort. In insurance,risk refersneitherto a specificoccurrence nor to a kind of eventthatmighttake place but insteadto a wayof treating certain events that might happen to a particulargroup of individuals (a population). Nothing in itselfis a risk-risks have no real existence. By an inverse logic, anythingcan be a risk-everythingdepends on the way the danger is anathecatelyzedand the potentialeventis evaluated. To adopt Kantianterminology, gory of risk is a category of understanding; it cannot be derived from intuof all a rationaloutitionor sensibility. As a technologyof risk,insuranceis first line, a means of disassembling, reconstructing, and organizingcertainelements of reality. that formalizesthe Insurance is the practiceof a specifictypeof rationality This explainswhyone can onlybe insuredagainstrisks, calculationof probability. and whythesecan be as variousas death,accident,hail,illness, childbirth, military The insurerdoes not passively make note service,a businessfailure,or litigation.7 of actual risksin order to insure people againstthem. Instead, he produces risks where the indiby makingthem visibleand comprehensibleas such in situations vidual would ordinarilysee only the unpredictablehazards of his or her particular fate. It confersa certainobjectivestatus Risk,then,is a principleof objectification. or commerciallife:death, accident,injury, on the eventsof private,professional, a particularkind of objecloss, or hazard. The task of insurance is to constitute tivity; providingvarious familiareventswitha real existencethatchanges their the world of lived expecharacter.Insurance creates its own world; it confronts rience (and all of itsterrors)withthe more neutraland predictableworldof risk. of their statistical When the firstinsurers boasted about the liberatingeffects models, or explained thatthe dangers we fearare reallynothingbut riskswe can take steps to protectourselves against,theywere, of course, speaking as advertisers.Still,theirargumentsrested on the idea of a veryfundamentaltransformationof the world. This arises throughthe exercise of a Risk is both objectiveand objectifying. the statistical table attitude.Insurance has two bases: first, rigorouslypositivistic to the regular occurrence of certain events; second, the or graph that testifies so thatone can thatare thenapplied to these statistics calculationof probabilities of these same events.The insuranceview of the world is evaluate the possibility It is generally and statistics. admittedthatmodern firmly grounded in probability format the timeof the Scientific Revolutionin the sevscience took itsdefinitive revolution One mightalso speak of an analogous probabilistic enteenthcentury. notions one thatradicallytransformed of the nineteenthcentury, contemporary of such familiarideas as "fact,""law,"and "cause."8Like the Galilean revolution was receivedwithitsfairshare of resistance, revolution beforeit,the probabilistic examples of resisdebate, and utterincomprehension.Some of the best-known
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Say's oppositionto the use of probtance were Auguste Comte's or Jean-Baptiste abilityin the social sciences. Other examples include the general philosophical on the grounds thatit would introduceinto history condemnationof probability or the that was altogetherincompatiblewithliberty, of determinism an element endless legal debates during the nineteenthcenturyover the relativemeritsof faultand riskas causes of responsiblity. By the standards of an earlier world (in whichwe stilllive, at least to some is mostremarkablefor his rigoroussusextent),the insurer,like the statistician, boundaries in space pension ofjudgment. For him,eventsare factswithdistinct and have no cause, or past,or future. and time-they are completein themselves leave theirtraceon the surface They are individuals,pure atomsthatpersistently theysimplyare. They can barelybe described, of the world. They do not signify; is reduced to the numericalqualitythatallows one to tabulate and theiridentity them as a point or a unit. must begin by bracketingthe usual systemsof signification The statistician and should remain instead at thatunclear boundarywhere a coherentvision of residuesof factsand events. the worldthreatensto disappear beneath the infinite notes the factof an accidentor a death is altothe insurerwho initially Similarly, littlethata specific accidentmighthave to itscause. It matters getherindifferent been avoidable, or that a particularindividual will bear historicalresponsibility thingabout eventsis thattheyoccur,or rather for a given event. The important multiple,and regular. They become purely that their occurrence is repetitive, accidental, and are rendered objectiveby comparison withthemselves.For the theyremain withoutvictimsand withouta cause, at least purposes of statistics, initially. of freeing whatis at issue here is the possibility To put the mattersceptically, on the pure factuality byconcentrating oneselffromthe usual playof signification of facts,the pure recordingof occurrences. In Kantian terms,the task for the himself or herselfto a singlelevel of alike is to restrict insurerand the statistician intuition,locating and comprehending factsexclusivelyin termsof their temporal and spatial situation,withoutappealing to a more comprehensivesystem ends makes no sense.It is of understanding.The worldas perceived forstatistical reduced to a pure accumulationof facts,data thataccumulate randomlywithno To the extentthat as individual bitsof information. prospect of ever signifying even the mostinsigof signification has been suspended, all facts, the usual system of note. are worthy nificant, In the logic of allows these data to signify. Only the science of probability mass of data without sense can emerge from this undifferentiated probability, any need for referenceto a world outside that of pure surfacesand pure facof indeterminate value repeat and accumuwhere pieces of information tuality, themselves meaning. The notion create numbers by thought, late. For statistical
143
of massreplaces such evaluativeconcepts as nature or essence. In the social and moral world, presumablythe sphere of free agency,there are observable regularities, constantsof social life(marriage,crime,suicide,and so on) whose causes itwas stillpossible to invokethe remain obscure. Before the triumphof statistics, cause thatwould workingsof divine Providence,or to seek some othersufficient of certain explain otherwiseinexplicable phenomena, as though the regularity events could be explained by recourse to some invisiblelogic of causality.But probabilisticthinkingmakes this specular doubling altogetherunnecessary; in statistics, factslose theirstatusas naturalsignsor indicesof some highermeaning. The visibleworldis no longer a transThey referback to nothingbut themselves. of a particularsocial lation of an invisibleworld of essences. Only the repetition fact,its multipleoccurrences,can give it meaning. According to this logic, the more frequentlya particularsort of event occurs statistically, the more real it becomes. The weightand numberof occurrencesbringsocial factsintoexistence. termsbecause it Inversely, a single exceptional eventcounts forless in statistical The calculationof probability, as a ruse of reason: then,functions occurs so rarely. even though causes remain unknown and unknowable, they do translateinto thiskindof calculationallows us to determinethe effect. By seizing upon effects, evergraspingthecauses behind laws thatgovernthe recurrenceof eventswithout them. names: birth,death, acciFacts are stillorganized in categorieswithdistinct nominalist use of the category, dent, suicide, size. However,thisis a particularly for these categories make no referenceto any explanatoryprinciple. They are simplysets of groupings-open-ended collectionsof randomlyoccurringfacts that are never identicalto one another.The statistical categorybringstogether diverse variables on the basis of their resemblance or potentialequivalence; it ratherthan as an identifying servesas a principleof classification denomination. then, an accident is no longer a simple According to the logic of statistics, that happens to someone; instead, it takes on a real existence of its misfortune man no longer existsas an entity thatcan be explained in terms own. Similarly, of living of human nature, nor does he exist anywherewithinthe multiplicity to him,which men. Rather,"man" appears in the qualitiesthatcan be attributed The characteristics of have taken on lives of theirown: size, weight,or strength. a particularindividual are lost in the midstof those of many other individuals. In a sense, the particularindividual witha specificsize and weight no longer exists.Only the standard size and weightof a population of individualswho constitute a pool of human qualitiescontinuesto have a real existence. thispeculiar staThe meaning and importof thisstrangeblendingof traits, tisticalsurgeryis perhaps most evidentin Alphonse Quetelet's attemptsto conin at least three places struct a theoryof the "average man,"whichhe formulates in his work. The project grows directlyout of a sense of the significanceof averages: 144
REPRESENTATIONS
By gatheringtogethera number of individualsof the same age and sex and takingthe one obtains a series of constantfigures average of a set of theirconstantmeasurements, I call the average man forthisgroup. If we were entity to a fictional thatI would attribute Frenchman and find the to note, for example, the size of every twenty-five-year-old average, the number we obtained would be the size of the average twenty-five-year-old man.9 Thus defined, the average man is a "fictional entity": there is no actual twentyfive-year-old Frenchman who could be the average man. The average man can also be a typical example of man at a particular moment in time in a specific place: occurs as if there existed in nature particulartypessuited to a given country Everything and the environmentalcircumstancesin which theyfind themselves.Variantson these or diminutions as augmentations withequal frequency typescome into being accidentally large sample of a type.Suppose thatwe have a sufficiently of the essentialcharacteristics population: the average man for each age would find himselfflankedon both sides by equal numbersof individuals,some largerand some smaller.Moreover,the groups would be distributedregularlyin order of size. The largestgroups would be composed of those who were closestto the mean, whilethe smallestgroups would be those mostdistantfrom one gets fromthe average, the smallerthe groups thatrepresent the mean. The further giants,likedwarves,are quite of thedistribution, and, at the extremelimits thisdifference, rare. However,these extremecases are not anomalous-in fact,theyare necessaryto complete the ascending and descending series determinedby the law of randomness. Each togetherin society group has itsown specificvalue and place. Thus when men are thrust thereis between and theirvarious sizes come togetherin the mostunlikelycombinations, link thatallows us to consider each individualas a necessarypart of a them a mysterious whole whichhas no physicalexistenceand escapes us in the individualinstance,and which can onlybe perceived throughthe eyes of science.'0 We may note that in this second version, too, the average man remains a fiction: "Everything occurs as if . . . " writes Quetelet. Of course, the law of randomness makes it apparent that something corresponds to this fiction: not a real individual who incarnates the social mean but the typical man for that society; not a model or original that serves as the standard for all men but the reference point common to them all. This point of reference provides them with a kind of "natural" identityand suggests that laws of man do exist. Finally, according to Quetelet, withina the analogue of the center of gravity The man I am consideringis, in society, being body; he is the mean around whichvarious social elementsmove. He is a fictional for whom all thingsoccur in accordance withthe average expectationsfor the societyin of the average man is not merelyan idle pursuit;knowlquestion.... This determination purpose forthe human and social sciences. edge of social averages can servean important The studyof averages is a necessaryprecursorto any research into social physics,for it servesas the foundationof such study.... Only bytaking[the average man] into account I can we trulyappreciate the phenomena of social equilibriumand movement." The average man, then, is not an individual whose place in society is indeterminate or uncertain; rather, he is society itself as it sees itself objectified in the Norms,Discipline,and the Law 145
There is not a trace of realism in Quetelet's and statistics. mirrorof probability thatpermits account of the average man. The average man is at once the entity scientific judgment of man and the necessarycorrelateof thatjudgment. Once status,individualscan be judged only with human nature loses its metaphysical withreferenceto the average man. precisely, and, more to the social reference The theory of the average man, then, is simply a new-and altogether the membersof a population. This is whatwe modern-means of individualizing mean today when we make referenceto norms and the normal. The notion of the average man correspondsto a new wayofjudging individuals-the onlyway thatis scientifically possible,in fact:Quetelet writes, or whatwe must thedegreeof courage, to estimate I havealways felt it to be impossible standard of meaforwhat individual, in theactsofan isolated regardas such,contained thisindividual Wouldwe observe adoptforsucha quantity? surement couldwe possibly and all of hisactions and in sufficient depthto takeintoaccount fora longenoughtime pass could possibly the relative value of theseactsof courage?Whattribunal estimate ofthem forus to and wouldthere be a largeenoughnumber on theseactions, judgment in thecourseoftheseobservathat conclusion? Whocouldguarantee reacha satisfactory with inquestion somemajor Whenwework change? did notundergo theindividual tions, ifwe almost particularly these entirely, disappear ofindividuals, problems a largenumber of a between them and nothing abouttherelations something meanonlyto understand nature.'2 moreabsolute With his theoryof the average man, Quetelet proposes a means of specifying a group, ratherthan bypaying individualswithreferenceto theirpositionwithin close attentionto their essence, their nature, or theirideal state of being. The thatmakes itpossibleto undertheoryof the average man, then,is an instrument stand a population with respect only to itself,and withoutrecourse to some externaldefiningfactor. The insurer's"risk"(an objectiveprinciplebased on calculation and distriwiththenotionof theaverage man outlinedin Quebutions)correspondsdirectly telet'ssocial physics.The concept of risk makes no referenceto nature (as in a or to morality (accordingto some ideal notionof what man should metaphysics) do or be). Instead it allows the group to make socialjudgments withrespect to the currentstate of societyand is based on itselfin a way that always reflects evaluation. ratherthan prescriptive, normative, are Risk is at once calculable and collective,and these two characteristics are individual occurdependent upon one another. Accidents and misfortune rences, but riskis a profoundlysocial phenomenon. Moreover,riskcan only be this calculated for an entire population. The task of the insureris to constitute population througha process of selectionand divisionof risks.Insurance socialeach individual into a part of a whole. The functionof izes risk,transforming consciouslyin the case of mutual societies insurance is to constitutemutuality, and less consciouslyin the case of anonymouscompanies withpremiums. 146
REPRESENTATIONS
more than a scheme thatallows individualsto protect Insurance is therefore themselves against loss for a small fee because of the benefitsof mutuality. Reducing it thusly makes it indistinguishablefrom more primitiveforms of or the corporation.The censuch as the confraternity mutual aid and solidarity of insurance is not that it spreads out the cost of individual tral characteristic for this kind of damages over a large group, but that it provides a justification division that has no basis in charityor fellowfeelingand is based on a rule of justice, a rule of law. Accordingto Eugene Reboul, of theruleof possibilities thatdetermines to humanaffairs is theapplication Insurance before chancehas madeitsowndivision among thefateofindividuals society apartfrom fundof property to itsownlogic.So that according themand disposedof thecommon a proportional each personmusttakeupon himself is preserved, partof therisk equity
thatmaybringhim good fortuneor mishap.'3
This "proportional part" defines risk for the insurer. The abstract principle of luck and misfortune, i.e., behind thisreasoningis thatthe naturaldistribution just. Chance mustbe allowed to play out itswhims,and chance, is fundamentally as theyare able to. it is up to individualsto protectthemselves to discoverthe cause based on an attempt Legal judgments were traditionally of damages-it was essentialto findout whetherdamages were the resultof an to a particular unpredictablenatural event or whethertheycould be attributed for the who would then be required to bear responsibility person or institution an different idea entirely bycontrast, proposes damages. The insurance system, of a collective of justice: causalityis superceded by the notion of a distribution of each indiburden according to a fixed rule thatdeterminesthe contribution vidual. Insurance then offersa new ruleofjusticethat refersno longer back to nature but ratherto the existenceof the group, a social rule ofjustice that the and on itsown terms. group is freeto determineforitself, in industrialEurope, the technology of nineteenth century At the close the of social insurance form the basis for a new way of of risk and the institution about politics.Insurance becomes social,not so muchbecause new kinds thinking of risk have come into being but because societyhas come to understand itself and its problems in termsof the principlesof the technology of risk.At the end the terminsurance of the nineteenthcentury, designatesboth a set of institutions thatorders the regulationand functioning and the structure of modern society. betweenthe This account presupposes theestablishment of new relationships notionsof insurance and the state. Insurance is not imagined simplyas an institution or systemwithinthe state for which the state must provide an order or organizing principle; rather,the state can now be conceived of in termsof the Insurance is no longer a simple subordinatefunctionof actuarialview of society. the state but an essential part of the state's organization that affectsits very nature-the stateitself becomes a vastsystem of social insurance.
The institution of the prison as the universalpenaltyforcrimeat the beginning of the nineteenthcenturymarks,in Foucauldian terms,the birthof a "disone whose organizationobeysthe logic of the normat the level ciplinarysociety," during the nineof micro-power. Likewise,the growthof the insuranceindustry teenth century, along withthe beginningsof social insurance and the development of large-scale social welfare systems,marks the birth of the "insurance in whichthe norm functions similarly. society,"
does not referto the production In itstechnicalsense, the termnormalization of objectsthatall conformto a type.Rather,itinvolves"providingreferencedocuments for the resolutionof standard technicaland commercialproblems that and recur in the course of interchangebetween economic, technical,scientific social partners."'4Normalization, then,is less a questionof makingproductsconformto a standard model than it is of reachingan understandingwithregard to in itsarticleon stanBritannica stipulates the choice of a model. The Encyclopaedia dardization that "a standard is thatwhichhas been selected as a model to which objectsor actionsmaybe compared. In everycase a standardprovidesa criterion forjudgement." Normalizationis thus the productionof norms,standards for measurement and comparison, and rules of judgment. Norman F. Harriman measure or example, writes,"A standard maybe conciselydefinedas a criterion, of procedure, process, dimension, extent,quantity,quality,or time, which is basis of refcustom,or general consent,as a definite establishedby an authority, erence or comparison."'5 Implicit withinthe concept of normalizationis the notion of a principlefor measurementthatwould serve as a common standard, a basic principleof comparison. Normalizationproduces not objects but procedures thatwilllead to some generalconsensusregardingthe choice of normsand lends a certain paradoxical allure to standards. This definitionof normalization the historyof the term. Normalizationis a practicethat only became aware of century;the termitselfdates fromthis itselfas such at the startof the twentieth international do national and as the first organizationsconcerned period (1928), of norms.'6 withthe establishment the concept appeared as a sort worked on normalization, To those who first thatmake societypossible,no of universalorderingprinciple.All the institutions of measureinstruments such as language, writing, matterhow primitive, money, ment,habits and customs,all suddenly seemed to derive, at least in retrospect, from practices of normalization."' The normalizingprocess had accompanied humanityin everystage of its development.It served a primarysocial function both technicalprogress and by regularizinghuman conduct and by facilitating and societywould could communication.No social object escape normalization, had alwaysplayed an be inconceivablewithoutit,fornormsand standardization essential role in social development.Above all, though,normalizationplayed an 148
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of communication-the norm is what of systems essentialpart in the constitution common language. There was thus a certain into a signs linguistic transformed between societyand the norm,and betweenthe norm and language. reciprocity Thus, the modern exponents of normalizationviewed normalizationas a basic theyargued, withoutnorms, principleof socialization.There can be no society, codes, common standards of measurement,and basic principlesof communicaa societyof tion. Technical normalizationwas simplya question of constituting producers and consumers and providingit witha common language and common institutions. between technicalnormalizationand earlier formsof One basic difference and that modern normalizationwas self-consciously in the fact lay socialization activelywilled rather than simplytolerated or accepted, as in earlier periods. subjectedto the norm,now certain Where the population had once been passively seekingto directand manage the process of norelementswithinit were actively malization.'8This was a global developmentthatconcerned not only individual of productionitselfand with producers or sectorsof productionbut the activity of consumption. it the activity it from character of technical normalizationdifferentiates The systematic earlier processes to which it has some resemblance-for example, the Venetian centuryonward was organized whichfromthe sixteenth ship-buildingindustry, according to the principleof the divisionof labor.'9Technical normalizationhas Normalizationis the language of the engineer,and another genealogy entirely. marksthe momentwhen as a partof moderninstitutions itssuccessfulintegration this technical language could attain to the status of a common language. The of normalizationall grewout of associationsof mechanical and elecinstitutions centricalengineersthatwere founded duringthe second halfof the nineteenth tury in every industrialized nation.20One line of ancestry for the idea of and technologicaltransformations normalizationthereforelies in the scientific Normalization took on a real institutional that accompanied industrialization. bureaus of norms and standards official existence withthe creation of the first during the FirstWorld War. The demands of wartimeproductionwere a second point of originfor norof parts, sincecoordinatedproduction,interchangeability malizationmovements, of norms.2' of productsare all dependent on the establishment and compatibility In the period immediatelyfollowingthe war, normalizationappeared to be an inevitablerequirementof productionin the modern world,and seemed to imply a general peacetime mobilizationof the population. Future industrialand ecoleaders and industrial all seemed to depend on normalization, nomic productivity saw it as an inescapable necessity. became somethingmore than a techniqueto be adopted Thus normalization or neglected at will. Instead, it began to appear as the essential structurethat for productionand exchange everywherein the would provide the framework
itis both economic fornormalization: world. Herein lies the thirdline of ancestry and sociological. The demand for normalization in industry indicates an and thatthis thattheyforma society, increasingawareness among industrialists societyrequires its own language, its own codes, and its own specificformsof regulation. The technical normalization movement in industry signals the begin to recognize that and governmentofficials moment when industrialists the appearance of new needs, and mass consumptionall conindustrialgrowth, fromits predethatis distinct tributeto the creationof a new productivesystem cessors not only in termsof its techniques and productivecapacities but also in and itsrules. of communication termsof itsinstruments and objectivesof normalbetween the functions It is essentialto distinguish of normalizationare well known: simization and its techniques. The functions involvesreducing the Simplification and specification.22 unification, plification, that resemble each products between choosing objects, for number of models other too closely,and eliminatingany superfluous models. Unificationmeans of objects so that objects are compatible and establishingfixed characteristics interchangeable.Specificationis a process of reaching a precise understanding about standardsforthe qualityof manufacturedproducts.All of these functions productionbyreducingwaste,regare part of a largerprogramforrationalizing and of economic fluctuation, ularizing production so as to minimizethe effects In other words, one as possible.23 adapting production to demand as efficiently is to gain a certainmeasure of controlover of the aims of technicalnormalization time. Industrialnormalizationcannotbe reduced to the pursuitof these objectives forthe essentialthinghere is the techniquethatmakes itpossible. alone, however, authors to insistthatthere are many difDespite the tendencyof contemporary ferentkinds of norms-terminological norms,norms for spatial measurement, of normwould be inconceivable and qualitativenorms-any one of thesevarieties This mutualinterdependenceof normscan be explained by withoutthe others.24 the factthat what is reallybeing normalized is language. Normalizationbegins withvocabulary: is a meansof a particular toexamine problem to developwhenone begins thing The first and a single for eachthing meaning term must be a single there terms precisely: specifying
for each term....
in diaof symbolic and the forms representation productnomenclature, terminology, taskin is thefirst ofreference a setof standard points terminological establishing grams, ofnormalization.25 theprocess
Equally, since the elaboration of norms clearlydeterminestechnical
fornotationand writThis normalizationof vocabularyextends even to systems ing: the signs and locutionsthatcharacterizecommon usage are less than ideal for the purpose of precise technicalexpression.Words are soon joined by numnormalized. bers and drawingsthatare themselves 150
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Linguisticnormalizationalso encompasses syntax.The language of normalizationhas itsown grammarand logic.This normalizedlanguage servesa specific mode of thoughtthatit mustboth call forthand translate:it comprisesa styleof analysis,and a way of categorizingand breakingdown objects,tasks,and needs, them.At the same timethatit fabat once segmentingthemand individualizing and a a principle of objectification as serves normalization ricates a language, language servesto preventambiguities.It This artificial producer of objectivity.26 figures, puns, stylistic a language without is a language of precisionand certainty, However,thelanguage communication. or interference-the language of perfect of technical normalization also implies the institutionof a new relationship betweenwords and things. thislanguage, withits is the processof turning normalization Fundamentally, into a common language, a general principleof commuvocabularyand syntax, nication that functionsin much the same way as the systemof thoughtthat it expresses. This language must functionnot only withinthe limitedcontextof a and but withinthe sphere of relationsbetweenvariousindustries, singleindustry in the fieldof relationsbetweenproducersand consumers.Withinthislanguage, the demands of buyers,sellers,producers,and consumersmustall be expressed, and readjusted withrespectto one another.Normalizationestablishes refigured, groups to understandone another and the language thatallows these different new common standardsof Its centralprojectsare to institute to forma society.27 measurementwhile searchingfor appropriate rules of analysisand expression, and to teach thislanguage to all those who are involvedin one wayor another in of economic exchange. the system commonlanguage of pure of theperfect Normalizationis thustheinstitution But whatwillthislanguage say,and society. communicationrequired byindustrial what will be its content?What makes these new norms anythingmore than a precise and perfectedversion of communicationaltools that have already been in existencefor some time?How does one evaluate the requirementsof thislanguage, and itsperformancein communication-in otherwords,whatis the norm of technicalnorcharacteristics for industrialnormalization?One of the specific malizationis thatrequirementsand performanceare definedaccording to principles of relativityand solidarity.In terms of industrial normalization, the Normeasure of a productivenorm is a norm forconsumptionand vice versa.28 malization forces each individual to imagine the ordering principlebehind his not only withrespect to some ideal of perfectionthathe mightattainin activity but with system), isolation(such an ideal isolationhas no meaningin a normative Normalizationis a means of respectto a determinedneed thatmustbe satisfied. which makes each individual the mirrorand measure organizing that solidarity of his fellow. is not involvedin standardization."29 For Harriman, "The idea of perfection In place of perfectionis the "one best,"or the relativebest, with referenceto
industrialcapabilities and economic capacities,specificuses and requirements. Normalizationis a means of assigningvalue that renders absolute standards of The good is figuredin termsof adequacy-the good perfectionmeaningless.30 product is adequate to the purpose it was meant to serve. Withinthe normative values are not defineda prioribut instead throughan endless process of system, comparison that is made possible by normalization.The norm is the best relational principle. It expresses a compromise: the compromise among norms in accord with the general principle of normative solidarity,the compromise or the compromisebetween between technicalcapabilityand industrialcapacity, provides an or standardization, production and need. Technical normalization, equilibrium where example of valorizationthatmakes no referenceto universals, has replaced the absolute as the value of values. A standard may become stable so. The standard is a formof compromise, or regular,but it is only temporarily the common denominator,a point of referencethatis destined to disappear-a even thatof a group measurementthatexpresses the relationof a group to itself, as large as the entirepopulation of the globe. propertiesbecome apparent once again in the procedures These different nor is it a forestablishingstandards.Standardizationis not a formof legislation, process thatcan be carried out by decree. In other words,standardizationis not a state function.Rather, it presupposes the creation of associations where all interestedparticipants-producers, consumers,engineers,scientists-can negotiatethe common standard according to theirrespectiverequirements.There is a kind of democracy specificto the standardizationprocess.3' In general, this are the organizationsthatrepreon two levels: on the first democracyfunctions are competentto decide upon and activity kinds of productive sent the various associationsthat standards; on the second are the organizationsof standardizing of various norms among themselvesaccording to the verifythe compatibility This principle unifiedwhole."32 principle that "standards must forma perfectly task. infinite into an makes standardization Discipline, insurance, and standardizationought not to be conflated.However,all threepracticescan be subsumed under the termnorm.How can we think about the relationshipsbetween them, then? How mightcomparison of them our conception of the norm? It is worthnotingat the outset thateach of clarify these three sets of practicesis marked by a tendencyto relentlessproliferation: fromnegdisciplinebecomes normativeas itbecomes generalizedand as it shifts thi-s makes is what norm genof the the and logic ative to positivefunctioning, eralizationpossible. century, of the nineteenth Ever since itslegallyproblematicdebut at the start and itsspheres of influencehave expanded almostincesthe insurance industry santly.Today there is scarcelya social problem thatis not dealt within termsof 152
REPRESENTATIONS
risk: public hygiene,health issues, pollution, social maladjustment,and delinhas also quency have all come to make sense in insurance terms.Social security norrelations. Technical helped to make insurance the essential formof social malization,too, seems to require extensivedevelopment:normalizinga product by means normalizingboth productiontechniquesand the needs to be satisfied production. These normativeprocedures are implicatedin a process of expansion that only stops when each has exhausted the possibilitiesfor furtherextending its jurisdiction.They are also related to one another,however,in such a way that spiral.Modern techniquesformaneach pulls the othersintoa kindof normative aging accidents in the workplace provide a good example of this: the insurance way of coping withaccidentsresultedin the birthof a science of workindustry's ergonomics,whichis clearlyrelated to the developmentof scientific place safety, organization and management principles.The demands of social hygiene cerwhichwas itselftaken over of construction, tainlybenefitedthe industrialization of construction insurance. We mightalso the development and encouraged by and in so doing we would gradually of normativenetworks, chart the structure come to see how a norm on one level is related to a norm on another,a safety norm norm to a normativelevel of performance,for example, or a disciplinary to a productivenorm,or a productivenorm to a norm of population. "Norms," at least potentially. explains Canguilhem, "are relativeto each other in a system, into an orgatends to make thissystem withina social system Their correlativity ifnot by itself and foritself."33 nization,thatis, a unityin itself, therecan be no such thingas a norm that Justas normscan onlyexistsocially, but othernormson which existsin isolation,fora norm neverrefersto anything fromone level or shifting themselves, Norms communicate among it depends. fieldof theirexistenceto anotheraccordingto a kindof modular logic. The norm findsmeaning only in relationto other norms: only a norm can provide a normativevalue foranother norm. The paradox of the norm is thatbefore one can exist,theremustalreadybe another.If a normexists,the entirespace in whichit appears becomes a normativespace. Thus it would be an error to say that The to the stateand the whichextended the scope of the normative History ofSexuality, and Punish, populations withinitsjurisdiction,continuesor completesDiscipline whichmerelysituatedthe normativeat the level of discipline.This displacement is part of the logic of the norm. When the norm appears, it establishesitselfnecorder thatcharacterizesmodern societies. essarilyas an order: thenormative This correlativequalityof norms providesus witha methodologicalinsight: and theapparatus, institution, betweenthenormitself itis essentialto distinguish or technique of power that brings it into action and functionsaccording to its principles.The norm (or the normative)is no more specificto disciplinethan it is to insurance or standardization.The norm in particularcannot be characterized as the exertion of a punctiliousor minute formof power or imagined in and theLaw Discipline, Norms, 153
termsof the microphysics of itsengagements.Norms are linked neitherby scale (macro or micro) nor by the characteristics of their objects, whether they are bodies, populations, or things.Hence the ubiquityof the normative,which can no longer be confused with the exercise of power that it informs.If power is exerted according to a set of physicalconstraints, the norm fallswithinthe province of a metaphysics of power. What, then,is a norm? It is a way fora group to provideitself witha common in accordance witha rigorousprincipleof self-referentiality, denominator withno recourse to any kind of externalreferencepoint,eitherin the formof an idea or an object. The normativeprocess can obey a variety of different logics: the panoptical logic of discipline,the probabilistic schema of insurance,or the communicativelogic of the technicalnorm. These three logics have the same form: in each case, the rule whichservesas a norm,byvirtueof whicheveryonecan measure, evaluate, and identifyhimselfor herself,will be derived from those for whom it will serve as a standard. A strangelogic, this,whichforcesthe group to turnback in upon itselfand which,fromthe momentit establishesitself, willlet no one escape itspurview. The norm implies a rule ofjudgment, as well as a means of producing that rule. It is a principleof communication, a highlyspecificmeans of resolvingthe problem of intersubjectivity. The norm is equalizing; it makes each individual comparable to all others; it provides the standard of measurement.Essentially, we are all alike and, if not altogetherinterchangeable, at least similar, never differentenough fromone another to imagine ourselvesas entirely apart fromthe thisis primarily because rest.If the establishment of normsimpliesclassification, the norm createsclasses of equivalency. But the norm can also work to create inequalities.This is, in fact,the only thatit provides: the norm inviteseach one of us to imagine ourselves objectivity fromthe others,forcingthe individualto turnback upon his or her as different and irreducibleparticularity. More own particularcase, his or her individuality the equalityof individualsjust as surelyas it makes the norm affirms precisely, of normativeequality differences apparent the infinite among them.The reality in itsaffirmation of difis thatwe are all comparable; the norm is mosteffective but indiviferences,discrepancies,and disparities.The norm is not totalitarian dualizing; it allows individualsto make claims on the basis of theirindividuality lives.However,despitethestrength and permitsthemto lead theirown particular of various individual claims, no one of them can escape the common standard. on individuals;rather, of a group forcing constraints The norm is not the totality withoutany other supports. it is a unit of measurement,a pure relationship Normativepractices,based on the notionsof equalityand the common standard, are compatiblewiththe existenceof a certainkind of law. The normative allows us to understand how communicationremainspossible even withina historicalmomentcharacterizedbytheend of universalvalues. The normis a means 154
REPRESENTATIONS
withreferenceto the particularsociety of producing social law,a law constituted it claims to regulate and not withrespect to a set of universal principles.More of socithe modernity when the normativeorder comes to constitute precisely, eties,law can be nothingother than social. itis no longerbased This kind of law possesses tworemarkablequalities:first, will.In a normativeorder, on a model in whichthe law emanates froma sovereign there is no room for the sovereign.No one can pretend to be the subject that withoutbeing willed establishesthe norm; norms are created by the collectivity The norm is the group'sobservationof itself;no one has byanyone in particular. the power to declare it or establishit. Undoubtedly,the norm gives the group a does not derive froma conbut that sovereignty over itself, certain sovereignty tract.Although it presentsitselfas an expression of the general will,legislative withinthe normativeorder is mere appearance, a form or fiction sovereignty respectforthe common standard. to necessary ensure the community's order-and a normative Secondly,althoughtherecan be a parliamentwithin speaking, there are usually many,since theyhave a tendencyto mulpractically so. The law is and definitively This positionis empty, tiply-there is no legislator. no longer valid as an expression of the general will or the common interest. Rather,it is valid by virtueof its normativequality.Parliamentno longer estabregulations.A norlishes the fundamentalprinciplesof law; itcan onlyset forth mativeeconomy of obligationsallows us to imagine a law withoutobligationsor sanctions. The supportersof technicalnormalizationhave made it amply clear that whenever a regulation is propounded, a norm has been negotiated. The validityof a norm derives fromthe factthatit is not imposed fromoutside but space, conwithout requiringobedience. Withina normative thatitobservesitself straintis more of an obstacle than an aid. At the United Nations, for example, thatdo not and "recommendations" argumentshave been made for"resolutions" have the binding force of treatiesand serve instead as points of referencefor when they evaluating the conduct of states. Of course, theyare most effective are these resolutionsand recommendations express a consensus. More precisely, the expression of norms. The norm eliminateswithinlaw the play of vertical in favorof the more horizontalrelationsof social welfare relationsof sovereignty and social security.
The norm, then,is a means of producing the common standard,a rule for common judgement that makes law possible in modern societies. It functions withinthe bounds of threedefiningconditions. of a homogeneous fieldof positivevalues. The first involvesthe constitution The norm makes visible and records only the sheer phenomenalityof phenomena. The normativegaze does not seek to penetrateto the inner substance never going beyond of things.Instead, it remains on the level of pure facticity, and theLaw Discipline, Norms, 155
in themselves; thisto attaina deeper appreciationof itsobjects.Factsare sufficient theysimplyexist,neitheras appearance nor as essence. Processingthem is not them because for the normative a question of unmaskingthem or interpreting way of seeing, a factrefersto other factsand not to an originalcause. Thus, in the normative order one simply moves from one visible surface to another, indefinitely. based on pure factsis fundamentalto the normativeorder. This positivism and as a common It allows the norm to appear as both a principleof objectivity language. If therewere a norm forthe norm,itwould be thisrigorouspositivism presupposes a dual decision that funcThe normativeinstitution of exteriority. tions in both a negative and a positive sense. In its negative formulation,the factsfrom language of the norm assumes thatit is alwayspossible to distinguish is subFrom the normativepoint of view,all interpretation theirinterpretations. In jective; all explanation,opinion, and theoryare simplyformsof metaphysics. thatis indepenallowsforcommunication the normative itspositiveformulation, dent of all philosophical or religiousconviction.Withinthe realm of the norm, separated. The categoryof the normative faithand knowledge are definitively itselfpresupposes the creation of a purelydescriptivelanguage in which syntax and vocabularywould alwayssucceed in containingthe slippage of meaning that of secular politicsis founded on the constioccurs in metaphor.If the possibility secular. thenthe normis eminently tutionof a sphere of objectiveinterpretation, but natural; facts As I have suggestedearlierin thisessay,normsare anything betweenfactsand theirinterare never simplygiven. It is essentialto distinguish has played a major role in establishingthis probability pretations,and statistical resemblesthe language of the In thisrespect,the science of statistics distinction. functions It also as a commonlanguage its and syntax. normboth in itsvocabulary independentof anydoctrine.Of course, therecan because it produces objectivity are techniques and probability Statistics withoutobjectification. be no objectivity liberated from all metathat produce factswhose objectivity, of objectification physics,can functionas a common language. This is not to say thateitherone is but simply thattheycreate the neutral,or thatthereare such thingsas pure facts, of objectivity. possibility This directly contradicts of the normis itsrelativity. The second characteristic the idea that the norm represents some kind of absolute.A norm is a selfstandard of measurementfora givengroup; itcan make no pretense referential period, as a law can. This is not to say thatnorms to bind anyone foran indefinite are ephemeral, for theyare enormouslydurable. But theyare also inconstant, thiscapacityforadapIn theeyesof thebusinesscommunity, almostbydefinition. normalization conditions makes to superior tationand flexible response changing to laws or regulations as a management technique. Part of the norm's value time-bound. derives fromthe factthatit is so completely the norm can never be universal. Ever since the work of Emile Similarly, 156
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Durkheim, both sociology and cultural ethnologyhave repeatedlyreturned to of a norm can never extend beyond the bounds of the the idea that the validity group which that norm describes. As Durkheim notes, "A fact can be termed pathologicalonly in relationto a given species.... It can onlybe termednormal The of itsdevelopment."34 in relationto a particularphase, likewisedeterminate same holds true for biological norms: standards of health are not the same for everyone,and those suitable for adults would be less so for small children or itmakes no sense to apply a particular elderlypeople. Because normsare relative, set of norms establishedforone group to otherunrelated groups or cases. of norms has often been interpretedto their detriment,as The relativity though the fact that normativerules bear the marks of theirhistoricalcontext does not necessarilyimplyrelawere enough to make them invalid. Relativity tivism.If a norm's sphere of validitycannot extend beyond the bounds of the because normsare neiplace, thisis precisely group thatestablishesit in the first In there is system of valorizationspetherequivalent nor interchangeable. short, cificto norms thatis altogetherunrelated to the Kantian criteriaforvalue. Finally,norms involve polarity.Canguilhem has commented that the relationshipbetween the normal and the abnormal is not "a relationshipof contrabut one of inversionand polarity."35 As we have already dictionand externality, observed, the abnormal is not outside the realm of the normal; the division betweenthe normaland theabnormaloccurson thebasis of inclusionratherthan exclusion. However, if the normal and the abnormal can only be distinguished are real distinctions even possible? along a continuous spectrumof possibilities, on of status of the anomalous. This is the biological problem deciding the Recalling Canguilhem once again, we are reminded that anomalies are part of the normal in much the same way thatmutationis an essentialpart of biological of Justas in statistics, thereare never any real constants-only differences life.36 various sorts. But if the norm is based on variation,how can we describe one particularsortof variationas abnormal? Biological anomalies can be considered abnormal less because theydiverge froman a priori model of their type than as a handbecause the anomalous individualwillexperience his or her difference icap or obstacle in the business of life. If all possible formsare not normal,it is not because some formsare naturally impossiblebut because the various possible The formsof existenceare not all equivalentforthose who mustexistin them.37 separation between the normal and the abnormal occurs at the point in the relawhere equilibriumis comand its environment tionshipbetween a livingentity pletely disrupted, and the distance between environmentalrequirementsand individual performance becomes too great. If environmental requirements change, performancedoes too, and along withthemthelocationof theboundary between the normal and the abnormal. of value in politicson thebasis We can also explain the normative assignment of these ideas. Social groups impose demands of various sorts(e.g., industrialor and theLaw Discipline, Norms, 157
educational demands) that serve as the standard by which individual performance is measured and that allow individuals to be classifiedand placed in a It no longer refers is defined as a handicap or inability. Abnormality hierarchy. to a natural qualityor propertyof being; instead, it signals some aspect of the betweenthe normaland the abnormal The relationship group's relationto itself. thus becomes an unstable threshold.At the same time,the politicalstakesin the apparent. Opposition to a particfixationof thisboundary become increasingly ular technique and the demands associated withit implies a will to modifythe of the normal and debate over the frontiers thresholdfor exclusion. Inversely, to alterthe social conthe abnormal is meaninglessin the absence of some effort ditionsthathave produced the boundary. The normativesocietyis a strange one: like all other societies,it excludes various individualsand groups, but its tacticsforexclusion in no way implyany kind of natural prejudice. It has its own demands, whichare never natural and always social. In normativesocieties,politicallife is alwayshighlypolemical and of a balance between the various concerned primarilywith the establishment of specific claimsof individualsand groups,a stablesocial state.The achievement and of this since in the maintenance state, is than negotiation ends less important are one and the same. the normativesocietysocial good and stability To the extent that norms are unstable, one mightobject that theycannot function eitheras a common standardor as a preconditionforlaw.Afterall, how changingand can offer can a rule serve as a common referenceifit is constantly no securityto those who will have to make decisions based on it? Doesn't a rule have to be fixed,unchanging,and outside the influenceof those who are going changingstillbe considered a law? to use it?Can a law whose rules are constantly The evidence provided The norm is thatwhich,as a rule, is least arbitrary. does regularitiessuggeststhat normativeobjectivity by averages and statistical Certain social facts and situations. moments for particular particular exist,at least do recur reliablyin obedience to a sociologicallaw of inertiawhichcan be read as normative identity. proofthatthe lifeworld has found itsequilibriumin a specific as ifanything were posA priori,a normativeorder may seem to be constructed is possiblein law,in practical sible. However,even ifwe do believethateverything limited.The rationality are predeterminedand relatively termsthe possibilities thatcannot be pragmatism of the norm has introducedus to a kind of positivistic grasped in absolute terms.What we mustunderstandis thatthere is no need to in theirbehavior. impose a law on the livingin order to ensure regularity
I have attemptedto elucidate Foucault'sratherenigmaticclaim at the end of TheHistory that,as a resultof the rise of bio-power,"we have entered ofSexuality a phase ofjuridical regressionin comparison withthe pre-seventeenth-century This remarkmightwellbe construedto mean societieswe are acquainted with."38 158
REPRESENTATIONS
that there has been some kind of decline of law and legalityin modern society. However, Foucault's project was neither to announce the imminentdisapbio-powerin the name of law. Foucault was conpearance of law,nor to criticize cerned less withthe place of law in the exercise of power (that is, whetherbiopower is compatibleor not withthe exerciseof law) than withthe use of law as a Foucault was "model" for analysis,a principle that makes power intelligible.39 betweenthejuridical and the political,and between interestedin the relationship theconditionsnecessaryforan analysis power and law,as a means of determining of the mechanismsof power. Power does not necessarilyfunctionthroughlaw. Instead, law serves to camouflage the machinations of power. An adequate descriptionof monarchicalpower would have to include law, for law is the lanitsown exerciseof within order to legitimate guage the monarchyprovidesitself anyreferenceto thejuridicalis illusory, power.However,in thecase of bio-power, since the language of bio-poweris purelytechnicaland has almostnothingto do if the with the law as such. Foucault's analysis leaves open two questions: first, how do we bio-power, juridical is an inappropriatecategoryto use in interpreting laws, regof the law" (codes, constitutions, make sense of all those "instruments ulations) that have developed and expanded during the era of bio-power? of law as the code and Second, ifthe actionof normsreplaces thejuridical system language of power,what role remainsforlaw?40
legal apparatus is not cotermiI have tried to argue that the contemporary nous withthejuridical, as Foucault describesit,and thatthe normativeand the I have attemptedto delineate the strucopposed. Further, juridical are essentially ture of the normativeon the basis of two examples: insurance and industrial of thenormto include thatform standardization.I have broadened thedefinition of the common standard produced throughthe group's referenceto itselfand in termsof itsformal thatlaw cannotbe understoodsimply finally, demonstrated, codes, laws). These must all referback to what funcexpressions (constitutions, tionsin societyas a common standard,a normativeand objectivebasis forjudgof the law in which law is no longer ment. Thus we can now imagine a history terms,and an account of the inevitabledecline of essenconceived in essentialist tialist law becomes unnecessary. In both the insurance system and industrial standardization,the norm appears as a technique for the production of a common standard of measurement. No societycan exist withoutsomethingakin to thiscommon standard, a making exchange and comcommon language that binds individualstogether, of the common stanmunicationpossible. The norm is one partof a long history This of the norm and the articulation of a category. lesser instance larger dard, a common standard opens up a varietyof research perspectives,allowing us to in termsof measurementtechniquesand standards.Societies explore modernity and theLaw Discipline, Norms, 159
in theirinstruments become modern at least partlyby virtueof transformations of technical,political,and social measurement.What did the FrenchRevolution of measurein systems bringabout, afterall, if not an enormous transformation of a trulynational the institution of the metricsystem, ment? The introduction language, calendar reform,and the creation of the Civil Code are all examples of constitutional democracywas a means of prothe institution of this.Similarly, of the social ducing a common politicalstandard.One mightalso read the history sciences in the nineteenthcenturyas the formationof so many instruments intended to furnishmodern societies with social and political measurements. in termsof thetransformation a given Thus we mightwellassess social modernity societymay have experienced in itstechniquesof measurement. -Translated and adapted by Marjorie Beale
Notes
1. Michel Foucault, The Historyof Sexuality,vol. 1, An Introduction,trans. Robert Hurley
de ses facultes; ou, Essai de physique 11. Alphonse Quetelet, Sur l'Homme et le delveloppement
10. Ibid., 18-19.
(Paris, 1848), 13-14. social et des lois qui le regissent 9. Alphonse Quetelet, Du Systeme
(New York, 1980), 135, passim. 4. Ibid., 82-83 and passim. 3. Ibid. 2. Ibid., 144. trans. Carolyn R. Fawcettand and thePathological, 5. Georges Canguilhem, TheNormal Robert S. Cohen (New York, 1989), 239. part 2, chaps. 1 and 2. (Paris, 1986), particularly 6. See Fran~ois Ewald, L'Etatprovidence 7. It is worthnotingthatit is impossibleto insure oneselfagainstdanger. Revolution (Cambridge,Mass., 1987). 8. See Lorenz Kruger et al., TheProbabilistic
sociale,2 vols. (Paris, 1835), 1:20, 2:250. 12. Ibid., 1: 147-48.
13. Eugene Reboul, Les Assurancessur la vie (Paris, 1863), 44.
15. Norman F. Harriman, Standards and Standardization (New York, 1928), 24.
order of 26 January 1984 concerningnormalization. 14. Statutory
16. Some of these organizations include: Normenausschuss der Deutschen Industrie, 1917; Union Suisse de normalisation,1918; American EngineeringStandards Committee,Comission permanente de standardisation(France), Engineering Standards created in 1901, the Committee (England, reorganized from an earlier institution InternationalStandardizingAssociation),1928-30. 17. See Jacques Maily,La Normalisation (Paris, 1946), 11 and passim; Harriman, 1; John 1927 (Berlin, 1928). as the passage froma process thistransformation would interpret 18. AlbertW. Whitney of natural selection to a process of selectionbased on rational choice. See National Standardization (New York,1929), IndustrialConferenceBoard, Inc. [N ICB] Industrial 18.
Gaillard, Industrial Standardization,Its Principlesand Application(New York, 1934), 1 and Normungauschuss:D.I.N. 1917passim; Waldemar Hellmich, VomWesungder deutschen
160
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19. 20. 21. 22. 23. 24. 26. 27. 28. 29. 30. 31.
32. 33. 34. 35. 36. 38. 39.
Maily, La Normalisation,24. Normung. See Hellmich, VomWesungder deutschen See Hellmich, ibid.; Maily, La Normalisation,26. Maily, La Normalisation,35 and passim; Harriman, Standards, 24 and passim; NICB, Industrial Standardization, 23 and passim. See Maily, La Normalisation, chap. 5, "Les Avantages de la normalisation," 89 and passim. 25. Ibid., 49. For example, see ibid., 48 and passim. See Gaillard, "Definition of Concepts in a Standard," Industrial Standardization,36. Harriman, Standards, xvi. Normung: "There is no such thing as an isolated or Hellmich, VomWesungder deutschen independent norm; all norms are interdependent." Harriman, Standards, 79. See Jessie V. Coles, Standardizationof Consumers'Goods: An Aid to ConsumerBuying (New York, 1932). Maily, La Normalisation,150 and passim; N ICB, IndustrialStandardization,chap. 6, "The American Standards Association and Other National Standardizing Bodies," 100 and passim. Maily, La Normalisation,61. Canguilhem, Normal and Pathological, 249. Emile Durkheim, The Rules of Sociological Method,ed. Steven Lukes, trans. W. D. Halls (London, 1982), 92. Canguilhem, Normal and Pathological, 239-40. 37. Ibid., 125ff. Ibid., 263-64, 267-68. Foucault, Historyof Sexuality,144. 40. Ibid., 144. Ibid., 86.
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Norms, Discipline, and the Law Author(s): Franois Ewald Source: Representations, No.

Norms, Discipline, and the Law

30 - Spring 1990 C) THE REGENTS OF THE UNIVERSITY

Norms,Discipline,and the Law

Norms,Discipline,and the Law

Equally, since the elaboration of norms clearlydeterminestechnical

10. Ibid., 18-19.

sociale,2 vols. (Paris, 1835), 1:20, 2:250. 12. Ibid., 1: 147-48.

13. Eugene Reboul, Les Assurancessur la vie (Paris, 1863), 44.

order of 26 January 1984 concerningnormalization. 14. Statutory

32. 33. 34. 35. 36. 38. 39.

Norms,Discipline,and the Law

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