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com/2014/10
Posted by Barry Stocker
05 October 2014

Style of Living versus Juridification in Foucault

I'm making a brief exploration of one of the most significant oppositions in Foucaut's thought,
which has not been discussed that much in my experience, but I may well have overlooked some
vast bibliography. In any case, there is a major polarity in Foucault between the style of living in
antiquity, related to care of the self, and in which 'style' can be replaced by 'aesthetics' or 'techne',
while 'living' can be replaced by 'existence', in ways I do not think make much difference to the
current discussion. There is also a relation with the discussions of the government of the self and the
use of pleasure. I am not getting into references and precise context, but outlining the general field.
The most obvious opposition to 'style of living' is the emergence of 'subjectivty' in the sense of
some deep subject behind speech and action. Foucault's understanding of this refers in large part to
the development of the confessional in Christianity, with the standard Catholic confession in private
to a priest taken as the end point. There is a suggestion in this historical discussion of a historical
preparation for the development of assumptions about the sbject that come to inform Descartes,
and what follows Descartes with regard to consciousness and subjectivity.
What is also at issue, if largely left to the reader (or listener since we are largely discussing
posthumously published lectures here, is the historical preparation for disciplinarity. Disciplinarity
can of course be followed up in Discipline and Punish, while the Cartesian Subject can be followed
up in History of Madness. What is also emerging in Foucault's discussion of the rise of the 'subject'
in late antiquity is a topic that was not at the centre of any of his published books, that is
'juridifcation', which could be taken as part of the background for Discipline and Punish, but covers
ground that is not so much discussed in Foucault's account of the movement from spectacular
punishment to prison.
'Jurdification' is the term Foucault uses for th growth of statute law in the Middle Ages, which was a
process much discussed before Foucault, going back through Weber to Montesquieu, and I would
suggest to a consciousness in Machiavelli that his era was codifying the Roman legal legacy. In
Foucault's analyss though, juridification begins earlier and is more pervasive. It comes into the
discussion of the confessional and the evolution of church government, because of the increasing
importance of Roman law to the church as well as to the medieval state. The shift towards Roman
law is often dated to the thirteenth century, but was certainly in some way in process earlier than
that given that knowledge of Roman law never completely disappeared from what had been the
western Roman Empire, and the codification reached its height under Justinian in the east, in what
was eastern Rome becoming 'Byzantium', the Hellenised version of the Roman Empire, which
maintained a presence in Italy into the high Middle Ages.
For Foucault, juridification is a phenomenon that precedes the fall of the western Empire in the
institutionalisation of Christianity, and the decay of republican self-government, or indeed
'parrhesia' or 'libertas', as republican discourse gave way to explicitly autocratic discourse. So the
fall of political institutions in the fifth century and the new 'barbarian' forms of government and law,
are laid over a continuing process in which individuals are defined as subects with a conscience to
be revealed to the church, a church which disciplines and governs through laws rather than allowing
style of living.
That is individuals do not create a self with its own way of encountering the ethics of social
existence, but are expected to be guided by the punishments of laws enforced by the state, or parastate institutions such as the church. The possibilities for centrally organised violence to further

uniform state-church power are revealed in the Cathar, or Albigensian, Crusades in southern France
in the thirteenth century, the time at which the deliberate use of Roman law to further crown and
church power, has become noticeable. It all stems from the confrontation between style of living
and juridification. Style of living is predominant when laws are understood to be the writing down
of custom, and are not considered to be part of the political process Juridification is predominant
when the state innovates in laws and is active in enforcing uniform compliance.
I am sketching out a what is already a schematic approach in Foucault, and the intention is not to
reduce Foucault to a schema to be further simplified. The relation between the more personally
understood customary and the more command based state imposed form of law is evident in
Sophocles' Antigone long before late Roman juridification, as is well known. The achievement I
find in Foucault is to direct us to always be aware of the tension between a state legal code way of
thinking and a way of thinking and a more individualised approach to living according to a
combination of general respect for law and self-regulation. The edicts of Creon in Antigone still rest
on assumptions of law restricted to big questions of sovereignty rather than the details of social life.
The meaning of Foucault's approach to antiquity can I believe be furthered by approaching the
apparently awkward link between antique style of living and Romantic or post-Romantic ideas of
self-creations that appears in Foucault. The anachronistic comparison draws our attention to how in
antiquity the idea of a self-created social existence had a centrality it lacks in the nineteenth century,
and since, when style of living is bond to seem to be an exploration of marginality, alienation, or
'deep' inner experience.
Without idealising antiquity, or not as a deliberate project anyway, Foucault gets us to think about
what is lost in a society in which detailed laws, inevitably backed up by a large scale administrative
state with intrusive coercive powers, pushes the creation of a self not conditioned by administrative
forces inwards, or to the margins. Of course Foucault was aware of the ways that antique states and
religious forces tried to govern the soul, but his understanding of the limits to that government
compared to a world of juridification, disciplinarity, and biopower, are a central part of his legacy.

12 October 2014
Kierkegaard's
Distinction

Subjectivity

and

Foucault's

Style

of

Life-Juridification

Continuing from my last post on 'Style of Living versus Juridification in Foucault', there seems to
be me to be something to be gained by thinking about Kierkegaard's ethics here, even if
Kierkegaard's Christianity and Foucault's aesthetic self seem rather distinct. The emphasis in
Foucault on style or aesthetics of life or existence seems to be be already the object of criticism, in
Kierkegaard's account of the aesthetic (as a mode of life rather than with regard to the appreciation
of art and beauty). However, Foucault does refer on occasion to the self as acting on itself in
Kierkegaard. So Kierkegaard has a particular importance in suggesting that the self is not just an
observing consciousness.
Kierkegaard's attitude to the self , and modes of living, is in some degree structured by an
understanding of the relation between individuality and the state as a political entity. It is an
understanding that draws on Hegel, but which tries to resist what Kierkegaard takes to be an
absorption of the self into history and communal morality in Hegel's philosophy. That continuation
of aspects of Hegel includes a distinction between antique and modern communities, which itself
draws on an enormous amount of earlier thought going back to the Renaissance regarding the
distinction between antiquity and the present.
The main Hegelian point, for Kierkegaard, is that the antique community is less divided between
communal ethics and some more absolute source of ethics. Individuals experience themselves as

part of a state or a family, or as dominated by some pagan style of fate. The modern world places a
burden of the individual lacking in antiquity, since in theological terms there is no intermediary
between the individual and God in Christianity (particularly given Kierkegaard's Lutheran
Protestant assumption), and in social terms the world is less that of the lived community of a
polis (so Kierkegaard seems to restrict antiquity to small city states, thogh maybe thinks their
essential aspects may apply in less pure forms to other forms of antique political community) in
which the individual experiences deep belonging.
As in Hegel, the transition is in some part due to the emergence of Christianity, as a way of
structuring experience, and presumably as a way of structuring politics, once it becomes the state
religion of Rome. This is not just a belief that world history expresses deep theological categories.
Kierkegaard is strongly aware of the naure of law, and though he does not go into the development
of sovereignty and law in Rome and then the Middle Ages, in the way that Foucault does with his
understanding of 'juridification''. However, Kierkegaard does have a lot to say about the role of the
judge, particularly with regard to Judge (or Assessor) William in Either/Or I, who also appears
in Stages on Life's Way.
William expresses a devotion both to law and to a socially diluted understanding of Christianity as a
set of general rules (even if he is aware in principle that Christianity should pose a deeper
challenge), which makes him something of a stand in for Hegel, as a well as a representative of an
Aristotelian understanding. Kierkegaard seems inclined to take up Descartes plus Luther scepticism
of Aristotelianism, including its Medieval Scholastic expression, even though Kierkegaard's
theology and philosophy go some way beyond the author of the 95 theses of Wittenberg and the the
supposed Father of Modern Philosophy. In that context, Kierkegaard might seem remote from the
Medieval revival of Roman law and the Enlightenment or Hegelianised Enlightenment advocacy of
a legally defined state, which has the sovereignty to enforce that laws that allow civil society.
Kierkegaard is not rejecting the world of 'jurdification', or legalistic state plus legalistic civil
society, as his comments on Danish politics suggest an acceptance of a contract between sovereign
and subjects, which should sometimes be revised. The struggle between traditional sovereignty and
revolutionary demands for a new contract can even suggest a desire for the absolute beyond relative
political positions, that can bring us to the verge of a proper understanding of Christianity,
presuming we do make the transition from thinking of th political state as absolute to the absolute
in all experience.
The absolute of the Christian god is something we can have some grasp of, according to
Kierkegaard, through understanding in a very experiential implicit sense of understanding the
absolute nature of our own subjectivity. We cannot grasp our self as a series of discrete moments, a
mode which is aesthetic, but as something absolute in relation to moments of experience. In one
sense, the absolute in Kierkegaard leads us to a metaphysical god external to the world and us, but
that is not what is emphasised by Kierkegaard who explores subjectivity as what is constantly
dealing with the tension between relative and absolute in experience, and can only do so
successfully through some distance from the world of legality and abstract sovereignty. The
concrete sovereignty experienced in the struggle between monarchist reaction and democratic
revolution is itself part of the experience of the more than 'juridical'.
Kierkegaard suggests a kind of aesthetics of existence in which we should be aware or our changing
imaginative and inventive capacities, which is the aesthetic as such, but see that a way or taking up
and exceeding both inner aesthetics and external law is necessary to an experience of the self over
time that as some form of unity, in a tension with the more momentary and relative aspects of the
self. Replacing references to Christianity with something like 'self-affecting subjectivity' may get us
quite close to Foucault or maybe we can just think of Christianity in Kierkegaard as the kind of
religion which has a style of living as something more than simple asceticism or obedience