Rethinking Law, Society and Governance: Foucault's Bequest
by Pavlich, George and Gary Wickham (eds.)
Oxford: Hart, 2001
Thinking critically about law and governance has become deeply intertwined with the idea of the 'social' as a category of inquiry. As Nikolas Rose and Peter Miller have pointed out, configuring the 'social' as a category of inquiry "does not refer...to a given repertoire of social issues, but (instead) to a terrain brought into existence by government itself - the location of certain problems, the repository of specific hopes and fears, the target of programmes and the space traced out by a particular administrative machinery" (191). The anthology Rethinking Law, Society and Governance: Foucault's Bequest builds upon the body of socio-legal scholarship that utilizes Foucault's work on governmentality and "grapples with the legacy of social governance in contexts seeking to regulate subjects" (2). Specifically, the book considers both methodologically and through various analyses of politicized action in local contexts (with a particular focus on Australia), whether an examination of political involvement should be (can be) a central element of a 'governmentality approach' to socio-legal inquiry.
In the introduction "Transforming Images: Society, Law and Critique," George Pavlich carves out the discursive terrain that ultimately serves as the theoretical framework intended to navigate our reading. Pavlich urges us to consider what the editors see as the "changing auspices of 'social' governance;" he suggests that there is a move away from practices of governance that are predicated upon and emerge from ideas of the social (social welfare, social order, and social security, for example) to current practices of social governance that can be investigated through the use of the concept co-social governance. Co-social governance refers to emerging "governmentalities (that) are not predicated on, or after, social governance, but emerge somewhat parasitically with social calculations of rule" (italics in original, 4). Employing this concept of co-social governance, as both a theoretical tool and a way to investigate the material organization of contemporary governance, Pavlich insists that emerging governmentalites in various global contexts suggest that other concepts such as the "family," "community," "security" have replaced and/or co-exist along with the "social" as a framework for governance. Pavlich maintains that their "use of 'co-social governmentalities' signals these multiple, undetermined, dynamic and hybrid shifts in rationales and practices of rule away from a regulatory arena predicated on images of the social as a primordial being" (4). The collection intends to contribute to the burgeoning field of socio-legal studies that aims to de-centre the historical prominence of the concept of the 'social' as the singular mode of inquiry into scholarship relating to social governance.
Rethinking Law, Society and Governance gathers interdisciplinary scholarship from Australia, Britain, Germany and Canada. While the focus of the anthology is precisely the emergence of co-social governmentalities in various global contexts, one over-arching theme, (noted in the introduction), is the insistence upon the socio-historic (and indeed, temporal) specificity of emerging co-social governmentalities. Attention is paid to framing governmentality work in the context of political commitment and resistance. However, the essays often to do not pay particular attention to the specific ways in which the "constitution" of those "governed" is informed by racialized and gendered realities that necessarily inform the shape and very nature of political engagement and resistance at multiple levels. As Gail Lewis has noted, governance "involve(s) the constitution of a 'people' who, whilst being defined in relation to some racial, ethnic, religious or psychological criteria...become inscribed in a multiplicity of knowledges, practices, techniques and observations to which they are subjected and of which they are subject" (25). As a result, the omissions of the specific contours of racialized and gendered realities of those 'governed' throughout the collection are productive in supporting the idea that a governmentality approach is somehow abstracted from particular "subjected" realities - a critique of governmentality scholarship that O'Malley, Weir and Shearing have also noted (1997).
The first essay in the anthology, Pat O'Malley's "Genealogy, Systemisation and Resistance in 'Advanced Liberalism,'" offers the discursive and theoretical contours of Foucault's genealogical approach relevant to socio-legal work and argues that governmentality scholarship can overcome certain weaknesses by attending more acutely to a genealogical method. In particular, investigating recent developments in "punishment" and crime control policy, O'Malley's analysis attempts to carve out the necessary theoretical and material place for accounting for political action and resistance in the context of governmentality work in the current state of 'advanced liberalism' (23). Deeply motivated by Foucault's genealogical approach, O'Malley's contribution to the anthology is methodologically instructive for scholars using governmentality literature because it is attentive to the conflicting, divergent and often oppositional nature of 'political rationalities' in neo-liberal (neo-conservative) climates.
Annette Pederson's "Governing Images of the Australian Police Trooper," examines the paintings of William Strutt, who "painted European and Aboriginal mounted police officers and troopers during his time in Australia between 1850 and 1861." She connects Gramsci's notion of 'civil society' with Foucault's analysis of disciplinary power in her analysis of the paintings (28). Although Pederson is attentive to the theoretical contours of Gramsci's and Foucault's work, her reading of Strutt's images fails to transpose the work of Gramsci and Foucault onto a terrain that is specifically considerate of the racialized contours of Australia as a white settler society. While Pederson notes in various places in passing that "the trooper (as envisaged in the paintings of Strutt) reaffirms European control over the landscape," her analysis would have benefited from the recognition that the historical process of "settlement" informs racialized thinking and works both historically (and now) as the epistemological frame of reference for legal, political and often, artistic practices (42).
Russell Hogg and Kerry Carrington are more attentive to the workings of race in white settler societies such as Australia in their essay: "Governing Rural Australia: Land, Space and Race." Hogg and Carrington examine a recent High Court of Australia decision (the case of Wik) which "decided that Aboriginal native title could co-exist with pastoral leasehold interest in land" and their research is concerned with the connection between the Wik case and "long neglected questions about the history and governance of land and race in rural Australia" (43).
William Walters' "Governing Unemployment: Transforming 'the Social'?," distinguishes certain features of a governmentality approach to social governance, calling attention to its particular focus on "the programmatic aspect of governing, the liberal character of dominant strategies of government...and the practical dimension of rule" (61). Walters' focuses on the particular 'problem' of governing unemployment today and outlines four strategies for 'governing' unemployment utilized in Britain. Walters' essay is useful in demonstrating how a governmentality approach can attend to the particularities of social governance and he highlights the nature of hybrid, simultaneous, multiple and indeed, co-social governance practices at work in contemporary contexts.
In the second section of the book, "Law, Crime and the Politics of Co-Social Governance," Jo Goodie's "The Invention of the Environment as a Subject of Legal Governance," examines the ways in which "the discourse of risk has become integral to the construction of public health environments in toxic tort cases" (79). Utilizing a governmentality approach, Goodie treats the "environment" as a "subject of legal governance" in order to displace, and indeed de-centre, the autonomous, reasonable and rational subject - the historical subject of law (80). Goodie's contribution to the anthology embraces the very idea of co-social governance, proposed by Pavlich, and impels scholars of a 'governmentality approach' to consider critical inquiry beyond the notion of subjects (individual persons) as the objects of governance to the social "problem" itself (such as the 'environment') as the centred subject of socio-legal concern.
Kevin Stenson's "Reconstructing the Government of Crime" and David Brown's "Governmentality and Law and Order," examine a governmentality approach to the analysis of crime. Stenson centres the "government of crime" as his 'problem' of inquiry and what he calls the "reconstruction of the government of crime," and shows how the governance of crime occurs in Britain, the United States and Europe simultaneously with other co-social governmentalities and frameworks such as "urban safety," "zero tolerance," and "quality of life." Brown's particular focus is his "desire to maintain a politics and political engagement" and by utilizing recent approaches to crime control in Australia, his essay explores a "particular criticism of much of Foucaultian 'governmentality' literature: that it disdains politics" (109). Brown advocates for an analysis of political engagement to be at the forefront of governmentality scholarship and he demonstrates how governmentality scholarship is not only useful to assess the "programmatic" elements of governance, but also to assess its applicability to the study of the grounds for resistance and political struggle.
The last two essays of the collection by John Malpas and George Pavlich engage Brown's call for political engagement through a governmentality approach. Malpas reflects upon the idea that methodological questions "are rarely separable from questions of ontology" and challenges governmentality scholars to think of "imagining" (and critically investigating) a politics of social change through the idea of co-social governance. Finally, George Pavlich's, "The Art of Critique or How Not to be Governed Thus," concludes the collection and offers a seductive but nevertheless racially devoid view of the future of social critique as "mobilizing an art of critique (that) implies multiplying moments of opposition that discern the contingency of governmental limits, dissociate subjects from problematic subjugations and contemplate possible transgressions" (154).
Rethinking, Law, Society and Governance proposes to challenge and complicate governmentality scholarship that centres on the notion of the "social" as the foundational and over-arching mode of inquiry. The collection is successful at de-centring the "social" and does provide methodological tools with which to navigate governmentality scholarship in a direction that is particularly attentive to the emerging co-social nature of contemporary governance in many global (and local) contexts. The anthology suffers from the usual over-application of governmentality literature to the context of criminal law and "crime control" policy and indeed, this is a critique that Jo Goodie notes in her article when she suggests that "Foucaultian scholars interested in socio-legal studies have tended to focus on the practise of criminal law" rather than civil law or administrative law (79) or indeed, alternative areas of application. Rethinking, Law, Society and Governance fits into a larger conceptual framework related to the exploration of the applicability of governmentality scholarship to the analysis of political resistance. Since the racialized and gendered consequences of contemporary co-social governance are clearly outside of the analytic concern for many of the contributors to this collection, the very idea of resistance in this context remains curiously abstracted from actual social and political realities structured through race and gender. It is only when it is recognized that practices of governance cannot be separated from the effects of governance along racial and gendered lines that scholars of governmentality can begin to explore a critical space for the socio-historic consideration of different forms of political involvement and resistance.
References
Lewis, Gail. "Configuring the Terrain: Governmentality, Racialized Population and Social Work," in 'Race,' Gender, Social Welfare: Encounters in a Postcolonial Society. Cambridge: Polity Press, pp. 23-42, 2000.
O, Malley, Pat, Lorna Weir and Clifford Shearing. "Governmentality, Criticism, Politics," Economy and Society, 26(4) November: 501-517, 1997.
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