Melbourne Doctoral Forum on Legal Theory, University of Melbourne, December 2012
6 Pages Posted: 7 Jan 2013
Date Written: December 7, 2012
For the benefit of the state, violence is the tool of a socially agreed relationship of domination; it is the tool of a power relationship where the legally constructed constraint is legitimate (Weber). In a state governed by the rule of law, this power relationship is exercised on individuals previously and legally established (natural persons), in a relation to a being or a having (the man of human rights or the Lockean owner). Thus, in this context, the individual is the prime-concept of the legal order, in the sense that the system cannot be thought without its prior institution.
But this relation to the individual, that formalizes the relation between the subject and the state, leads to mask the power relationship behind the legal relationship. Where Foucault reminds us that the problem of modern societies is not to free the individual from the state but to release ourselves, as a subject, from the type of individualization which is linked to the state ('the type of individuality that we have been imposed for several centuries'), it must be added that this 'government by individualization' is no longer such a state monopoly, but it goes now through the whole society. Human rights are thus facing a proliferation of actors, both internally and internationally, and a decontextualization of power relations, referring to a difficult dialectic between universality and relativism.
The example of the biomedical scene is an insightful one as a paradigm of new forms of relationships in the post-modern societies. The question for international law is no longer the one of a power relationship between the individual and the state, in which excesses should be prevented, than the one of the inherent violence in any relationship grounded on the human body. Drug trials in poor areas of Africa or Asia, requests regarding the creation of an organ market, access to care... are situations that go beyond the question of state power; they are questioning the relevance of a model based on the dialectic consent / dignity.
We thus have to make Foucault dialog with Simondon. The first invites us to focus not on the subject but on the power relationship, in that it 'determines the elements that are covered.' The second postulates the relationship as the heart of the individual ontogeny. In this way, there are no real individuals (indivisible) but individuation processes, meaning relational processes where individuals and the society are in a reciprocal building relation. Where legal essentialism preconstructed an individual to any relationship, and thereby operates on a principle of inclusion / exclusion, the Simondon’s 'realism of relations' can help us understand that the individual is 'the being of relationship, and not the being in relationship.' It then encourages us to think beyond pluralism and relativism, and allows the substitution of the phrase 'everything is relative,' by the phrase 'everything is relation.'
This dialogue will help us to wonder about the possibility of a realistic theory of legal relations, and to question the notion of relationship as a ground for law.
Keywords: Foucault, Simondon, law, legal theory, realist theory, relativism
Suggested Citation: Suggested Citation
Aurey, Xavier, Relationship as a Ground for Law: Talking with Simondon and Foucault (December 7, 2012). Melbourne Doctoral Forum on Legal Theory, University of Melbourne, December 2012. Available at SSRN: https://ssrn.com/abstract=2197182