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: 15/09/2011 07:15
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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 by forcibleseizure, abduction,or repressionand usuallyculminating death, is replaced by bio-power,"whichaims to produce, develop, and order increasingly on a social strength," power thatexertsa more positiveinfluence life,undertaking of it, to administerit,multiply and impose upon it a system regulationsand prein cise inspection. Having noted that this transformation the mechanisms of Foucault conpower signifies"nothingless than the entryof life into history," that"anotherconsequence of thisdevelopmentof bio-power bysuggesting cludes was the growingimportanceassumed by the action of the norm,at the expense of of thejuridical system the law."2 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 the formation a normalizingsocietyin no waydiminishedthe power of law or tendsto be accomto caused judicial institutions disappear. In fact,normalization speaking,legisof panied by an astonishingproliferation legislation.Practically as or latorsnever expressed themselvesas freely as extensively in the age of biopower. The norm,then, is opposed not to law itselfbut to what Foucault would power. of call "thejuridical": the institution law as the expressionof a sovereign's If, as Foucault puts it,"the law cannot help but be armed,"and if itsweapon par is excellence death, thisequation of law and death does not derive fromthe essential character of the law. Law can also functionby formulatingnorms, thus measure,appraise, sort becomingpartof a different of powerthat"has to qualify, In and hierarchizeratherthan displayitselfin itsmurderoussplendor."3 the age of bio-power,thejuridical,which characterizedmonarchicallaw, can readilybe in whichcomes to the foremosttypically constitutions, opposed to the normative, of legal codes, and the constantand clamorous activity the legislature."4 Foucault's ideas have a dual consequence for the philosophy of law. They law encourage us to distinguish and itsformalexpressionfromthejuridical. The

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30 - Spring 1990 C) THE REGENTS OF THE UNIVERSITY

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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 We can and mustimaginea history law thatwould givemeaning and function 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 Foucault suggeststwo possible paths of inquiry.The first, borrow Foucault's It terminology, "ontological"and concernsmodernity. asks: What is modernity is in if we understand it as participating the logic of the norm?What can we learn 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 for understandingof the word norm: disappointments our contemporary means peris we know that norm the Latin word for T-square and thatnormalis 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 Philosophie der used to draw right to it in his treatise On Architecture indicate the instrument 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 theChristian Religion:"God has determinedby His laws of what is good and right,and by this means has meant to hold men to a certain norm."

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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 not,but thisdistinction no longer directly 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 is no longer the only word to derive fromnorme. isjoined by normalite This remarkableextensionof the norm's (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 (particularly Germany)as "normative" led Thus, two centuriesago the word norm a quiet, unremarkableexistence, whereas today,along withits panoply of derivationsand associated terms,it has vocabulary, become one of the mostused and abused termsof our contemporary by We whetherwe speak colloquiallyor as social scientists. are intimidated norms feelingashamed to considerourselvessimply and contemplatethemsuspiciously, efforts establish to and sociologistshave made persistent normal. Psychologists norms whose constraining effectscan be felt everywhere-even where we In imagine our behavior to be least susceptibleto determination. a sense, virtue 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. aestheticjudgments, simplyrepeats internalizednorms in the regusubjective measures against of larity itsassessments.Public hygiene,urban planning,safety 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 and In society." Discipline Punish,FouwhatFoucault has describedas "disciplinary cault suggeststhatthe prison is in some sense the purestexpressionof the discito society be based plinaryorder.But thisis notto saythathe believeddisciplinary In on generalized confinement. fact,for Foucault the gradual spread of various the disciplines(to the factory, school, the hospital,or the barracks)indicatesthat 140
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nor concerned withconfinement, withthe segregation 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 into a mechanism;it servesas the matrixthattransforms negof constraints of ative restraints thejuridical into the more positivecontrolsof normalization of and helps to produce the generalization discipline.The normis also the means which the disciplinarysociety communicates with itself. The norm 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 work,the norm participates thislogic of individualization the individualscreatedbydisciplineand 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, influenceof the norm is primarily local; Withinthe disciplinary order, the Withthe appearance practicesand institutions. normsremainattachedto specific kindsof actuof insurance,the norm willserveas a means of managingdifferent of arial populations,6while with the institution a Social Securitysystemit will become a way to manage the entirepopulation of a given state.The shifthere is Risk playsthe to fromthe level of the micro-instrumental thatof thebio-political. stratof same role in insurancethatthe normdoes in theconstitution disciplinary egies. The conceptual categoryof risk,which makes insurance possible, is the norm. precise homologue of the disciplinary risk for is Insurance an equivocal termthatcomprises1) a technique estimating of and indemnification damages in actuarial terms;2) the practices restitution of public and that thatset thistechnique in motion; and 3) the institutions structure privateinsurance schemes. I intend to discuss only the first-the techniques of risk. In for What is risk? common parlance, the termis a synonym danger, peril, 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 anathe lyzedand the potentialeventis evaluated. To adopt Kantianterminology, category of risk is a category of understanding; it cannot be derived from intuof itionor sensibility. a technologyof risk,insuranceis first all a rationaloutAs line, a means of disassembling, reconstructing, organizingcertainelements and 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 Risk,then,is a principleof objectification. confersa certainobjectivestatus or on the eventsof private,professional, commerciallife:death, accident,injury, a loss, or hazard. The task of insurance is to constitute particularkind of objectivity; providingvarious familiareventswitha real existencethatchanges their the character.Insurance creates its own world; it confronts world of lived experience (and all of itsterrors)withthe more neutraland predictableworldof risk. of When the firstinsurers boasted about the liberatingeffects their statistical 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 table attitude.Insurance has two bases: first, statistical rigorouslypositivistic to or graph that testifies the regular occurrence of certain events; second, the so thatare thenapplied to these statistics thatone can calculationof probabilities of evaluate the possibility these same events.The insuranceview of the world is It and statistics. is generally 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 condemnationof probability the grounds thatit would introduceinto history or thatwas altogetherincompatiblewithliberty, the 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 extent),the insurer,like the statistician, mostremarkablefor his rigoroussusboundaries 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 and theiridentity reduced to the numericalqualitythatallows one to tabulate 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 Similarly, insurerwho initially littlethata specific accidentmighthave to getherindifferent itscause. It matters 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 whatis at issue here is the possibility freeing To put the mattersceptically, on by oneselffromthe usual playof signification concentrating the pure factuality of facts,the pure recordingof occurrences. In Kantian terms,the task for the himself herselfto a singlelevel of or 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 as prospect of ever signifying individual bitsof information. the extentthat even the mostinsigof has the usual system signification been suspended, all facts, of are nificant, worthy note. In allows these data to signify. the logic of 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 value repeat and accumuwhere pieces of information indeterminate tuality, numbersby themselvescreate meaning. The notion thought, late. For statistical

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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 it remain obscure. Before the triumphof statistics, was stillpossible to invokethe cause thatwould workingsof divine Providence,or to seek some othersufficient of explain otherwiseinexplicable phenomena, as though the regularity certain 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 lation of an invisibleworld of essences. Only the repetition a particularsocial fact,its multipleoccurrences,can give it meaning. According to this logic, the more frequentlya particularsort of event occurs statistically, more real it the becomes. The weightand numberof occurrencesbringsocial factsintoexistence. termsbecause it Inversely, single exceptional eventcounts forless in statistical a The calculationof probability, as then,functions a ruse of reason: occurs so rarely. even though causes remain unknown and unknowable, they do translateinto this effect. seizing upon effects, kindof calculationallows us to determinethe By 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 of human nature, nor does he exist anywherewithinthe multiplicity living to men. Rather,"man" appears in the qualitiesthatcan be attributed him,which 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 pool of human qualitiescontinuesto have a real existence. a thispeculiar staThe meaning and importof thisstrangeblendingof traits, tisticalsurgeryis perhaps most evidentin Alphonse Quetelet's attemptsto conin struct theoryof the "average man,"whichhe formulates at least three places a in his work. The project grows directlyout of a sense of the significanceof averages: 144
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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 entity call the average man forthisgroup. If we were to thatI would attribute a fictional 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 as withequal frequency augmentations diminutions typescome into being accidentally large sample of of the essentialcharacteristics a type.Suppose thatwe have a sufficiently 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 and, at the extremelimits thedistribution, 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 question.... This determination the average man is not merelyan idle pursuit;knowlpurpose 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. to the social and, more precisely, reference The theory of the average man, then, is simply a new-and altogether the modern-means of individualizing membersof a population. This is whatwe 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 the to I havealways it to be impossible estimate degreeof courage, whatwe must felt standard meaof for individual, what in regardas such,contained theactsofan isolated this Wouldwe observe individual adoptforsucha quantity? surement couldwe possibly and all and in sufficient depthto takeintoaccount of hisactions fora longenoughtime pass could possibly the value of theseactsof courage?Whattribunal estimate relative of for and be on judgment theseactions, wouldthere a largeenoughnumber them us to that conclusion? Whocouldguarantee in thecourseoftheseobservareacha satisfactory with in somemajor Whenwework change? did the tions, individual question notundergo if almost particularlywe these entirely, disappear of problems a largenumber individuals, of between them and nothing a abouttherelations something meanonlyto understand nature.'2 moreabsolute With his theoryof the average man, Quetelet proposes a means of specifying a individualswithreferenceto theirpositionwithin group, ratherthan bypaying 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 (accordingto some ideal notionof what man should metaphysics) to morality 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
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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 such as the confraternity the corporation.The cenmutual aid and solidarity of tral characteristic insurance is not that it spreads out the cost of individual for damages over a large group, but that it provides a justification this kind of division that has no basis in charityor fellowfeelingand is based on a rule of justice, a rule of law. Accordingto Eugene Reboul, of that to is Insurance theapplication humanaffairs theruleof possibilities determines before chancehas madeitsowndivision among thefateofindividuals society apartfrom fundof property to according itsownlogic.So that themand disposedof thecommon a each personmusttakeupon himself proportional of therisk is part equity preserved,
thatmaybringhim good fortuneor mishap.'3

This "proportional part" defines risk for the insurer. The abstract principle of i.e., behind thisreasoningis thatthe naturaldistribution luck and misfortune, just. Chance mustbe allowed to play out itswhims,and chance, is fundamentally as it is up to individualsto protectthemselves theyare able to. to based on an attempt discoverthe cause Legal judgments were traditionally of damages-it was essentialto findout whetherdamages were the resultof an to unpredictablenatural event or whethertheycould be attributed a particular for who would then be required to bear responsibility the person or institution an entirely different idea by proposes damages. The insurance system, contrast, of of justice: causalityis superceded by the notion of a distribution a collective of burden according to a fixed rule thatdeterminesthe contribution each individual. 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, of the nineteenthcenturyin industrialEurope, the technology At the close of of risk and the institution social insurance form the basis for a new way of 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 risk.At the end of the of the nineteenthcentury, terminsurance designatesboth a set of institutions thatorders the regulationand functioning modern society. and the structure of betweenthe This account presupposes theestablishment new relationships of 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 social insurance. of
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The institution the prison as the universalpenaltyforcrimeat the beginof ning of the nineteenthcenturymarks,in Foucauldian terms,the birthof a "disone ciplinarysociety," whose organizationobeysthe logic of the normat the level 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 similarly. society," whichthe norm functions

does In itstechnicalsense, the termnormalization not referto the production 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 Britannica stipulates itsarticleon stanthe 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 nationaland international as do the first organizationsconcerned period (1928), of withthe establishment norms.'6 the worked on normalization, concept appeared as a sort To those who first that of universalorderingprinciple.All the institutions make societypossible,no of instruments measuresuch 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 escape normalization, communication.No social object had alwaysplayed an be inconceivablewithoutit,fornormsand standardization essential role in social development.Above all, though,normalizationplayed an 148
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of of essentialpart in the constitution systems communication-the norm is what signs into a common language. There was thus a certain 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 tion. Technical normalizationwas simplya question of constituting societyof producers and consumers and providingit witha common language and common institutions. between technicalnormalizationand earlier formsof One basic difference and lay in the factthat modern normalizationwas self-consciously 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 producers or sectorsof productionbut the activity productionitselfand with of it the activity consumption. it character of technical normalizationdifferentiates from 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 itssuccessfulintegration a partof moderninstitutions this technical language could attain to the status of a common language. The of institutions normalizationall grewout of associationsof mechanical and eleccentricalengineersthatwere 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 sincecoordinatedproduction,interchangeability parts, malizationmovements, of of and compatibility productsare all dependent on the establishment norms.2' 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 nomic productivity seemed to depend on normalization, 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 would provide the framework productionand exchange everywherein the
Norms,Discipline,and the Law 149

it for world. Herein lies the thirdline of ancestry normalization: is both economic 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 termsof itsinstruments communication and objectivesof normalbetween the functions It is essentialto distinguish of ization and its techniques. The functions normalizationare well known: siminvolvesreducing the Simplification and specification.22 unification, plification, for objects, choosing between products that resemble each number of models other too closely,and eliminatingany superfluous models. Unificationmeans of establishingfixed characteristics objects so that objects are compatible and 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 ularizing production so as to minimizethe effects economic fluctuation, In as adapting production to demand as efficiently possible.23 other words, one is of the aims of technicalnormalization to gain a certainmeasure of controlover time. Industrialnormalizationcannotbe reduced to the pursuitof these objectives for alone, however, the essentialthinghere is the techniquethatmakes itpossible. authors to insistthatthere are many difDespite the tendencyof contemporary ferentkinds of norms-terminological norms,norms for spatial measurement, of and qualitativenorms-any one of thesevarieties normwould be inconceivable This mutualinterdependenceof normscan be explained by withoutthe others.24 the factthat what is reallybeing normalized is language. Normalizationbegins withvocabulary: is a to problem a meansof to thing developwhenone begins examine particular The first and for meaning term eachthing a single must a single be there terms precisely: specifying
for each term....

in of and representation diaproductnomenclature, the forms symbolic terminology, task is of a points reference thefirst in terminological establishingsetof standard grams, of theprocess normalization.25

Equally, since the elaboration of norms clearlydeterminestechnical

for This normalizationof vocabularyextends even to systems notationand writing: 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
REPRESENTATIONS

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 normalizationserves as a principle of objectification ricates a language, language servesto preventambiguities.It This producer of objectivity.26 artificial figures, puns, stylistic a is a language of precisionand certainty, language without 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 normalization the processof turning 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 singleindustry withinthe sphere of relationsbetweenvariousindustries, 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 to forma society.27 centralprojectsare to institute measurementwhile searchingfor appropriate rules of analysisand expression, and to teach thislanguage to all those who are involvedin one wayor another in of the system economic exchange. commonlanguage of pure of Normalizationis thustheinstitution theperfect But society. whatwillthislanguage say,and 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 characteristics technicalnorfor 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 activity only withrespect to some ideal of perfectionthathe mightattainin but system), with 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 For Harriman, "The idea of perfection not involvedin standardization."29 In place of perfectionis the "one best,"or the relativebest, with referenceto
Norms,Discipline,and the Law 151

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 between technicalcapabilityand industrialcapacity, the compromisebetween provides an or production and need. Technical normalization, standardization, whereequilibrium example of valorizationthatmakes no referenceto universals, has replaced the absolute as the value of values. A standard may become stable so. or regular,but it is only temporarily The standard is a formof compromise, 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 on democracyfunctions two levels: on the first the organizationsthatrepreand are competentto decide upon kinds of productiveactivity sent the various associationsthat standards; on the second are the organizationsof standardizing of verifythe compatibility various norms among themselvesaccording to the This principle unifiedwhole."32 principle that "standards must forma perfectly task. into an infinite 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 genand the logic of the norm is what makes thi-s ative to positivefunctioning, eralizationpossible. century, of Ever since itslegallyproblematicdebut at the start the nineteenth 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 relations.Technical norhelped 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 tainlybenefitedthe industrialization construction, insurance. We mightalso the development of construction and encouraged by and in so doing we would gradually of chart the structure normativenetworks, 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 explains Canguilhem, "are relativeto each other in a system, least potentially. into an orgatends to make thissystem withina social system Their correlativity if and foritself."33 nization,thatis, a unityin itself, not by itself therecan be no such thingas a norm that Justas normscan onlyexistsocially, but existsin isolation,fora norm neverrefersto anything othernormson which fromone level or shifting Norms communicateamong themselves, 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 whichextended the scope of the normative the stateand the History Sexuality, of 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 Discipline, theLaw Norms, 153

termsof the microphysics itsengagements.Norms are linked neitherby scale of (macro or micro) nor by the characteristics their objects, whether they are of 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, norm fallswithinthe provthe ince of a metaphysics power. of What, then,is a norm? It is a way fora group to provideitself witha common in denominator accordance witha rigorousprincipleof self-referentiality, no with recourse to any kind of externalreferencepoint,eitherin the formof an idea or an object. The normativeprocess can obey a variety different of 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, highlyspecificmeans of resolvingthe a problem of intersubjectivity. norm is equalizing; it makes each individual The comparable to all others; it provides the standard of measurement.Essentially, we are all alike and, if not altogetherinterchangeable, least similar, at never differentenough fromone another to imagine ourselvesas entirely apart fromthe this because rest.If the establishment normsimpliesclassification, is primarily of 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 the norm affirms equalityof individualsjust as surelyas it makes precisely, of differences apparent the infinite among them.The reality normativeequality in of is thatwe are all comparable; the norm is mosteffective itsaffirmation difbut 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 of constraints individuals;rather, The norm is not the totality a group forcing 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 the modernity sociwhen the normativeorder comes to constitute precisely, eties,law can be nothingother than social. it This kind of law possesses tworemarkablequalities:first, is no longerbased will. on a model in whichthe law emanates froma sovereign In a normativeorder, 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 ensure the community's necessary order-and a Secondly,althoughtherecan be a parliamentwithin normative speaking, there are usually many,since theyhave a tendencyto mulpractically so. and definitively The law is 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 relationsof sovereignty favorof the more horizontalrelationsof social welfare 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 The first involvesthe constitution a homogeneous fieldof positivevalues. 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 Discipline, theLaw Norms, 155

in thisto attaina deeper appreciationof itsobjects.Factsare sufficient themselves; 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 From the normativepoint of view,all interpretation subtheirinterpretations. In jective; all explanation,opinion, and theoryare simplyformsof metaphysics. thatis indepenallowsforcommunication the itspositiveformulation, normative 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 occurs in metaphor.If the possibility secular politicsis founded on the constisecular. thenthe normis eminently tutionof a sphere of objectiveinterpretation, but As I have suggestedearlierin thisessay,normsare anything natural; facts betweenfactsand theirinterare never simplygiven. It is essentialto distinguish has played a major role in establishingthis probability pretations,and statistical resemblesthe language of the In distinction. thisrespect,the science of statistics It as and itssyntax. also functions a commonlanguage normboth in itsvocabulary independentof anydoctrine.Of course, therecan because it produces objectivity are and probability techniques 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 thattheycreate the neutral,or thatthereare such thingsas pure facts, simply of possibility objectivity. This contradicts of The second characteristic the normis itsrelativity. directly 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, this In almostbydefinition. theeyesof thebusinesscommunity, capacityforadapto changingconditionsmakesnormalization superior tationand flexible response 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
REPRESENTATIONS

Durkheim, both sociology and cultural ethnologyhave repeatedlyreturned to of the idea that the validity a norm can never extend beyond the bounds of the 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 in relationto a particularphase, likewisedeterminate itsdevelopment."34 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 it elderlypeople. Because normsare relative, makes no sense to apply a particular set of norms establishedforone group to otherunrelated groups or cases. of The relativity norms has often been interpretedto their detriment,as 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 short,thereis system valorizationspeof therequivalent nor interchangeable. 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 As dictionand externality, one of inversionand polarity."35 we have already 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 even possible? along a continuous spectrumof possibilities, real distinctions of deciding on the statusof the anomalous. This is the biological problem 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 because the anomalous individualwillexperience his or her difference a handicap 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 We can also explain the normative assignment value in politicson thebasis of these ideas. Social groups impose demands of various sorts(e.g., industrialor and Discipline, theLaw 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 is Abnormality defined as a handicap or inability. no longer refers 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 debate over the frontiers the normal and thresholdfor exclusion. Inversely, to the abnormal is meaninglessin the absence of some effort alterthe social conditionsthathave 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 concerned primarilywith the establishment a balance between the various of claimsof individualsand groups,a stablesocial state.The achievement specific of is less important than the maintenanceand negotiation thisstate,since in ends are the normativesocietysocial good and stability one and the same. 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 Certainsocial facts forparticularmomentsand particularsituations. 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 were posA priori,a normativeorder may seem to be constructed ifanything is sible. However,even ifwe do believethateverything possiblein law,in practical 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 impose a law on the livingin order to ensure regularity theirbehavior.

I have attemptedto elucidate Foucault'sratherenigmaticclaim at the end of TheHistory Sexuality that,as a resultof the rise of bio-power,"we have entered of a phase ofjuridical regressionin comparison withthe pre-seventeenth-century This remarkmightwellbe construedto mean societieswe are acquainted with."38 158
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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 the power and law,as a means of determining conditionsnecessaryforan analysis 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 lanits within order to legitimate own exerciseof guage the monarchyprovidesitself anyreferenceto thejuridicalis illusory, power.However,in thecase of bio-power, since the language of bio-poweris purelytechnicaland has almostnothingto do if with the law as such. Foucault's analysis leaves open two questions: first, the how do we bio-power, juridical is an inappropriatecategoryto use in interpreting laws, regof make sense of all those "instruments the law" (codes, constitutions, ulations) that have developed and expanded during the era of bio-power? of Second, ifthe actionof normsreplaces thejuridical system law as the code and 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 opposed. Further, have attemptedto delineate the strucjuridical are essentially ture of the normativeon the basis of two examples: insurance and industrial of standardization.I have broadened thedefinition thenormto include thatform of the common standard produced throughthe group's referenceto itselfand in that finally, law cannotbe understoodsimply termsof itsformal demonstrated, codes, laws). These must all referback to what funcexpressions (constitutions, tionsin societyas a common standard,a normativeand objectivebasis forjudgof ment. Thus we can now imagine a history the law in which law is no longer 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 municationpossible. The norm is one partof a long history the common stanThis articulation the norm and the of lesser instanceof a largercategory. dard, a common standard opens up a varietyof research perspectives,allowing us to in explore modernity termsof measurementtechniquesand standards.Societies and Discipline, theLaw Norms, 159

in become modern at least partlyby virtueof transformations theirinstruments of technical,political,and social measurement.What did the FrenchRevolution of in bringabout, afterall, if not an enormous transformation systems measureof the of ment? The introduction the metricsystem, institution a trulynational language, calendar reform,and the creation of the Civil Code are all examples of democracywas a means of prothe of this.Similarly, institution constitutional of ducing a common politicalstandard.One mightalso read the history the social sciences in the nineteenthcenturyas the formationof so many instruments intended to furnishmodern societies with social and political measurements. in a Thus we mightwellassess social modernity termsof thetransformation given 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 11. Alphonse Quetelet, Sur l'Homme et le delveloppement ses facultes; ou, Essai de physique

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 thistransformation the passage froma process 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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