Cover, Benjamin, Agamben and Foucault all contributed to the

Cover, Benjamin, Agamben and Foucault all contributed
to the critical approach towards the power imposed by modern law. These theorists
and their models of law contribute to the configuration of human nature, the
state and the law through the power made through modern law.

By looking from the Foucauldian perspective, you would
see that law produces an effect for a population. Through researching empirically,
you see the effects that come out of the application of a given law and the
broader narrative which is repeated in different legal contexts. For Michel
Foucault, he shifts his view of law from being something that orders society to
one that contains different characteristics.  He views a society as one that is becoming
rather than being and focused on the becoming of different forms of law and
society. He looks at how individuals become rather than the theoretical of who we
supposedly are. Law for Foucault accepts the use of violence and it is exempted
from the rule of law. Since violence is accepted, law is used to justify
actions used to protect society when these means are put into practice. So, when
extra-legal forces such as torture are used, they are exempted from the rule of
law and accepted. For Foucault, the emergence of the use of prisons brings
forth a new kind of technology and in turn a new type of power called discipline.
 This moves away from the spectacle of torture
into putting individual bodies into individual cells. With this, you see a move
away from physical punishment inflicted to cause pain on the body to taking
away a person’s freedom in order to reflect on the actions they have committed.
Through imprisonment, individuals come into being and produce subjectivity
through activities appropriate for that individual. This is seen as the product
of exercising disciplinary power on the body and shapes an individual’s self-perception.
This type of power shapes individuals and collective bodies and is no longer
seen as top down power.  Foucault brings
about the concept of disciplinary power which is a discipline that acts upon us
and the human will. Instead of looking at laws that are embedded in structures,
made by the power of the state, there are norms that are practiced across
various institutions such as schools and the workplace that teach us how to act
through repetition and a decentralized manner. This is an effective form of
government if people impose their will upon themselves that goes against a
sovereign power. Therefore, the concept of disciplinary power is connected to
power and is exercised through our will. For him, the focus of his question is
how the law is working as opposed to whether law is effective in solving social

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Human nature for him, is something that is found independently
and comes into being during different points in time that are modified. Foucault
believed that there were two concepts that were intertwined with one another
which was subjectivity and biopower. He believed that individuals create power
and it is not imposed on them.  Power for
him is seen as a certain type of relationship that exists between individuals
and this power cannot exist without refusal or revolt. This type of power needs
to be constantly organized and maintained. If there is no ability to act upon
the power then all you get is violence.  He
differs from other theorists because he doesn’t see power being exercised by powerful
people that restrains individuals in a top down approach. For Foucault, in this
configuration, there is no relevance of who holds power. Foucault’s form of
power sees discipline as being incompatible with sovereignty. He doesn’t seen
power as a weapon of the ruling class but instead is a strategy of governance.
Forms of government were no longer linked to the forces of economics but had to
be linked to the economy of the body. He sees power as nominally which means
that actions are directed to structuring the actions of another subject. He focuses
on the instruments of power and actions. that are not directed at others but on
actions.  This shaping of actions
produces way of becoming and being.  He
sees a power called governmentality. This form of power creates new forms of
law and is used to shape and manage a population. The shaping of life processes
is what he referred to as biopolitics or biopower which is the power to manage
life and improve a population’s health. He therefore calls upon people to
govern themselves instead of formal institutions. Foucault viewed modern law as
constraining and limit preserving. Law was a productive revision that in order
to be seen as effective it needs to be related to the changing nature of
society. Foucault sees the arrangement of the state as being the justification for
itself and justification for power is the product of historical outcomes.

For Agamben, he disagreed with Foucault. He said that
the social contract theory allows for the creation of human nature which
therefore allows every move made to be joined together. For him he sees that
the notion of pre-political or a natural state is placed upon us in order to
justify a political form.  However, he
agreed with Foucault that sovereignty contained biopower. He believed that the
concept of biopolitics is not a modern phenomenon that emerged with the use of
prisons as Foucault believed but has emerged a long time ago in ancient Greece
and cannot be separated from sovereignty. For Agamben, natural life is seen
being described retroactively and negatively as a life devoid of a political
form. He saw law as being violent and that natural law was subjected to
sovereign violence which he called bare life. Bare life was to be understood as
not having relation to political order. Agamben sees bare life in modern
politics as beginning to coincide with political order. Political life doesn’t replace
natural life but instead it is sovereignty that creates natural law that has it
be subject to the law. For Agamben, he believed that the sovereign is someone
who is able to decide what the exception is. 
Part of the sovereign’s power is to produce laws that cannot be broken
or passed over. Agamben concluded that the logic of sovereignty was one that
made absolute laws while excluding itself from those laws. For him the state is
constantly existing in the state of exception and is how modern society
functions. The state is seen as exempting itself when it is seen acting outside
of the ruling law. When it imposes certain laws such as marital law it becomes
obvious but the power to exempt is always available. He believed that law that
we see today is the product of law making violence. The law exists not to
promote life and wellbeing but its purpose for the law is its power to kill.  Agamben views bio-political sovereign power as
creating the concept of bare life and having that be subjected to the sovereign
power. By looking at the different ways that the state exempts itself then you
can see the ends justifying the means. Agamben draws upon the relation of
exception stating that something is included due to its exclusion. Therefore,
natural life was seen as a paradox because it was both excluded and included
with political life. Unlike Foucault, Agamben saw bio-politics as the origin of
the power of sovereignty. He believed that law existed everywhere and that
there was no way to get outside of the relation. Laws are therefore written but
not practiced. Instead, law is used as a force and is taken away from its
normative content.

Benjamin’s critique of power in relation to modern law
is one that sees law as being unjust. The law only serves the interest of the
state with the end goal of preserving power. Therefore, the State is seen as
both the ends and the means of preserving power. For him, the power derives
from the state which is preserved by the use of violence. This type of power didn’t
allow individual violence that would pose as a threat to the order of the
state. This meant that for Benjamin, most acts of violence were seen as
non-sanctioned unless it correlated with the power of the state. He sees modern
law as the product of law making violence and not the social contract. in order
to understand power and law, he looked at pairs of opposition such as natural
law and positive law. These two laws work against one another to secure certain
types of law. Natural law is concerned with the justice of ends where as
positive law is concerned with the justice of means. If these relations are
presupposed, Benjamin argues that it impossible then to raise critiques of
violence but only the applications of violence. He states law is all around us
and it is either law making violence or law preserving violence. This means
that laws either want to go beyond the present law or maintain and approve the
law that has already been put into place.  He states that these two types of violence are
not separable. Any act that contains law preserving violence also has law
making violence within it. He sees that the only way get rid of sovereign law
is by the destruction of the law without the emergence of a new kind of law.  He points out that the state’s interest in
violence is the preservation of the law which is different from other goals of preserving
a legal system. He turns to the police in order to see that both the forms of
power manifested from police power. Their main purpose is to maintain social
order but based on the situation, they have to exercise discretionary power
which goes beyond the law which results in law making violence.  In modernity, the police practicing both law
making power and law preserving power is the result of the decline of sovereign
power. The goal of the police is to preserve the law but in certain cases where
there is no law, police practice law making violence as the solution. Both Benjamin
and Cover agree with Agamben that modern law no longer looks at perusing
normative ideals and moral content. He resonates with Cover stating that the
use of violence in modern law is no longer associated with justice but is used
for self-preservation and power. Modern law cannot be seen without the use of
violence. He differs from the other theorists in that he believed in divine power.
This divine power replaces what he called mythic violence. Mythic violence
emerged arbitrarily through acts of violence that were continuously found. He
believed that law had to be replaced with violence that always served justice. It
differs from mythic violence because it breaks laws and its boundaries. It becomes
the power over life for the purpose of living that exists outside of law.

Foucault believed that power should be exercised to discipline
individuals instead of using coercive torture. Agamben saw law as always in a
state of exception acting above the rule of law; no longer practiced for
justice but is used as a force. Lastly, Benjamin believed that law had no way
of redeeming itself in modernity since it has no attachment to normative
content and cannot exist without law preserving violence and law-making
violence which are inseparable. Through these theorists’ critical approaches, it
is shown how power is imposed through modern law and shapes the configurations
of nature, society and the law.





George. Law and Society
Redefined. Oxford
University Press, 2011