Foucault and Governance, Kings and Laws

A quote from Foucault on our ahistorical views about monarchy and law...something I thought was interesting that I reread recently to prepare for a new class:

"There is, perhaps, a historical reason for this. The great institutions of power that developed in the Middle Ages- monarchy, the state with its apparatus-rose up on the basis of a multiplicity of prior powers, and to a certain extent in opposition to them: dense, entangled, conflicting powers, powers tied to the direct or indirect dominion over the land, to the possession of arms, to serfdom, to bonds of suzerainty and vassalage. If these institutions were able to implant themselves, if, by profiting from a whole series of tactical alliances, they were able to gain acceptance, this was because they presented themselves as agencies of regulation, arbitra- tion, and demarcation, as a way of introducing order in the midst of these powers, of establishing a principle that would temper them and distribute them according to boundaries and a fixed hierarchy. Faced with a myriad of clashing forces, these great forms of power functioned as a principle of right that transcended all the heterogeneous claims, mani- festing the triple distinction of forming a unitary regime, of identifying its will with the law, and of acting through mech- anisms of interdiction and sanction. The slogan of this re- gime, pax etjustitia, in keeping with the function it laid claim to, established peace as the prohibition of feudal or private wars, and justice as a way of suspending the private settling of lawsuits. Doubtless there was more to this development of great monarchic institutions than a pure and simple juridical edifice. But such was the language of power, the representa- tion it gave of itself, and the entire theory of public law that was constructed in the Middle Ages, or reconstructed from Roman law, bears witness to the fact. Law was not simply a weapon skillfully wielded by monarchs; it was the mo- narchic system's mode of manifestation and the form of its acceptability. In Western societies since the Middle Ages, the exercise of power has always been formulated in terms of law.

A tradition dating back to the eighteenth or nineteenth century has accustomed us to place absolute monarchic power on the side of the unlawful: arbitrariness, abuse, ca- price, willfulness, privileges and exceptions, the traditional continuance of accomplished facts. But this is to overlook a fundamental historical trait of Western monarchies: they were constructed as systems of law, they expressed them- selves through theories of law, and they made their mech- anisms of power work in the form of law. The old reproach that Boulainvilliers directed at the French monarchy-that it used the law and jurists to do away with rights and to bring down the aristocracy-was basically warranted by the facts. Through the development of the monarchy and its institu- tions this juridico-political dimension was established. It is by no means adequate to describe the manner in which power was and is exercised, but it is the code accordidg to which power presents itself and prescribes that we conceive of it. The history of the monarchy went hand in hand with the covering up of the facts and procedures of power by juridico-political discourse."

The History of Sexuality: An Introduction, Volume One, 1978, 86-87