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The Normalization of the Subject of Right

Abstract

This article brings a reflection on the “subject of right” as a product of the assemblages between knowledge and power that had impacted the construction of modern subjectivity. The relations between law and norm have resulted in a normalized subject of right, what justifies a series of specific contemporary normative-punitive frameworks along with social and criminal marginalization.

Keywords:
knowledge/power; normalization; subject of law

Resumo

Refletimos o sujeito de direito como produto dos agenciamentos entre saber e poder que repercutiram na construção da subjetividade moderna. As implicações entre direito e norma resultaram em um sujeito de direito normalizado, o que justifica uma série de enquadramentos normativos-punitivos específicos na contemporaneidade, e com eles, marginalizações sociais e penais.

Palavras-chave:
saber/poder; normalização; sujeito de direito

1. Introduction

One might say that the concept “game” is a concept with blurred edges [verschwommenen Rändern]. – “But is a blurred concept a concept at all?”- Is an indistinct [unscharfe] photograph a picture of a person at all? Is it even always an advantage to replace a indistinct picture by a sharp one? Isn’t the indistinct one often exactly what we need?

(GRANDE HOTEL ABISMO – Vladimir Safatle SAFATLE, Vladimir. Grande Hotel Abismo. Por uma reconstrução da teoria do reconhecimento. São Paulo: Martins Fontes, 2012. (quoting Ludwig Wittgenstein, p. 01)

Safatle (2016 SAFATLE, Vladimir. Introduction: An Indistinct Picture. Grand Hotel Abyss: Desire, Recognition and the Restoration of the Subject , Leuven University Press, 2016. , p.9), referring to Wittgenstein’s questionings, makes us face what he considers to be the biggest challenge of the philosophical reflection. When it comes to human beings, an openly indistinct image is preferable to a falsely sharp one. Accurately recognizing the moments where indistinct pictures become necessary, however, might be the greatest challenge yet posed for philosophical reflection. For indistinct pictures are elusive: in them, the contours of a familiar image may be discerned, yet must not be completely determined. Such an image is pervaded by something that incessantly corrodes it from within, and yet stops short of destroying it.

We believe that the reflection on the subject of right requires us to appeal to diffuse pictures, if we want to escape the illusions inherited by the legal-liberal thought that binds us to a naturalized comprehension of law and its practices, centered in the misleading idea of agreement between State and subjects under the form of a legal bond. The classical theory of sovereignty, however, cannot explain the multiplicity of relations and effects of power that cross and separate coexisting individuals into the same social order and that engender unequal ways of recognizing and treating them as legitimate legal subjects.

This paper proposes an alternative approach on the subject of right, different from a fictio juris that considers human beings as equal before the law, endowers of the same rights and obligations. We intend to highlight the weakness of this concept and the relations of domination it engenders, proposing a deconstruction of the axiom “subject of right” as a universal and abstract entity, a product of the prediction of positive rights potentially enunciated in the legal orders.

The chosen methodological tool for this purpose was Michel Foucault's critique of the “universals” of history. Foucault broke with the historical process that led to the legal construction of the universal ideas of “State”, “Sovereign” and “Subject”. The critique of universalism was the instrument used to cut specific historical objects – among them, the State, or the state practice, considered as the way the State organizes, defines, calculates and rationalizes its practices. Having analyzed the government of men as an exercise of sovereign power, Foucault put in question the notions of “sovereign”, “sovereignty”, “people”, “subject”, “State” and “civil society”, all the universals that legal philosophy uses to explain the State practice. The Foucaultian method does not start from the universals, but from the study of the rationality of governmental practices, reasoning the universals from this logic. This would have been Foucault’s philosophical project, as expressed in the following passage:

I wanted to see how problems such as the constitution of particular objects could be resolved from within a historical frame, rather than being posed in relation to a constituting subject. We have to get rid of the constituting subject, of the subject itself, in other words undertake an analysis which can account for the constitution of the subject in historical terms. What I call genealogy is a form of history which takes account of the constitution of knowledge, discourses, domains of the object etc, without having to refer to a subject which is either transcendent in relation to the field of events, or which flits through history with no identity at all ( FOUCAULT, 1979 FOUCAULT, Michel. Truth and power: an interview with Michel Foucault. In Critique of anthropology. Volume: 4 issue: 13-14, page(s): 131-137, 1979. , p.136).

Our intention is to historicize the universal idea of the “subject of right”, considering it as a product of a social construction marked by asymmetric social relations – in other words, we intend to comprehend it through the plane of practices, strategies and relations between the fields of knowledge, power and modes of subjectivation, from which the law cannot escape. For this purpose, we will reflect on the “subject of right” as a product of the implications between law and norm, resulting in the image of a norm-normalizing law, a producer of normalization practices. In Foucault, norm and normalization mean the shape some fields of knowledge acquired in Modernity, bringing the distinctive trait of the normative character that defined and separated the subjects-objects of study in fixed categories of normal /abnormal and citizen/enemy. The norm is associated to fields of science that have the human life as its object, such as Medicine, Psychiatry and Law – fields that, during the nineteenth century, were legitimized to state “truths” about certain “human nature.”

At first, the elementary ideas of Foucault’s subject philosophy – the perspective adopted in this work – will be briefly explained. Then, we will reflect on how the processes resulting in the formation of modern subjectivity and the constitution of law as normalizing knowledge, increasingly identified with the norm, influenced the notion of “subject of right”, the key figure from which derives a series of other juridical categories and, contradictorily, its reverse, which has justified the elimination of marginalized forms of life under the aegis of Democratic State of Law.

2. The Foucaultian subject: Knowledge, Power and subjectivation

In his last manifestations, more precisely during the Collége de France courses given from 1981 to 1984 called Ethics (2012b FOUCAULT, Michel. Verdade e poder. In: M. Foucault Microfísica do Poder. São Paulo: Graal, 2012b. ) Foucault stated that it was the subject, not the power, the general theme of his research, the main part of his investigations. His philosophical project was destined to think modern subjectivity as a result of power assemblies. Therefore, he wanted to understand how the relations between knowledge, games of truth and practices of power would affect the constitution of subjects. From the issues about subjectivity and truth, Foucault investigated how man would engage on games of truth, whether in the form of science or still merged in institutions and in social control practices. In doing so, Foucault verified how, in scientific speech, the subject defines itself as a speaking, alive and working individual. This was the problematic emphasized during Collège de France courses.

In short, the Foucaultian issue was the affairs between subject and truth, from which he intended to expose how the subject is constituted – normal or abnormal, delinquent or non-delinquent – through a set of practices consisting of “games of truth” and all relations that would possibly exist between the constitution of different forms of subject and practices of power. His investigation led to the conclusion that the subject is form instead of substance, and this form is not always identical to itself. There are relations and interferences between different forms of subject that affect them, and also establish themselves. Foucault adopted a non-essentialist perspective of the subject, in which the subject results from an operation of subjectivation to a relation of power, which simultaneously subjugates and subjectifies him.

Refuting the universal subject as conceived in Modernity, Foucault broke with the idea of subject as essence, substance, entity, as a fixed and immutable form endowed with reason as the Cartesian “I think “, the absolute, totalized, autonomous and self-sufficient individual, the sovereign subject of Enlightenment philosophy. Investigating the different ways human beings become subjects, Foucault (1995a) FOUCAULT, Michel. O Sujeito e o Poder. In: DREYFUS, Hubert; RABINOW, Paul. Michel Foucault - Uma trajetória filosófica: para além do estruturalismo e da hermenêutica. Rio de Janeiro: Forense Universitária, 1995a. first dealt with what he called “modes of objectification,” referring to the multiple forms individuals were named and recognized at different times and circumstances, through the coercive attribution of a specific identity, such as the objectification of the subject in dividing practices, corresponding to the fragmentation of the subject in his interior and relating to others. He studied separations between normal and abnormal and the criminal and the citizen. In Foucault’s philosophical project, the experiences of madness, crime and sexuality were investigated from three distinct but intrinsically articulated axes: 1) The historically constituted knowledge fields that established normative matrices on human behavior. 2) The power assemblages to related knowledge, resulting in practices and specific contexts of power; 3) The possible ways of existence that allowed individuals to be constituted as subjects.

Foucault devoted the last years of his life to investigate what he called “self-practices”, which means the way human being takes himself as an object of knowledge and power, building an experience of self as subject of desire. For example, the domains of sexuality, from which men learnt to recognize themselves as subjects of sexuality (1995b FOUCAULT, Michel. Sobre a história da sexualidade. In: M. Foucault, Microfísica do poder. Rio de Janeiro: Graal, 1995b. ). Anyhow, while studying the different practices of subjectivation to which individuals are put through, Foucault intended to expose the fragility of the formulation of the universal subject conceived by modern philosophy. According to Birman:

[…] deconstructing the philosophy of subject was always on Foucault's theoretical project agenda. It was not by chance that the issues about madness, language, punishment and eroticism were chosen in the line of investigation constructed by Foucault, because they critically questioned the tradition of the modern subject. Instead of accepting that the subject is always given, as an entity that pre-exists the social world, Foucault sought to research how this notion was constituted, as well as the way in which we constituted ourselves as modern subjects (BIRMAN, 2005 in LIMA, 2008 LIMA, Maria Lúcia Chaves. Homens no cenário da Lei Maria da Penha: entre (des)naturalizações, punições e subversões . 2008. Dissertação de Mestrado (Programa de Pós-Graduação em Psicologia). Universidade Federal do Pará. , p. 47-48).

Foucault (1994) FOUCAULT, Michel. Subjetividade e verdade. In: Resumo dos Cursos do Collège de France. Rio de Janeiro: Ed. Zahar, 1994. emphasizes his purpose of tracing a history of subjectivity in parallel to the forms of governmentality by studying the separations operated in society in the name of madness, disease and delinquency, around the constitution of a rational and normal subject. While objectifying the madman, the normal subject is also objectified. Still, this subject is an object of knowledge fields related to language, work and life, though. Concerning the study of governmentability issues, Foucault criticized the current conceptualizations of power and analyzed the strategic relations between individuals and groups, which key point lies in the conduct of the other(s), guided by a variety of disciplinary and totalizing techniques and procedures such as the incarceration of the “insane” and “delinquent”. For Foucault, power affects the subject as far as it categorizes and marks him in his own individuality through diverse relationships and techniques. Hence, when creating a bond between this individual and a specific identity, power imposes a law of truth on him which he must recognize and others have to recognize in him (1995b FOUCAULT, Michel. Sobre a história da sexualidade. In: M. Foucault, Microfísica do poder. Rio de Janeiro: Graal, 1995b. ).

According to Foucault, there are two meanings for the word “subject”: 1. subject to someone else by control and dependence; 2. tied to his own identity by a conscience or self-knowledge. “Both meanings suggest a form of power which subjugates and makes subject to” (1982 FOUCAULT, Michel. The Subject and Power. In: Critical Inquiry, vol.08, nº.04, 1982. , p. 781).The way of acting of one or more active subjects is incited, induced, diverted, facilitated, hindered, enlarged, limited, coerced or absolutely barred by these processes since they affect the actions of individuals and operate on the field of their possibilities. It is a wide range of actions over actions: “The exercise of power consists in guiding the possibility of conduct and putting in order the possible outcome” (1982 FOUCAULT, Michel. The Subject and Power. In: Critical Inquiry, vol.08, nº.04, 1982. , p. 789).

From Foucault’s considerations about the subject, we will analyze how the processes resulting on the construction of modern subjectivity and Law as a normalized-normalizing knowledge, penetrated and invested by norm practices, simultaneously vector and agent of normalization, influenced not only the concept of “subject of right” but also its opposite, marked by procedures of exclusion.

3. Subject of right alienation: the split between Subjects and non-Subjects

[…]The subject of right is, by definition, a subject who accepts negativity, who agrees to a self-renunciation and splits himself, as it were, to be, at one level, the possessor of a number of natural and immediate rights, and, at another level, someone who agrees to the principle of relinquishing them and who is thereby constituted as a different subject of right superimposed on the first. The dialectic or mechanism of the subject of right is characterized by the division of the subject, the existence of a transcendence of the second subject in relation to the first, and a relationship of negativity, renunciation, and limitation between them, and it is in this movement that law and the prohibition emerge (THE BIRTH OF BIOPOTICS- Michel Foucault FOUCAULT, Michel. The birth of Biopolitics. New York: Palgrave Macmillan, 2008. , p. 274-275).

The arrival of Modern era marks the rise of Man as a being endowed with reason, therefore, different from other animals due to his exclusively human capacity of thought. Reason becomes autonomous and disconnected from what was previously attributed to the Divine, becoming the reference to explain earthly issues in a scientific and rational way. The subject of modern philosophy, based on Kant and Descartes, arises precisely from this conception of man as a rational being, inherently endowed with reason. In modern philosophy, it is the rationalist tradition that gives the subject the central role in the structure of knowledge. According to this philosophical tradition, the subject of knowledge is the one who thinks, doubts and exists: the is a consciousness of himself. From cogito, the existence of man was conditioned to the capacity of thinking. This is the idea contained in the axioms: “I think, therefore I am” and: “if you stopped thinking, you would totally cease to exist”.

The concept of subject of right derives from all this philosophical background that characterizes the emergence of the modern subject. Theories, writings and studies that describe the paths of this modern man who uses reason to discover, construct, formulate and discuss the world around him will be indispensable to the elaboration of such a concept since, according to this argument, rational being will use his freedom for the elaboration of a legal constitution. For example, in Kant, freedom means to act according to laws, because men are free to act. In the case of rational beings, free will is the cause of their actions and demands a moral and thinking subject.

Safatle (2013) SAFATLE, Vladimir. O dever e seus impasses. São Paulo: Martins Fontes, 2013. states that the Kantian moral duty represents a central notion for the evaluation of moral actions, since it is the consciousness of a norm from which particular actions must be evaluated. In other words, there is a normativity that is external to the action, there is a consciousness that an action can only be considered as a moral one if reported to an evaluation standard. Thus, Kant will characterize duty- used by reasoned human being as a criterion of evaluation of their practices- from a set of formal procedures that seek to systematize it. Action as an accomplishment of duty must be categorical, absolute and universalizable, which means that it can not be done otherwise. Such notion will be indispensable for the emergence of the modern subject, since the definition of duty was also intended to give shape to the individual demands of autonomy, a fundamental attribute of modern subjectivity, because it provided a possible definition of what is meant by “free subject”. According to Safatle,

In the same way that duty will be defined as a norm that allows me to distance myself from my own actions in order to evaluate them, autonomy will be defined as a law that I give to myself in a condition of freedom, changing me into a moral agent able to self-govern and to evaluate my own desires. ( SAFATLE, 2013 SAFATLE, Vladimir. O dever e seus impasses. São Paulo: Martins Fontes, 2013. , p. 14).

The articulation between duty and autonomy establishes the dimension of Ought (sollen) as a continuous exercise of self-examination and comparison between individual actions and the values and norms that are assumed as idealistic. But Kant's proposal for a procedural structure of duty through the systematization of moral judgments points out that they are independent of individual experiences and singularities, since the exercise of freedom only occurs if moral judgments are formulated prior to these experiences. The modern notion of autonomy has two important characteristics: the first of them is its definition as norm, endowed with universality, categoricity and unconditionality, whose imperative is inspired by the legal norm model. The second is the autonomy as an expression of a will that submits other wills, the reflexive capacity for self-control that founds the identity of the autonomous subject. The will that expresses autonomy is the indication of a bond that attaches the subject to an unconditional law, founder of duty. From all these circumstances rises the notion of “self-determination” which is, according to Safatle (2013) SAFATLE, Vladimir. O dever e seus impasses. São Paulo: Martins Fontes, 2013. , the idea that we are legislators of ourselves, the movement of being a cause of ourselves: causa sui. The autonomous subject can determine himself because the cause of his action comes from his freedom.

For Kant, if reason could not postulate the objective reality of a law, if free will only aimed the satisfaction of instincts and physical needs, if individuals followed only their physiological reasons without respecting the categorical imperative, it would not be possible to distinguish man from animal: “it would then be nature that would provide the law” (KANT in SAFATLE, 2013 SAFATLE, Vladimir. O dever e seus impasses. São Paulo: Martins Fontes, 2013. , p.27). The difference between freedom and nature refers to Aristotelian distinction between humans and animals, according to which man is a political animal, capable of thinking, articulating logos (language/qualified word), and mastering his instincts. On the other hand, those who deviate from this pattern cannot be considered men, but animals endowed with phoné (voice/noise). Individuals whose will is dominated by particular desires and rational impulses are regarded as pathological, because in this case his desires appear as pathos and cannot be controlled autonomously.

In his conclusion, Safatle says:

Thus, if pathological desires and sensuous impulses are a threat to my freedom and autonomy, then the price of liberty will be withdrawing from what is guided by the contingency of feelings, by the inconstancy of inclinations, by chance of encounters with objects that are not deduced from a law that I give to myself ( SAFATLE, 2013 SAFATLE, Vladimir. O dever e seus impasses. São Paulo: Martins Fontes, 2013. , p. 28-29).

The Kantian archetype of autonomy divides the subject between will and desire, freedom and nature, transcendental and psychological, in a cleaved conception of human nature. According to Safatle, such subjective cleavage remains as a reference in contemporary moral philosophy. In Harry Frankfurt (1929), for example, humans are different from other creatures because they have “second level desires”, which come from the capacity for reflexive self evaluation that is an essential attribute of a being endowed of reason.

There is no duty without guilt. The experience of guilt, that is, the conscience of guilt, is inseparable from the feeling of being virtually observed by someone whom we recognize as legitimate authority and who provides us with a norm that explains what we must do to be recognized as subjects. “Recognize ourselves as guilty is thus a way of making sure that the Law is for us, that we have a place before the Law” ( Safatle, 2013 SAFATLE, Vladimir. O dever e seus impasses. São Paulo: Martins Fontes, 2013. , p. 44). In his Critique of Practical reason, Kant asserts that consciousness of guilt is an understanding that does not require great challenges and it can be even in the simplest mind, which has any experience of the world. In Safatle's words: “the mature man, who is no longer a child and has not fallen into madness, knows his duty” (2013, p. 63).

Confronting Foucault's reflection on subject, understood as a social form marked by knowledge/power relations, with the conception produced by modern philosophy thinkers, briefly exposed above, we perceive the influence of the Cartesian subject- whose subjectivity was defined around normative criteria established by reason and morality - in subject of right notion: the subject capable of assuming rights and obligations. It is, therefore, the subject that submits himself to the norm, whether disciplinary, biopolitical or of consumption, regardless of his desire (distinct from the will and reason).

The profound changes that took place in Modernity made man go from object to subject of domination. On the other hand, all those considered as “irrational” because they do not conform to norm will then be seen as objects or “non subjects”. Freedom begins to mean responsibility before others and a requirement to fulfill their duties. While the notion of duty was delineated by a strong moral appeal, the legal bond was defined as a right-duty between human beings and the subject of right, the only one capable of assuming rights and obligations.

For Bonfim:

There is, therefore, a point of conformity between Kant's conception and positivist legal dogmatism, since both consider only man, because of his condition of rational being, as the only one capable of establishing a right-duty relation. In this context, nothing more than the rational being can be considered as a subject of right, because they are only objects, if taken into account the fact that in a legal relationship they are unable to establish legal behavior with men. [...] The inability of other categories to assume rights and obligations makes them not subject but objects of law ( BOMFIM, 2003 BOMFIM, Thiago. Sujeito de Direito e Direito sem Sujeito. Jan. 2003. Disponível em:<http://www.unifacs.br/revistajuridica/arquivo/edicao_janeiro2003/convidados/convidado02.doc>. Acesso em: 25 Jul.2014. ).

The subject of right was defined from norm, while Law, outlined as a discipline that produces normalizations, according to Foucault, uses the criminal-punitive apparatus as one of its main normalizing mechanisms for classifying, specifying and distributing individuals around a norm that ranks ones in relation to others, establishing disqualifications and constructing asymmetries that, as Fonseca says (2002), allow connections between the individuals according to a contractual obligation criteria, from which they will be qualified as “subject of right”.

It is not possible to find a single meaning for Foucault's notions of norm and normalization. Fonseca (2002) FONSECA, Márcio Alves de. Michel Foucault e o Direito. São Paulo: Ed. Max Limonad, 2002. explains that we should not understand them as law or as a set of rules imposed by a constituted and legitimate power. On the contrary, these notions should refer to fields of science that have life as an object of study, such as Medicine, Psychiatry, Psychology and Law. In this sense, norm and normalization can be understood as a number of situations that implied in the formation of modern subjectivity. The norm is the form that knowledge assumed in modernity, defining and separating the objects and subjects in fixed categories, such as “normal / abnormal”, “citizen / enemy”.

Foucault, in his History of Madness, reflects on norm from the discovery of madness by medicine, when psychiatry names it as a mental illness, establishing a normative criterion of classification and separation of subjectivities from fixed categories of normal and abnormal. In this way, what is considered “normal” seems to preexist the norm. On this point Fonseca explains:

[...] the norm appears as a principle of exclusion or integration, while revealing the implication of two forms that it assumes historically, that is, the form of 'norm of knowing', announcing the criteria of truth whose value can be restrictive or constitutive, and the form of a 'norm of power', fixing for the subject the conditions of his freedom, according to external rules or internal laws. ( FONSECA, 2002 FONSECA, Márcio Alves de. Michel Foucault e o Direito. São Paulo: Ed. Max Limonad, 2002. , p.49).

In Descartes, madness is seen as irrationality, and a critical consciousness of the insane, based more on moral than on scientific perception, is finally consolidated. The insane are seen as distinct from “normal” subjects, associated to the transgression of moral, social and legal norms, as well as the criminal, the homosexual and all those who don’t fit the self figure of the modern subject. There is a legal-medical conscience about the “irrational,” about those who do not have the capacity to behave as subjects of right. These individuals are analyzed in order to measure the consequences that they can cause in the system of duties; they are perceived in reference to the subject of right, because they represent his reverse.

Their irresponsibility and incapacity to assume rights and obligations are legally recognized, and this is the reason why they are considered pathological units in legal terms, and perceived as foreign by the bourgeois society. They represent error, delusion, the unreal, the non-existent, the inhuman, the foolish, what the general consciousness cannot recognize in itself, therefore, what has no right to exist: the “non-subject.”

These reified men are considered as useless or dangerous elements to the self-identical society, since the non-subject is the one who breaks the social contract that binds him to others. The non-subject is the irreducible enemy of laws and norms in general, the one who goes to war against his own society. For this reason, “punishment should be neither the reparation of the injury caused to another nor the castigation of guilt, but a measure of protection, counter-war that society will take against the latter” ( Foucault, 2015 FOUCAULT, Michel. A Sociedade Punitiva. São Paulo: Ed. Martins Fontes, 2015. , p.31). On the other hand, when society starts to be guided by a system of relations between individuals that aims the maximization of production, a criterion to designate those who will be considered as enemies is established: “Any person who is hostile or contrary to the rule of production maximization “( Foucault, 2015 FOUCAULT, Michel. A Sociedade Punitiva. São Paulo: Ed. Martins Fontes, 2015. , p.49).

It is not possible to assign rights to those considered as non subject or even to barrier the application of penal sanctions that in turn legitimizes the neutralization and exclusion of these “non-subjects”, creating categorizations and social- criminal marginalization through legal- normative devices referenced in the subject of right category. In this sense, we can infer that both the insane and the criminal do not fit the definition of rational and thinking Cartesian subject that bases the perspective adopted by Psychiatry. On the contrary, they represent the creature incapable of being determined according to the Kantian categorical imperative. They are legally irresponsible, the portrait of the subject of right alienation, those excluded from the notion of autonomous subject. The subjectivity of the insane, the criminal, the homosexual, and all kinds of heterogeneous is defined by their incapacity of corresponding to the rule of law. They are the denial of the subject of right figure, established by norm- normalizing law.

The subject of right is the “normal” and normalized individual, who is not free and whose individuality was marked by docility and utility according to the norm. He is also a consequence of legal science discursive practice, which determined his conditions and possibilities. On the other hand, those who do not fit this concept are labeled as abnormal. They are in the margin of the legal order and normalizing law reifies them, since norm is law without subject. As Adorno ADORNO, Sérgio. In: Michel Foucault e o Direito. São Paulo: Ed. Max Limonad, 2002. says: “The norm is the anonymous side of law, the invisible part of rights, the root of law” (2002, p. 14). The perspective of norm-normalizing law consists precisely in dismantling the subject of right and, at the same time, in recomposing that anonymous law that goes through subjectivities objectified by norm and normalization.

4. Conclusion

We seek to reflect on the subject of right figure as a result of a normalized- normalizing law, from the deconstruction of the modern philosophy of the subject and also of a juridical-discursive format bequeathed by Modernity. Our intention was to relate the modern subjectivity form to the assemblages of knowledge / power that revolved around normalizing devices such as law. We emphasize the relevance of this approach to understanding the demands of human beings, as it relates to their history and to the way they are seen and recognized, especially as subjects of right.

From Foucault, we found out that In Modernity a will for truth, based on an institutional support, provided to specific fields of knowledge the legitimacy to produce normative and true statements about their object: the human mind. In parallel, a set of norms that sought to differentiate the normality of the abnormality was established from the idea of an auto identical and substantially determined subject. The subjectivity was defined from normativity. A medical-juridical consciousness about human mind is then established in which the legal norms deviant subjects are the same ones who also deviate from the psychic health norms.

Therefore, in Modernity, individuals who were not identified with the subject of right figure became the target of the political power relation. They became the object of normalizing scientific knowledge – as Law- in a given system of general (capitalist) rationality, with the power to know what occurs in the “nature” of men and to enunciate “truths” about them.

Law appears as one of these legitimized knowledge / power to authorize and recognize, universally and officially, a category of determined agents, such as: woman, gay, crazy, black, poor, delinquent, indigenous, young-offender, transsexual, dangerous, etc., from a fundamental reference to the fictitious form of the “subject of right”. In view of this, we ask if legal systems - in particular the legal categorization of individual behavior and identities - block or facilitate access to justice and rights.

Law, in creating categories from the criterion established by norm, naturalizes social hierarchy insofar as it separates individuals from fixed and opposite categories (normal/abnormal, rich/poor, white/black, male/female, heterosexual/homosexual, citizen/delinquent). This process leads the contemporary subject, as Žižek asserts, to experience himself as thoroughly ‘denaturalized’, regarding even his most ‘natural’ traits, from ethnic identity to sexual preference, as being chosen, historically contingent, learned (2010 ŽIŽEK, Slavoj. Contra os direitos humanos. In: Mediações , Londrina, v. 15, n.1, jan/jun, 2010. ). Law defines who is subject of right and the individual has to be conformed to this standard.

Man, from the distinction between normal and abnormal, is defined by what he is not, by negativity. The Foucauldian philosophical project gave voice to those constrained by the systems of domination. The definition of who is subject of right is related to the capacity of the individual to be submitted to the norm, to exercise control over himself, to repress his desires and vital impulses, and to perform a behavior considered acceptable and desirable. The opposite of this model is associated with abnormality, and is used as a justification for segregation. This is, according to Ribeiro:

[…] a sign that the intelligibility of our contemporary societies continues, more than ever, thirsting for more detailed, more 'deep' dissection of the human heart; and even more, of the criminal's heart (since danger and risk are intolerable)( RIBEIRO, 2013 RIBEIRO, Felipe F.C. Genealogia dos homens perigosos: o dispositivo psiquiátrico criminal na contemporaneidade. 2013. Dissertação de Mestrado (Programa de Pós-Graduação em Psicologia). Universidade Federal do Pará. , p. 182).

According to these authors, we conclude that in order to function as an instrument for the emancipation of the human being, law must explode the categories instead of acting as a vector of normalization and social hierarchy, starting with the subject of right category, from which, inversely, “non-subjects” are defined. As a norm vector, domination relations and polymorphic subjection techniques conduit, law seeks normalization and, therefore, the imposition and consolidation of specific forms of acting, being, judging, wishing and knowing. This explains the way in which it treats all those (non-subjects) who escape from the dimension of must be and also from specific contemporary normative-punitive devices such as punishment, security measure, socio-educational measure, whose function in based on exclusion, continuous control and physical and social death of those who do not fit.

This reflection is necessary for the construction of a “new” or “anti-disciplinary” law, as said by Foucault, a law free of the sovereignty principle that offers forms of resistance and allows individuals to exercise their freedom as subjects of right. We believe that, in this terms, it will be possible to open the way to a critical and emancipatory understanding of the subject, allowing us to think in terms of material equality and from a non-substantial universality.

Referências

  • ADORNO, Sérgio. In: Michel Foucault e o Direito. São Paulo: Ed. Max Limonad, 2002.
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Publication Dates

  • Publication in this collection
    Oct-Dec 2018
  • Date of issue
    Oct 2018

History

  • Received
    23 Mar 2017
  • Accepted
    21 Nov 2017
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