An interesting perspective on social power and the legal system is provided by the controversial French philosopher Michel Foucault. Let’s visit his views on courts and the implementation of popular justice and see them through the lens of radical behaviorism.
We must ask whether such acts of popular justice can or cannot be organised in the form of a court. Now my hypothesis is not so much that the court is the natural expression of popular justice, but rather that its historical function is to ensnare it, to control it and to strangle it, by re-inscribing it within institutions which are typical of a state apparatus. (p. 1)
What is this arrangement? [Of a court] A table, and behind this table, which distances them from the two litigants, the ‘third party’, that is, the judges. Their position indicates firstly that they are neutral with respect to each litigant, and secondly this implies that their decision is not already arrived at in advance, that it will be made after an aural investigation of the two parties, on the basis of a certain conception of truth and a certain number of ideas concerning what is just and unjust, and thirdly that they have the authority to enforce their decision. This is ultimately the meaning of this simple arrangement. Now this idea that there can be people who are neutral in relation to the two parties, that they can make judgments about them on the basis of ideas of justice which have absolute validity, and that their decisions must be acted upon, I believe that all this is far removed from and quite foreign to the very idea of popular justice. (p. 8)
Here the problem becomes very difficult. It is from the point of view of property that there are thieves and stealing. (p. 36)
Michel Foucault (1980) – Power. Knowledge. Selected Interviews and Other Writings 1972-1977
Stated succinctly, Foucault identifies three aspects of the arrangement of a court:
- The court is a third neutral party besides the litigants
- Decisions are implemented by virtue and by reference to objective truth, justice, fairness, common sense
- The court has a backing – power to enforce the judgement
What can be said about these aspects from the RBL perspective?
Third neutral element
The proclaimed neutrality of courts is hardly possible. One must remember that the parties, their struggles, the court itself all don’t exist in a vacuum. The institutions, the political situation, socio-economic conditions form a system that inevitably affect the actors. One has to ask who is in power, what enables and maintains the courts and their functioning. We can see that laws in modern western “democracies” are heavily in favour for property rights – Thomas Piketty calls this neo-proprietarian ideology.
Speaking about judges, they also act in accordance to their environment and context. There is always a long individual process of education and work – this results in a significant filter in possible judge behavior. Jobs in the legal system always require a law degree and the education system tends to favor the already more well-off. The conditioning along the way, the written laws and any Constitution which form the foundation for legal judgement do not make a progressive mechanism.
Basically, a neutral side is a preposterous notion. Herman & Chomsky (2002) have something to say about this in Manufacturing Consent regarding the media, but the same can be applied to the courts:
A propaganda model also helps us to understand how media personnel adapt, and are adapted, to systemic demands. Given the imperatives of corporate organization and the workings of the various filters, conformity to the needs and interests of privileged sectors is essential to success. In the media, as in other major institutions, those who do not display the requisite values and perspectives will be regarded as “irresponsible,” “ideological,” or otherwise aberrant, and will tend to fall by the wayside. While there may be a small number of exceptions, the pattern is pervasive, and expected. Those who adapt, perhaps quite honestly, will then be free to express themselves with little managerial control, and they will be able to assert, accurately, that they perceive no pressures to conform. The media are indeed free—for those who adopt the principles required for their “societal purpose.”
Herman & Chomsky (2002) – Manufacturing Consent (p. 272)
Objective justice
As with neutrality, no such thing as an all-encompassing “objective” justice, as in separate from any person or system, can exist. We are once again dealing with human behavior and only behavior. The philosophical notions, i.e. Platonian ideals are true only in the eye of the observer (or the behaver in our case). Every person has a history and behavior happens because of this history of reinforcement.
Unavoidably implicit in the objectivity scheme is the definition of “crime”, i.e. what’s legal and what’s not. The question to ask here – who determines which behavior is a punishable crime and which isn’t. Why is stealing from a store a crime while wage labour where most of the created value is appropriated by capital owners is not? An answer suggests itself – power (most often economic) dictates what is legal, objective, just, fair etc. We can once again turn to a fitting quote:
The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.
Anatole France (1894) – Le Lys rouge
One may return to the last sentence of the Foucault citation above. People experience different economic conditions, different contexts, different pressures. Even though we “equally” apply the same laws to everyone, this will have non-equal effects. It is convenient for the “haves” to label some of the “have-nots” as thieves and we must see this as a defensive mechanism. Both the origin of property and the definition of property should not be overlooked. To keep things simple here, let Varoufakis do the talking:
Wealth is like a language.
Yanis Varoufakis (2020) – Another Now: Dispatches From An Alternative Present (p. 47)
Power relations
Finally, there are at least two relations of power required in the functioning of any court. I would like to designate an individual blog post on power, but for now it might be understood as the possibility of controlling not only the availability of ones own reinforcers (of course behavior is reinforced, not organisms), but also the availability of reinforcers and punishers for others – power is behavior control.
First is the power to enforce decisions – there has to be an apparatus stronger than both litigants to make sure the judgement is followed. In practice though, the court might not be stronger than a party in court, as some corporations are actually larger than individual countries. In any case, the state which requires a legal system is itself ruled by more wealthy interests and businesses (also called capital). Perhaps we need a reminder of problems with elections and their results.
The second power relation is more philosophical. In the three party arrangement, the court is placed above the litigants with it’s own set of criteria of justice. The resolution is that of the court and the parties must agree to the process and result. We already established that the criteria depend on individual context – the legal system does not allow a flexible way of contesting the rules of the court.
In the quoted interview, Foucault layed out illuminating insight into the court arrangement. These excursions into philosophy under influence of a radical behaviorist philosophy seems to me as a fruitful endeavour and I have no doubt there will be much more such commentary in the future.
Radical behaviorist leftist 