Perhaps the prime problem that society faces is that of violence. Every individual is capable of violence. And even if 99 percent of individuals do not engage themselves initiate violence, the actions of the few that do employ violence, if left unchecked, can be terminally destabilizing for society.
The hallmark of modern society is the existence of robust institutions that constrain violence, promoting its predictability. For example, I know that if I attempt to steal a vehicle or illegally enter a residence that I can expect a violent response from either the owner, local security, or the police. If I don’t pay my taxes, I can expect to end up in court and maybe have an unpleasant interaction with armed agents from the IRS. We are constantly confronted by implicit threats of violence that, at least in part, guide our actions. Violence is the norm, not the exception, for society. Even when we have overcome violence, it is overcome by threat of violence embodied in particular institutions – i.e., property rights, civil liberties. These rights represent protection from force, protection that is organized according to particular rules. With violence as a given, how do we move toward a state of freedom?
This is an issue that both F.A. Hayek and Michel Foucault confront. The former is optimistic about the range of institutional arrangements that might secure liberty. The latter views legal tradition as an extension of warfare, and therefore as a system of oppression. For Foucault, institutional evolution is an extension of oppression that might be one day overthrown. Though in ways opposed, the views of these authors concerning institutions also inform one another.
In The Constitution of Liberty, Hayek’s first task is to define liberty in light of the problem of violence:
It is often objected that our concept of liberty is negative. This is true in the sense that peace is also a negative concept or that security or quiet or the absence of any particular impediment or evil is negative. It is to this class of concepts that liberty belongs: it describes the absence of a particular obstacle – coercion by men. It does not assure us of any particular opportunities, but leave it to us to decide what use we shall make of the circumstance in which we find ourselves.
Liberty as described by Hayek above represents its pure form. We may never escape coercion, but we can constrain it so as to maximize individual freedom and creativity:
Coercion is evil precisely because it thus eliminates an individuals as a thinking and valuing person and makes him a bare tool in the achievement of the ends of another… Coercion, however, cannot be altogether avoided because the only way to prevent it is by the threat of coercion. Free society has met this problem by conferring the monopoly of coercion on the state and by attempting to limit this power of the state to instances where it is required to prevent coercion by private persons. This is possibly only by the state’s protecting known private spheres of the individuals against interference by others and delimiting these private spheres, not by specific assignation, but by creating conditions under which the individual can determine his own sphere by relying on rules which tell him what the government will do in different types of situations.
Coercion by some prevents individuals from enacting their will on reality. The advantage of rules that make predictable the employment of violence is that, although they cannot provide an individual with absolute freedom – what can? – rules greatly expand one’s option set.
Michel Foucault takes a different approach. As with Hayek, Foucault understands that institutions transform and delimit violence. But for Foucault, this transformation is merely in extension of state of war. Institutions embody oppression:
The role of political power, on this hypothesis, is perpetually to re-inscribe this relation through a form of unspoken warfare; to re-inscribe it in social institutions, in economic inequalities, in language, in the bodies themselves of each and everyone [sic] of us.
So this would be the first meaning to assign the inversion of Clausewitz’s aphorism that war is politics continued by other means. (Power/Knowledge: Selected Interview and Other Writings, 1972-1977, Two Lectures)
Foucault’s perspective is not unfounded. Recent research on violence and institutions reinforces his view. In their theory of development, North, Weingast, and Wallace state explicitly that the earliest institutions are those that extract rents for elites that are greater than can be extracted under a state of warfare:
To be credible, the commitment [to peace] requires that the violence specialists be able to mobilize and gather their rents, which are produced by the remainder of the population. Mobilizing rents, in turn, requires specialists in other activities. It is here that we move away from the simple ideas about violence and back toward a more reasonable depiction of the logic of the natural state. In the earliest societies of recorded human history, priests and politicians provided the redistributive network capable of mobilizing output and redistributing it between elites and non-elites. (Violence and Social Orders)
If this was the whole story, Foucault would be correct to claim that:
The system of right, the domain of the law, are permanent agents of these relations of domination, these polymorphous techniques of subjugation. Right should be viewed, I believe, not in terms of a legitimacy to be viewed, but in terms of the methods of subjugation that it instigates. (Power/Knowledge: Selected Interview and Other Writings, 1972-1977, Two Lectures)
The extremeness of Foucault’s claim here betrays him. “The system of right, the domain of the law” are not “permanent agents” but constantly evolving compromises whose benefits flow outward from the elites who initiate them to broader sections of the population. Violence, in particular violence from elite groups, is the starting point. Systematization of violence may represent a more benign form of warfare removed one degree from violence, but as the agreements evolve over time, extractive rents are diminished and individual freedom can, though it is not necessary that it does, increase.
Foucault leaves the reader with a solution that is inefficient, if not altogether unworkable. For Foucault, the power of violence continues in the disciplining of society, and therefore “it is not toward the ancient right of sovereignty that one should turn, but towards the possibility of a new form of right, on which must indeed by anti-disciplinarian, but at the same time liberated from the principle of sovereignty.” Foucault asks for a quantum leap in social organization, an elimination of violence. His singular concentration on institutions as an extension of oppression disallows his recognition of gains made by broader portions of the population that have resulted under existing regimes. As institutions evolve, violence is constrained by rules and society may move closer to a state, as phrased by Hayek, “in which coercion of some by others is reduced as much as is possible in society.” That is a state of freedom. On the other hand, one ought to remain conscious of Foucault’s critique as it carries with it a public choice angle. Rules and laws often benefit particular parties to the disadvantage of others.