The Normalization of the Subject of Right/ A Normalizacao do Sujeito de Direito.
| Autor | de Sousa Malcher, Farah |
| Cargo | Texto en ingl |
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Introduction
One might say that the concept "game" is a concept with blurred edges [verschwommenen Randern].--"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? (WITTGENSTEIN, Ludwig; Philosophical Investigations I, [section] 71, translated by G.E.M. Anscombe. Oxford: Basil Blackwell, 1986,p. 34, in SAFATLE, 2016, p. 9).
Safatle, 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 (SAFATLE, 2016, p.9).
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 transcendant in relation to the field of events, or which flits through history with no identity at all ( FOUCAULT, 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.
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The Foucauldian subject: knowledge, power and subjectivation Knowledge, Power and subjectivation in Foucault
In his last manifestations, more precisely during the College de France courses given from 1981 to 1984 called Ethics (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 College 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-delinguent--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...
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