random responses: public policy critique [two]

Foucault’s primary concern in Governmentality is state control. State sovereignty, while often asserted over property and territory, is predominantly a means of controlling what Foucault calls “the complex of men and things.” Since state sovereignty cannot be absolute and completely arbitrary. Therefore, a rationalization or justification that explains why the state is “good” rather than “bad,” is often built into theories of statehood. While Machiavelli’s Prince provided a first account of the “art of government” and what particular methodology a prince was to employ and make use of in order to protect his property and principality, further interpretations followed suit. However, Foucault is not interested with whether “the interpretation of Machiavelli in these debates was accurate or not.” What is even more salient and “problematic” for Foucault is the attempt of these debates to “articulate a kind of rationality which was intrinsic to the art of government.”

Initial rationalities of the state and statehood built on the word economy as “the wise government of the family for the common welfare of all.” However, this orientation towards the family created an impasse that was only later broken with the arrival of mercantilism and the shift from a model of sovereignty based on the family to one based on population and the problems of population. In addition, it is important to note that state rationality is premised on the “common good,” a “good” which also incidentally makes up the end of government.

The “problematic of government” is then this obsession with setting up some instrumental model by which to govern those subjects under the auspices of a sovereign. Subjects are considered to be mere dependents in an extended family that have no direct control over their well-being. It is beyond obvious that these subjects cannot care for themselves and therefore must rely on the head of the family, the sovereign, to provide them with certain necessities and safeguards. This interventionist and paternalistic dynamic of the “art of government” is for Foucault, symbolic of a rather dismal state of affairs. The implication of governmentality and governmentalization is that Foucault reduces the state to a very mechanical and one-dimensional “being,” one that can be easily predicted using his own cause-and-effect model. As Habermas later describes as part of his communicative interpretation of rationality, the complexity of social structures allow for some hope that modernity will not completely alienate the prospects for a different reality than that of Foucauldian or purely rational-choice nature.

If we are to continue the argument that the head of a household, usually the male (at least in Western society) is the general overseer or manager of that family’s resources so as to provide for the general or common benefit of all of his dependents, it is more than obvious that the only subjects that are left in the household, who can be labeled as dependents, are children and women. MacKinnon’s rather audacious critique of male supremacy, as it is found both in a feminist critique of the state, as it is experienced by gender inequalities, as well as in the private affairs of heterosexuality and marriage, is without a doubt an attack on the current, male-defined, de jure state order.

One way to explicate male power, as it is institutionalized by the state through law, is to subjectively critique modern rape laws. Given that rape requires certain legal concepts to be met before an offender is prosecuted, to try rape is often to adhere to a “reasonable person” standard, commonly referred to as an objective standard of behaviour that is defined as being a quantifier of the “sexually normative level of force,” and furthermore, a “substantive reference point implicit in existing legal standards.” While MacKinnon explicitly makes the point that the violent act of rape is difficult to distinguish from the non-violent act of intercourse, she further goes on to say that the problem is precisely that “the injury of rape lies in the meaning of the act to its victims, but the standard for its criminality lies in the meaning of the same act to the assailants.” Not asking for whom the belief is reasonable, when applying the reasonable standard test of belief, allows male explanations of rape to dominate over the actual experiences of rape, as experienced by female victims.

The implication this has to jurisprudence at large, is that it questions the very rationality behind the entitlement of the state to assert sovereignty over its subjects. While rape laws may seem like the right thing to do, a male-centric definition of rape fails to address the obvious: “sex is something men do to women.” Consent then, as MacKinnon interprets it, from a feminist critique point of view, is useless, for “if sexuality is relational, specifically if it is a power relation of gender, consent is a communication under conditions of inequality.”

To question male-dominance and male-centric definitions of the state and statehood is to question, much like Foucault does with his theory of governmentality, albeit implicitly, entitlement. Particular rationalities, in this case the dominance of males over females in both public and private sphere cases, are packaged and framed by those who are most interested in ensuring that the outcomes of such power and gender relations turn out in their favour. In just the same way that these rationalities were constructed and adopted, the same rationalities can be deconstructed and abandoned, given that a more substantive enquiry and critique of the underlying assumptions is successfully attempted. To further explicate this, Dryzek offers an example, at the end of his discussion on the possibility of fostering discussion between rational choice public theory and critical theory, one that Adam Smith himself highlighted; Smith was aware of both the “positive effects of unconstrained self-interest maximizing the economic good,” as well as the “undesirable moral consequences,” of individuals acting in such self-interested and maximizing fashion, “for both the individual so behaving and for society more generally.”

White argues that “critical theory, at least as it is developed in Jurgen Habermas’s recent work, provides a minimal model of the subject which is both normatively more adequate than that of rational choice theory and which can provide a more useful theoretical orientation for interpreting and explaining at least some important phenomena in political life.” Habermas and his alternative interpretation of rationality, the communicative model, is central to both White’s article, Toward a Critical Political Science, as well as to Dryzek’s argument that critical theory can offer answers to some of the problems faced by public choice (rational choice) theorists; in essence, an open discussion engaged in by the two theories should not be overlooked, especially since they share a core end goal, one that seeks to understand the underlying motivators behind individual actions.

Habermas’s famous “speech act,” a process that a speaker undertakes when making a “speech,” or engaging in conversation and debate, asks that three validity claims are to be met, namely (i) truth, (ii) normative legitimacy or correctness, and lastly, (iii) truthfulness or accuracy. What this in turn raises is a “reciprocal supposition of accountability between actors.” The communicative model is helpful then because it moves away from the isolationist pretensions of rational choice theories and into an area of intersubjectivity in which actors are constantly engaged in dialogue with their peers so as to reach a consensus as to what action will be taken to remedy a particular faced problem.

As modernization is central to both Foucault’s theory of governmentality as well as to the rational choice theorist’s position that “the systematic expansion of strategic rationality” is a “beneficial process which clears the necessary cognitive and institutional ground for an even greater degree of individual freedom and welfare, coming to fruition in the modern democratic state,” a critique of this systematic one-sidedness by Habermas was only imminent. Instead of being forced to accept absolute rational preferences, actors in the communicative model are allowed to be critical and reflective, capabilities that “are increasingly integrated into the ongoing reproduction of the lifeworld.” Ultimately, interpretive and evaluative skills become central to the understanding of one’s surroundings, skills that imply a more complex account of social interactions vis-à-vis rational choice theory’s more “normative prescriptions grounded in opaque sources of authority.”

As Dryzek points out, “hierarchy implies attempted manipulation of some people by others and instrumental guerilla warfare on the part of subordinates.” In addition, he goes on to say that those who are considered to be free agents, choosing the most rational path of behaviour, so as to maximize self-interest, are not in fact free at all, since they engage in a form of mechanical “roboticism,” always choosing what is pre-determined in an isolationist setting, while never appealing to other social agents who may find themselves in the same situation.

To continue with what was said before about the level of entitlement felt by those currently in positions of domination over others may be wrongly interpreted as some form of cognitive pathology. However, this entitlement may come off as being nothing more than a social construct built in their favour. Adam Smith himself saw both the virtues and the vices of self-interest, especially in a wealth-creation setting. Modern kleptocratic regimes, notwithstanding who ensures their survival, are examples of the extent to which a small, privileged minority has dominated over and essentially repressed a larger, powerless majority. Tversky and Kahneman’s loss aversion curve may explain the cognitive difficulty of letting go of a privileged position, especially when the ex ante benefits of maintaining such a privileged social position, would outstrip ex post facto ones.

One caveat remains. MacKinnon’s violent expose of the outrageous and ubiquitous domination of the male sex over the female one has the effect of empowering some women to justify a feminist movement determined to engage in a process of removing state male-ness and replacing it with a more feminine-sensitive explanation. This particularly aggressive discourse has the potential to antagonize the two sexes to the point of where male dominance may potentially stand to be consolidated rather than be brought “in-line” with a more gender-neutral explanation (alternative) of the state. In addition, the double-standard of considering all male subconscious to be repressive, oppressive, hierarchical and only conducive to top-down domination is an assumption that is more reflective of the similarities of the sexes rather than their gender-defined and gender-isolated differences.

Without calling MacKinnon a rational choice theorist in the absolute sense, it should be noted that gender discussion, a la the communicative model, as proposed by Habermas, is perhaps more appropriate in this context than a full out deterministic feminist model that dictates the experience of women and what emotions and feelings are to be considered as “obvious female responses.” It is possible that different women feel different things in different situations and circumstances. MacKinnon cannot speak for all or find her explanations justified as being the only rational explanation describing male-female domination. In addition, it should be at least noted that judicial systems, along with their behemoth jurisprudence, are institutions that are not particularly responsive, and usually slow to adapt to more current events and conditions; this can be both a virtue and a vice. Having said that, holding the men of today accountable for the implicit (at least to some extent explicit) behavioural tendencies of those men who lived in previous centuries (insofar as it is possible to do so by interpreting the statutory and case law of that time), would not only be unfair but also impossible to reconcile, another legal condition, namely, the chain of causation.

Feminism Uncontrolled.


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