In Beyond the Public/Private Distinction: Law, Power and the Family Nikolas Rose argues for the adoption of a genealogy of power approach as a tool for analysis in social theory in order to override the inadequacies of the main strategies of study used thus far by radical socialist analysts (historical investigation and power). He draws this approach from the genealogical studies of Foucault and his co-workers. He describes the genealogy of power approach not as a methodology, but as a means of distancing oneself from certain conceptual tools which have a powerful hold over critical thought. He believes that by adopting this new approach radical analysts would stop to see power as the automatic by-product of economic exploitation or social stratification; and power will no longer appear under the guise of denial, control and repression. In addition, the genealogy of power approach would prevent analysts from projecting radical wisdom back into the past and implying that the present can be merely changed by conscious political strategy. To prove his point Rose compares the analysis of the “family” and “family law” done under the strategy of critique with his genealogy of family power.
The critique analysis of the family is centered on understanding the division between public and private spheres. Contemporary legal scholars in U.S. who use this analysis point out that the public/private distinction is one of a number of homologous oppositions – e.g. state/society, right/power, objective/subjective, freedom/coercion – that shape our consciousness and reified our world when incorporated into legal discourse. These dichotomies protect existing hierarchies and delegitimize alternative forms of group solidarity. In the regulation of “family law” this means that “[o]n the one hand, the state, representing dominant males interest, chooses the nature and objectives of public regulation; [while] on the other hand, a domain is constituted outside legal regulation where welfare agencies enforce the ideology of motherhood, and where male power is not even subject to limited protections of the rule of law”. (65) At the same time, the choices of non-intervention of the state which are used as justifications to not intervene are mystified by the public/private dichotomy. Thus, the extent to which the family is a state construct in which the differences in power amongst family members are obscured is never realized. The solution proffered by the critical analysts is to reveal the functions of the dichotomy and its falsity.
Rose, however, believes that albeit being insightful, this critique limits our understanding of the relations between the family and regulatory systems. He argues that this kind of analysis: “fails to grasp the ways in which the private family has, on the one hand, been linked into new forms of political rationality which have developed over the last century, and, on the other hand, has been central to transformations in subjective realities and desires”. (66) Rose thinks this oversimplification can only be overcome if we disrupt the central explanatory categories of the critique.
The first category he takes on is the category of the “law”. Rose argues that the legal system is neither totalized nor enclosed, so there is no unity in the legal practice. The alleged unity is just a creation of legal pedagogy. Hence, it cannot be sustained that family law operates according to an unequivocal construction of the public/private dichotomy. If unities are to be found, Rose contends, they are to be found in terms of outcomes rather than in origin. This, for him, is the key to create a political strategy in relation to law. Likewise, he highlights the importance to look into other systems of regulation[1] such as taxation and welfare; since, “in many cases, analysis of law is the wrong place to start if one wishes to understand regulatory strategies”. (67)
The second category Rose deems should be disrupted is the one of the state. “We should see ‘the state’ not as the origin but as the outcome of … [the] programmes [of regulation]. Rather than seeing an expansion of state control we should seek to analyse what one might term ‘the governmentalisation of the state’: a transformation of what could be governed, by whom and in what ways”. (67) For Rose it is important to recognize that the ideas of how, by whom, and what should be regulate do not emanate from the state but from a diverse array of actors with different interests in mind.
The last category that ought to be re-conceptualized is the one of power. Rose proposes to stop seeing power as having a single subject, a repetitive form, or as an equation in which what is gained by one side is lost by another. Instead, we should conceive power as having multiple sources and multiple mechanisms of which brute domination is the less typical.
If we disturb these categories we would engage in a genealogy of family power approach that would allow us to see that a “familialisation of society” has taken place and that this “familialisation” was created by practices and agencies which are neither private nor organs of political power. Likewise we would recognize that “[the familialisation of society operates because it has managed to command considerable subjective commitment from citizens who have come to regulate their own lives according to its terms”. (68) Thus, if we wish to analyze the forms of subjectification of the family (or any other form of subjectification) from the perspective of power is imperative to free ourselves from the idea that persons are only either agents of oppression or objects of submission.[2] Instead, we must see how all those involved in the regulation of family become tied to a project of creating an identity that binds them not only to one another but also to themselves.
In short, Rose argues for the abandonment of the path of traditional critical analysis since its tools of illusion, mystification and false consciousness preclude us from understanding the processes abovementioned and from grasping how regulation truly operates and relations of power are installed in society. Breaking with the tradition of critique, Rose sustains, would make visible a complex set of practices and power relations that require posing questions of judgment that cannot be answered by the political slogans that underlie critical analysis. Briefly, Rose’s paper is the application of the governmentality framework to the specific “problem of family law”.
[1] This contention underlies one of the basic assumptions of governmentality which is that government should be understood in an extended sense in which all the interdictions, urgings, interventions, techniques and evaluations which seek to shape up events towards desired ends are included as part of the idea of government.
[2] This embraces the basic premise of Foucault that governmental power is not “objectifying” but “subjectifying”.
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