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Norms, Discipline, and the Law

Author(s): Franois Ewald


Reviewed work(s):
Source: Representations, No. 30, Special Issue: Law and the Order of Culture (Spring, 1990),
pp. 138-161
Published by: University of California Press
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FRAN(:OIS

EWALD

Norms, Discipline,
and the Law
the firstvolume of TheHistory
THAT
CONCLUDES
IN THE TABLEAU
"Rightof Death and Power over Life,"Michel Foucault develops the
ofSexuality,
hypothesisthat,ever since antiquity,new mechanismsfor the exercise of "biopower"-disciplines of the body and attemptsto regulate the population-have
developed in Westernsocieties.'The juridical mode of governance,characterized
by forcibleseizure, abduction,or repressionand usuallyculminatingin death, is
increasinglyreplaced by bio-power,"whichaims to produce, develop, and order
social strength,"a power thatexertsa more positiveinfluenceon life,undertaking
to administerit,multiplyit,and impose upon it a systemof regulationsand precise inspection. Having noted that this transformationin the mechanisms of
power signifies"nothingless than the entryof life into history,"Foucault concludes bysuggestingthat"anotherconsequence of thisdevelopmentof bio-power
was the growingimportanceassumed by the action of the norm,at the expense
of thejuridical systemof the law."2
Foucault does not mean to suggesthere thatthe developmentof bio-power
is accompanied by a decline of law. His furthercommentarymakes it clear that
the formationof a normalizingsocietyin no waydiminishedthe power of law or
to disappear. In fact,normalizationtendsto be accomcaused judicial institutions
panied by an astonishingproliferationof legislation.Practicallyspeaking,legislatorsnever expressed themselvesas freelyor as extensivelyas in the age of biopower. The norm,then, is opposed not to law itselfbut to what Foucault would
call "thejuridical": the institutionof law as the expressionof a sovereign'spower.
If, as Foucault puts it,"the law cannot help but be armed,"and if itsweapon par
is death, thisequation of law and death does not derive fromthe essenexcellence
tial character of the law. Law can also functionby formulatingnorms, thus
becomingpartof a differentsortof powerthat"has to qualify,measure,appraise,
and hierarchizeratherthan displayitselfin itsmurderoussplendor."3In the age
of bio-power,thejuridical,which characterizedmonarchicallaw, can readilybe
whichcomes to the foremosttypicallyin constitutions,
opposed to the normative,
legal codes, and the constantand clamorous activityof the legislature."4
Foucault's ideas have a dual consequence for the philosophy of law. They
encourage us to distinguishlaw and itsformalexpressionfromthejuridical. The

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30 - Spring 1990 C) THE REGENTS OF THE UNIVERSITY

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OF CALIFORNIA

juridical served as a "code" thatenabled monarchicalpower to constituteitself,


formalizeits structure,and reflectupon itsown workings.However,such a code
is not the only possible form the law can take. Neither the "regressionof the
juridical," which accompanies the rise of bio-power,nor the fact that the most
typicalmechanismsofjuridicalpowercan no longerbe representedin legal form,
necessarilysignalsthe disappearance of the law.
We can and mustimaginea historyof law thatwould givemeaning and function to the law's varyingmodes of formalexpression.Foucault also compels us to
reconsiderwhat we mean bynorm,whichhe places among the arts ofjudgment.
Undoubtedly the norm is related to power,but it is characterizedless by the use
of forceor violence than byan implicitlogic thatallows power to reflectupon its
own strategiesand clearlydefine its objects. This logic is at once the force that
enables us to imagine life and the livingas objects of power and the power that
can take "life"in hand, creatingthe sphere of the bio-political.
Thus, in opposing the "action of the norm" to "thejuridical systemof law,"
Foucault suggeststwo possible paths of inquiry.The first,to borrow Foucault's
terminology,is "ontological"and concernsmodernity.It asks: What is modernity
if we understand it as participatingin the logic of the norm?What can we learn
about the modern by approaching it in termsof the norm and the practicesof
power and knowledge organized around the norm? The second concerns the
shiftin the relationshipbetween knowledgeand power and its influenceon the
statusand functionof legal thoughtin modern societies.Withinthe framework
of "the regressonof thejuridical,"whatis the place of law? Is a theoryor practice
of law articulatedaround the norm possible?If so, whatformwould such theory
or practice take, and what would be the risksand possibilitiesassociated with
them?
Georges Canguilhem has noted that etymologyholds certainsurprisesand
disappointmentsforour contemporaryunderstandingof the word norm:"When
we know that normis the Latin word for T-square and thatnormalismeans perpendicular,we know almost all thatmustbe knownabout the area in which the
meaning of the termsnormand normaloriginated."5JoachimRitter'sHistorisches
recalls the technicaloriginof the term.Vitruviusused
Wirterbuch
derPhilosophie
to indicate the instrumentused to draw right
it in his treatise On Architecture
angles. Through metaphor,the termwould be taken up to designate the rule of
law. Cicero, in particular,relies on the Stoic referenceto the architecturalregularityof nature, speaking of nature as the "norm of the law" (normalegis).The
norm had a long career as a synonymfor the rule. Jean Calvin, for example,
writesin his Institutes
oftheChristianReligion:"God has determinedby His laws
what is good and right,and by this means has meant to hold men to a certain
norm."

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139

However,at thebeginningof thenineteenthcentury,thereis a radicalchange


in the relationshipbetween the rule and the norm. Normcan no longer stand
simplyas another name for rule; rather,it comes to designate both a particular
of
varietyof rules and a way of producing themand, perhaps most significantly
all, a principleof valorization.Of course, the norm stillrefersto a standard meawiththe rule fromwhat is
sure thatallows us to distinguishwhatis in conformity
not,but thisdistinctionis no longer directlylinked to the notionof rectitude.Its
essential referenceis no longer to the square but to the average; the norm now
refers to the play of oppositions between the normal and the abnormal or
pathological.
The vocabularyassociated withthe termexpands as well: in French,normal
(1834),
is no longer the only word to derive fromnorme.It isjoined by normalite
norm's
of
the
extension
This
remarkable
(1920).
(1868), and normalisation
normatif
domain will affecta wide varietyof fieldsconcerned with economics and technology. It will also have a major influenceon the moral,juridical, and political
sciences, which at the close of the nineteenthcenturywill establishthemselves
(particularlyin Germany)as "normative"sciences.
Thus, two centuriesago the word normled a quiet, unremarkableexistence,
whereas today,along withits panoply of derivationsand associated terms,it has
become one of the mostused and abused termsof our contemporaryvocabulary,
whetherwe speak colloquiallyor as social scientists.We are intimidatedbynorms
and contemplatethemsuspiciously,feelingashamed to considerourselvessimply
normal. Psychologistsand sociologistshave made persistenteffortsto establish
norms whose constraining effectscan be felt everywhere-even where we
imagine our behavior to be least susceptibleto determination.In a sense, virtue
has become normalized: the virtuousindividual can delude himselfor herself
into believing that he or she acts out of a sense of duty while in realitysimply
making his or her behavior conformto a particularnorm. Similarly,health can
be envisioned as the absence of illness,while in actualityit is merelya sign of
normal organic functioning.Even taste,whichappears to be a product of purely
subjectiveaestheticjudgments, simplyrepeats internalizednorms in the regularityof itsassessments.Public hygiene,urban planning,safetymeasures against
pollution or nuclear contamination,and qualitycontrolhave all come about as
the resultof normativedecisionsof one sortor another.What is the significance
of this extensionof the normative,and what risksand potentialbenefitsdoes it
hold forthe future?
One set of normativepracticeswe mightwish to examine in this contextis
whatFoucault has describedas "disciplinarysociety."In DisciplineandPunish,Foucault suggeststhatthe prison is in some sense the purestexpressionof the disciplinaryorder.But thisis notto saythathe believeddisciplinarysocietyto be based
on generalized confinement.In fact,for Foucault the gradual spread of various
disciplines(to the factory,the school, the hospital,or the barracks)indicatesthat
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disciplineis not primarilyconcerned withconfinement,nor withthe segregation


of its subject population. Rather,disciplinetends not to divide or compartmentalize societybut worksinstead to create a homogeneous social space.
The norm is the principlethatallows disciplineto develop froma simple set
of constraintsinto a mechanism;it servesas the matrixthattransformsthe negative restraintsof thejuridical into the more positivecontrolsof normalization
and helps to produce the generalizationof discipline.The normis also the means
through which the disciplinarysociety communicates with itself. The norm
relates the disciplinary institutionsof production-knowledge, wealth, and
it
finance-to one another in such a way thattheybecome trulyinterdisciplinary;
provides a common language forthese various disciplinesand makes it possible
to translatefromone disciplinaryidiom intoanother.
In Disciplineand Punish,Foucault returnsagain and again to the idea that
discipline "produces" individuals. It not only manages them and makes use of
them but activelyconstitutesthem as its object. Withinthe disciplinaryframework,the norm participatesin thislogic of individualizationwhilealso servingas
the forcethatjoins togetherthe individualscreatedbydisciplineand allows them
to communicatewithone another.
Disciplinesare
It is essentialto avoid confusingthe termsnormand discipline.
concerned withthe body and itstraining,while the norm is a measurementand
a means of producing a common standard. Discipline is not necessarilynormative.Accordingto Foucault,modernitycoincideswiththe comingof a normative
age. The normalizationof the various disciplinesand the shiftfromdisciplineas
constraint to discipline as a regulatorymechanism are symptomaticof this
change, as is the formationof a disciplinarysocietyfounded on a new kind of
social space thatis supple, flexible,homogeneous, and entirelyself-contained.
Withinthe disciplinaryorder, the influenceof the norm is primarilylocal;
Withthe appearance
normsremainattachedto specificpracticesand institutions.
of insurance,the norm willserveas a means of managingdifferentkindsof actuarial populations,6while with the institutionof a Social Securitysystemit will
become a way to manage the entirepopulation of a given state.The shifthere is
to thatof thebio-political.Risk playsthe
fromthe level of the micro-instrumental
same role in insurancethatthe normdoes in theconstitutionof disciplinarystrategies. The conceptual categoryof risk,which makes insurance possible, is the
precise homologue of the disciplinarynorm.
forestimatingrisk
Insuranceis an equivocal termthatcomprises1) a technique
in actuarial terms;2) the practices
of restitutionand indemnificationof damages
thatstructurepublic and
thatset thistechnique in motion; and 3) the institutions
privateinsurance schemes. I intend to discuss only the first-the techniques of
risk.
What is risk?In common parlance, the termis a synonymfor danger, peril,
or the unexpected misfortunesthat mighthappen to anyone; it also implies an
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141

objectivethreatof some sort. In insurance,riskrefersneitherto a specificoccurrence nor to a kind of eventthatmighttake place but insteadto a wayof treating
certain events that might happen to a particulargroup of individuals (a population). Nothing in itselfis a risk-risks have no real existence. By an inverse
logic, anythingcan be a risk-everythingdepends on the way the danger is anathecatelyzedand the potentialeventis evaluated. To adopt Kantianterminology,
gory of risk is a category of understanding; it cannot be derived from intuitionor sensibility.As a technologyof risk,insuranceis firstof all a rationaloutline, a means of disassembling,reconstructing,
and organizingcertainelements
of reality.
Insurance is the practiceof a specifictypeof rationalitythat formalizesthe
calculationof probability.This explainswhyone can onlybe insuredagainstrisks,
and whythesecan be as variousas death,accident,hail,illness,childbirth,military
The insurerdoes not passivelymake note
service,a businessfailure,or litigation.7
of actual risksin order to insure people againstthem. Instead, he produces risks
by makingthem visibleand comprehensibleas such in situationswhere the individual would ordinarilysee only the unpredictablehazards of his or her particular fate.
It confersa certainobjectivestatus
Risk,then,is a principleof objectification.
on the eventsof private,professional,or commerciallife:death, accident,injury,
loss, or hazard. The task of insurance is to constitutea particularkind of objectivity;providingvarious familiareventswitha real existencethatchanges their
character.Insurance creates its own world; it confrontsthe world of lived experience (and all of itsterrors)withthe more neutraland predictableworldof risk.
When the firstinsurers boasted about the liberatingeffectsof their statistical
models, or explained thatthe dangers we fearare reallynothingbut riskswe can
take steps to protectourselves against,theywere, of course, speaking as advertisers.Still,theirargumentsrested on the idea of a veryfundamentaltransformationof the world.
Risk is both objectiveand objectifying.This arises throughthe exercise of a
rigorouslypositivisticattitude.Insurance has two bases: first,the statisticaltable
or graph that testifiesto the regular occurrence of certain events; second, the
calculationof probabilitiesthatare thenapplied to these statisticsso thatone can
evaluate the possibilityof these same events.The insuranceview of the world is
firmlygrounded in probabilityand statistics.It is generallyadmittedthatmodern
science took itsdefinitiveformat the timeof the ScientificRevolutionin the seventeenthcentury.One mightalso speak of an analogous probabilisticrevolution
of the nineteenthcentury,one thatradicallytransformedcontemporarynotions
of such familiarideas as "fact,""law,"and "cause."8Like the Galilean revolution
beforeit,the probabilisticrevolutionwas receivedwithitsfairshare of resistance,
debate, and utterincomprehension.Some of the best-knownexamples of resis-

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tance were Auguste Comte's or Jean-BaptisteSay's oppositionto the use of probabilityin the social sciences. Other examples include the general philosophical
condemnationof probabilityon the grounds thatit would introduceinto history
an element of determinismthatwas altogetherincompatiblewithliberty,or the
endless legal debates during the nineteenthcenturyover the relativemeritsof
faultand riskas causes of responsiblity.
By the standards of an earlier world (in whichwe stilllive, at least to some
is mostremarkablefor his rigoroussusextent),the insurer,like the statistician,
pension ofjudgment. For him,eventsare factswithdistinctboundaries in space
and time-they are completein themselvesand have no cause, or past,or future.
leave theirtraceon the surface
They are individuals,pure atomsthatpersistently
of the world. They do not signify;theysimplyare. They can barelybe described,
and theiridentityis reduced to the numericalqualitythatallows one to tabulate
them as a point or a unit.
The statisticianmust begin by bracketingthe usual systemsof signification
and should remain instead at thatunclear boundarywhere a coherentvision of
the worldthreatensto disappear beneath the infiniteresiduesof factsand events.
Similarly,the insurerwho initiallynotes the factof an accidentor a death is altoto itscause. It matterslittlethata specificaccidentmighthave
getherindifferent
been avoidable, or that a particularindividual will bear historicalresponsibility
for a given event. The importantthingabout eventsis thattheyoccur,or rather
that their occurrence is repetitive,multiple,and regular. They become purely
accidental, and are rendered objectiveby comparison withthemselves.For the
purposes of statistics,theyremain withoutvictimsand withouta cause, at least
initially.
To put the mattersceptically,whatis at issue here is the possibilityof freeing
byconcentratingon the pure factuality
oneselffromthe usual playof signification
of facts,the pure recordingof occurrences. In Kantian terms,the task for the
insurerand the statisticianalike is to restricthimselfor herselfto a singlelevel of
intuition,locating and comprehending factsexclusivelyin termsof their temporal and spatial situation,withoutappealing to a more comprehensivesystem
of understanding.The worldas perceived forstatisticalends makes no sense.It is
reduced to a pure accumulationof facts,data thataccumulate randomlywithno
prospect of ever signifyingas individual bitsof information.To the extentthat
has been suspended, all facts,even the mostinsigthe usual systemof signification
nificant,are worthyof note.
Only the science of probabilityallows these data to signify.In the logic of
probability,sense can emerge from this undifferentiatedmass of data without
any need for referenceto a world outside that of pure surfacesand pure factuality,where pieces of informationof indeterminatevalue repeat and accumulate. For statisticalthought,numbersby themselvescreate meaning. The notion

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143

of massreplaces such evaluativeconcepts as nature or essence. In the social and


moral world, presumablythe sphere of free agency,there are observable regularities,constantsof social life(marriage,crime,suicide,and so on) whose causes
itwas stillpossible to invokethe
remain obscure. Before the triumphof statistics,
cause thatwould
workingsof divine Providence,or to seek some othersufficient
explain otherwiseinexplicable phenomena, as though the regularityof certain
events could be explained by recourse to some invisiblelogic of causality.But
probabilisticthinkingmakes this specular doubling altogetherunnecessary; in
statistics,
factslose theirstatusas naturalsignsor indicesof some highermeaning.
They referback to nothingbut themselves.The visibleworldis no longer a translation of an invisibleworld of essences. Only the repetitionof a particularsocial
fact,its multipleoccurrences,can give it meaning. According to this logic, the
more frequentlya particularsort of event occurs statistically,
the more real it
becomes. The weightand numberof occurrencesbringsocial factsintoexistence.
Inversely,a single exceptional eventcounts forless in statisticaltermsbecause it
then,functionsas a ruse of reason:
occurs so rarely.The calculationof probability,
even though causes remain unknown and unknowable, they do translateinto
effect.By seizing upon effects,thiskindof calculationallows us to determinethe
laws thatgovernthe recurrenceof eventswithoutevergraspingthecauses behind
them.
Facts are stillorganized in categorieswithdistinctnames: birth,death, accident, suicide, size. However,thisis a particularlynominalistuse of the category,
for these categories make no referenceto any explanatoryprinciple. They are
simplysets of groupings-open-ended collectionsof randomlyoccurringfacts
that are never identicalto one another.The statisticalcategorybringstogether
diverse variables on the basis of their resemblance or potentialequivalence; it
servesas a principleof classificationratherthan as an identifying
denomination.
According to the logic of statistics,then, an accident is no longer a simple
misfortunethat happens to someone; instead, it takes on a real existence of its
own. Similarly,man no longer existsas an entitythatcan be explained in terms
of human nature, nor does he exist anywherewithinthe multiplicityof living
men. Rather,"man" appears in the qualitiesthatcan be attributedto him,which
have taken on lives of theirown: size, weight,or strength.The characteristicsof
a particularindividual are lost in the midstof those of many other individuals.
In a sense, the particularindividual witha specificsize and weight no longer
exists.Only the standard size and weightof a population of individualswho constitutea pool of human qualitiescontinuesto have a real existence.
The meaning and importof thisstrangeblendingof traits,thispeculiar statisticalsurgeryis perhaps most evidentin Alphonse Quetelet's attemptsto constructa theoryof the "average man,"whichhe formulatesin at least three places
in his work. The project grows directlyout of a sense of the significanceof
averages:
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By gatheringtogethera number of individualsof the same age and sex and takingthe
average of a set of theirconstantmeasurements,one obtains a series of constantfigures
thatI would attributeto a fictionalentityI call the average man forthisgroup. If we were
Frenchman and find the
to note, for example, the size of every twenty-five-year-old
average, the number we obtained would be the size of the average twenty-five-year-old
man.9
Thus defined, the average man is a "fictional entity": there is no actual twentyfive-year-old Frenchman who could be the average man. The average man can
also be a typical example of man at a particular moment in time in a specific place:
Everythingoccurs as if there existed in nature particulartypessuited to a given country
and the environmentalcircumstancesin which theyfind themselves.Variantson these
typescome into being accidentallywithequal frequencyas augmentationsor diminutions
large sample
of the essentialcharacteristicsof a type.Suppose thatwe have a sufficiently
population: the average man for each age would find himselfflankedon both sides by
equal numbersof individuals,some largerand some smaller.Moreover,the groups would
be distributedregularlyin order of size. The largestgroups would be composed of those
who were closestto the mean, whilethe smallestgroups would be those mostdistantfrom
the mean. The furtherone gets fromthe average, the smallerthe groups thatrepresent
giants,likedwarves,are quite
thisdifference,and, at the extremelimitsof thedistribution,
rare. However,these extremecases are not anomalous-in fact,theyare necessaryto complete the ascending and descending series determinedby the law of randomness. Each
group has itsown specificvalue and place. Thus when men are thrusttogetherin society
and theirvarious sizes come togetherin the mostunlikelycombinations,thereis between
them a mysteriouslink thatallows us to consider each individualas a necessarypart of a
whole whichhas no physicalexistenceand escapes us in the individualinstance,and which
can onlybe perceived throughthe eyes of science.'0
We may note that in this second version, too, the average man remains a fiction:
"Everything occurs as if . . . " writes Quetelet. Of course, the law of randomness
makes it apparent that something corresponds to this fiction: not a real individual
who incarnates the social mean but the typical man for that society; not a model
or original that serves as the standard for all men but the reference point common
to them all. This point of reference provides them with a kind of "natural" identityand suggests that laws of man do exist. Finally, according to Quetelet,
The man I am consideringis, in society,the analogue of the center of gravitywithina
body; he is the mean around whichvarious social elementsmove. He is a fictionalbeing
for whom all thingsoccur in accordance withthe average expectationsfor the societyin
question.... This determinationof the average man is not merelyan idle pursuit;knowledge of social averages can servean importantpurpose forthe human and social sciences.
The studyof averages is a necessaryprecursorto any research into social physics,for it
servesas the foundationof such study.... Only bytaking[the average man] into account
I
can we trulyappreciate the phenomena of social equilibriumand movement."
The average man, then, is not an individual whose place in society is indeterminate or uncertain; rather, he is society itself as it sees itself objectified in the
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145

mirrorof probabilityand statistics.There is not a trace of realism in Quetelet's


account of the average man. The average man is at once the entitythatpermits
scientific
judgment of man and the necessarycorrelateof thatjudgment. Once
human nature loses its metaphysicalstatus,individualscan be judged only with
referenceto the social and, more precisely,withreferenceto the average man.
The theory of the average man, then, is simply a new-and altogether
modern-means of individualizingthe membersof a population. This is whatwe
mean today when we make referenceto norms and the normal. The notion of
the average man correspondsto a new wayofjudging individuals-the onlyway
thatis scientifically
possible,in fact:Quetelet writes,
to estimatethedegreeof courage,or whatwe must
I havealwaysfeltit to be impossible
forwhatstandardof mearegardas such,containedin theactsofan isolatedindividual,
Wouldwe observethisindividual
surementcouldwe possiblyadoptforsucha quantity?
depthto takeintoaccountall of hisactionsand
fora longenoughtimeand in sufficient
estimatethe relativevalue of theseactsof courage?Whattribunalcould possiblypass
judgmenton theseactions,and wouldtherebe a largeenoughnumberofthemforus to
conclusion?
Whocouldguaranteethatin thecourseoftheseobservareacha satisfactory
tions,theindividualinquestiondid notundergosomemajorchange?Whenweworkwith
ifwe
particularly
theseproblems
disappearalmostentirely,
a largenumberofindividuals,
abouttherelationsbetweenthemand nothingof a
meanonlyto understandsomething
moreabsolutenature.'2
With his theoryof the average man, Quetelet proposes a means of specifying
individualswithreferenceto theirpositionwithina group, ratherthan bypaying
close attentionto their essence, their nature, or theirideal state of being. The
theoryof the average man, then,is an instrumentthatmakes itpossibleto understand a population with respect only to itself,and withoutrecourse to some
externaldefiningfactor.
The insurer's"risk"(an objectiveprinciplebased on calculation and distributions)correspondsdirectlywiththenotionof theaverage man outlinedin Quetelet'ssocial physics.The concept of risk makes no referenceto nature (as in a
metaphysics)or to morality(accordingto some ideal notionof what man should
do or be). Instead it allows the group to make socialjudgments withrespect to
itselfin a way that always reflectsthe currentstate of societyand is based on
normative,ratherthan prescriptive,evaluation.
Risk is at once calculable and collective,and these two characteristicsare
dependent upon one another. Accidents and misfortuneare individual occurrences, but riskis a profoundlysocial phenomenon. Moreover,riskcan only be
calculated for an entire population. The task of the insureris to constitutethis
population througha process of selectionand divisionof risks.Insurance socializes risk,transformingeach individual into a part of a whole. The functionof
insurance is to constitutemutuality,consciouslyin the case of mutual societies
and less consciouslyin the case of anonymouscompanies withpremiums.
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Insurance is thereforemore than a scheme thatallows individualsto protect


themselves against loss for a small fee because of the benefitsof mutuality.
Reducing it thusly makes it indistinguishablefrom more primitiveforms of
or the corporation.The cenmutual aid and solidaritysuch as the confraternity
tral characteristicof insurance is not that it spreads out the cost of individual
damages over a large group, but that it provides a justificationfor this kind of
division that has no basis in charityor fellowfeelingand is based on a rule of
justice, a rule of law. Accordingto Eugene Reboul,
of theruleof possibilities
thatdetermines
Insuranceis theapplicationto humanaffairs
beforechancehas madeitsowndivisionamong
thefateofindividuals
apartfromsociety
accordingto itsownlogic.So that
themand disposedof thecommonfundof property
a proportional
partof therisk
equityis preserved,each personmusttakeupon himself
thatmaybringhim good fortuneor mishap.'3

This "proportional part" defines risk for the insurer. The abstract principle
behind thisreasoningis thatthe naturaldistributionof luck and misfortune,i.e.,
just. Chance mustbe allowed to play out itswhims,and
chance, is fundamentally
it is up to individualsto protectthemselvesas theyare able to.
based on an attemptto discoverthe cause
Legal judgments were traditionally
of damages-it was essentialto findout whetherdamages were the resultof an
unpredictablenatural event or whethertheycould be attributedto a particular
person or institutionwho would then be required to bear responsibilityfor the
damages. The insurance system,bycontrast,proposes an entirelydifferentidea
of justice: causalityis superceded by the notion of a distributionof a collective
burden according to a fixed rule thatdeterminesthe contributionof each individual. Insurance then offersa new ruleofjusticethat refersno longer back to
nature but ratherto the existenceof the group, a social rule ofjustice that the
group is freeto determineforitself,and on itsown terms.
At the close of the nineteenthcenturyin industrialEurope, the technology
of risk and the institutionof social insurance form the basis for a new way of
thinkingabout politics.Insurance becomes social,not so muchbecause new kinds
of risk have come into being but because societyhas come to understand itself
and its problems in termsof the principlesof the technologyof risk.At the end
of the nineteenthcentury,the terminsurancedesignatesboth a set of institutions
and the structurethatorders the regulationand functioningof modern society.
This account presupposes theestablishmentof new relationshipsbetweenthe
notionsof insurance and the state. Insurance is not imagined simplyas an institution or systemwithinthe state for which the state must provide an order or
organizing principle; rather,the state can now be conceived of in termsof the
actuarialview of society.Insurance is no longer a simple subordinatefunctionof
the state but an essential part of the state's organization that affectsits very
nature-the stateitselfbecomes a vastsystemof social insurance.
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The institutionof the prison as the universalpenaltyforcrimeat the beginning of the nineteenthcenturymarks,in Foucauldian terms,the birthof a "disciplinarysociety,"one whose organizationobeysthe logic of the normat the level
of micro-power.Likewise,the growthof the insuranceindustryduring the nineteenth century,along withthe beginningsof social insurance and the development of large-scale social welfare systems,marks the birth of the "insurance
society,"in whichthe norm functionssimilarly.

does not referto the production


In itstechnicalsense, the termnormalization
of objectsthatall conformto a type.Rather,itinvolves"providingreferencedocuments for the resolutionof standard technicaland commercialproblems that
recur in the course of interchangebetween economic, technical,scientificand
social partners."'4Normalization,then,is less a questionof makingproductsconformto a standard model than it is of reachingan understandingwithregard to
Britannicastipulatesin itsarticleon stanthe choice of a model. The Encyclopaedia
dardization that "a standard is thatwhichhas been selected as a model to which
objectsor actionsmaybe compared. In everycase a standardprovidesa criterion
forjudgement." Normalizationis thus the productionof norms,standards for
measurement and comparison, and rules of judgment. Norman F. Harriman
writes,"A standard maybe conciselydefinedas a criterion,measure or example,
of procedure, process, dimension, extent,quantity,quality,or time, which is
establishedby an authority,custom,or general consent,as a definitebasis of reference or comparison."'5 Implicit withinthe concept of normalizationis the
notion of a principlefor measurementthatwould serve as a common standard,
a basic principleof comparison. Normalizationproduces not objects but procedures thatwilllead to some generalconsensusregardingthe choice of normsand
lends a certain paradoxical allure to
standards. This definitionof normalization
the historyof the term. Normalizationis a practicethat only became aware of
itselfas such at the startof the twentiethcentury;the termitselfdates fromthis
period (1928), as do the firstnationaland internationalorganizationsconcerned
withthe establishmentof norms.'6
To those who firstworked on normalization,the concept appeared as a sort
thatmake societypossible,no
of universalorderingprinciple.All the institutions
matterhow primitive,such as language, writing,money,instrumentsof measurement,habits and customs,all suddenly seemed to derive, at least in retrospect,
from practices of normalization."' The normalizingprocess had accompanied
humanityin everystage of its development.It served a primarysocial function
by regularizinghuman conduct and by facilitatingboth technicalprogress and
communication.No social object could escape normalization,and societywould
be inconceivablewithoutit,fornormsand standardizationhad alwaysplayed an
essential role in social development.Above all, though,normalizationplayed an
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essentialpart in the constitutionof systemsof communication-the norm is what


transformedlinguisticsigns into a common language. There was thus a certain
reciprocitybetween societyand the norm,and betweenthe norm and language.
Thus, the modern exponents of normalizationviewed normalizationas a basic
principleof socialization.There can be no society,theyargued, withoutnorms,
codes, common standards of measurement,and basic principlesof communication. Technical normalizationwas simplya question of constitutinga societyof
producers and consumers and providingit witha common language and common institutions.
One basic differencebetween technicalnormalizationand earlier formsof
socializationlay in the factthat modern normalizationwas self-consciouslyand
activelywilled rather than simplytolerated or accepted, as in earlier periods.
Where the population had once been passivelysubjectedto the norm,now certain
elementswithinit were activelyseekingto directand manage the process of normalization.'8This was a global developmentthatconcerned not only individual
producers or sectorsof productionbut the activityof productionitselfand with
it the activityof consumption.
The systematiccharacter of technical normalizationdifferentiatesit from
earlier processes to which it has some resemblance-for example, the Venetian
ship-buildingindustry,whichfromthe sixteenthcenturyonward was organized
according to the principleof the divisionof labor.'9Technical normalizationhas
another genealogy entirely.Normalizationis the language of the engineer,and
marksthe momentwhen
itssuccessfulintegrationas a partof moderninstitutions
this technical language could attain to the status of a common language. The
institutionsof normalizationall grewout of associationsof mechanical and electricalengineersthatwere founded duringthe second halfof the nineteenthcentury in every industrialized nation.20One line of ancestry for the idea of
normalizationthereforelies in the scientificand technologicaltransformations
that accompanied industrialization.Normalization took on a real institutional
existence withthe creation of the firstofficialbureaus of norms and standards
during the FirstWorld War.
The demands of wartimeproductionwere a second point of originfor norof parts,
malizationmovements,sincecoordinatedproduction,interchangeability
of productsare all dependent on the establishmentof norms.2'
and compatibility
In the period immediatelyfollowingthe war, normalizationappeared to be an
inevitablerequirementof productionin the modern world,and seemed to imply
a general peacetime mobilizationof the population. Future industrialand ecoall seemed to depend on normalization,and industrialleaders
nomic productivity
saw it as an inescapable necessity.
Thus normalizationbecame somethingmore than a techniqueto be adopted
or neglected at will. Instead, it began to appear as the essential structurethat
would provide the frameworkfor productionand exchange everywherein the
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149

world. Herein lies the thirdline of ancestryfornormalization:itis both economic


and sociological. The demand for normalization in industry indicates an
increasingawareness among industrialiststhattheyforma society,and thatthis
societyrequires its own language, its own codes, and its own specificformsof
regulation. The technical normalization movement in industry signals the
moment when industrialistsand governmentofficialsbegin to recognize that
industrialgrowth,the appearance of new needs, and mass consumptionall contributeto the creationof a new productivesystemthatis distinctfromits predecessors not only in termsof its techniques and productivecapacities but also in
termsof itsinstrumentsof communicationand itsrules.
It is essentialto distinguishbetween the functionsand objectivesof normalization and its techniques. The functionsof normalizationare well known: simSimplificationinvolvesreducing the
plification,unification,and specification.22
products that resemble each
between
choosing
objects,
for
number of models
other too closely,and eliminatingany superfluous models. Unificationmeans
establishingfixed characteristicsof objects so that objects are compatible and
interchangeable.Specificationis a process of reaching a precise understanding
about standardsforthe qualityof manufacturedproducts.All of these functions
are part of a largerprogramforrationalizingproductionbyreducingwaste,regularizing production so as to minimizethe effectsof economic fluctuation,and
as possible.23In other words, one
adapting production to demand as efficiently
of the aims of technicalnormalizationis to gain a certainmeasure of controlover
time.
Industrialnormalizationcannotbe reduced to the pursuitof these objectives
alone, however,forthe essentialthinghere is the techniquethatmakes itpossible.
Despite the tendencyof contemporaryauthors to insistthatthere are many differentkinds of norms-terminological norms,norms for spatial measurement,
and qualitativenorms-any one of thesevarietiesof normwould be inconceivable
withoutthe others.24This mutualinterdependenceof normscan be explained by
the factthat what is reallybeing normalized is language. Normalizationbegins
withvocabulary:
problemis a meansof
thingto developwhenone beginstoexaminea particular
The first
theremustbe a singletermforeachthingand a singlemeaning
termsprecisely:
specifying
for each term....

Equally, since the elaboration of norms clearlydeterminestechnical

in diaand the formsof symbolicrepresentation


productnomenclature,
terminology,
taskin
is thefirst
a setof standardterminological
pointsofreference
grams,establishing
theprocessofnormalization.25

This normalizationof vocabularyextends even to systemsfornotationand writing: the signs and locutionsthatcharacterizecommon usage are less than ideal
for the purpose of precise technicalexpression.Words are soon joined by numbers and drawingsthatare themselvesnormalized.
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Linguisticnormalizationalso encompasses syntax.The language of normalizationhas itsown grammarand logic.This normalizedlanguage servesa specific
mode of thoughtthatit mustboth call forthand translate:it comprisesa styleof
analysis,and a way of categorizingand breakingdown objects,tasks,and needs,
at once segmentingthemand individualizingthem.At the same timethatit fabricates a language, normalizationserves as a principle of objectificationand a
This artificiallanguage servesto preventambiguities.It
producer of objectivity.26
figures,
a language withoutpuns, stylistic
is a language of precisionand certainty,
or interference-the language of perfectcommunication.However,thelanguage
of technical normalization also implies the institutionof a new relationship
betweenwords and things.
Fundamentally,normalizationis the processof turningthislanguage, withits
vocabularyand syntax,into a common language, a general principleof communication that functionsin much the same way as the systemof thoughtthat it
expresses. This language must functionnot only withinthe limitedcontextof a
singleindustrybut withinthe sphere of relationsbetweenvariousindustries,and
in the fieldof relationsbetweenproducersand consumers.Withinthislanguage,
the demands of buyers,sellers,producers,and consumersmustall be expressed,
refigured,and readjusted withrespectto one another.Normalizationestablishes
the language thatallows these differentgroups to understandone another and
Its centralprojectsare to institutenew common standardsof
to forma society.27
measurementwhile searchingfor appropriate rules of analysisand expression,
and to teach thislanguage to all those who are involvedin one wayor another in
the systemof economic exchange.
of theperfectcommonlanguage of pure
Normalizationis thustheinstitution
communicationrequired byindustrialsociety.But whatwillthislanguage say,and
what will be its content?What makes these new norms anythingmore than a
precise and perfectedversion of communicationaltools that have already been
in existencefor some time?How does one evaluate the requirementsof thislanguage, and itsperformancein communication-in otherwords,whatis the norm
for industrialnormalization?One of the specificcharacteristicsof technicalnormalizationis thatrequirementsand performanceare definedaccording to principles of relativityand solidarity.In terms of industrial normalization, the
measure of a productivenorm is a norm forconsumptionand vice versa.28Normalization forces each individual to imagine the ordering principlebehind his
activitynot only withrespect to some ideal of perfectionthathe mightattainin
isolation(such an ideal isolationhas no meaningin a normativesystem),but with
respectto a determinedneed thatmustbe satisfied.Normalizationis a means of
organizing that solidaritywhich makes each individual the mirrorand measure
of his fellow.
For Harriman, "The idea of perfectionis not involvedin standardization."29
In place of perfectionis the "one best,"or the relativebest, with referenceto
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151

industrialcapabilities and economic capacities,specificuses and requirements.


Normalizationis a means of assigningvalue that renders absolute standards of
perfectionmeaningless.30The good is figuredin termsof adequacy-the good
product is adequate to the purpose it was meant to serve. Withinthe normative
system,values are not defineda prioribut instead throughan endless process of
comparison that is made possible by normalization.The norm is the best relational principle. It expresses a compromise: the compromise among norms in
accord with the general principle of normative solidarity,the compromise
between technicalcapabilityand industrialcapacity,or the compromisebetween
production and need. Technical normalization,or standardization,provides an
example of valorizationthatmakes no referenceto universals,whereequilibrium
has replaced the absolute as the value of values. A standard may become stable
or regular,but it is only temporarilyso. The standard is a formof compromise,
the common denominator,a point of referencethatis destined to disappear-a
measurementthatexpresses the relationof a group to itself,even thatof a group
as large as the entirepopulation of the globe.
These differentpropertiesbecome apparent once again in the procedures
forestablishingstandards.Standardizationis not a formof legislation,nor is it a
process thatcan be carried out by decree. In other words,standardizationis not
a state function.Rather, it presupposes the creation of associations where all
interestedparticipants-producers, consumers,engineers,scientists-can negotiatethe common standard according to theirrespectiverequirements.There is
a kind of democracy specificto the standardizationprocess.3' In general, this
democracyfunctionson two levels: on the firstare the organizationsthatrepresent the various kinds of productiveactivityand are competentto decide upon
standards; on the second are the organizationsof standardizingassociationsthat
verifythe compatibilityof various norms among themselvesaccording to the
principle that "standards must forma perfectlyunifiedwhole."32This principle
makes standardizationinto an infinitetask.
Discipline, insurance, and standardizationought not to be conflated.However,all threepracticescan be subsumed under the termnorm.How can we think
about the relationshipsbetween them, then? How mightcomparison of them
clarifyour conception of the norm? It is worthnotingat the outset thateach of
these three sets of practicesis marked by a tendencyto relentlessproliferation:
disciplinebecomes normativeas itbecomes generalizedand as it shiftsfromnegative to positivefunctioning,and the logic of the norm is what makes thi-sgeneralizationpossible.
Ever since itslegallyproblematicdebut at the startof the nineteenthcentury,
the insurance industryand itsspheres of influencehave expanded almostincessantly.Today there is scarcelya social problem thatis not dealt within termsof
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risk: public hygiene,health issues, pollution, social maladjustment,and delinquency have all come to make sense in insurance terms.Social securityhas also
helped to make insurance the essential formof social relations.Technical normalization,too, seems to require extensivedevelopment:normalizinga product
means normalizingboth productiontechniquesand the needs to be satisfiedby
production.
These normativeprocedures are implicatedin a process of expansion that
only stops when each has exhausted the possibilitiesfor furtherextending its
jurisdiction.They are also related to one another,however,in such a way that
each pulls the othersintoa kindof normativespiral.Modern techniquesformanaging accidents in the workplace provide a good example of this: the insurance
industry'sway of coping withaccidentsresultedin the birthof a science of workplace safety,ergonomics,whichis clearlyrelated to the developmentof scientific
organization and management principles.The demands of social hygiene certainlybenefitedthe industrializationof construction,whichwas itselftaken over
and encouraged by the development of constructioninsurance. We mightalso
chart the structureof normativenetworks,and in so doing we would gradually
come to see how a norm on one level is related to a norm on another,a safety
norm to a normativelevel of performance,for example, or a disciplinarynorm
to a productivenorm,or a productivenorm to a norm of population. "Norms,"
explains Canguilhem, "are relativeto each other in a system,at least potentially.
withina social systemtends to make thissysteminto an orgaTheir correlativity
nization,thatis, a unityin itself,ifnot by itselfand foritself."33
Justas normscan onlyexistsocially,therecan be no such thingas a norm that
existsin isolation,fora norm neverrefersto anythingbut othernormson which
it depends. Norms communicateamong themselves,shiftingfromone level or
fieldof theirexistenceto anotheraccordingto a kindof modular logic. The norm
findsmeaning only in relationto other norms: only a norm can provide a normativevalue foranother norm. The paradox of the norm is thatbefore one can
exist,theremustalreadybe another.If a normexists,the entirespace in whichit
appears becomes a normativespace. Thus it would be an error to say that The
whichextended the scope of the normativeto the stateand the
History
ofSexuality,
populations withinitsjurisdiction,continuesor completesDisciplineand Punish,
whichmerelysituatedthe normativeat the level of discipline.This displacement
is part of the logic of the norm. When the norm appears, it establishesitselfnecorderthatcharacterizesmodern societies.
essarilyas an order: thenormative
This correlativequalityof norms providesus witha methodologicalinsight:
itis essentialto distinguishbetweenthenormitselfand theapparatus, institution,
or technique of power that brings it into action and functionsaccording to its
principles.The norm (or the normative)is no more specificto disciplinethan it
is to insurance or standardization.The norm in particularcannot be characterized as the exertion of a punctiliousor minute formof power or imagined in
and theLaw
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153

termsof the microphysicsof itsengagements.Norms are linked neitherby scale


(macro or micro) nor by the characteristicsof their objects, whether they are
bodies, populations, or things.Hence the ubiquityof the normative,which can
no longer be confused with the exercise of power that it informs.If power is
exerted according to a set of physicalconstraints,the norm fallswithinthe province of a metaphysicsof power.
What, then,is a norm? It is a way fora group to provideitselfwitha common
in accordance witha rigorousprincipleof self-referentiality,
denominator
withno
recourse to any kind of externalreferencepoint,eitherin the formof an idea or
an object. The normativeprocess can obey a varietyof differentlogics: the panoptical logic of discipline,the probabilisticschema of insurance,or the communicativelogic of the technicalnorm. These three logics have the same form: in
each case, the rule whichservesas a norm,byvirtueof whicheveryonecan measure, evaluate, and identifyhimselfor herself,will be derived from those for
whom it will serve as a standard. A strangelogic, this,whichforcesthe group to
turnback in upon itselfand which,fromthe momentit establishesitself,willlet
no one escape itspurview.
The norm implies a rule ofjudgment, as well as a means of producing that
rule. It is a principleof communication,a highlyspecificmeans of resolvingthe
problem of intersubjectivity.
The norm is equalizing; it makes each individual
it
comparable to all others; provides the standard of measurement.Essentially,
we are all alike and, if not altogetherinterchangeable,at least similar,never differentenough fromone another to imagine ourselvesas entirelyapart fromthe
thisis primarilybecause
rest.If the establishmentof normsimpliesclassification,
the norm createsclasses of equivalency.
But the norm can also work to create inequalities.This is, in fact,the only
objectivitythatit provides: the norm inviteseach one of us to imagine ourselves
as differentfromthe others,forcingthe individualto turnback upon his or her
own particularcase, his or her individualityand irreducibleparticularity.More
precisely,the norm affirmsthe equalityof individualsjust as surelyas it makes
apparent the infinitedifferencesamong them.The realityof normativeequality
of difis thatwe are all comparable; the norm is mosteffectivein itsaffirmation
ferences,discrepancies,and disparities.The norm is not totalitarianbut individualizing; it allows individualsto make claims on the basis of theirindividuality
and permitsthemto lead theirown particularlives.However,despitethestrength
of various individual claims, no one of them can escape the common standard.
The norm is not the totalityof a group forcingconstraintson individuals;rather,
it is a unit of measurement,a pure relationshipwithoutany other supports.
Normativepractices,based on the notionsof equalityand the common standard, are compatiblewiththe existenceof a certainkind of law. The normative
allows us to understand how communicationremainspossible even withina historicalmomentcharacterizedbytheend of universalvalues. The normis a means
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of producing social law,a law constitutedwithreferenceto the particularsociety


it claims to regulate and not withrespect to a set of universal principles.More
precisely,when the normativeorder comes to constitutethe modernityof societies,law can be nothingother than social.
This kind of law possesses tworemarkablequalities:first,itis no longerbased
will.In a normativeorder,
on a model in whichthe law emanates froma sovereign
there is no room for the sovereign.No one can pretend to be the subject that
withoutbeing willed
establishesthe norm; norms are created by the collectivity
byanyone in particular.The norm is the group'sobservationof itself;no one has
the power to declare it or establishit. Undoubtedly,the norm gives the group a
certain sovereigntyover itself,but that sovereigntydoes not derive froma contract.Although it presentsitselfas an expression of the general will,legislative
sovereigntywithinthe normativeorder is mere appearance, a form or fiction
necessaryto ensure the community'srespectforthe common standard.
Secondly,althoughtherecan be a parliamentwithina normativeorder-and
practicallyspeaking, there are usually many,since theyhave a tendencyto mulso. The law is
tiply-there is no legislator.This positionis empty,and definitively
no longer valid as an expression of the general will or the common interest.
Rather,it is valid by virtueof its normativequality.Parliamentno longer establishes the fundamentalprinciplesof law; itcan onlyset forthregulations.A normativeeconomy of obligationsallows us to imagine a law withoutobligationsor
sanctions. The supportersof technicalnormalizationhave made it amply clear
that whenever a regulation is propounded, a norm has been negotiated. The
validityof a norm derives fromthe factthatit is not imposed fromoutside but
thatitobservesitselfwithoutrequiringobedience. Withina normativespace, constraintis more of an obstacle than an aid. At the United Nations, for example,
argumentshave been made for"resolutions"and "recommendations"thatdo not
have the binding force of treatiesand serve instead as points of referencefor
evaluating the conduct of states. Of course, theyare most effectivewhen they
express a consensus. More precisely,these resolutionsand recommendationsare
the expression of norms. The norm eliminateswithinlaw the play of vertical
relationsof sovereigntyin favorof the more horizontalrelationsof social welfare
and social security.

The norm, then,is a means of producing the common standard,a rule for
common judgement that makes law possible in modern societies. It functions
withinthe bounds of threedefiningconditions.
The firstinvolvesthe constitutionof a homogeneous fieldof positivevalues.
The norm makes visible and records only the sheer phenomenalityof phenomena. The normativegaze does not seek to penetrateto the inner substance
never going beyond
of things.Instead, it remains on the level of pure facticity,
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in themselves;
thisto attaina deeper appreciationof itsobjects.Factsare sufficient
theysimplyexist,neitheras appearance nor as essence. Processingthem is not
a question of unmaskingthem or interpretingthem because for the normative
way of seeing, a factrefersto other factsand not to an originalcause. Thus, in
the normative order one simply moves from one visible surface to another,
indefinitely.
This positivismbased on pure factsis fundamentalto the normativeorder.
It allows the norm to appear as both a principleof objectivityand as a common
language. If therewere a norm forthe norm,itwould be thisrigorouspositivism
The normativeinstitutionpresupposes a dual decision that funcof exteriority.
tions in both a negative and a positive sense. In its negative formulation,the
language of the norm assumes thatit is alwayspossible to distinguishfactsfrom
theirinterpretations.From the normativepoint of view,all interpretationis subjective; all explanation,opinion, and theoryare simplyformsof metaphysics.In
itspositiveformulation,the normativeallowsforcommunicationthatis independent of all philosophical or religiousconviction.Withinthe realm of the norm,
separated. The categoryof the normative
faithand knowledge are definitively
itselfpresupposes the creation of a purelydescriptivelanguage in which syntax
and vocabularywould alwayssucceed in containingthe slippage of meaning that
occurs in metaphor.If the possibilityof secular politicsis founded on the constithenthe normis eminentlysecular.
tutionof a sphere of objectiveinterpretation,
As I have suggestedearlierin thisessay,normsare anythingbut natural; facts
are never simplygiven. It is essentialto distinguishbetweenfactsand theirinterpretations,and statisticalprobabilityhas played a major role in establishingthis
distinction.In thisrespect,the science of statisticsresemblesthe language of the
normboth in itsvocabularyand itssyntax.It also functionsas a commonlanguage
because it produces objectivityindependentof anydoctrine.Of course, therecan
be no objectivitywithoutobjectification.Statisticsand probabilityare techniques
liberated from all metaof objectificationthat produce factswhose objectivity,
This
is
not
to say thateitherone is
common
function
as
a
language.
physics,can
neutral,or thatthereare such thingsas pure facts,but simplythattheycreate the
possibilityof objectivity.
This directlycontradicts
The second characteristicof the normis itsrelativity.
the idea that the norm represents some kind of absolute.A norm is a selfreferentialstandard of measurementfora givengroup; itcan make no pretense
to bind anyone foran indefiniteperiod, as a law can. This is not to say thatnorms
are ephemeral, for theyare enormouslydurable. But theyare also inconstant,
thiscapacityforadapalmostbydefinition.In theeyesof thebusinesscommunity,
normalization
conditions
makes
to
superior
tationand flexibleresponse changing
to laws or regulations as a management technique. Part of the norm's value
derives fromthe factthatit is so completelytime-bound.
Similarly,the norm can never be universal. Ever since the work of Emile
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Durkheim, both sociology and cultural ethnologyhave repeatedlyreturned to


the idea that the validityof a norm can never extend beyond the bounds of the
group which that norm describes. As Durkheim notes, "A fact can be termed
pathologicalonly in relationto a given species.... It can onlybe termednormal
The
in relationto a particularphase, likewisedeterminateof itsdevelopment."34
same holds true for biological norms: standards of health are not the same for
everyone,and those suitable for adults would be less so for small children or
elderlypeople. Because normsare relative,itmakes no sense to apply a particular
set of norms establishedforone group to otherunrelated groups or cases.
The relativityof norms has often been interpretedto their detriment,as
though the fact that normativerules bear the marks of theirhistoricalcontext
were enough to make them invalid. Relativitydoes not necessarilyimplyrelativism.If a norm's sphere of validitycannot extend beyond the bounds of the
group thatestablishesit in the firstplace, thisis preciselybecause normsare neitherequivalent nor interchangeable.In short,thereis systemof valorizationspecificto norms thatis altogetherunrelated to the Kantian criteriaforvalue.
Finally,norms involve polarity.Canguilhem has commented that the relationshipbetween the normal and the abnormal is not "a relationshipof contrabut one of inversionand polarity."35
As we have already
dictionand externality,
observed, the abnormal is not outside the realm of the normal; the division
betweenthe normaland theabnormaloccurson thebasis of inclusionratherthan
exclusion. However, if the normal and the abnormal can only be distinguished
along a continuous spectrumof possibilities,are real distinctionseven possible?
This is the biological problem of deciding on the statusof the anomalous.
Recalling Canguilhem once again, we are reminded that anomalies are part of
the normal in much the same way thatmutationis an essentialpart of biological
life.36Justas in statistics,thereare never any real constants-only differencesof
various sorts. But if the norm is based on variation,how can we describe one
particularsortof variationas abnormal? Biological anomalies can be considered
abnormal less because theydiverge froman a priori model of their type than
because the anomalous individualwillexperience his or her differenceas a handicap or obstacle in the business of life. If all possible formsare not normal,it is
not because some formsare naturallyimpossiblebut because the various possible
formsof existenceare not all equivalentforthose who mustexistin them.37The
separation between the normal and the abnormal occurs at the point in the relationshipbetween a livingentityand its environmentwhere equilibriumis completely disrupted, and the distance between environmentalrequirementsand
individual performance becomes too great. If environmental requirements
change, performancedoes too, and along withthemthelocationof theboundary
between the normal and the abnormal.
We can also explain the normativeassignmentof value in politicson thebasis
of these ideas. Social groups impose demands of various sorts(e.g., industrialor
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educational demands) that serve as the standard by which individual performance is measured and that allow individuals to be classifiedand placed in a
hierarchy.Abnormalityis defined as a handicap or inability.It no longer refers
to a natural qualityor propertyof being; instead, it signals some aspect of the
group's relationto itself.The relationshipbetweenthe normaland the abnormal
thus becomes an unstable threshold.At the same time,the politicalstakesin the
fixationof thisboundary become increasinglyapparent. Opposition to a particular technique and the demands associated withit implies a will to modifythe
thresholdfor exclusion. Inversely,debate over the frontiersof the normal and
the abnormal is meaninglessin the absence of some effortto alterthe social conditionsthathave produced the boundary.
The normativesocietyis a strange one: like all other societies,it excludes
various individualsand groups, but its tacticsforexclusion in no way implyany
kind of natural prejudice. It has its own demands, whichare never natural and
always social. In normativesocieties,politicallife is alwayshighlypolemical and
concerned primarilywith the establishmentof a balance between the various
claimsof individualsand groups,a stablesocial state.The achievementof specific
ends is less importantthan the maintenanceand negotiationof thisstate,since in
the normativesocietysocial good and stabilityare one and the same.
To the extent that norms are unstable, one mightobject that theycannot
functioneitheras a common standardor as a preconditionforlaw.Afterall, how
can a rule serve as a common referenceifit is constantlychangingand can offer
no securityto those who will have to make decisions based on it? Doesn't a rule
have to be fixed,unchanging,and outside the influenceof those who are going
to use it?Can a law whose rules are constantlychangingstillbe considered a law?
The norm is thatwhich,as a rule, is least arbitrary.The evidence provided
by averages and statisticalregularitiessuggeststhat normativeobjectivitydoes
exist,at least forparticularmomentsand particularsituations.Certainsocial facts
do recur reliablyin obedience to a sociologicallaw of inertiawhichcan be read as
proofthatthe lifeworld has found itsequilibriumin a specificnormativeidentity.
A priori,a normativeorder may seem to be constructedas ifanythingwere possible. However,even ifwe do believethateverythingis possiblein law,in practical
termsthe possibilitiesare predeterminedand relativelylimited.The rationality
pragmatismthatcannot be
of the norm has introducedus to a kind of positivistic
grasped in absolute terms.What we mustunderstandis thatthere is no need to
impose a law on the livingin order to ensure regularityin theirbehavior.

I have attemptedto elucidate Foucault'sratherenigmaticclaim at the end of


TheHistoryofSexuality
that,as a resultof the rise of bio-power,"we have entered
a phase ofjuridical regressionin comparison withthe pre-seventeenth-century
This remarkmightwellbe construedto mean
societieswe are acquainted with."38
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that there has been some kind of decline of law and legalityin modern society.
However, Foucault's project was neither to announce the imminentdisappearance of law,nor to criticizebio-powerin the name of law. Foucault was concerned less withthe place of law in the exercise of power (that is, whetherbiopower is compatibleor not withthe exerciseof law) than withthe use of law as a
Foucault was
"model" for analysis,a principle that makes power intelligible.39
interestedin the relationshipbetweenthejuridical and the political,and between
power and law,as a means of determiningtheconditionsnecessaryforan analysis
of the mechanismsof power. Power does not necessarilyfunctionthroughlaw.
Instead, law serves to camouflage the machinations of power. An adequate
descriptionof monarchicalpower would have to include law, for law is the language the monarchyprovidesitselfwithin order to legitimateitsown exerciseof
power.However,in thecase of bio-power,anyreferenceto thejuridicalis illusory,
since the language of bio-poweris purelytechnicaland has almostnothingto do
with the law as such. Foucault's analysis leaves open two questions: first,if the
bio-power,how do we
juridical is an inappropriatecategoryto use in interpreting
make sense of all those "instrumentsof the law" (codes, constitutions,laws, regulations) that have developed and expanded during the era of bio-power?
Second, ifthe actionof normsreplaces thejuridical systemof law as the code and
language of power,what role remainsforlaw?40

I have tried to argue that the contemporarylegal apparatus is not coterminous withthejuridical, as Foucault describesit,and thatthe normativeand the
juridical are essentiallyopposed. Further,I have attemptedto delineate the structure of the normativeon the basis of two examples: insurance and industrial
standardization.I have broadened thedefinitionof thenormto include thatform
of the common standard produced throughthe group's referenceto itselfand
thatlaw cannotbe understoodsimplyin termsof itsformal
demonstrated,finally,
expressions (constitutions,codes, laws). These must all referback to what functionsin societyas a common standard,a normativeand objectivebasis forjudgment. Thus we can now imagine a historyof the law in which law is no longer
conceived in essentialistterms,and an account of the inevitabledecline of essentialistlaw becomes unnecessary.
In both the insurance system and industrial standardization,the norm
appears as a technique for the production of a common standard of measurement. No societycan exist withoutsomethingakin to thiscommon standard, a
common language that binds individualstogether,making exchange and communicationpossible. The norm is one partof a long historyof the common standard, a lesser instanceof a largercategory.This articulationof the norm and the
common standard opens up a varietyof research perspectives,allowing us to
explore modernityin termsof measurementtechniquesand standards.Societies
and theLaw
Norms,Discipline,

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159

in theirinstruments
become modern at least partlyby virtueof transformations
of technical,political,and social measurement.What did the FrenchRevolution
in systemsof measurebringabout, afterall, if not an enormous transformation
ment? The introductionof the metricsystem,the institutionof a trulynational
language, calendar reform,and the creation of the Civil Code are all examples
of this.Similarly,the institutionof constitutionaldemocracywas a means of producing a common politicalstandard.One mightalso read the historyof the social
sciences in the nineteenthcenturyas the formationof so many instruments
intended to furnishmodern societies with social and political measurements.
a given
Thus we mightwellassess social modernityin termsof thetransformation
societymay have experienced in itstechniquesof measurement.
-Translated and adapted by Marjorie Beale

Notes
1. Michel Foucault, The Historyof Sexuality,vol. 1, An Introduction,trans. Robert Hurley

(New York, 1980), 135, passim.


4. Ibid., 82-83 and passim.
3. Ibid.
2. Ibid., 144.
trans. Carolyn R. Fawcettand
5. Georges Canguilhem, TheNormaland thePathological,
Robert S. Cohen (New York, 1989), 239.
(Paris, 1986), particularlypart 2, chaps. 1 and 2.
6. See Fran~ois Ewald, L'Etatprovidence
7. It is worthnotingthatit is impossibleto insure oneselfagainstdanger.
Revolution(Cambridge,Mass., 1987).
8. See Lorenz Kruger et al., TheProbabilistic

9. Alphonse Quetelet, Du Systemesocial et des lois qui le regissent(Paris, 1848), 13-14.

10. Ibid., 18-19.

de ses facultes; ou, Essai de physique


11. Alphonse Quetelet, Sur l'Homme et le delveloppement

sociale,2 vols. (Paris, 1835), 1:20, 2:250.


12. Ibid., 1: 147-48.

13. Eugene Reboul, Les Assurancessur la vie (Paris, 1863), 44.

14. Statutoryorder of 26 January 1984 concerningnormalization.

15. Norman F. Harriman, Standards and Standardization (New York, 1928), 24.

16. Some of these organizations include: Normenausschuss der Deutschen Industrie,


1917; Union Suisse de normalisation,1918; American EngineeringStandards Committee,Comission permanente de standardisation(France), Engineering Standards
Committee (England, reorganized from an earlier institutioncreated in 1901, the
InternationalStandardizingAssociation),1928-30.
17. See Jacques Maily,La Normalisation
(Paris, 1946), 11 and passim; Harriman, 1; John
Gaillard, Industrial Standardization,Its Principlesand Application(New York, 1934), 1 and
passim; Waldemar Hellmich, VomWesungder deutschenNormungauschuss:D.I.N. 1917-

1927 (Berlin, 1928).


as the passage froma process
18. AlbertW. Whitneywould interpretthistransformation
of natural selection to a process of selectionbased on rational choice. See National
(New York,1929),
IndustrialConferenceBoard, Inc. [N ICB] IndustrialStandardization
18.

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19.
20.
21.
22.
23.
24.
26.
27.
28.
29.
30.
31.

32.
33.
34.
35.
36.
38.
39.

Maily, La Normalisation,24.
See Hellmich, VomWesungder deutschenNormung.
See Hellmich, ibid.; Maily, La Normalisation,26.
Maily, La Normalisation,35 and passim; Harriman, Standards, 24 and passim; NICB,
Industrial Standardization, 23 and passim.
See Maily, La Normalisation, chap. 5, "Les Avantages de la normalisation," 89 and
passim.
25. Ibid., 49.
For example, see ibid., 48 and passim.
See Gaillard, "Definition of Concepts in a Standard," Industrial Standardization,36.
Harriman, Standards, xvi.
Hellmich, VomWesungder deutschenNormung: "There is no such thing as an isolated or
independent norm; all norms are interdependent."
Harriman, Standards, 79.
See Jessie V. Coles, Standardizationof Consumers'Goods: An Aid to ConsumerBuying (New
York, 1932).
Maily, La Normalisation,150 and passim; N ICB, IndustrialStandardization,chap. 6, "The
American Standards Association and Other National Standardizing Bodies," 100 and
passim.
Maily, La Normalisation,61.
Canguilhem, Normal and Pathological, 249.
Emile Durkheim, The Rules of Sociological Method,ed. Steven Lukes, trans. W. D. Halls
(London, 1982), 92.
Canguilhem, Normal and Pathological, 239-40.
37. Ibid., 125ff.
Ibid., 263-64, 267-68.
Foucault, Historyof Sexuality,144.
40. Ibid., 144.
Ibid., 86.

Norms,Discipline,and the Law

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