INTRODUCTION

Bourdieu (1987) conceptualises the juridical field as a `social space' wherein direct conflict between
parties is converted into a `juridically regulated debate' between legal actors. The juridical field thus
enables the law, and its legally sanctioned protagonists, to define and resolve conflicts according to its
own principles and rules of engagement. In their everyday practices legal actors, most notably lawyers
and judges, define and confirm the parameters of the juridical field and are, in their turn, defined by
the durability of a juridical discourse. This paper sets out to `test' Michel Foucault's analysis of
knowledge= power relations, the development of disciplinary techniques of government and his
consequential treatment of the role of law, against the empirical operations of the juridical field.

For the purposes of this article I will concentrate upon the way in which Foucault conceives of law
and, through an analysis of `working law' (that is, case law), will illuminate how law defines itself in
practice. Additionally, because Foucault was primarily interested in the archaeology of knowledge
and the genealogy of power=truth relations (Davidson, 1986), his concern with law was largely
incidental to this enterprise. Thus, although Foucault's methods point to significant consequences for
the status of law, his discussion of this topic tends to be discontinuous, at times ambiguous and
contradictory and relatively underdeveloped (Hunt and Wickham, 1994). It is, however, possible to
discern two major themes in Foucault's treatment of law. First, that the post-classical growth of
scientific disciplines, most crucially the `psy' complex of medicine, psychology and psychiatry
(Ingleby, 1985; Rose, 1985 and 1990; Miller and Rose, 1994) promoted the development of dispersed
forms of disciplinary power which could effectively govern a population. Because Foucault conceived
of law as the manifestation of sovereign power, it could only lose its significance in a modern world
where the source and operations of power were to be found, not in the sovereign, but in forms of
disciplinary knowledge (Foucault, 1978 and 1991). Second, Foucault's methodological approach
required him to address the detailed, mundane everyday operations of power and he thus sought to
`see through' the institutional meta-narratives of sovereignty, law, the state, democracy and so on
which could only obscure or mask more dispersed and subtle modalities of power

Research Questions

1. Is Administrative law just another method of bourgeois and expert classes to dominate over
the oppressed and keeping them in discipline?
2. Does Sovereign law exists?
3. How effective has been administrative law in India in emancipation of subaltern classes?
4. What changes can be brought in the sovereign functioning of Indian state’s Administrative
system?

Hypothesis

Foucault's treatment of law renders it vulnerable to colonisation by expert knowledge, particularly by

those disciplines comprising the `psy' complex; it dislocates law from the sites and practices of
power; and it maintains that law is incompatible with modern modalities of power which are not
ensured by right but by technique, not by law but by normalization, not by punishment but by control'
(Foucault, 1978:89). In opposition to this perspective, I want to suggest that sovereign law is alive and
well, that universal principles characteristic of liberal political thought are influential in law and
juridical practice and that, far from operating to undermine or colonise the juridical field, expert
discourses are used quite instrumentally when it suits and are rejected when it does not, by a judiciary
which guards the parameters of this `social space'. In other words, law retains its status as a site of
power and its truth claims are as potent in effecting government as are those of the disciplinary
sciences and their professional experts. Moreover, I will argue that, just as Foucault credits the
disciplinary sciences with developing techniques for surveillance and control, law can effectively turn
the tables and subject experts themselves to similar operations of power.

My argument is grounded in reported judgements which display to public view the juridical field's
practices, principles and modes of`thinking'.The legal presumption that adults have capacity
(competence) to decide in their own best interests, and the legitimation of medical or surgical
intervention, provides a particularly transparent lens through which to view the interactions of the
juridical field, expert knowledge and disciplinary forms of control.

Literature Review

Michel Foucault’s writings challenge dominant approaches to the analysis of law. For Foucault, law is
neither a condition for the liberation of the individual, nor is it solely the result of class domination.
Law cannot be adequately comprehended from the standpoints of subjects of action- whether they can
be based on individualism, class or gender- or from the general structures through which everyday life
is produced and experienced. Foucault claimed that liberalism, Marxism and standpoints rooted in
knowing subjects of action are inadequate because they share a juridico-discursive model of power.
This model limits the analysis of law and power because it formulates them as things that are
possessed by agents of action, as repressive , and as centralized in core structures such as legal
institutions and the state.

By contrast, Foucault conceptualized power as it is exercised, as multiple and decentralized, and as

productive of social structures and knowledge. Law is an element in the expansion of power - or,
more accurately - powers. In modern society, law combines with power in various locations in ways
that expand patterns of social control, knowledge, and the documentation of individuals for
institutionally useful ends. Ultimately, legality and associated techniques of knowledge and control
expand to define and to provide empirical knowledge of every aspect, every fibre of society. Most
especially, legality combines with other discounts to form the individual as the /oau of ever greater
networks of administrative control.

In Archeology of knowledge ( Foucault:1969), he developed a general prespective on reasoned

exclusion . The Order of Things( Foucault; 1966) formulates the differences in knowledge between
the classical period and modern knowledge that emerges at the end of eighteenth century and the
beginning of the nineteenth century. The classical period ordered knowledge through structrures that
located elements in spatial reltions with one another, that generally emphasized the ways in which
things were reproduced through rules of representation which fostered resemblance, that stressed
permanence over change, and that related things through expansive analogies.

Knowledge plays an increasingly important role in making judgements about crime and the criminal:
'knowledge of the offence, knowledge of the offender, knowledge of the law: these three conditions
make it possible to ground a judgement in truth'.35 What is most distinctive about the change initiated
in the early nineteenth century is the extent to which legal categories booms intertwined with
psychological, psychiatric, criminological, and sociological knowledges. These knowledges are used
to diagnose, to prognosticate and to judge criminals and criminal acts that go well beyond the
legal proscriptions about the application of punishments to offences. These knowledges are concerned
with reforming, rehabilitating, and shaping the future behaviour of the criminal. Criminal law
becomes embedded in discourses of clinical sciences and an array of regimes that seek to treat
the criminal to cure the criminal.
For example, law and psychiatry are blended in judging whether the perpetrator of a criminal act was
of sound or unsound mind at the time of the act. While law plays a dominant role in defining the act, a
combination of law and psychiatry determines the degree of responsibility of the perpetrator. If the
perpetrator was mad, then treating her or him as a criminal would be inappropriate since the criminal
is defined as a rational, willful, and self- determining actor. For this reason, the examination of the
criminal for possible insanity came to precede judgment. It was 'external and anterior to the sentence '
and it 'loosened the hold of the law on the author of the act'. On the one hand, the higher the degree of
madness, the lower the degree of guilt. On the other hand, the higher the degree of madness, the lower
the degree of rationality and the greater the danger posed by the perpetrator. The perpetrator who is
mad is 'someone to be put away and treated rather than punished.

The nature of power: sovereignty, law and disciplinary control

Theories of law have historically been founded upon some abstract validating principle which serves
to legitimate and define law's role in human affairs. Such principles include `the rule of recognition,
sovereignty, the basic norm, community values, natural reason' (Davies, 1996). Goodrich (1986)
distinguishes between ideational and institutional foundations of law, the former referring to an
ultimate principle which creates a recognition of, and justification for law, and the latter describing
particular institutional arrangements, such as a constitution or Parliament, which provides the source
and legitimation of law.

In modernity the source of law has come to be characterised in terms of legal positivism which
involves first, the proposition that law is humanly created, established and justified by institutional
means and second, that law can be operationalised, studied and understood by employing the
`objective' methods of enquiry developed by the natural sciences in the 18th and 19th centuries
(Morrison, 1997). Representing a broadly positivist approach, Hart (1961 and 1963) identifies law as
comprising human commands;as a coherent framework of rules for governing action (both within and
outside the juridical field) which are separate from, and independent of moral issues; as a closed
system of legal principles, rules and procedures by reference to which correct legal decisions may be
made; and as mode of reasoning and procedure which can establish facts in a way which is not
possible as a source of justification for moral judgements (cited in Morrison, 1997). Whatever the
differences in detailed argument, law is characterised as bounded and clearly distinguishable from
anything which is constituted as `non-law' (see, for example, Hart, 1961; Raz, 1972; Kelsen, 1945;
1967; 1991; MacCormick, 1978; Dworkin, 1986). It is evident that modern law, construed as legal
positivism, is distinct from natural law in that it relies, not upon moral imperatives, but upon given
rules to justify its operations and expectations of compliance. The neutrality of legal rules is central to
this conception of law and requires a clear separation between law and morals, values or norms which
invite discretionary judgements.

An alternative interpretation of law's expanding sphere of influence notes its tendency to legalise,
regularise and proceduralise increasingly broader areas of social life. This was recognised by Foucault
as a response which seeks to control administrative and expert discourses and to `recode them in the
form of law' (Foucault, 1978; 109). However, law's expansionary activities can be seen in two rather
different ways. Smart (1996) suggests that this recoding incorporates private and discretionary areas
of decision making into law's domain in such a way that they become governed in terms of rights;
thus, `law retains its old power, namely the ability to extend rights' (p. 428). In this way law very
clearly colonises other disciplines and changes their character into that of law. However, despite his
recognition of this process, Foucault reads its consequences rather differently. In interpreting
Foucault's position, Hunt and Wickham(1998) suggest that the relegates law to an increasingly
subordinate role in supporting other, and more powerful, mechanisms of disciplinary control.

In this sense, it is law, which is itself colonised, in the service of other disciplines and which, through
this process, is transformed by assuming their characteristics. However, Foucault's steadfast insistence
that law must be distinguished from other forms of disciplinary power, that law and discipline are
`absolutely incompatible'(Foucault,1980:104),stems from his identification of law with a pre-modern
monarchical sovereignty where law is defined in terms of monarchical commands,absolutism and
punishment. Here law is characterised as raw, and frequently brutal power, which is quite unlike the
subtle and `normalizing' effects of modern forms of control.

Third, Foucault (1978; 1980; 1991) argues that the growth of the human sciences both establishes and
maintains these modern forms of disciplinary control and he points to those mechanisms which serve
to generate the docile productive body. Human sciences, particularly medicine, psychiatry and
psychology are concerned with establishing the `norm', that is standards of behaviour which serve to
regulate the everyday activities of individuals. Normalization refers the subject's behaviour to a field
of comparison and differentiation, through which he or she can evaluate and rectify indications of
deviance. It differentiates individuals, measures their actions and locates them in a hierarchy of valued
abilities, attitudes and performance. Their hierarchical ranking, and possible exclusion, defines them
as conforming and normal as opposed to deviant and abnormal. The examination, argues Foucault,
combines the disciplinary power of observation and normalizing judgement into a `normalizing gaze'
which makes it possible to identify, classify, evaluate and, if necessary punish, deviant subjects.
Experts in the `human sciences' are particularly noteworthy entrepreneurs of the normalizing gaze
through their application of knowledge, the power relations which essentially characterise their
discursive constructions (that is, their truth claims), their practices in direct examinations of the body
(and the soul), their documentation of such examinations and their role in identifying, classifying and
recording features of a population along a continuum of normal and abnormal.

The `normalizing gaze' is able to effect a subtle, invisible and coercive form of surveillance which
Foucault considers law is unable to achieve (Foucault, 1980; Hunt and Wickham, 1998). He illustrates
this by reference to the Panopticon effect; that is the subject's awareness of a continuing inspectorial
gaze. The source of the gaze cannot be seen by the subject but can see him or her at all times. Even if
the gaze is discontinuous, the subject cannot know when or if it is being exercised, and its disciplinary
power therefore remains effective in its absence. As Foucault (1991) summarises:
Hence the major effect of the Panopticon: to induce in the inmate a state of conscious and permanent
visibility that assures the automatic functioning of power. So to arrange things that the surveillance is
permanent in its effects, even if it discontinuous in its action; that the perfection of power should tend
to render its actual exercise unnecessary. (p. 201)

Hence, disciplinary power and effective government are, by their nature, invisible and dispersed.
Power is not to be confused with concrete entities or institutional possession; rather it is to be
understood as generated by, and acting back upon, truth claims which come to be legitimated as
knowledge. In this sense power is relational and must therefore be understood as a `technology of
power'. It comprises numerous intersecting practices, techniques and procedures which, together, act
upon the disciplined subject and finally enable subjects to act in a disciplined way upon themselves.
In this analysis the sovereign state cannot hold a pre-eminent position in government; its elements are
not privileged but simply merge with many other sites and processes, in and through which, the
technology of power seeps silently and pervasively to govern populations. As Miller and Rose (1990)
point out, the classical terminology of state v. civil society, public v. private and so on, are
meaningless in this understanding of government since government is now effected through`a
diversity of indirect relations of regulation and persuasion that do not differentiate according to such
boundaries' (p. 8).

The dispersal of power in conjunction with the rise of those social scientific disciplines which
constitute the `psy' complex, must in Foucault's analysis, have a direct effect upon law and the
juridical field. Prior to the eighteenth century, torture and punishment as a public spectacle had served
to reaffirm the omnipresent power of sovereign law. Thereafter, the new penal codes developed a
different interest in the criminal, criminal acts and appropriate juridical responses (Foucault, 1991).
This focused as much upon the perpetrator as it did upon the act ± on seeing and examining the soul
as Foucault would have it. An understanding of the soul was required to assess the likelihood of
change and rehabilitation. It generated and required the diagnostic and predictive knowledge of
experts. The infiltration of expert knowledge into the juridical field both made possible, and further
consolidated, a normative and discretionary basis for juridical judgements. Not only, however, have
experts colonised the juridical field but the all pervasive nature of `technologies of power' means that
the law, as sovereign law, can no longer occupy a privileged position in government. In this
conceptualisation, Foucault argues that law becomes a mixture of`legality and nature,prescription and
constitution, the norm' (1991: 304) and thus suffers an internal dislocation of juridical power, a
judicial passion for assessing and diagnosing within a normative framework, and a dependence upon
expert knowledge in order to function.

Foucault's analysis has much to offer in terms of his creative and radical thinking about the nature of
power, the relationship between power and knowledge, the role of disciplinary power as it works to
regulate the subject from without and to constrain the subject from within, and forms of modern
government. The rise of liberal democracy, the thrust of welfare policy, government by administrative
regulation and the enormous influence of expert knowledge and therapeutic intervention (Giddens,
1991; Rose, 1990; Miller andRose,1994)have all had an impact on law and operations of the juridical
field. I would argue, however, that Foucault's characterisation of law, in the context of the modern
liberal state, does not reflect our everyday experience of the means through which power and
government are exercised. Similarly, the role played by expert knowledge and discursive power
relations in Foucault's conceptualisation of modernity,such that law is fated to justify its operations by
`perpetual reference to something other than itself' and to `be redefined by knowledge' (Foucalt, 1991:
22), does not accord with the world of mundane practice.

Findings: How the Administrative law works

As we have seen, Foucault's treatment of law suggests that it becomes displaced by the disciplinary
sciences as a source and technique of power, that it is transformed into a largely norm-governed
discourse and that it comes to depend on expert knowledge in order to carry out its ever increasing
normative functions and to understand, rather than simply to punish, the deviant subject. I am not
arguing here that law can avoid normative foundations;as critical legal theorists point out it is
established upon, and through, particular social, political and moral positions. However, normative
rules which prohibit certain actions or govern social relations should be distinguished from a
Foucauldian understanding of norms as indicating standards of everyday behaviour or proper conduct
which are expected of, and come to be internalised by, the disciplined subject.The proposition that
law is mediated through the normative (in a Foucauldian sense) judgements of disciplinary experts
with their skilled techniques for assessment, diagnosis and prediction can be challenged, however, by
an examination of law's operations. There are several ways in which law, through the juridical field,
constrains the exercise of disciplinary power. First, the way in which law `thinks' (King and Piper,
1995) about linking Aadhar database with banks , mobile phones etc, without taking consent rests
upon law-made principles of universal application. Second, by ensuring that its judgements enter the
public domain, the juridical field establishes generally knowable rules and expectations about the
conduct and interventions of experts it controls the limits of their norm-governed judgements and
circumscribes the extent of their discretionary power. Third, the juridical field colonises expert
knowledge when it is instrumentally inclined to do so and rejects it when it is contrary to achieving
the desired end.Fourth,law provides remedies for negligent or illegal intervention by experts such that
they know the grounds for retribution but cannot predict whether the law will be used to call them to
account.

Common law principles guard the boundaries between law and discretionary assessments of
normatively acceptable actions. However, once the presumption of capacity is rebutted, both experts
and the judiciary must be guided by an individual's best interests. The best interests test for
determining the nature and extent of intervention is constituted as a legal principle and must be
designed to either save life or to ensure improvement prevent deterioration in physical or mental
health.

Admininstrative Law in India

Administration in India is dominated by bureucracy. The status of Public Administration Theory,

especially about bureaucracy, as truth is impacted by Foucault's analysis of power. It is easy to agree
that knowledge is power, and bureaucracies demonstrate this each day; other things being equal,
knowing does give the knower power. Foucault would reverse the formula, also saying thatpower
Is knowledge. Power "produces knowledge (and not simply by encouraging it because it serves power
or by applying it because it is useful); that power and knowledge directly imply one another ..."
(Foucault, 1977a). That is,what is accepted as knowledge is determined by interacting sets of strategic
power considerations, although he denies that these considerations can be reduced exactly to
interests.That is, the marks of what is counted as knowledge are set by power relationships, and
knowledge as truth is embedded with power relation.
Conclusion

Foucault’s analysis of law leads us away from notions of the autonomy of law. It also leads usaway
from notions that the law is determined by economic and political structures. Rather, law must be
analysed in terms of its internal relations of power and knowledge as well as its relations to other
discourses and sources of power. Foucault’s approach to the relations among law, discourse, power
and the state has been partially faulted for not focusing on those core social institutiins where power
appears to be concentrated; major state bureaucracies, courts, legislatures and centres of economic
power. Foucault’s analysis of law and the state is wanting because it places such heavy emphasis on
institutions like the asylum and the prison that are at the periphery of social reproduction. To be sure,
the analysis of these institutions is important since they control segments of the population and shape
popular discourses that serve to fragment and to weaken opposition to dominant patterns of control.
Yet, would it not be more appropriate to conceputalise law and power at macro sociological level of
big structures in order to analyse their importance for social development and broad issues of political
organization.

Bibliography

 M. Foucault, Discipline and Punish(1977)

 M. Foucault, Archaeology Of Knowledge(1969)
 M. Foucault, Order of Things(1970)
 G. Turkel, Michel Foucault: Law, Power and Knowledge, Journal of Law and society, Vol 17
 D. Farmer, Kill the king: Foucault and Public Administration theory, Administrative theory
and Praxis, Vol 17, 1995