Facets of Power. A Few Thoughts in Light of Marco Brigaglia’s Analysis of Foucault

There is a common distinction in the socio-philosophical literature between two kinds of power: normative and causal. According to a widespread and still dominant conception—normativistic legal positivism—law has to do with normative powers, not causal ones. I will try to argue that this rigid distinction between domains seriously undermines the possibility of having a comprehensive account of what institutions are. The ontology of legal institutions is based on a complex intertwining between normative and causal aspects; hence, an artificial split between these aspects cannot but lead to a seriously limited understanding ofhow institutions operate in regulating social behaviour. This I will show by reflecting upon what I take to be the most thorough, well-argued, and analytically deep treatment of the concept of power recently provided in Italian legal theory, namely, Marco Brigaglia’s analysis of Michel Foucault in his recent Potere: Una rilettura di Michel Foucault (2019). The conclusion of my argument is that Foucault’s conception of power—as analysed by Brigaglia—finds significant support from institutional ontology in showing that legal theory and legal science should broaden their focus when selecting relevant instances of power. But I will also show that jurists can teach social scientists to put up some boundaries by reflecting on the concept of intention and on the risk of hypostatizing it; otherwise the concept of power risks becoming too vague and opening the door for all manner of conspiracy theories and intentionalistic fallacies.