We live in a culture that forces sex into discourse, and hopes to find both knowledge and pleasure through a sustained discourse on sex. We see sex first as something hidden that we must investigate in order to understand it. We see it second as something which hides our true selves and can explain to us who we are. We conceive of a "Logic of Sex" that determines and structures our personality and social behavior. Foucault's aim is to determine why we have placed so much emphasis on our sexuality, why we think of it as holding the key to the truth and to our personal liberation.
Foucault acknowledges that he isn't the first to question the repressive hypothesis. Psychoanalysts have argued that desire is created by repressive power, and does not exist as an independent force. That is, desire only exists when there is a repressive power keeping one from what one wants. In response to the possible criticism that he confuses and distorts the ideas that law constitutes desire and that power represses sex, Foucault asserts that both hold to a "juridico-discursive" conception of power that sees power as essentially negative, something that constrains us or holds us back. He wants to criticize this juridico-discursive conception of power that underlies both the repressive hypothesis and the psychoanalytical position that law constitutes desire.
Foucault identifies five characteristics of the juridico-discursive conception of power. (1) It establishes a negative relation between sex and power: sex is always something that power constrains. (2) Power acts as a law that determines how sex should be treated and understood. (3) Power acts only to prohibit and suppress sex. (4) Power says sex is not permitted, that is not to be spoken of, and ultimately, that it doesn't exist. (5) Power is seen as working in the same manner at all levels: everywhere, there is a uniform repression.
Foucault remarks that power is characterized as being always repressive, always one-sided, incapable of doing anything more than preventing what it dominates from doing anything either. It takes the form of a law and demands obedience. Foucault suggests that we have a vested interest in thinking of power as one- sidedly oppressive. This way, we see power as something that acts upon us, and so see ourselves as distinct from this power and free to resist it. If we were to acknowledge that power manifests itself not just in domination, but also in our resistance, we would no longer be able to think of ourselves as free, independent beings.
Foucault traces the juridico-discursive conception of power to the Middle Ages. In that time, absolute monarchies asserted themselves through the rule of law, and law came to be equated with power. Even in the 18th century and later, when absolute monarchies came under criticism, these criticisms always appealed to law and justice. Our political thought is still largely shaped by the idea that power properly expresses itself through the consistent application of just laws. A criticism of the juridico-discursive conception of power will look at power in a wider context than simply that of law. A wider conception of power will give us a fuller understanding of the history of sexuality, and, conversely, a fuller understanding of history will help us see the multi-faceted nature of power.
The repressive hypothesis sees sex as something that has historically been repressed. Powerful people have declared that sex is something that we cannot talk about, that we cannot think about, that cannot exist except for the purpose of reproduction. Foucault calls this the "repressive" hypothesis because it interprets the relation between power and sex as always being one of repression. That is, it opposes our sexual desires to power, and sees power as a dominating force holding those desires at bay. On one hand, there are our sexual impulses that want to find expression in thought, word and deed, and on the other hand, there is repressive power keeping these impulses at bay. Giving free rein to one's sexual impulses is thus seen as an act of liberation according to the repressive hypothesis. It is seen as a matter of boldly opposing repressive power.
This is the first time Foucault discusses the psychoanalytic position that construes desire as law. This position disagrees with the claim made by the repressive hypothesis, that sexual desire is something independent of repressive power and that we must seek our liberation through it. It does not set up an opposition between power and desire. Instead, it sees desire as part of repressive power. Desire implies a lack. People only desire things that they don't have. If we were able to realize all our sexual impulses, there would be no such thing as sexual desire. Desire, then, only exists because there also exists a repressive power that keeps us from realizing our impulses. Power, according to this model, is not something that holds our desires down; it is responsible for creating our desires in the first place.
Though these two positions contradict one another, they both share what Foucault calls the "juridico-discursive" conception of power. He wants to criticize that conception rather than criticize certain aspects of either of these two positions. Effectively, he wants to say these positions are not so much wrong as misguided. He does not want to deny the presence of repressive power, but he wants to assert that that only captures half the picture. Power, according to Foucault, is not simply repressive; it is also creative. The two positions he discusses in this chapter do not have the wrong picture; it is just that they are only seeing half the picture and mistaking it for the whole.
The problem with the juridico-discursive conception of power is that it has a unilateral view of power: it sees power as only repressive, as only negative, as only law-enforcing. Power, according to this conception, is something that acts on us, pushes us, and changes us from outside. As such, we are free to the extent that we act against or independently of the powers acting on us. For instance, a person living in Stalinist Russia is heavily repressed by governmental powers that dictate to him how he should live, dress, think, and act. These powers are all external to the person, and act on him unilaterally. He is free to the extent that he can resist this power and act of his own accord.
Foucault argues that power is not something that is simply outside us. It is also something inside us, and our reaction to outside powers is a part of a larger dynamic of power relations. The juridico-discursive conception effectively assumes that all power takes the form of law: it says "you must do this" or "you must not do that" and it is effective to the extent to which we feel compelled to obey that law. To the extent that we disobey it, we are resisting, and we are free. "Sexual liberation" is thus construed as resisting the repressive power that controls our sexual impulses. Foucault traces the juridical-discursive conception to the Middle Ages, and suggests that ever since we have associated law and power. This claim, as it stands, is peculiar. Surely, the West since the Middle Ages is not the first society that associates law and power. In fact, it hard to think of any civilization where power has not been exerted in the form of laws.