relationship between law and power

The relationship between law and power is a dialogue on which different theorists and philosophers have developed divided opinions. The debate on whether the law is an instrument of power or an independent entity in society and the contingencies of existing without power remain unsolved. In a community where there is the negligence of the rule of law, there is the likelihood of individuals in power to abuse it, with the powerful clinging unto power. At the same time, the subordinates become victims of the abuse of power. This indicates interdependency between the power and law – law exists where there are power and vice versa. This paper tackles the relationship between power and lawby literary analyzing the characteristics that separate law from power, and those making it an essential segment of power, namely; law as a field where power exists, law as a strategy of power, law and knowledge are shaped by power, law controls the conduct of power, and power is multidimensional and ubiquitous.


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Considerably, the law is a force and a field with its system of operations. According to Bourdieu, the law is a social structure, with rules, actors, and locations. As a field, Bourdieu describes a just society as “a structured social space with its own rules, scheme of domination, legitimate opinions”(Bourdieu, 1986, p 805). In a society where there are power struggles and competition for power and dominance, the law becomes a vital force that brings order and legitimacy. This explains the need for law in power’s existence. Law determines the amount of power a state office should have, as well as the extent to which the power is practised.

Another characteristic that explains the superiority of law on power is that law controls the conduct of power. Foucault states that “law gives shape to institutions that supervise rather contain; it creates new technologies of discipline that stretch from the prison to the factory to the military to the school”(Foucault, 2012 p 888). The various institutions – where power is practised –rely on the law for efficacy in their operations. In trying to describe a state without law, Foucault further expresses several terms are used to explain such a state. Terms such as customary law, indigenous law, folk law, and private justice. Therefore law appears in every perspective since there is no one point society can be described without applying the aspect of law (Foulcault, 2012). Law makes leaders servants, whereas power pays more attention to individuals with leadership positions than their subordinates.

Power is an ever-present feature of a society. According to Foucault definition, “power is produced from one moment the next, at every point, or rather in every relation from one point to another”(Foucault, 1990 p 93). Foucault asserts that the concept of power represents an organized state. Foucault states that “power is a general concept applicable in the analysis of all social structures and relations, including but not limited to the state” (Foucault, 1990, p 93). Existence of power in all social dimensions makes it an umbrella for the practice of law and order.Law is created following the occurrence of events, including warfare, massacre, and overthrows. The experiences that trigger the urgency to protect society from a potential invasion or a repeat of a similar event. A judicial system that disseminates laws to govern a country is made up of individuals assigned the mandate (power) to ensure there are order and punishment for offenders. This implies that law exists as an essential component within power.

Law acts as an instrument within the ruling class in society, and these individuals design the laws that are subjective to the dominant individuals during its inception.As Foucault indicates“the social practises of law are the product of the function of a field whose logic is determined by the specific power relations giving it its structure… and the internal logic of juridical functioning” (Foucault, 1986, p 814). The juridical functioning is made of individuals who determine the extent to which the rule of law can cover due to the power assigned to them.Therefore we can contest that for the law to take shape power is a vital element that ensures its existence.In Donald Black’s description on the behaviour of power, he defines it as a“quantitative variable that increases and decreases; hence varies from one setting to another” (Black, 1976, p 3).Black further shows the separation of power from the law by stressing about “law varying inversely with other social control” (Black 1976, p. 6). Therefore, a society with various conflict resolution approaches will need less of the law in solving a dispute.

The different fundamentals of law are external to the authority and opposite to the documented law. According to Posner, “form refers to what is internal to law, and substance infers the world outside the law” Posner, 1990, p. 40). Posner insists that the forms of law involve the “spatial and temporal shape of the legal system, whereas the substances fill the shape of the legal system with power relations” (Posner, 1990, p. 90). Due to the characteristics of law (particularly the form and substances), the law changes in every aspect and time within the social structure that it exists. The features and nature of law make it a contested concept, and lacking a universal meaning to categorize it as part of power or a separate entity. Power other hand is also a considerably complex anddynamic concept, and the extent to which it shapes law depends solely on how it is interpreted. Bourdieu confirms “the importance of showing the correspondence between law and society is far more complex than previously admitted, or even that there is no correspondence” Bourdieu, 1986, p. 281). Therefore the complexity of law – whether there is a relationship between law and society apart from the separation in terms of correspondence and non-correspondence – makes it an incomplete entity that requires power influence for effectiveness.

Friedman supports that laws are formulated from time to time, but nibble to death due to lack of survival power. When law practitioners make rules within the law which the government of the day and its subjects keep ignoring, the law loses value. However, with powerful influence in place, the requirements of the law become easy to execute as there is a body tasked with protecting the legal system. Power cannot be monopolized since every individual has their power. Foucault maintains that in a society where power is a practise, there are leaders and the led, and the assumption that only the influential individuals have full control over the less powerful is a misinterpretation since power, as mentioned early is a concept characterized as highly dynamic and complex (Foucault, 1972).

Law can be approached as a form of power independent power. According to Silbey, “the ideals of law, such as open and accessible processes, and rule-governed decision-making, may not in practice limit the exercise of law’s power” (Silbey, 2005, p. 328). The various ideals help in shaping and initiating support for the legal institutions. Therefore, the law itself can be considered as a force and power, with the capacity to remodel and restructure a system. Where no mention of law, a legal consciousness ismentioned. According to Silbey, the word legality is used to express the sources of authority and popular and accepted cultural practices. She states that “legality is a pattern in relationship that is enacted daily in the interpretive schemas people invoke to make sense of their own and other’s action….legality is constituted through everyday actions and practises” Silbey, 2005, p. 32 & p. 43).

The power of ruling is assigned to a few individuals within a social system. Rules are established to protect the interests of the subjects of the leadership and prevent power monopolization by governing the conduct of the power holders.Law provides guidelines on administration by creating rules of running a society, hence can be termed as symbolic power.In describing the symbolic cartography of law, Foucault states that “laws are maps; written laws are cartographic map; informal laws are mental maps”(Foucault, 1972, p. 282). In this context, it is evident that law is perceived as imaginative, and that it requires the law to take effect.


In conclusion, power is in every dimension of society, which cannot be substituted. The complexity of understanding power and the rule of law is the source of divergent opinions on the relationship between law and power. Foucault maintains that power has existed for long in society, whereas rules are formed from time to time.Black, on the other hand, states that laws vary in time and the social environment where being practised. Therefore, the law takes shape with the contribution of power.The ubiquitous nature of power makes it an umbrella for the law to exist, hence makes law a strategy within power.However, there is the sense that law is a force and a power by itselfsince it facilitates decision-making and ensures there is an orderly society.

There is need to come into an understanding that some competing discourses such as discipline and punishment, ‘unlawful’ or ‘unethical’being ‘right’ or ‘wrong’ is usual debates and experiences in a social set up. Power and law are complex concepts which call for a collective and critical analysis of the ideas to identify their relationships and how law shapes power or vice versa.

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