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Foucault's Expulsion of Law: Toward a Retrieval
Published online by Cambridge University Press: 27 December 2018
Abstract
This essay argues that there is an important sense in which Foucault gets law wrong—that the pursuit of Foucault's own objectives had the unintended consequence of inhibiting a fruitful interrogation of the place of law in modernity. His immediate concern was with the emergence of distinctive manifestations of modern power that constitute a new configuration, the disciplinary society. The most distinctive feature of his account of the historical emergence of modernity was his expulsion of law from modernity. This “expulsion of law” is found in his metahistorical thesis that law constituted the primary form of power in the premodern era, and that although law lingers on in the doctrine of sovereignty, it is supplanted by discipline and government as the key embodiments of modernity.
The essay proposes an exercise in retrieval, a “retrieval of law,” to recuperate much in Foucault's thought that is suggestive for our understanding of law's role in the constitution of modern society. It rejects Foucault's opposition of law and discipline and makes use of his treatment of government and governmentality toward that end. It argues that a more adequate grasp of the place of law in modernity can be developed by establishing that law and discipline are complementary and characteristically combine in the ubiquitous presence of regulation as the mark of the modem condition.
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References
1 The significant and early exception, among the now voluminous literature that Foucault's work has generated, to this neglect of Foucault's treatment of law was Nicos Poulantzas; much of the course of the argument to be developed in this article owes much to Poulantzas. I seek to flesh out Poulantzas' seminal thesis that “law is a constitutive element of the politico-social field.” Nicos Poulantzas, State, Power, Socialism (London: New Left Books, 1978) (“Poulantzas, State, Power, Socialism”).Google Scholar
2 The use of “discipline(s)” catches Foucault's double usage of “discipline” as a distinctly modern form of domination and of the plurality of the modern “disciplines” rooted in the medical and human sciences.Google Scholar
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47 Jessop (3 Ideas in Production 78) arrives at a similar conclusion when he argues that Foucault having insisted on the multiplicity of power relations and rejected their structural determination in favour of the pure immanence of power, the poverty of his account of global strategies left him with no means to explain “hegemonic effects.”… This is especially clear in the vagueness of his approach to global strategies and surpouvoir and his unreasoned assumption of the inherent neutrality of the techniques of power.Google Scholar
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58 Marc Raeff, The Well-ordered Police State: Social and Institutional Change through Law in the Germanies and Russia, 1600–1800 (New Haven, Conn.: Yale University Press, 1983) (“Raeff, Well-ordered Police State”). It should be noted that there are significant variations in Foucault's own periodization. In the short paper on “Governmentality” (at 21; cited in note 19) he pushes the juridical state back into the feudal period, with the “administrative state” grounded in “regulation” emerging in the 15th century, and the “governmental state” in the 17th and 18th centuries.Google Scholar
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61 The idea of juridification was used by Otto Kirchheimer to indicate the way in which law comes to be used as a means of neutralizing political conflicts by subjecting them to formal legal regulation; Otto Kirchheimer, Politics, Law and Social Change: Selected Essays of Otto Kirchheimer, ed. F. S. Burin & K.L. Shell (New York: Columbia University Press, 1969). More recently the idea has come to refer to the process by which the state intervenes in areas of social life in ways which limit the autonomy of individuals or groups to determine their own affairs; see, e.g., Habermas's discussion of “Tendencies of Juridification,” in Jurgen Habermas, The Theory of Communicative Action: vol. 2, Lifeworld and System 356 (Boston: Beacon Press, 1987), and Gunther Teubner, ed., Dilemmas of Law in the Welfare State (Berlin: Walter de Gruyter, 1986). These tendencies have led some commentators to worry about a new social disease of hyperlexis or legal overload; David Trubek, “Turning away from Law,” 82 Mich L Rev. 824 (1984).Google Scholar
62 Foucault, Discipline and Punish 222 (cited in note 9). This assessment of Foucault's views on the place of law in modern society is at odds with the interpretation offered by Mark Poster, who contends that Foucault “argues that in ‘modern’ politics, the law is the center of power, a function which variously impedes or promotes the actions of individuals.” Mark Poster, The Mode of Information: Poststructuralisms and Contexts 133 (Cambridge: Polity Press, 1990). Unfortunately, Poster offers no evidence, textual or otherwise, to sup port this interpretation.Google Scholar
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75 Foucault, 1 History of sexuality 89. He elsewhere formulates this point in the following terms: “The discourse of discipline has nothing in common with that of law, rule, or sovereign will…. The code they come to define is not that of law but that of normalization.” Foucault, Power/Knowledge 106.Google Scholar
76 Foucault, Discipline and Punish 223 (cited in note 9). As normalization spreads both its targets and its instruments, so does judging become transformed. Judges become the bearers of normalizing power, while at the same time the judicial role is taken on by other agents. “The judges of normality are present everywhere. We are in the society of the teacher-judge, the doctor-judge, the educator-judge, the ‘social worker’-judge; it is on them that the universal reign of the normative is based.”Id at 304.Google Scholar
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80 Foucault, “Governmentality” at 18–19 (cited in note 19). In a second and very similar formulation Foucault insists that “the powers of modern society are exercised through, on the basis of, and by virtue of, this very heterogeneity between a public right of sovereignty and a polymorphous disciplinary mechanism.” Foucault, Power/Knowledge 106 (cited in note 5).Google Scholar
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82 Id. at 106. A survey of Foucault's varied formulations of the relationship between law and discipline reveals a preponderant strain toward the counterposing of law and discipline; some of these are particularly sharply drawn as is manifest in the following formulation: “the juridical system … is utterly incongruous with the new methods of power whose operation is not ensured by right but by technique.” Foucault, 1 History of Sexuality 89. (cited in note 4).Google Scholar
83 It is perhaps significant that his attempts to formulate an alternative principle of unification are at best suggestive, and at worst simply hazy. “[U]ltimately what presides over all the mechanism is not the unitary functioning of an apparatus or an institution, but the necessity of combat and the rules of strategy.” Foucault, Discipline and Punish 308. The looseness of this formulation is all the more striking since it appears in the penultimate paragraph of this text.Google Scholar
84 Paul Hirst, in characteristically blunt terms, describes Foucault's move from “the disciplines” to “disciplinary society” as an absurdity. “These practices [the disciplines] have no unity of objective, content or effect.” Paul Hirst, Law, Socialism and Democracy 49 (London: Allen & Unwin, 1986).Google Scholar
85 Foucault's sketch of an expanding disciplinarity shares much in common with the currently popular theme of juridification that contends that we have been witnessing a steady advance of legal intervention into ever deeper spheres of social life. The juridification thesis comes in versions from different political stables; see Mandel, Michael, The Charter of Rights and the Legalization of Politics in Canada (Toronto: Wall & Thompson, 1989), and F. A. Hayek, Law, Legislation and Liberty (London: Routledge, 1982).Google Scholar
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91 Other sources of the renewed attention to government are to be found in the debate about “state formation” see Corrigan, Philip & Sayer, Derek, The Great Arch: English State Formation as Cultural Revolution (Oxford: Basil Blackwell, 1985); Gerhard Oestreich, Neostoicism and the Early Modem State (Cambridge: Cambridge University Press, 1982) (“Oestreich, Neostoicism”), and also in Elias's work on the civilizing process; see Elias, Norbert, The Civilizing Process: vol. 2, State Formation and Civilization (Oxford: Basil Blackwell, 1982).Google Scholar
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93 It should be stressed that Foucault does not suggest any simple displacement of law by discipline; indeed he is at pains to show how the problematic of law and sovereignty persists. This idea he captures with his insight that modernity has “not yet cut off the King's head.” Foucault, Power/Knowledge 121. For reasons that he does not explicate he sees law as lacking the capacity “for the codification of a continuous surveillance.”Id at 104.Google Scholar
94 A slightly different periodization can be found in “Governmentality” at 21: (i) State of Justice or “society of law,” (ii) Administrative state or “society of regulation,” and (iii) “Governmental State.”Google Scholar
95 The notion of cameralist reason draws on the tradition of economic thought of cameralism as a distinctive governmentalization of the mercantilist phase of capitalist development. Foucault emphasizes the “étatism”—the taking into state control the detailed regulation and supervision of individual conduct—of this type of regulation. For a general account of the distinction between cameralism and mercantilism, see Spengler, Joseph, “Mercantilist and Physiocratic Growth Theory,” in Bert A. Hoselitz, Theories of Economic Growth (Glencoe, Ill.: Free Press, 1960).Google Scholar
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100 The lectures have not, as yet, been translated into English but are extensively summarized and discussed in Gordon, “Governmental Rationality.”Google Scholar
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105 Poulantzas, State, Power, Socialism 82–83 (cited in note 1).Google Scholar
106 The most significant example is the formation of the modern corporation with limited liability; these are legal creations in the important sense that it is precisely the ability to confer a legal status which limits the liability of participants that makes the relationship not only distinctive but a viable vehicle for the cooperation of capitals drawn from a range of different sources to some particular economic project.Google Scholar
107 Amy Bartholomew & Alan Hunt, “What's Wrong with Rights?” 9 J.L & Inequality 501 (1990), and Hunt, 17 J.L & Soc'y (cited in note 14).Google Scholar
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109 Foucault, 1 History of Sexuality 48.Google Scholar
110 A discursive formation can be viewed as a constellation of discourses which, in order to distinguish it from Foucault's usage, we might call a “discursive bloc.”Google Scholar
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112 An application of this line of inquiry to the “rights debate” within critical legal studies is advanced in Hunt, 17 J.L. & Soc'y (cited in note 14).Google Scholar
113 For example, Foucault was correct in his contention that the Victorian discourses on sex never silenced the endless talk of sexuality and that other voices of sexuality coexisted. Yet he was wrong in not admitting that the discursive constellation, which we so readily label Victorianism, did succeed in consolidating itself as the hegemonic discourse capable of marginalizing, expelling, and disallowing other discursive traditions; and still forms a powerful component of significant variants of contemporary radical feminism whose discursive formation draws heavily on the rhetoric of “social purity” (male vice and female virtue) that was central to the Victorian discourse of sexuality. See Snitow, Ann, Christine Stansell, & Sharon Tompson, eds., Power of Desire: The Politics of Sexuality (New York: Monthly Review Press, 1983); Mariana Valverde, The Age of Light, Soap and Water: Social Purity and Philanthropy in Canada, 1885–1925 (Toronto: McClelland & Stewart, 1990).Google Scholar
114 The exemplary study of the discursive formation of hegemony remains Stuart Hall et al, Policing the Crisis: Mugging, the State, and Law and Order (London: Macmillan, 1978); it not only situates the very specific discourses around the invention of “mugging” in Britain, but it convincingly demonstrates the reactionary hegemonic potential of the complex articulation of the disparate discourses of race, urban decay, and “youth.”Google Scholar
115 Bob Jessop, State Theory: Putting Capitalist States in Their Place (Cambridge: Polity Press, 1990).Google Scholar
116 Jessop (id. at 4–7) seeks to avoid the presupposition of a taken-for-granted unitary conception of “society” by employing the linguistically clumsy but theoretically attractive innovation of speaking of “societalization” processes and effects.Google Scholar
117 We should perhaps also add Foucault's concept “tactics,” but I omit consideration of tactics because I see no problem with his use of this concept.Google Scholar
118 This formulation is pitched at a rather general level; it is the focus on work in hand. The line of thinking being explored here is that the intensification of contemporary structural couplings within which law is imbricated is to be explained by something akin to what Mark Poster calls the mode of information. Poster argues a general case for the expansion of social control in which, for example, electronic data bases give rise to a new Superpanopticon that provides new and expanded means of controlling population in postindustrial societies. My own interest in both the positive and negative sides of structural coupling seems to imply a less Orwellian vision of the present.Google Scholar
119 Foucault, Discipline and Punish 304 (cited in note 9).Google Scholar
120 He also, rather confusingly, refers to this process as collective sovereignty; Foucault, Power/Knowledge 105 (cited in note 5).Google Scholar
121 Id. at 106.Google Scholar
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