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

3 Foucault's relationship with Marxism is complex; for discussion see Sheridan, Alan, Michel Foucault: The Will to Truth (London: Tavistock, 1980); Mark Poster, Foucault, Marxism and History: Mode of Production versus Mode of Information (Cambridge: Polity Press, 1984); Barry Smart, Foucault, Marxism and Critique (London: Routledge, 1983). Politically he made an early breach with the French Communist party. Theoretically he treated Marxism as a tradition irretrievably marked by economic reductionism. The paradoxical result was that in the 1960s and 1970s when Western Marxism was undergoing its most fertile development and breaking, among other things, with a narrow equation of power, state, and repression, we find Foucault invoking what we might call “Marxism at its worst” as the intellectual spur driving forward his reconceptualization of power.Google Scholar

4 Michel Foucault, The History of Sexuality: vol. 1, An Introduction [1976] 90–91 (New York: Pantheon, 1978) (“Foucault, 1 History of Sexuality”).Google Scholar

5 Michel Foucault, Power/Knowledge: Selected Interviews and Other Writings, 1972–1977, ed. Colin Gordon, 102 (Brighton: Harvester Press, 1980) (“Foucault, Power/Knowledge”). One of Foucault's most elusive concepts is his notion of a “field of force relations” it is linked to his diagrammatic metaphor of power relations, but he never explicates the connection between “force” and “power” for discussion see Weedon, Chris, Feminist Practice and Poststructuralist Theory 110–11 (Oxford: Basil Blackwell, 1987).Google Scholar

6 Dews, Peter, “The Return of the Subject in the Late Foucault,” Radical Philosophy. 52 37 (1989).Google Scholar

7 Michel Foucault, “On the Genealogy of Ethics: An Overview of Work in Progress,” in H. Dreyfus & P. Rabinow, Michel Foucault: Beyond Structuralism and Hermeneutics 229, 231 (Chicago: University of Chicago Press, 1982) (“Dreyfus & Rabinow, Michel Foucault”).Google Scholar

8 This is not to imply that interesting reflections on law were absent from his earlier work. In Madness and Civilization: A History of Insanity in the Age of Reason [1961] (New York: Pantheon, 1965), he identifies the interconnection between the rise of psychiatry and the elaboration of the juridical subject endowed with rights.Google Scholar

9 Michel Foucault, Discipline and Punish: The Birth of the Prison [1975] (Harmondsworth: Allen Lane, 1977) (“Foucault, Discipline and Punish”).Google Scholar

10 In an interview in 1983 Foucault identified three sequential axes of his general project, by that time labeled “genealogy,” consisting of the axes of “truth,”“power,” and “ethics” Michel Foucault, “Structuralism and Poststructuralism: An Interview,”Telos 195–211 (1983).CrossRefGoogle Scholar

11 Foucault's “Two Lectures” present in condensed form a set of themes that are also more generally present in the essays and interviews that make up Power/Knowledge. Google Scholar

12 Karl Marx, “Preface” [1859], A Contribution to the Critique of Political Economy, ed. Maurice Dobb, 20–21 (London: Lawrence 6. Wishart, 1971).Google Scholar

13 Foucault, Power/Knowledge 94.Google Scholar

14 Hunt, Alan, “Rights and Social Movements: Counter-hegemonic Strategies,” J.L & Soc'y. 17 309 (1990).CrossRefGoogle Scholar

15 Foucault, 1 History of Sexuality 87 (cited in note 4).Google Scholar

16 Id at 88–89; emphasis added.Google Scholar

17 Foucault, Power/Knowledge 95–96 (cited in note 5).Google Scholar

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19 Emphasis added. Michel Foucault, “Governmentality,” 6 Ideology & Consciousness 5, 13 (1979) (“Foucault, ‘Governmentality’“). It is by no means clear whether Foucault's shift of attention to governmental rationality toward the end of the 1970s involves the implication that he dropped or at least downgraded his equation of premodernity with absolutism, law, and sovereignty. Colin Gordon offers this interpretation, but there is little or no textual evidence to support it (“The Soul of the Citizen: Max Weber and Michel Foucault on Rationality and Government,” in Scott Lasch & Sam Whimster, eds., Max Weber, Rationality and Modernity (London: Allen & Unwin, 1987)).Google Scholar

20 Foucault, Discipline and Punish 622 (cited in note 9).Google Scholar

21 Foucault, 1 History of Sexuality 109.Google Scholar

22 Id. at 89.Google Scholar

23 Id at 96–97.Google Scholar

24 Foucault, Power/Knowledge 102.Google Scholar

25 Jurgen Habermas, The Philosophical Discourse of Modernity: Twelve Lectures 338–40 (Cambridge, Mass.: MIT Press, 1987).Google Scholar

26 The “repressive hypothesis” arises in the context of Foucault's account of the history of sexuality. He repudiates what he takes to be the common sense of the modern age that there was once sexual openness and naturalness that came to be suppressed by a rising wave of repression, captured for us by the label “Victorian,” from which the 20th century has been struggling to liberate itself; Foucault, 1 History of Sexuality 17–23 (cited in note 4).Google Scholar

27 For fuller discussion of Foucault's relationship to Marxism, in addition to the references in note 3, see Cousins, Mark & Hussain, Atthar, Michel Foucault (New York: St. Martins Press, 1984). While both Smart and Poster seek to “recover” a Foucault that is compatible with at least some aspects of the Marxist legacy, most other commentators, including Cousins and Hussain, stress his breach with Marxism.Google Scholar

28 Foucault, Power/Knowledge 52–53 (cited in note 5).Google Scholar

29 Id. at 122.Google Scholar

30 Poulantzas, State, Power, Socialism 149 (cited in note 1).Google Scholar

31 Foucault's negative view of the significance of state power is exemplified in the following formulation: “The idea that the state must, as the sources or point of confluence of power, be invoked to account for all the apparatuses in which power is organized, does not seem to me very fruitful for history.” Foucault, Power/Knowledge 188. The problem with this rhetoric is that there is, of course, no one who argues that the state accounts for “all” the manifestations of power. Indeed one of the odd features of Foucault's critique of orthodox Marxism is the claim that it exhibited a narrowly state-centered view of power; statism there is in Marx, but that provides no justification for entirely ignoring the much more developed analysis that Marx provided of economic power that is dramatically and revealingly absent from Foucault's own work.Google Scholar

32 Bob Jessop, “Poulantzas and Foucault on Power and Strategy,” 3 Ideas in Production 59–84 (1986). The evidence that Jessop relies on for his interpretation is to be found in the following passages in Foucault's texts: Foucault, 1 History of Sexuality 94; Foucault, Power/Knowledge 99–100, 142, 188–89, 202–3. Another invaluable source that informs my discussion is provided by Jeffrey Minson, “Strategies for Socialists? Foucault's Conception of Power,” 9 Economy & Society 1–43 (1980).Google Scholar

33 Foucault, 1 History of Sexuality 94; emphasis added.Google Scholar

34 Foucault also makes use of a related but rather more organic metaphor when he imagines social relations as a system of “nets” or “networks.”Id at 45. His most vivid and enduring imagery is that of the capillary system of power; Foucault, Power/Knowledge 96–97.Google Scholar

35 Michel Foucault, “The Subject and Power,” in Dreyfus & Rainbow, Michel Foucault 208, 226.Google Scholar

36 Foucault, Power/Knowledge 99.Google Scholar

37 For Foucault's use of hegemony, see Foucault, 1 History of Sexuality 93, 94, 126, 127 (cited in note 4), and id., Power/Knowledge 156.Google Scholar

38 Foucault, Power/Knowledge 142.Google Scholar

39 Carol Smart, Feminism and the Power of Law (London: Routledge, 1990).Google Scholar

40 Foucault, 1 History of Sexuality 94–95.Google Scholar

41 The most developed example that Foucault gives of an unintended “strategy” is one of the key themes in Discipline and Punish (cited in note 9), which contends that the productivity of prisons for capitalism was “discovered” rather than “invented.”Google Scholar

42 Foucault, 1 History of Sexuality 102. Jeff Minson (9 Econ. & Soc'y), while critical of Foucault's conception of strategy along similar lines to those argued here, makes an interesting attempt to retrieve a conception of strategy for the project of socialist politics.Google Scholar

43 Boaventura de Sousa Santos criticizes Foucault along similar lines when he suggests that Foucault simply went too far in stressing the dispersion and fragmentation of power and that this results in a lack of attention to the conjunctural formation of hierarchy among the forms of power; Boaventura de Sousa Santos, “On Modes of Production of Law and Social Power,” 13 Int'l J. Sociology L. 299 (1985).Google Scholar

44 Poulantzas, State, Power, Socialism 33 & 135–37 (cited in note 1).Google Scholar

45 Foucault, 1 History of Sexuality 95.Google Scholar

46 This view is both confirmed and denied by Foucault's discussion of the discourses of sexuality: We must not expect the discourses on sex to tell us, above all, what strategy they derive from; … rather we must question them on the two levels of their tactical productivity (what reciprocal effects of power and knowledge they ensure) and their strategical integration (what conjunction and what force relationships make their utilization necessary in a given episode of the various confrontations that occur). Foucault, Power/Knowledge 102 (cited in note 5). Unfortunately he tells us nothing about how the ascent from the investigation of “tactical productivity” to “strategical integration” is to be made.Google Scholar

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

48 Foucault, 1 History of Sexuality 96.Google Scholar

49 Id at 97.Google Scholar

50 Id.Google Scholar

51 Stuart Hall, “The Toad in the Garden: Thatcherism among the Theorists,” in C. Nelson & L. Grossberg, eds., Marxism and the Interpretation of Culture (Urbana: University of Illinois Press, 1988).CrossRefGoogle Scholar

52 Id at 52.Google Scholar

53 Foucault, Discipline and Punish 22. He gives the example of the way in which judges have gradually absorbed the role of “experts” in the criminal process.Google Scholar

54 Max Weber, Law in Economy and Society, ed. Max Rheinstein (Cambridge, Mass.: Harvard University Press, 1966); Poulantzas, State, Power, Socialism (cited in note 1); Ronald Dworkin, Law's Empire (Cambridge, Mass.: Harvard University Press, 1986) (“Dworkin, Law's Empire”); Niklas Luhmann, A Sociological Theory of Law (London; Routledge & Kegan Paul, 1985) (“Luhmann, Sociological Theory of Law”).Google Scholar

55 Foucault, 1 History of Sexuality 144 (cited in note 4).Google Scholar

56 Hayek, F. A., Law, Legislation and Liberty (London: Routledge, 1982).Google Scholar

57 Foucault, Power/Knowledge 104.Google Scholar

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

59 Franćois Ewald, “Norms, Discipline, and the Law,” 30 Representations 138 (1990).CrossRefGoogle Scholar

60 See, e.g., Pat O'Malley, “Legal Networks and Domestic Security,” in 11 Studies in Law, Politics and Society (Greenwood, Conn.: JAI Press, 1991), and Jonathan Simon, “The Emergence of a Risk Society: Insurance, Law, and the State,” 95 Socialist Rev. 61 (1987).Google Scholar

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

63 Foucault, 1 History of Sexuality 109.Google Scholar

64 Id. at 89.Google Scholar

65 Foucault, Power/Knowledge 107 (cited in note 5).Google Scholar

66 Foucault, Discipline and Punish 22.Google Scholar

67 Foucault, 1 History of Sexuality 109.Google Scholar

68 Id. at 144.Google Scholar

69 Foucault, Power/Knowledge 107.Google Scholar

70 Id. at 107.Google Scholar

71 Foucault, Discipline and Punish 178.Google Scholar

72 Foucault, 1 History of Sexuality 45ff.Google Scholar

73 Foucault, Power/Knowledge 105.Google Scholar

74 Foucault, Discipline and Punish 223.Google Scholar

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

77 Foucault, Discipline and Punish 177.Google Scholar

78 Foucault, 1 History of Sexuality 144 (cited in note 4).Google Scholar

79 Foucault, Discipline and Punish 296.Google Scholar

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

81 Id at 104.Google Scholar

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

86 Lofland, L. H., The World of Strangers: Order and Action in Urban Public Space (New York: Basic Books, 1973).Google Scholar

87 John Demos, Entertaining Saran: Witchraft and the Culture of Early New England (New York: Oxford University Press, 1982).Google Scholar

88 Norbert Elias, The Civilizing Process, vol. 1: The History of Manners (New York: Urizen Books, 1978).Google Scholar

89 Raeff, Well-ordered Police Stare (cited in note 58).Google Scholar

90 His last texts from the uncompleted history of sexuality marked a shift, even though they had a fragmentary and undertheorized character, to a concern with the “techniques of the self” that went a long way to overcome his earlier schematic separation between the premodern and the modern; Michel Foucault, History of Sexuality: vol. 2, The Use of Pleasure (New York: Viking Press, 1985), and History of Sexuality: vol. 3, The Care of the Self (New York: Pantheon, 1985). He formulates this problematic in the following terms: “How did we directly constitute our identity through some ethical techniques of the self that developed through antiquity down to now?” Michel Foucault, “On Power,” in L. D. Kritzman, ed., Politics, Philosophy, Culture: Interviews and Other Writings, 1977–1984 at 146 (New York: Routledge, 1988).Google Scholar

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

92 Foucault, “Governmentality” at 18–19 (cited in note 19).Google Scholar

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

96 Oestreich, Neostoicism 157.Google Scholar

97 Colin Gordon, “Governmental Rationality,” in Burchell Graham, Colin Gordon, & Peter Miller, eds., The Foucault Effect: Studies in Governmentality (Hemel Hempstead: Harvester Wheatsheaf. 1991) (“Gordon, ‘Governmental Rationality’”).Google Scholar

98 Id at 20.Google Scholar

99 Foucault, 1 History of sexuality 144 (cited in note 4).Google Scholar

100 The lectures have not, as yet, been translated into English but are extensively summarized and discussed in Gordon, “Governmental Rationality.”Google Scholar

101 Michel Foucault, “Omnes et Singulatim: Towards a Criticism of ‘Political Reason,’ in S. McMurrin, ed., 2 The Tanner Lectures on Human Values 223 (Cambridge: Cambridge University Press, 1981) (“Foucault, ‘Omnes et Singularim’”).Google Scholar

102 Michel Foucault, “Technologies of the Self,” in Luther Martin et al., Technologies of the Self (Amherst: University of Massachusetts Press, 1988).Google Scholar

103 Alan Hunt, “Law's Empire or Legal Imperialism?” in A. Hunt, ed., Reading Dworkin Critically (New York: Berg Publishers, 1992).Google Scholar

104 Legal imperialism comes in a number of different guises; it is most explicitly present in Ronald Dworkin's liberalism (Dworkin, Law's Empire (cited in note 54)) and in Richard Posner's much more conservative liberalism (Richard Posner, “Conventionalism: The Key to Law as an Autonomous Discipline?” 38 U. Toronto L.J. 333 (1988)), but also in recent German legal sociology with its reliance on systems theory and the model of autopoietic law: Luhmann, Sociological Theory of Law (cited in note 54), and Gunther Teubner, Autopoietic Law: A New Approach to Low and Society (Berlin: Walter de Gruyter, 1988). It is in turn linked to the various forms of the juridification thesis; see above note 86.CrossRefGoogle Scholar

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

108 Anthony Woodiwiss, Social Theory after Postmodernism: Rethinking Production, Law and Class 117 (London: Pluto Press, 1990).Google Scholar

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

111 See text accompanying note 37.Google Scholar

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