Foucault and Law

Peter Fitzpatrick

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351566858
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

Few thinkers can have had a more diverse or a more contested impact on theorizing law than Michel Foucault. This diversity is reflected in the wide range of Foucault's work and of the intellectual fields it has so conspicuously influenced. Such diversity informs the present collection and is signalled in the headings of its four sections:

• Epistemologies: archaeology, discourse, Orientalism
• Political philosophy: discipline, governmentality and the genealogy of law
• Embodiment, difference, sexuality and the law
• The subject of rights and ethics.

Whilst the published work selected for this collection amply accommodates this diversity, it also draws together strands in Foucault's work that coalesce in seemingly conflicting theories of law. Yet the editors are also committed to showing how that very conflict goes to constitute for Foucault an integral and radical theory of law. This theory ranges not just beyond the restrained and diminished conceptions of law usually derived from Foucault, but also beyond the characteristic concern in Jurisprudence and Legal Philosophy to constitute law in its difference and separation from other socio-political forms.

Part I
Epistemologies: Archaeology, Discourse, Orientalism

[1]

WOMEN’S RESOLUTIONS OF LAWES RECONSIDERED: EPISTEMIC SHIFTS AND THE EMERGENCE OF THE FEMINIST LEGAL DISCOURSE

MARIA DRAKOPOULOU*

ABSTRACT. This paper has arisen from my interest in questions of subjectivity of primary concern to contemporary feminist jurisprudence. Rather than side with any particular view represented in the debates surrounding these questions, I have used Foucault’s concept of episteme to explore the tradition of feminist legal thought. By focusing upon seventeenth-century women’s writings in which the earliest statements linking law to women’s oppression are to be found, the paper argues that knowledge claims about law’s association with women’s oppression are predicated not upon the positing of a sovereign feminist consciousness, but upon the specific positivities of knowledge which existed at the time. The understanding of the birth of the feminist legal discourse in terms of the specific conditions of its possibility, although historically contextualised, raises questions about the hitherto seemingly unassailable adherence to subjectivist epistemology which the current feminist engagement with law maintains.

KEY WORDS: feminist epistemology, feminist jurisprudence, feminist legal discourse, Foucault, subjectivity

INTRODUCTION

In forming and informing the feminist comprehension of the workings of law in relation to women, numerous, disparate, and continuously accumulating studies have scrutinized many aspects of their legal disadvantage, elaborated a wide range of analytical perspectives and revealed a multiplicity of ways in which law can affect women’s lives. At the core of their endeavours are accounts of the nature of law’s attitudes to women, the forms such attitudes take, and the implications they have for the particularity of women’s social experience. What links individual approaches together, justifies the ‘project’ and enables collective reference (”feminist legal studies”, “feminist legal scholarship” or “a tradition of feminist legal thinking”), is a logic derived from a belief that an intimate and singular relationship exists between women and law, such that law participates in women’s social subordination. This logic not only comprises the raison d’être of a feminist project in law, the axiomatic principle of its rational apprehension, but it secures its unity and constancy.

Two principal components therefore delimitate contemporary feminist legal studies: the oppression of women by law,¹ and a knowing subject which articulates this oppression. The former, posited irrespective of the subject’s recognition, is routinely comprehended as an empirical truth stemming from women’s social reality and an almost ‘natural’ feature of any society, whether ancient, medieval, modern or postmodern. The latter forms the epistemological grounds upon which feminist legal knowledge is both predicated and justified. The different analyses, in expressing specific modes of apprehension of female subjectivity and identity, and particular ways in which these correlate with the legal structure, are seen as revealing, historically and culturally, specific ‘moments’ of the subject’s consciousness as she strives to capture the essence of the relationship between women and law. Emerging as propositions concerning law’s role in women’s oppression, each brings its critical focus to bear on the substance of the relationship and on the ways it is materialized and, in this sense, individual studies, despite historical and analytical specificities, can be thought of collectively as knowledge claims about the true meaning or nature of this relationship. The enterprise of feminist legal thought is, therefore, a fundamentally ontological one, with an overwhelming emphasis on the subject’s understanding of the ‘ousia’, the ‘being’ of the relationship between women and law.

This particular apprehension of law has profound ramifications for the content and direction of the feminist engagement with law. The subjectivist approach to epistemology restricts the scope for critical self-reflection, because its enterprise is limited to the manner in which the subject’s knowledge claims have been formulated, rationalized and substantiated. In effect, it assumes feminist understanding to be of a positively progressive nature, such that whichever perspective is in the ascendant asserts the greater truthfulness of its own knowledge claims, whilst almost invariably overlooking its own basic assumptions.² Current analyses are seen as more sophisticated than past ones, each new approach a more refined step in addressing the essence of the relationship between women and law, and each is welcomed as an addition to a developing feminist legal corpus, part of a progressive march towards a qualitatively better apprehension of the subject.³ At the same time, the ontological focus connotes an overwhelming concern with the current state of things, since emphasis on the nature and forms of the operation of law privileges the present and legal arrangements affecting living women are, quite understandably, deemed most worthy of consideration. Consequently, the relevance of historical inquiry is exhausted in a few brief, peripheral accounts of the origin and development of specific legal rules, which are typically employed to exemplify or illuminate points about contemporary forms of oppression of women by law, rather than to help theoretical understanding.

This paper dwells on neither epistemological questions about the positing of a knowing subject, nor ontological ones concerning the essence of the relationship between women and law. It does embrace the epistemological concern of feminist legal thought to the extent that it considers its cognitive status, but the principal focus is on the ‘becoming’ of the knowledge itself. The very existence of feminist legal thought forms the object of inquiry and its own episteme comprises the analytical tool for conducting this inquiry. An episteme is the specific disposition which theoretical knowledge assumes during a given historical period. It encompasses a dense mesh of cultural elements which, though possibly escaping the consciousness of the knowing subject, are responsible for the internal rationality and coherence of a discourse, as well as its external legitimacy and direction. It is that which Foucault⁴ calls the “positive unconscious” of thought; that which confers upon a body of knowledge its positive nature in a given historical period.

To succeed in this endeavour, one must abandon the surface of the discourse to explore the unchartered elements which rule the configuration and expression of thought. This is that deeper space of knowledge that Foucault⁵ calls the “archaeological level”; the level at which the positivities which determine the order of the discourse, its inner law and peculiar formations, manifest themselves. Transferring an inquiry to the level at which the episteme operates, involves questioning the significance accredited to those components delimitating feminist engagement with law and re-examining the direction it has taken. Although this inquiry admits that the subject’s apprehension of female identity, subjectivity and law configures the manner in which she thinks, writes and forms her politics about law, it rejects the view that what she speaks and writes is simply the product of the interaction of her consciousness with her social reality. It argues instead that this is already culturally encoded at the moment it is spoken or written, because the manifest physiography of her discourse is the outcome of the epistemic ‘field’ of conditions intrinsic to thought at the time. Comprehending the discourse according to what made it possible rather than its power to truthfully reveal the oppression of women by law allows the ontological focus of feminist legal scholarship to be set aside. At the same time, highlighting the discourse’s own situatedness, demands the investigation to be self-reflective. Furthermore, because an episteme is culturally and, thus, historically dependent, this approach invites historical analysis. However, because the confines of this paper preclude writing an e...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Series preface
• Introduction: The Laws of Michel Foucault
• Part I Epistemologies: Archaeology, Discourse, Orientalism
• Part II Political Philosophy: Discipline, Governmentality and the Genealogy of Law
• Part III Embodiment, Difference, Sexuality and the Law
• Part IV The Subject of Rights and Ethics
• Name Index