Re-reading Foucault

Ben Golder

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781136207952
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Law, Rights and Power: Re-Reading Foucault is the first collection in English to fully address the relevance of Foucault's thought for law. Michel Foucault is the best known and most cited of the late twentieth-century's 'theory' academics. His work continues to animate a range of different critical work across intellectual disciplines in the arts, humanities and social sciences. There has, however, been relatively little examination of the legal implications and applications of Foucault's work. This book fills that gap, providing an in-depth analysis of Foucault's thought as it pertains to the crucial questions of law, government and rights. This collection engages with key legal themes as they emerge, both in Foucault's work and in the contemporary scholarship that surrounds it. These include: the opposition between 'law' and 'the juridical'; legal ways of organising and processing knowledge; sovereignty; punishment; bio-politics and governmentality; security; resistance; and, judgment. Including contributions from acknowledged experts on Foucault's work, as well as pieces by younger scholars, Law, Rights and Power: Re-Reading Foucault will be of considerable interest across a range of disciplines, including law, sociology, criminology, international relations, political theory, and philosophy.

Part 1

Law, judgment and the juridical

---

Chapter 1

Expelled questions: Foucault, the Left and the law

Colin Gordon

---

The law is one of a number of domains of reality and study concerning which it has been customary since Foucault's death (if not already in his lifetime) to discuss, deplore, excuse, diagnose, or endeavour to make good, his failure to devote a degree of attention sufficient to satisfy the expectations of a certain audience. A discussion of Foucault and law is almost routinely obliged, very much in the same way as a discussion of Foucault and gender, Foucault and geography or Foucault and post-colonial studies, to begin by acknowledging a widely held opinion that his work can be criticized for saying too little about law, or for belittling and disparaging the historical importance of law, its function in the constitution of modernity, and its constitutive and normative presence in social reality.

A few doubts and reservations suggest themselves about this customary framework of discussion. One of these concerns the widespread and automatic assumption that Foucault, in what was after all an academic career cut short in mid-span, ought — putting the matter as simply and naïvely as possible — to have written everything about everything, and was not eligible for the usual permission allowed by the academic division of labour to focus and concentrate a personal programme of research on a delimited and specialized range of topics. The status which Foucault has acquired or been accorded in contemporary public space seems to carry with it an implicit obligation, subject to public accountability, and in case of default to rebuke, to have something adequate to say about every topic. To a remarkable, and remarkably unnoticed, extent Foucault is evaluated and judged as a universal intellectual whose thought is expected to provide an encyclopaedic compendium of illumination, explanation, inspiration and orientation. On reading his younger commentators, one often had the impression that Foucault had placed himself under an obligation to write not only the books he wrote, the books he had said he would write and the books he failed to live to write, but also the books, or at least the founding intellectual groundwork of the books, which some of his readers and critics have themselves desired to write, and in some cases, despite his inadequate assistance, succeeded in writing.

The contention that Foucault neglects, disparages or undervalues law has been widely canvassed and has in the process been subjected to a degree of critical challenge. I agree with those¹ who argue that Foucault's work somewhat obviously has considerably more of interest to say about law, and about rights, than those who have most loudly voiced their disappointment at his contribution on these matters have found ft to notice. On the other hand, it is as well to acknowledge frankly, and before deciding whether apologies are in order, that law is not the central theme of Foucault's work. This bare fact still leaves open to us the option of whether we choose to consider it a problem. It might appear less of a problem if one notices what many critical commentators, in the face of readily available evidence, choose to ignore, namely that (as was already extensively illustrated by the contents of The Foucault Effect (see Burchell, Gordon and Miller 1991 — much of which had already been available in journal publication for a decade), Foucault did not work alone, and that some of his closest collaborators, notably François Ewald, carried out research under his inspiration which had a strong and central concern with legal themes.²

Two other interesting questions remain. One is whether, regardless of the contingencies of Foucault's own choices and constraints — including the not insignificant constraint of early death — Foucault's work could be used, or continued, in order to produce a genealogy (or a genealogical history) of law in various periods of Western — or indeed non-Western — history. The other (with some supplementaries) is about our own critical requirements and expectations. If we think Foucault did not rate law as important enough, how much is enough? And where can we turn for guidance on the correct estimate of this matter? If his relative silence about law is held in some sense to be a culpable silence, what was it that he should have said and why was it important and necessary that he should have said it? And who else has said the things which Foucault should have said? If the proper status of law is not satisfactorily recognized by Foucault, what is it, and what would constitute its satisfactory recognition?

Along with these, perhaps naïve, but surely admissible queries (not all of which I shall undertake to answer here), another, perhaps more maliciously genealogical, question could also be posed about the terms of this discussion, which I shall try to explore here a little: what may be at stake in our politico-intellectual culture, and what interests, struggles or stratagems can potentially be involved, when a thinker such as Foucault is accused from various directions of insufficient attention or respect for law? What should one make, indeed, of the very style of polemical discourse in which some at least of this discussion has been conducted? The part I refer to is that which can appear on occasion to have the mode and style of an ideological inquisition, and where one seems liable to encounter a degree of pervasive confusion of the doxological and epistemological modes; that is to say, of rectitude in terms of belief and faith as distinct from rectitude in terms of truth-telling. This is likewise as area of discussion where the underlying stakes can appear to concern the acceptability of certain topics of discussion from the point of view of certain systems of belief and faith. Discipline and Punish was received in various quarters as a problematic book, and its impact as a cause of disquiet, because, among other things, of the ways in which it represented the exercise of power in liberal societies as vastly exceeding the bounds of its legitimating foundations in law. This is one of the very well-known and undeniable sources in Foucault's work for what, in the wording due to Alan Hunt and developed in his 1994 book with Gary Wickham, is known as the ‘expulsion thesis’; namely, the thesis of the ‘expulsion’ of law in Foucault's analyses as a principal explanatory or analytic category from the study of modernity (Hunt 1992b; Hunt and Wickham 1994). But it remains hard in reading much of the literature — including parts of the recent book by Ben Golder and Peter Fitzpatrick (2009) which focuses on a critical reassessment of Hunt and Wickham — to establish clearly whether the perceived offence in Discipline and Punish is more an offence against fact (or historical veracity) or against doxa (the right-minded way in which things should be seen, said or thought — or left unseen, unsaid and unthought).

This chapter will proceed in two parts. In the first part, I want to begin to answer the genealogical question I have just raised; namely whether the situation of Foucault within a particular politico-intellectual culture can help explain the problematization of his approach to law and rights in much of the literature. In brief, I argue that it can and that the source of much of the disquiet concerning Foucault's engagements with law is to be found in intellectual moves being made within the contemporary Left intellectual milieu concerning law and legality. I also want myself, as foreshadowed above, to problematize some of the polemical structure of this discourse and some of its presuppositions. In the second part of the chapter, having proposed an explanation of why Foucault's approach to law supposedly falls short, I change tack somewhat and offer a brief tour of some of Foucault's important and seminal remarks on law which the negligence of critics has so far helped to deny the attention and utilization they might properly have merited.

Foucault, law and the contemporary Left scene

It was not apparent to all readers of Foucault's work during his lifetime that the sufficiency of its respect for law would become a major preoccupation in its subsequent discussion, notably among those of a left-leaning or ‘critical’ persuasion. This degree of concern can seem hard to account for on the basis of Foucault's own work and opinions (indeed, even more so with the increasing availability of new sources). If one wishes to explain it, one needs to place this preoccupation within a wider context of politico-academic anxieties and contentions: a field of forces in political culture which Foucault's interventions may have had, and may still have, a capacity to affect, to disrupt and to provoke.

The notion I would like to explore in this first part of the chapter is that the theme of law for Foucault (to the limited extent that it features as a continuing and distinct theme in his thought), and the significance for others of Foucault's treatment (or lack of treatment) of that theme, have something to do with the question of the changing and contested limits of the politically sayable, and the positions from which, and conditions under which, free public utterance is an effective political possibility. What we choose to make of the continuing relevance of Foucault's thought is a separate matter from what continuing interest we may take in his public career as an intellectual (innovative, exemplary or otherwise), and interpretations of either in terms of the other are, properly and often deservedly, contestable. But there are times when a connection seems worth making for other than hagiographic or demagogic purposes.³ The quite brief period, barely a decade and a half, in which Foucault was an engaged actor and an audible voice in the public sphere (and a professor at the Collège de France) is framed by two struggles to achieve and retain a position of autonomy — initially, in relation to the organized forces and structures of an insurgent and revolutionary Left, and later in relation to a governing socialist-communist coalition which included both his allies and his adversaries. It is perhaps not fanciful to link these respective struggles to the terms in which Foucault formulated the themes of his initial and final lectures at the Collège — the order of discourse and the courage of truth.

The period after 1968 when Foucault made his public debut as a prominent politically engaged intellectual involved some crucial issues, choices and moves concerning the relation between justice, politics and the political role. The role which Foucault, Sartre and others were called upon to play was, as Daniel Defert (2003) describes it, a traditional and well-understood one at the time: universally recognized figures in literary, cultural and academic life would be called on at a time of political confrontation to appeal, from the high ground of their neutral eminence, in defence of victims of arbitrary or exceptional measures of state repression — victims who might themselves include revolutionaries engaged in forms of struggle which spanned the limits of legality. The standard term in revolutionary parlance for such personalities was ‘democrats’, and a common rubric for such interventions was ‘justice and truth’. This was precisely the model of the ‘universal intellectual’, as ‘master of justice and truth’, against which Foucault formulated, via his widely cited dialogues with Deleuze, Pasquino and Fontana (Foucault 1977b, 1980b) the alternative model of a ‘specific intellectual’. An important element in Defert's account is that the term ‘democrats’ in the revolutionary parlance, if not exactly interchangeable with the other Leninist category of ‘useful idiots’, was a double-edged epithet of faint praise, involving the implicit awareness of a transaction in which the intellectual served an instrumental purpose for the revolutionary movement which needed to remain unavowed on both sides. In the context of the quasi-revolutionary atmosphere and political movements of the post-1968 years — the Gauche Prolétaire in particular, whose leaders were arrested and imprisoned in 1969–70 — Foucault represented a high-value potential asset in the ‘democrat’ category: a newly established, bestselling intellectual star with a novel generational brand-identity, a progressive image uncomplicated by recent political involvements. This same period around 1968 was, coincidentally or otherwise, the moment when Foucault's academic career made its decisive breakthrough, from modest provincial obscurity in the psychology department at Clermont-Ferrand, via a brief adventure at the leftist experimental campus at Vincennes, to election to the summit of national academic prestige, a chair at the Collège de France.

Foucault seems to have responded to this situation — perhaps with the significant prompting of Daniel Defert among others — with lucid adroitness and efficacy, in two key respects. First, he was invited to co-sign a public appeal on behalf of the imprisoned Maoists, seeking either their release or the recognition of their status as political prisoners. Foucault instead proposed a campaign focused on the French prison system in general, and the condition of all of its prisoners. On being then asked to help set up this initiative in the form — favoured by the revolutionary groups — of a tribunal of inquiry, Foucault instead proposed an alternative form of intervention, the Groupe d’Information sur les Prisons (GIP). The GIP was an information-gathering group, which worked by distributing questionnaires to prisoners and their relatives, intended to empower them — together with some professionals employed in the prison system who had the courage to speak out, at the risk and sometimes price of their careers — to communicate to the public their own direct knowledge and experience of prison conditions. The GIP thus took the form of a focused action to produce a modification in the order of discourse, and to contribute towards an ‘insurrection of subjected knowledges’ — to use the terms he himself used respectively in 1970 and 1976 (see Foucault 1981, 2003b: 7).

Not long afterwards (as François Ewald has recounted), Foucault declined a further invitation to join a leftist tribunal of inquiry into the alleged rape of a female worker by a factory-owner in the northern mining town of Bruay-en-Artois (Ewald 2011). It is worth recalling that the model of the independent tribunal had a prominent international visibility during these same years, under the auspices of one of the most universal of t...

Table of contents

• Cover Page
• Half Title page
• Title Page
• Copyright Page
• Contents
• Acknowledgements
• Notes on contributors
• Introduction Re-reading Foucault on law, power and rights
• Part 1 Law, judgment and the juridical
• Part 2 Sovereignty, surveillance, biopolitics
• Part 3 Rights, counter-conduct, revolution?
• Index