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Foucault and the Incompletion of Law

Published online by Cambridge University Press:  01 September 2008

BEN GOLDER
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In a late interview given to the French newspaper Le Monde, Michel Foucault discussed his dreams for a different style of criticism. ‘I can't help but dream about a kind of criticism’, remarked Foucault, in which one would ‘not try to judge, but to bring an oeuvre, a book, a sentence, an idea to life; it would light fires, watch the grass grow, listen to the wind, and catch the sea-foam in the breeze and scatter it.’ This somewhat wistful, poetic thought resonates with more familiar Foucauldian notions regarding the use of theory as a ‘toolkit’ or ‘toolbox’. Common to both these tropes – critique as affirmation and theory as functional – is the desire for thought to be put to work rather than put on trial, for sentences to be brought to life rather than delivered. And yet this presents the would-be Foucauldian book reviewer – and more so where the venue is the impeccably juridical one of the law journal – with a series of alluring problems. How might one elaborate such a Foucauldian critique in a context where one is expressly called upon to judge? What would such a non-judgmental Foucauldian critique look like? Are juridical practices of critique readily susceptible to Foucauldian appropriation or subversion? This set of related questions is emblematic of a wider concern of mine which forms the subject matter of this review essay, namely the place of Foucault (if indeed he has one) in legal theory. How does Foucault, that fabled figure of postmodern antinomianism who supposedly announced the demise and ‘expulsion’ of modern law, relate to legal theory? What might it mean to bring Foucault's unruly poststructuralism ‘into law’? And with what possible effects?

Type
REVIEW ESSAYS
Information
Leiden Journal of International Law , Volume 21 , Issue 3 , September 2008 , pp. 747 - 763
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2008

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References

1 M. Foucault, ‘The Masked Philosopher’, in M. Foucault, Politics, Philosophy, Culture: Interviews and Other Writings, 1977–1984, ed. L. D. Kritzman, trans. A. Sheridan et al. (1988), 323 at 326.

2 ‘All my books, whether Histoire de la folie or this one, are little toolboxes, if you will. If people are willing to open them and make use of such and such a sentence or idea, of one analysis or another, as they would a screwdriver or a monkey wrench, in order to short-circuit or disqualify systems of power, including even possibly the ones my books come out of, well, all the better’, M. Foucault, ‘Des supplices aux cellules’, Le Monde, 21 February 1975, quoted in D. Eribon, Michel Foucault, trans. B. Wing (1991), 237.

3 See Gilles Deleuze's comment: ‘[a] theory is exactly like a box of tools. It has nothing to do with the signifier. It must be useful. It must function’. M. Foucault and G. Deleuze, ‘Intellectuals and Power’, in M. Foucault, Language, Counter-Memory, Practice: Selected Essays and Interviews, ed. and with an introd. by D. F. Bouchard, trans. D. F. Bouchard and S. Simon (1977), 205 at 208.

4 J. Butler, ‘What is Critique? An Essay on Foucault's Virtue’, in The Judith Butler Reader, ed. S. Salih, with J. Butler (2004), 302 at 304–5.

5 For the most sustained criticism of Foucault on the grounds that he ‘expelled’ law from modernity, see A. Hunt and G. Wickham, Foucault and Law: Towards a Sociology of Law as Governance (1994). Of course, the claim that Foucault in his descriptive theses on modernity failed to accord law a constitutive or pivotal role does not necessarily depend upon or entail a view that he himself thought such a state of affairs preferable or desirable (although it frequently imports such). For a highly critical reading which emphasizes Foucault's antipathy to legality, see G. Rose, Dialectic of Nihilism: Post-structuralism and Law (1984), 171–207.

6 Baxter, H., ‘Bringing Foucault into Law and Law into Foucault’, (1996) 48 Stanford Law Review 449CrossRefGoogle Scholar.

7 M. Foucault, ‘What is Critique?’, in J. Schmidt (ed.), What is Enlightenment? Eighteenth-Century Answers and Twentieth-Century Questions (1996), 382 at 383.

8 As developed in M. Foucault, Discipline and Punish: The Birth of the Prison, trans. A Sheridan (1991); M. Foucault, Security, Territory, Population: Lectures at the Collège de France 1977–1978, trans. G. Burchell (2007); and M. Foucault, The Will to Knowledge: The History of Sexuality, Vol. 1, trans. R. Hurley (1978).

9 For example, see Drakopoulou, M., ‘Feminism and the Siren Call of Law’, (2007) 18 Law and Critique 321CrossRefGoogle Scholar.

10 Olmsted, M., ‘Are Things Falling Apart? Rethinking the Purpose and Function of International Law’, (2005) 27 Loyola of Los Angeles International and Comparative Law Review 401, at 405Google Scholar.

11 For example, see Evans, T., ‘International Human Rights Law as Power/Knowledge’, (2005) 27 Human Rights Quarterly 1046CrossRefGoogle Scholar.

12 For example, see B. Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (2003), 13–15. Widening the field from ‘international law’ to ‘the international’ or ‘the global’, one would of course be tempted to include the work of Michael Hardt and Antonio Negri in such a list, even if their evocation of bio-power and bio-politics derives as much if not more from Deleuze and from traditions of autonomist Italian Marxism as it does from Foucault's usage. See M. Hardt and A. Negri, Empire (2000); M. Hardt and A. Negri, Multitude: War and Democracy in the Age of Empire (2004). For a very cogent critique of Hardt and Negri's interpretation of international law, see R. Buchanan and S. Pahuja, ‘Legal Imperialism: Empire's Invisible Hand?’, in P. Passavant and J. Dean (eds.), Empire's New Clothes: Reading Hardt and Negri (2004), 73.

13 Fraser, N., ‘From Discipline to Flexibilization? Rereading Foucault in the Shadow of Globalization’, (2003) 10 Constellations 160CrossRefGoogle Scholar.

14 Ibid., 161.

15 R. D. Lipschutz with J. K. Rowe, Governmentality and Global Politics: Regulation for the Rest of Us? (2005), 15.

16 For example, see some of the work of Nikolas Rose and Peter Miller, which develop the insights of this work, especially Rose, N., ‘The Death of the Social? Re-figuring the Territory of Government’, (1996) 25 Economy and Society 327CrossRefGoogle Scholar; Miller, P. and Rose, N., ‘Governing Economic Life’, (1990) 19 Economy and Society 1CrossRefGoogle Scholar; Rose, N. and Miller, P., ‘Political Power beyond the State: Problematics of Government’, (1992) 43 British Journal of Sociology 172CrossRefGoogle Scholar.

17 For example, Art. 18 of both the 1948 Universal Declaration of Human Rights (UN Doc. GA Res. 217A (III) (1948)) and the 1966 International Covenant on Civil and Political Rights ((1967)999 UNTS 171; 6 ILM 368); Art. 9 of the 1950 European Convention on Human Rights (ECHR) (213 UNTS 221); and Art. 12 of the 1969 American Convention on Human Rights ((1969) OAS Treaty Series No. 36; 1144 UNTS 123; 9 ILM 99).

18 Cha'are Shalom Ve Tsedek v. France, Judgment, 27 June 2000, No. 27417/95, ECHR 2000-IV.

19 This project is open to certain theoretical objections. Although not expressly framed in this way, Hammer's proposed approach to human rights claims is no doubt a plausible attempt to put into practice Foucault's cryptic and unelaborated call in ‘Society Must Be Defended’ for a ‘new form of right’ (see M. Foucault, ‘Society Must Be Defended’: Lectures at the Collège de France, 1975–1976, trans. D. Macey (2003), 40). Indeed it is in its attention to practices – here, modalities of judgment and questions of how judges resolve disputes – that Hammer's proposal is perhaps most in line with Foucault's general method (recall Foucault's rigorous insistence upon studying ‘the “how” of power . . . [by] trying to understand its mechanisms’: ibid., at 24). Nevertheless, Hammer leaves unaddressed precisely the kind of questions about what measures judges might employ to value the interest of ongoing social dialogue, or with what results. Moreover, it is unclear how Hammer's approach would necessarily result in the claimed displacement of the state and its formal legal institutions – rather, it might simply expand or reorient their jurisdiction. For an analogous criticism of Foucault on the topic of human rights see Pickett, B. L., ‘Foucaultian Rights?’, (2000) 37 Social Science Journal 403CrossRefGoogle Scholar.

20 I should make it clear that I believe this stretching to be a necessary and productive venture. Recall Foucault's tribute to Nietzsche: ‘the only valid tribute to thought such as Nietzsche's is precisely to use it, to make it groan and protest’. M. Foucault, ‘Prison Talk’, in M. Foucault, Power/Knowledge: Selected Interviews and Other Writings 1972–1977, ed. and trans. C. Gordon (1980), 37 at 53–4.

21 The best-known of these critiques include C. Taylor, ‘Foucault on Freedom and Truth’, in D. C. Hoy (ed.), Foucault: A Critical Reader (1986), 69; and Fraser, N., ‘Foucault on Modern Power: Empirical Insights and Normative Confusions’, (1981) 1 Praxis International 272Google Scholar.

22 The classic instance is of course Dews, P., ‘The Return of the Subject in Late Foucault’, (1989) 51 Radical Philosophy 72Google Scholar. For a much more extensive engagement which maintains that Foucault reintroduces the subject in his late work, see E. Paras, Foucault 2.0: Beyond Power and Knowledge (2006).

23 See Butler, supra note 4, at 324.

24 M. Foucault, ‘The Subject and Power’, in M. Foucault, Essential Works of Foucault 1954–1984, Vol 3: Power, ed. J. D. Faubion, trans. R. Hurley et al. (2000), 326 at 342.

25 Ibid., at 342.

26 M. Foucault, ‘The Ethics of Concern for Self as a Practice of Freedom’, in M. Foucault, Essential Works of Foucault 1954–1984, Vol 1: Ethics, Subjectivity and Truth, ed. P. Rabinow, trans. R. Hurley et al. (1997), 253 at 284.

27 We can contrast Prozorov's reading of freedom in Foucault's thought with the most influential treatment of freedom in the Foucauldian literature, namely the work of Nikolas Rose. Whereas Prozorov sees freedom as uncontainable by any political programme, Rose reads freedom as an instrument of governance. See, e.g., N. Rose, Powers of Freedom: Reframing Political Thought (1999).

28 See M. Foucault, ‘What is an Author?’, in D. Lodge (ed.), Modern Criticism and Theory: A Reader (1988), 196, where Foucault argues that the concept of an author is a discursive ‘function’ that limits the available meaning of texts.

29 Hunt and Wickham, supra note 5, at 56. This interpretation finds its most developed, and sustained, expression in both the sole- and joint-authored work of Alan Hunt and Garry Wickham (although they are by no means the only, or indeed the first, scholars to have raised the objection that Foucault minimizes the importance of law). For the fullest expression of the argument see their Foucault and Law (supra note 5). See also Hunt, A., ‘Foucault's Expulsion of Law: Toward a Retrieval’, (1992) 17 Law and Social Inquiry 1CrossRefGoogle Scholar; Hunt, A., ‘Law and the Condensation of Power’, (1992) 17 Law and Social Inquiry 57Google Scholar; Hunt, A., ‘Getting Marx and Foucault into Bed Together!’, (2004) 31 Journal of Law and Society 592CrossRefGoogle Scholar; Wickham, G., ‘Foucault, Law, and Power: A Reassessment’, (2006) 33 Journal of Law and Society 596CrossRefGoogle Scholar; G. Wickham, ‘Foucault and Law’, in R. Banakar and M. Travers (eds.), An Introduction to Law and Social Theory (2002), 249.

30 Hunt and Wickham, supra note 5, at 57.

31 See, e.g., Foucault, Discipline and Punish, supra note 8, at 194, 297.

32 Foucault, History of Sexuality, Vol. 1, supra note 8, at 89.

33 Ibid., 144.

34 Ibid., 92.

35 M. Foucault, ‘Truth and Power’, in Power/Knowledge, supra note 20, 109 at 119.

36 M. Foucault, ‘Powers and Strategies’, in Power/Knowledge, supra note 20, 134 at 139.

37 For a critique, see D. Kennedy, ‘The Stakes of Law, or Hale and Foucault!’, in Sexy Dressing Etc. (1993), 83 at 119.

38 Foucault, History of Sexuality, Vol. 1, supra note 8, at 94.

39 Foucault, supra note 19, at 29.

40 Foucault, supra note 36, at 138.

41 Foucault, History of Sexuality, Vol. 1, supra note 8, at 95.

42 Ibid., 96.

43 Foucault, supra note 36, at 138.

44 Foucault, History of Sexuality, Vol. 1, supra note 8, at 97.

45 M. Foucault, ‘Sex, Power, and the Politics of Identity’, in Essential Works of Foucault, supra note 26, 163 at 167.

46 They are too many to list here. The oft-quoted example is Clifford Geertz's observation of Discipline and Punish that it described ‘a kind of Whig history in reverse – a history, in spite of itself, of the rise of Unfreedom’, quoted in D. C. Hoy, ‘Introduction’, in Hoy, supra note 21, 1 at 11.

47 M. Foucault, ‘Maurice Blanchot: The Thought from Outside’, in M. Foucault and M. Blanchot, Foucault/Blanchot (1987), 9 at 34.

48 Ibid., 38.

49 Ibid., 34.

50 Leonard, J. D., ‘Foucault: Genealogy, Law, Praxis’, (1990) 14 Legal Studies Forum 3, at 11Google Scholar.

51 See P. Fitzpatrick, Modernism and the Grounds of Law (2001), esp. ch. 3. For an application of this line of thinking about law and its relationship to power in the specific context of international law see P. Fitzpatrick, ‘“Gods would be needed . . .”: American Empire and the Rule of (International) Law’, (2003) 16 LJIL 429.

52 See M. Foucault, ‘“What is Enlightenment?”’, in Essential Works of Foucault, supra note 26, 303.

53 Ibid., 319.

54 These intimations are developed at greater length in B. Golder and P. Fitzpatrick, Foucault's Law (forthcoming).