Book Review Forum: Foucault's Law
Foucault's Law (Routledge, 2009)
Ben Golder
Law, University of New South Wales
Peter Fitzpatrick
Law, Birkbeck, University of London
Author's Introduction
Ben Golder
Faculty of Law
University of New South Wales
b.golder@unsw.edu.au
Professor Peter Fitzpatrick
School of Law
Birkbeck College
peter.fitzpatrick@clickvision.co.uk
Although still a stripling, the book has already been much engaged with, and one distinct, all too distinct, strand has emerged. With this strand of argument, the book Foucault’s Law is relegated to being the polar opposite of ‘the expulsion thesis’ so-called. As is fairly well known, this is a thesis that says that with the advent of modernity Foucault expelled law from its erstwhile significance in society and relegated it to a position of utter subordination to, and dependence on, disciplinary modes of power, among other contenders. With a heart-sinking inevitability, then, our book is often set against the prime repository of the expulsion thesis, Hunt and Wickham’s Foucault and Law (Hunt, A, and Wickham, G, 1994). This in a way is appropriate. If a label were to be given to our overall argument, it would be ‘the inclusion thesis’, this overall argument being that in modern society law is not expelled from a prime positioning but, rather, law is for Foucault included at the constituent core of modern society, this law being, not the contained creature of the expulsion thesis, but a surpassing law illimitably responsive to alterity. Clearly, if we are to advance our inclusion thesis we must resist being brought into the fold of canonical constriction, but, far from wanting to expel the expulsion thesis, we want to adopt it. It is a key and integral part of our overall argument. In sum, our argument is that Foucault’s law is ‘made up’ of the constituent antinomy in which it is both utterly dependent yet still itself surpassingly responsive. More abruptly, we do not read Foucault in a way that would expel anything. Our views supposedly contrary to the expulsion thesis provide points of departure for us, points which we draw on and include in our own argument.
Taking a cue from this compliant reading, we will now try to say how we read Foucault, a method in large part that is Foucault’s own. The constituent dimensions of that method are then found to inhabit that most vexed category: Foucault’s theory. Finally, almost, those same constituent dimensions are found in and as law, and Foucault’s theory of law.
First then, reading Foucault. A concatenated reading of Foucault on Foucault. Probably the most noted pronouncement of a great many that are relevant comes from the imaginary exchange that introduces Foucault’s The Archaeology of Knowledge: ‘Do not ask who I am and do not ask me to remain the same: leave it to our bureaucrats and our police to see that our papers are in order. At least spare me their morality when we write’ (Foucault, M, 1974a, p.17). Imprecations elsewhere and in a like vein could be multiplied, but staying with the Archaeology, Foucault writes of ‘los[ing] myself’ in writing, and he describes the tentative, searching quality of writing, and of the object it seeks to find (Foucault, M, 1974a, p.17). This entails a searching receptivity on the past of the writer, a self-denying responsiveness.
Qualification seems to creep in when Foucault, more than once, expresses regret that he is so thoroughly read with such settled interpretation, and he wishes he were young again, unknown and read in a more diffuse and protean way (e.g. Foucault, m, 1988a, p.52). Here we find something of the author in Foucault’s ‘What is an author?’, what he calls ‘the author function’, a function he links with codified legal forms of proprietary appropriation, ‘a certain functional principle by which, in our culture, one limits, excludes, and chooses; in short, by which one impedes the free circulation, the free composition, decomposition, and recomposition of fiction’ (Foucault, M, 1988b, p.209). Yet Foucault’s author is not the figure of an ultimately determinate delimitation. It is, rather, the author as a focussing, a focussing for the time being, on a precipitate of the practical infinity of its times, of its readers’ responses, ‘of all possible readings’ (Foucault, M, 1988a, p.52); and so much so that Foucault ends ‘What is an author?’ on a note of ‘indifference’ with the query: ‘What difference does it make who is speaking?’ (Foucault, M, 1988b, p.209). Lurching away from this flirtation with ‘the death of the author’ we are not left with the stark alternative of a tight determinacy of the author, of the book, the work. There is only ever as much determinacy as there is.
The next item on our modest agenda is Foucault and theory, an oxymoronic combination in the view of many. The abrupt synopsis offered here is that writing will be found to be like theory to be like law – and cumulatively. For one who is supposed to be averse to theory, for one who said ‘do not ask me to remain the same’ and so on, Foucault was frequently and conspicuously concerned with the overall coherence of his work, and especially with justifying the seeming shifts between what are usually seen as distinct phases of that work. And it would be difficult to deny that each of these phases was concerned with a theoretical formation of enquiry.
This is perhaps coming by now with a wearying inevitability, but we could track instances where Foucault inveighs against theory and instances where he says he is seeking theory. When closely observed, both sets of instances reveal the crux. What Foucault objects to is what he would call totalitarian theories, all-subsuming theories. All of which is not to say that Foucault objects to the positing of unities, or to the constituting of objects short of the thing-in-itself. Now, although Foucault did envisage the possibility that ‘one day’ he would have to confront ‘the transcendental’ (Foucault, M. 1974b, p.79), as far as we know he never did and remained set against it. Unities, continuities, objects of theoretical elaboration are continually ‘disturbed’ and ‘dispersed’ by what inexorably challenges their existent determinacy (Foucault, M, 1974a, pp.25-6, 71). Yet this disturbance and dispersal from beyond comes into form in and as existent and necessarily responsive entities. And the pendular dynamic shifts one more time for we find that, with Foucault, the very form of these existent entities, the very line or limit that marks out their determinacy, is created by what ‘incessantly crosses and re-crosses that limit’ (Foucault, M, 1977, p.34).
Likewise with law. There is a beautiful elaboration of law and literature in Foucault’s ‘Maurice Blanchot: The Thought from the Outside’; and it is from here that we take our lodestar:
How could one know the law and truly experience it, how could one force it to come into view, to exercise its powers clearly, to speak, without provoking it, without pursuing it into its recesses, without resolutely going ever farther into the outside into which it is always receding? (Foucault, M, 1987, p.34)
This is a law of ‘the outside that envelops conduct, thereby removing it from all interiority’, yet it is also the law of an ‘infinitely accommodating welcome’ (Foucault, M, 1987, pp.34, 38).
The contrast with that contained ‘interior’ law of the expulsion thesis could hardly be sharper – the contrast with the law that is the circumscribed creature of sovereign and discipline, biopower, and so on. Perhaps, as with theory, it may help to observe more closely the context in which law figures in the expulsion thesis. Closely observed then, we find such law integrated instrumentally with something else. There is Law-and-Sovereign, or there is the configuration of ‘law, death...and sovereignty’ (Foucault, M, 1981, p.148), or there is the scientifico-legal complex and the conjunction of sovereign right with a ‘polymorphous disciplinary mechanism’ (Foucault, M, 1980, p.106), and of course much else in that vein. Thence we have in line with the expulsion thesis the mantric resort to Foucault in such terms as law becoming more and more a carrier of disciplinary norms in a ‘perpetual reference to something other than itself’ (Foucault, M, 1980, p.22). Another sample: the distinctive truth of law disappears within the encompassing truth of disciplinary power: ‘the master of justice is no longer the master of its truth’ (Foucault, M, 1979, p.98). But with modernity and the denial of a transcendent reference, law has come to depend on a reference elsewhere for its content. Yet law’s dependence on the assertions of the sovereign state or the directives of disciplinary power is but part of a mutual dependence. Neither the hyper-determinacy of the sovereign state nor that of the disciplinary powers could be sustained without law. If the sovereign state had itself to responsively accommodate the constituent demands on it, its quasi-transcendent determinacy would dissipate. If the scientistic determinacy of the disciplines and bio-power had to enable their own dictates without the force and cohesion endowed on them by sovereign and law, their determinacy too would dissipate. And of course law’s effectiveness in all this is conditional on its being illimitable in its responsiveness. Hence it cannot be contained by sovereign, discipline, or biopower, much less by any such entity dependent on it for determinate being. Not that any of this is a settled relation. It is, borrowing the term and the context from Minkkinen,
a ‘battleground’ (Minkkinen, P, 2009, p.108).
References
Foucault, M (1974a) The Archaeology of Knowledge trans. A M Sheridan Smith (London, Tavistock Publications).
Foucault, M (1974b) The Order of Things trans. A Sheridan (London, Tavistock Publications).
Foucault, M (1977) ‘A Preface to Transgression’ in Foucault, M Language, Counter-Memory, Practice trans D F Bouchard and S Simon (Ithaca, Cornell University Press).
Foucault, M (1979) Discipline and Punish: The Birth of the Prison trans. A Sheridan (Harmondsworth, Penguin).
Foucault, M (1980) Power/Knowledge: Selected Interviews and Other Writings 1972-1977 trans. C Gordon et al. (Brighton, The Harvester Press).
Foucault, M (1981) The History of Sexuality, Vol.1: An Introduction trans. R Hurley (Harmondsworth, Penguin).
Foucault, M (1987) ‘Maurice Blanchot: The Thought from Outside’ trans. B Massumi in Foucault, M and Blanchot, M Foucault/Blanchot (New York, Zone Books).
Foucault, M (1988a) ‘An Aesthetics of Existence’ in Foucault, M Politics, Philosophy, Culture: Interviews and Other Writings, 1977-1984 trans. A Sheridan et al. (London, Routledge).
Foucault, M (1988b) ‘What is an Author?’ trans. J V Harari in Lodge, D (ed.) Modern Criticism and Theory: A Reader (London, Longman).
Hunt, A and Wickham, G (1994) Foucault and Law: Towards a Sociology of Law as Governance (London, Pluto Press).
Minkkinen, P (2009) Sovereignty, Knowledge, Law (Abingdon, Routledge).
Review Commentary One
by Professor Alan Norrie
School of Law
University of Warwick
A.W.Norrie@warwick.ac.uk
In Golder and Fitzpatrick’s account of Foucault’s law, the authors seek a theoretical position that sees law as neither subsumed within other modes of sociality such as disciplinarity, governmentality, sovereignty, or biopower, nor as autonomous from them. What they argue for is a philosophy of law in which it is both dependent on things outside itself and as surpassing such outside things by virtue of its illimitable responsiveness to alterity. Law is constituted by an antinomy ‘in which it is both utterly dependent [and] yet still itself surpassingly responsive’. Echoing themes in Fitzpatrick’s earlier work on Derrida, Foucault is depicted as developing an account of law which is like his account of writing and of theory.
As regards writing, Foucault’s author eschews identity in favour of a loss of self in writing, and a self-denying responsiveness to the object of writing. Writing should be the realm of free circulation, and the free composition and decomposition of what is written, as opposed to a limiting, excluding, channelled form of activity, which is demanded by culture. The author then is a ‘focussing for the time being, on a precipitate of the practical infinity of its times’ and of all possible readings. As regards theory, Foucault displayed an ambivalence as to the very possibility of theory, but it was plainly impossible for him to deny its significance. Accordingly, he argued against ‘transcendental’ theories which posited the ‘thing-in-itself’, what he called totalitarian or all-subsuming theories, but he nonetheless conceded that it was possible to posit unities or that constituted objects could be thought. Such unities, continuities and objects of study were, however, continually disturbed and dispersed by challenges to their existent determinacy.
As with writing and theory, so with law. Law is an elusive phenomenon which, as one investigates it, loses its specificity and becomes something else. It moves from its own seeming internality to what at first seems outside it. Once seen to be an outside, law loses itself, its inside, its own interiority. Yet, at the same time, law exists as an infinitely accommodating welcome to this outside. Thus we have a vision of law as dependent on an outside and as therefore exposed to that outside, as disciplinarity, governmentality, sovereignty, or biopower. It depends on this for its content, but these other modes of sociality also depend on law for the force and cohesion that law can bring. While law is dependent on other things, it brings to the social its own contribution which is an illimitable responsiveness to the other. This does not involve a settled relation but a constant struggle, a battleground.
The strength of this understanding of law is that it points to a relationship between an inside and an outside, and challenges any positivist or analytical conception of the truth in a concept or a thing. This is a focus on non-identity in its relationship to identity, and at this level, it draws comparisons with other poststructuralists like Derrida and Deleuze, as well as with dialectical modes of thought such as Adorno’s, or indeed Hegel’s, or, my own particular interest, Bhaskar’s. My concern about it is that, granting its insight, it seems to me to provide a rather thin conception of what law is. If we take a ‘constitutive antinomy’ such as law-discipline, then we can point to and analyse disciplinary mechanisms, but what do we point to and analyse as regards law? A capacity to be subsumed by discipline is one side of law, but by itself, this is reductionist. Accordingly we could look to the idea of illimitable responsiveness, but this makes law no more than a signifier open to the other. If we say it is the combination of both subsumption and openness, I am not sure this takes us much further. Golder and Fitzpartrick hint, it is true, at some of law’s actual qualities, such as force and order, but these are surely just a start, and its characteristic core for them, its differentiating characteristic, is its constitutive antinomy. In any case, is it really so that law’s basic feature is illimitable openness? Flexibility, malleability, changeability are definitely there, but a general openness to the other seems somewhat problematic, at least so far as any account of law involves a sense of order, or rule.
One way of putting this would be to ask, if law is like theory or writing, then in what way is it different from them? We are not told, yet there plainly must be differences, and very significant ones. Another part of the worry, however, is that the accounts of writing and theory are themselves somewhat thin. Foucault, we are told, sought to deny the possibility of theory, yet was himself a theorist. Does this implausible effort at denial not tell against the theoretical quality of his position? What is the value of a theoretical position that could lead Foucault to theorise the possibility of no-theory? (Is this his own constitutive antinomy?) And is it true that a writer discards her position and identity in order to write? There is no ‘view from nowhere’. Again, Foucault hints at ways out: there is a ‘precipitate’ with which writing engages, and this cannot lack determinacy and fixity, even if determinacy and fixity are subject to change.
This needs to be pursued: consider identity. A person’s identity is his or her identity, and though s/he may change, this is not without a struggle against the existing ways in which s/he is and lives. It is necessary therefore to think about how identity is structured and dispositional: ‘precipitates’ must have strong, structuring, effects, which must be understood in themselves. The same is true of theory, which in identifying posited unities or constituted objects, must respect them, organise an understanding of them, and not move away from them so long as they exist. Unities and objects, like identities and other ‘precipitates’, are structured and enduring, as well as changing over time: any conception of the illimitable must reconcile itself with this if it is to be true to the world.
If we end up with a thin conception of law as a shifting and open signifier, we might ask why this should be so? The problem lies I think with the basic ontology of finitude/ openness to the infinite that Foucault develops, and Golder and Fitzpatrick recount. We need an account of the world which includes being, and the structuring of being, alongside the permanent flux and infinity, the becoming, in things. It is the latter that generates the idea of illimitable openness, but it cannot exist by itself. Here, I think we see the influence of Nietszschean ontology on Foucault. For Nietzsche, it is the constant flux in things that generates the doctrine of eternal return, but this is a somewhat problematic starting point. Why should we think of identity, or theory, or law as cut against a permanent fluidity, and hence flux and infinity? We know well enough that the world is relational, emergent, structured, open and subject to change, and that it is composed of different things. But is the finitude/ infinity pair the best way of understanding it? The thinker, the theorist, identity, law all need to be understood as things in the world that are structured as well as changing, that are in their very core not simply infinitely fluid.
Underlying all this there is an old story that involves the Greeks, Parmenides, Heraclitus, Plato and Aristotle, but especially Plato’s response to radical Heraclitanism.[1] It was the latter that brought the doctrine of radical flux to ancient Athens, and Plato’s philosophy of the Forms is an attempt to address it. From that time onwards, a significant part of Western philosophy has been an attempt to think identity, fixity and finitude in the face of fluidity, flux and infinity. The beguiling and forceful quality of the postructuralist critique is that it attacks this centuries long effort, returning in the result to a standpoint, in effect, of radical Heraclitanism. But that standpoint was not in itself as radical as it seemed. What it lacked was precisely a grasp of the structure and ‘natural necessity’ that exists in being alongside difference, which permits change and the generation and perishing of things. (Heraclitus himself understood this). If we want to understand law, we should attend to Foucault’s lesson concerning the relationship between what law is and is not, but we also need a sense of law’s real structures and dynamics, and an account of law based on its illimitable openness will not, I fear, provide it. Indeed, left to its own devices, it may obscure it. Nevertheless, discussing law at this level takes us to the deepest questions about ontology, and it is a merit of Golder and Fitzpatrick’s Foucault that he, and they, push us there.
[1] See A.Norrie, Dialectic and Difference: Dialectical Critical Realism and the Grounds of Justice (2009) Routledge: Abingdon.
Review Commentary Two
by Chikosa Mozesi Silungwe
PhD Candidate
Warwick Law School
The University of Warwick
Coventry CV4 7AL
c.m.silungwe@warwick.ac.uk
We begin with an irony. Ben Golder and Peter Fitzpatrick observe that in the years following Jean Baudrillard’s ‘decree’ in Forget Foucault (2007) that Foucault must be forgotten, the opposite has happened. Foucault has remained resilient. His work continues to be the subject of comprehensive analysis in the humanities and social sciences scholarship. In light of the plethora of works on Foucault, Ben Golder and Peter Fitzpatrick proclaim that Foucault’s Law is a contribution towards the development of a fully elaborate Foucauldian jurisprudence in the legal academy.
Before Foucault’s Law, the only major monograph on Foucault and law in the legal academy has remained Alan Hunt and Gary Wickham’s Foucault and Law: Towards a Sociology of Law as Governance (1994). Besides Foucault’s sparse presence in the legal academy, the gospel here has been that Foucault relegates law to a position of insignificance or indeed oblivion. This is the so–called ‘expulsion thesis’ (pp. 13–25). Golder and Fitzpatrick in four succinct, albeit rigorous, Chapters set out to de–bunk this gospel in the legal academy.
Before I delve into the authors’ argument, I would like to commend them for a very comprehensive treatment of the primary and secondary sources on Foucault and his relationship with law. The breadth and depth of their discussion of the sources on Foucault generally and Foucault and law in particular makes Foucault’s Law an important first port of call to someone who is new to the area.
Golder and Fitzpatrick ‘clarify’ the two approaches to Foucault that are pervasive in the legal academy. First, there is the ‘exegetical’ or ‘interpretive’ approach: The scholarship here seeks to locate law into Foucault’s work (p. 5). Second, there is the ‘applied’ or ‘appropriative’ approach: The scholarship here uses Foucault as a ‘toolkit’ (p.5). The authors however engage with the exegetical approach. In their ‘radical re–reading’ of ‘Foucault stance on law’, they have argued in Chapter 2 that Foucault’s law has an innate ‘polyvalent vacuity’. In this sense, it is three–dimensional: First, law is relational, that is, it co–exists with ‘disciplinary power’. However, in contrast to the conventional argument that Foucault’s law, if at all, depends on disciplinary power, Golder and Fitzpatrick argue that law and disciplinary power are inter–dependent (as opposed to a one–way dependence of law on disciplinary power). Further, they contend that the precise nature of Foucault’s law is such that the co–existence of law and disciplinary power is not simply a ‘functional’ one; there is an ‘exteriority’ which involves an ‘outside made up of ‘resistances’ and ‘transgressions’(p.71–83). The resistances and transgressions are constitutive to law’s formation. The nature of the law here is that it is illimitable, it ‘eludes containment’ (p.82). Finally, the ‘vacuity’ of the law suggests that while it can be influenced by ‘different’ powers, it cannot be contained by power. The authors have said:
The vacuity of Foucault’s law is a polyvalent vacuity, an insubordinate openness, for the ‘strategic reversibility’ of Foucault’s law consists precisely in the fact that what makes it open to appropriation and domination simultaneously makes it open to a resignification and renewal that eludes the determination of a sovereign or a given regime of power. (p. 84, internal citation omitted)
Beyond Foucault’s law’s polyvalent vacuity, Golder and Fitzpatrick make a case for law as sociality in Chapter 3. (The Chapter is entitled ‘Futures of law’.) They argue that law is important in modernity; it is a ‘key modality of our sociality’. That is to say, law is the key to ‘our continuate being–with each other’ (p.125). Law as sociality entails that law itself is central to the creation of the ‘social’, let alone the ‘social bond’ (p.130).
It is clear from the ‘Futures’ Chapter that Golder and Fitzpatrick places law at the centre of modernity. This is remarkable faith in the efficacy of law or a passionate submission on behalf of ‘that’ that is called ‘law’. In the ‘Governmentality’ Lecture, Foucault has stated that ‘governmentality’ is the ‘triangle’ of ‘sovereignty–discipline–government’ (M Foucault, [1978] 1991). It is possible to conclude that his vast work on ‘sovereigns’, ‘disciplines’ and ‘government’ coalesces under the governmentality thesis. In the context of the governmentality thesis, law has been understood as a part of a ‘multiform of tactics’ of government (M Foucault, [1978] 1991).
Granted that Golder and Fitzpatrick argue for Foucault’s law as a law with polyvalent vacuity and indeed that law as sociality is central to the creation of the social. However, it is not clear from Foucault’s Law how we must reconcile the conception of law as part of a multiform of tactics as argued by Foucault in the ‘Governmentality’ lecture, and the very central position in modernity that the authors argue for.
Having said that, Foucault’s Law is a very robust contribution to the scholarship on Foucault and law.
REFERENCES
Foucault, M Discipline and Punish: The Birth of the Prison trans. A Sheridan (Hamondsworth: Penguin, 1979)
Foucault, M The Will to Knowledge: The History of Sexuality, Vol. 1 trans. by R Hurley (Hamondsworth: Penguin, 1979)
Foucault, M ‘Governmentality’ in G Burchell et al. (eds.) The Foucault Effect: Studies in Governmentality (Hemel Hempstead: Harvester Wheatsheaf, 1991) 87–104
Foucault, M Security, Territory, Population: Lectures at the Collège de France, 1977–78, trans. by G Burchell (New York: Picador; Palgrave Macmillan, 2009)
Hunt, A & G Wickham, Foucault and Law: Towards a Sociology of Law as Governance (London: Pluto Press, 1994)
Review Commentary Three
by Robert Fine
Department of Sociology
The University of Warwick
Coventry CV4 7AL
Robert.Fine@warwick.ac.uk
This is a response to Golder and Fitzpatrick’s introductory statement, not to their book which I do not have to hand. Their core thesis, if I understand it correctly, is this: Foucault’s law is not only about the expulsion of law from modernity or about its relegation to a lowly position of dependence on disciplinary forms of power (the emphasis of his earlier works), but is also about the inclusion of law in modernity as one of its constituent features. Their thesis is that although law may be subordinated to discipline, disciplinary powers in turn cannot be sustained without law. Reading Foucault as a whole, we discover that modernity is characterised by the mutual dependence of law and disciplinary power, not by the subsumption of law to the voracious powers of discipline.
One could argue about this interpretation of Foucault’s understanding of law but I am happy to accept the substance of this thesis. It is buttressed by a flexible and open reading of the authorship of Foucault himself who requests of his readers ‘do not ask me to remain the same’. We are asked to resist any settled interpretation based on one moment in his writing. After all, Foucault writes in the name of an authorship that disturbs all continuities, including those that would determine his own self. This indeterminacy is expressed in a nice line from Foucault which, pared down, asks ‘how could one know the law without provoking it and pursuing it into its recesses?’ Re-reading Foucault rescues him from a ‘totalitarian narrative’ that stresses the forward march of disciplinary power and evaporation of the last vestiges of legal forms. In place of this deterministic vista the authors seeks to rediscover in Foucault a trope familiar to critical lawyers – that of conceiving law as a ‘battleground’ or space of struggle.
The strength of this understanding of law lies in its refusal of one-sidedness or, to put the matter another way, in bringing together the dimensions of law’s expulsion from modern society and law’s necessary inclusion in the modern world. The coherence of Foucault’s own oeuvre across its various shifts from one ‘period’ to another is seen to lie in this very conjunction. On the margins of the text, however, there arise distinctive thematics that are at once more troubling and innovative. Let me start with where I diverge.
Golder and Fitzpatrick propose that law is both ‘utterly dependent’ and ‘surpassingly’ and ‘illimitably responsive to alterity’. It is this duality, law as domination and law as transcendence, that marks their rendition of law and, if I am not mistaken, their understanding of Foucault’s rendition of law. Law is split into the extremes – extremes of dependence and transcendence, domination and freedom, discipline and resistance. Law is both the chilling Kafkaesque site of an oppression that never shows its face and it is battle cry of human resistance. But I wonder if this same gesture does not evaporate what lies in-between and does not tempt us toward the erasure of mediation. Where in this split universe is the inhibition law imposes on power? Where is the limitation law requires of responsiveness? If the middle is broken, so too is the ground for judgment.
Should we not rather say that law is dissolved at the extremes and finds its source of life only in the middle – somewhere between right and sovereignty, self and other, property and power? Law is power but power of a determinate type. Law is responsiveness but only within its own determinate limits. The social form of law can neither be subsumed to power nor elevated into transcendence. The marker of law is neither utter dependence nor illimitable responsiveness, it is law’s irreducible equivocality. It’s in this messy world of ‘objective spirit’ that law finds its home as an achievement of the modern age, an achievement that can be rolled back; as a concept of justice and as a body of institutions and codes that can as well be instrumentalised by power as ignored. The social form of law cannot be subsumed to power nor elevated into transcendence. What marks the law is neither utter dependence nor illimitable responsiveness; it is law’s irreducible equivocality.
It seems to me that Golder and Fitzpatrick are quite right to situate law at the constituent core of modernity. However, the dynamics of Foucault’s law moves historically through three stages of modernity: monarchical law which revolves around the ceremonial of sovereignty; reforming law that aims at the juridification of the subject as bearer of rights and dignity; disciplinary law that trains bodies into docility and measure them against the norm. We may read these forms of law as stages in law’s development, in which Foucault adds a final stage to sociology’s two stages of legal evolution. We encounter not only a contrast of social orders based on status and contract, repressive and restitutive law, but a third stage of social order based on the socio-technical norm. The strength of Golder and Fitzpatrick is to understand this evolution not in terms of the rise and fall of law in modernity, that is, not in terms of the supplanting of law by power, but rather in terms of the reconfiguration of law’s powers and pathologies. For what does Foucault’s escalating tone of indictment appeal to if not to a law of singularity that also represent the new tactics of panoptic power?
In Foucault’s law the idea of humanity can appear as a mask but where is the face behind it if the bearer of the mask is a de-humanised cog in a functional mechanism of subtle coercion. In Foucault’s law the reflective Kantian subject of judicial reform can appear displaced by the mass man whose main aim is conformity to a standard whatever it might be. Foucault takes us from the law court to the battle field, where the only language that counts is that of deployment, tactics, strategies, forces, energies, techniques, etc., where spirit is always already subsumed to matter. We have in the work of Golder and Fitzpatrick, however, a timely reminder that this historical process is not a perverse success story whose telos is the formation of an omniscient, omnipotent, ubiquitous and supremely rational administrative power. The evolution of modern society is not reducible to the displacement of the kingdom of ends by a kingdom of means, or of a vulgarised spiritualism by an equally vulgarised materialism. The ‘battleground’ is one in which the paradoxes and antinomies of law run across and through its elements. Foucault was tempted to present himself as having changed the conception of power from negative to positive – from the law of prohibition that says ‘Thou shalt not...’ to the law of constitution that says ‘Thou shalt’ and posits norms in all their detail and particularity. And yet in both cases the sollen, the ‘ought’, retains the form of law in which the binds that tie law to norm and norm to law are not easily severed.
Golder and Fitzpatrick invite us to re-read Foucault afresh and as a whole, without the pre-conceptions that the idea of ‘Foucault’ normally invokes, without assuming that Foucault was slave to his own theory, without postulating that Foucault knew in advance his destination. They invite us to be surprised by the gulf between the text and the image of ‘Foucault’ that the common use of the term ‘Foucauldian’ suggests, to shake off the dust of critical discourse that surrounds this classic and open ourselves to the original and unexpected elements that surpass our previous conceptions of what name ‘Foucault’ contains. For this reader, at least, the invitation is well received. The affirmative Foucault they re-imagine does need rescuing both from an un-critical positivism that reduces all human aspiration to the exercise of depersonalised power and from a hyper-critical radicalism that, perhaps in Nietzsche’s name, turns contempt for law into a new nihilistic value.