chapter
10 Pages

Beginnings

Ironically, in the years since Jean Baudrillard’s polemic exhortation to ‘forget Foucault’2 the number of titles devoted to Foucault and his work has risen enormously.3 In the face of such an ascendance, fulfilling Baudrillard’s injunction is today becoming all the more difficult. And as this task of forgetting becomes progressively more difficult, the fecundity of the rememberings increases also. As the titles of recent productions on Foucault aptly attest (we are thinking, for example, of Jeffrey T. Nealon’s Foucault Beyond Foucault: Power and Its Intensifications Since 1984 and Eric Paras’s Foucault 2.0: Beyond Power and Knowledge), the discursive contest over the (re)positioning and (re)imagining of the Foucaultian legacy proceeds with unabated alacrity.4 Why, then, another recollective book on Foucault? Our contribution to the (re)imagining of Foucault takes place in a field

(law and legal theory) which up until now has received much less attention than other disciplines such as history, philosophy, political theory and criminology. To date, a fully elaborated Foucaultian jurisprudence still eludes us. Despite the evident purchase that Foucault’s work has enjoyed in cognate fields in the arts, humanities and social sciences, his influence in theoretical studies of law has not been felt as keenly. Indeed, in the only monograph to date which takes Foucault’s engagement with law as its major point of departure, the authors Alan Hunt and Gary Wickham observe that, ‘[o]ne of the stimuli for this exploration of Foucault on law is the serious lack of attention his work has attracted from those who make law the central focus of their work’.5 Hunt and Wickham propose two reasons as to why, at least in 1994 when their Foucault and Law was published, this might have been the case: first, the relative inattention to law within Foucault’s own work; and, second,

the ‘long-standing intellectual insularity’ of the dominant Anglo-American jurisprudential tradition.6 Whether or not Hunt and Wickham’s second diagnosis of intellectual insularity within analytical and positivist jurisprudence is accurate – and the indictment is hardly a novel, or indeed a particularly contentious, one – it is the first diagnosis with which we are primarily concerned in this book. As Hunt and Wickham go on to argue at some length in Foucault and Law, Foucault’s relative inattention to law is in fact not simply an inattention on his part but rather an active exclusion of, or failure to properly theorize, the law. In their view, a view with which we engage more extensively in the first chapter, Foucault marginalizes and ‘expels’ law from modernity. For Hunt and Wickham, and for many scholars in law who have taken their interpretation of Foucault as a point of reference, Foucault (most evidently in books such as Discipline and Punish and the first volume of The History of Sexuality) narrates the demise of law. In Foucault’s modernity, law has been overtaken by the more insinuative and productive powers of discipline or bio-power.7