chapter  1
42 Pages

Orientations: Foucault and law

As we intimated in our Introduction, and as Foucault’s generous law of readership would itself imply, our exercise in re-reading Foucault is not intended as a rejection of what has come before us. Accordingly, we are not arguing in this book that all previous readings of Foucault’s stance on law are ‘wrong’ or not textually justified. Rather, we are arguing that previous interpretations of Foucault do indeed capture something of his stance on law, but fail to account for – and thence to connect – crucial dimensions of his thought. What we argue in this book is that Foucault illustrates two salient dimensions of law which, when brought together, result in a nuanced and radical theory of law. Our re-reading of Foucault’s law is thus in large part an exercise in refinement, and extension, of previous interpretations but one which nevertheless results in a reversal of them. In what follows we discuss some of the existing readings of Foucault’s treatment of law in order to set the account which we offer in Chapters 2 and 3 of the book. In the first section of the present chapter we address the ‘orthodox’ interpretation of Foucault’s stance on law that we have been discussing up to now. This thesis, most extensively developed by Hunt and Wickham in their book Foucault and Law, asserts that Foucault ‘expelled’ law from his analysis of power relations in modernity by marginalizing it and subordinating it to other modalities of power. In the second section of the chapter, we turn to focus on a number of other rival interpretations which attempt to defend Foucault from the charge that he failed to properly integrate law into his

genealogical analyses of the present – these accounts all try, in different ways, to locate Foucault’s law within modernity. What we are attempting to do in this chapter is to provide a conspectus of these different readings of Foucault, in order both to draw from them and to depart from them in advancing our own interpretation of Foucault’s law. Alongside our discussion of these varying interpretations of Foucault,

we also address a number of well known Foucaultian texts from the mid1970s which are commonly relied upon by most scholars in formulating their respective positions on Foucault and law: Discipline and Punish; the first volume of Foucault’s projected six-volume History of Sexuality; and the series of interviews, lectures and essays collected in the anthology Power/Knowledge. These texts, from the popular ‘power analytics’, or genealogical, phase of his work, form the basis of most legal interpretations of Foucault and it is thus appropriate that we provide some introduction to them here in order to make sense of these readings of Foucault on law. We should make clear, however, that these texts by no means represent the limits of our own reading of Foucault in this book. In formulating our interpretation of Foucault’s law we draw upon a range of other materials, such as: first, some of Foucault’s earlier work of the 1960s wherein he engages with several of his literary-philosophical contemporaries (notably, Maurice Blanchot and Georges Bataille); second, some of Foucault’s recently published and translated lecture courses at the Collège de France from the 1970s (such as Abnormal, ‘Society Must Be Defended’ and Security, Territory, Population); and, finally, his work of the late 1970s and early 1980s on forms of modern political rationality in the West, on ‘governmentality’, and on ancient Greek and imperial Roman ethics.2 The purpose of our discussion in this chapter is thus twofold: first, to sketch in broad outline the divergent readings that his work has provoked (as a preliminary step to advancing our own reading of Foucault in the remainder of this book); and, second, to introduce the reader to some key Foucaultian concepts and important texts from the mid-to late 1970s.