chapter  2
46 Pages

Foucault’s other law

When last sighted at the end of our first chapter, Foucault’s law began to assume somewhat protean characteristics. Far from being simply the blunt tool of a sovereign, or the pliable instrument of disciplinary power, this law, we intimated, could well be something more. It is that ineluctable something more which we want to foreground in the present chapter. Crucially, we want to show how the movement of Foucault’s law, that shifting of positions from the determinate to the beyond, from a confined law to a surpassing law which incessantly displaces itself, actually corresponds to an identifiable ‘logic’ of the law, itself. This necessary irresolution is the constitution of the (dis)unity of Foucault’s law. Thus, what we set out to do in this chapter is to derive a certain coherence from the series of apparently contradictory statements by Foucault on law. We shall revisit statements encountered in the previous chapter as well as engaging with several other texts by Foucault. In so doing, we aim to show that the seemingly opposed attributes of modern law which we shall find in Foucault’s texts – the fixed and determinate law and the illimitably responsive and incipiently pervasive law; the law that is instrumentally subordinated and the surpassing law that ever eludes total control by any power – are in fact integrally related dimensions of the very same law, fractured and irresolute though it seems at first to be. In contrast to previous interpretations, our orienting concern through-

out what follows is to elucidate the responsive, self-resistant dimension

of Foucault’s law. However, in the interests of linking our interpretation to approaches discussed in the previous chapter, we aim also to show how in law’s necessarily holding itself open to, and in its becoming receptive of, that which comes or is brought to its determinate position, law is indeed – in line with the ‘expulsion thesis’ canvassed in Chapter 1 – susceptible to domination by ostensibly predominant powers (be they of the sovereign, the disciplinary or the bio-political variety). Where we depart from this thesis, though, is in our demonstrating how Foucault’s law – not despite but because of this innate susceptibility – cannot be contained by power. Foucault’s law, like his more famous (re) thinking of power as relational, cannot be rendered in any enduring stasis but, rather, must always remain incipiently responsive to the advent of alterity, and to the ineradicable and importunate demands of resistance and transgression. As we shall see, it is the impelling force of such resistance which is itself formative of Foucault’s law. Indeed, in the course of the present discussion what we would most seek to show is a certain ethic of self-resistant legality at play in Foucault’s law; not a positive core or requirement, but a restlessness which opens law to its always being otherwise. In elaborating our reading of this Foucaultian conception of law, we

rely upon many of Foucault’s well known genealogical texts of the midto late 1970s that we discussed in Chapter 1. In addition, however, we consult a number of other important texts that are much less commonly relied upon in the literature on Foucault and law, such as, crucially, ‘Maurice Blanchot: The Thought from Outside’ (Foucault’s 1966 engagement with the work of Maurice Blanchot) and ‘A Preface to Transgression’ (Foucault’s 1963 homage to Georges Bataille).2 It is in these works that the responsive dimension of Foucault’s law, and its constitutive relation to the determinate dimension, begin to emerge more explicitly. And to risk repetition at this early stage, we shall argue in the course of the present chapter that Foucault’s law is both the determined creature of orthodox accounts and the ever-responsive law which is constantly in excess of its determinate self – and necessarily so. It is necessarily so because the irresolution that we perceive as being within Foucault’s law is, in itself, a kind of resolution (hence, ‘irresolution’). This irresolution, we shall come to see in this chapter, is in fact the moving structure of a certain kind of unity. We start, however, by briefly returning to matters discussed in the last

chapter in order to orient our discussion. In the last chapter we introduced the predominant interpretation of Foucault’s stance on law. This interpretation of Foucault, as we observed at the time, is hardly bereft of textual support in his writings – indeed, as we pointed out in sketching

the terms of the ‘expulsion thesis’, our re-reading of this interpretation is not intended to undermine this position. Rather, we are trying to supplement it critically and thence to extend it. This ‘expulsion thesis’ essentially comprised two claims: first, that according to Foucault the law was of much less importance in modernity and that other modalities of power were coming to perform the functions (of social control, discipline, and so forth) that law used to perform in pre-modern times; and, second, that with the emergence of these new disciplinary, biopolitical or governmental modalities of power, the law was not merely surpassed, nor was it simply usurped, but it was in fact co-opted and instrumentally subordinated to the demands of these powers. In this second claim, Foucault’s law is seen as being nothing but the tool of a pre-eminent power outside it – that is, law is instrumentally reduced in its relation to power. Whilst this latter claim is most often made in regard to Foucault’s depictions of modernity, in which it is alleged that Foucault simply positions law as the ‘rubber stamp that sanctions the functioning of [the] disciplinary system’,3 we also saw in the last chapter how Foucault at points makes law the instrument of a sovereign or monarchical administration in pre-modernity. To summarize, then, we can see that in both claims – the claim about law’s becoming increasingly marginal in modernity and the claim about law’s abject instrumentality – Foucault is criticized for minimizing the role of law. We can see, too, that the view of law attributed to Foucault on this reading is a contained one – such ‘authorit[y] of delimitation’4 simply ‘is’ the instrument of a sovereign or of disciplinary power, and nothing else. There is no possibility of its being otherwise, of its exceeding the economy of order, calculation and control to which it is assigned by power. The various efforts we examined to rehabilitate the law in Foucault’s texts – whether those efforts consisted in maintaining law’s co-existence with disciplinary power, or in stressing its integration with governmentality, or in arguing for its conceptual distinction from the figure of ‘the juridical’, for example – tended themselves to confine the law in ways not entirely dissimilar to the ‘expulsion thesis’. It is against this very containment of Foucault’s law, against the very possibility of its being effectively contained in any way, that our re-reading in this book is directed. In the next section, ‘Law in relation’, we begin our exploration of

Foucault’s law by reflecting upon an aspect of the interpretations of Foucault discussed towards the end of the last chapter – namely, the argument that law exists alongside, and relates in some way to, disciplinary power. We aim to refine this argument somewhat and, in the process, to refine our understanding of Foucault’s law in its relation to entities apart from it. The insistence on the part of some authors we discussed

towards the end of the last chapter that Foucault did not subordinate the law to disciplinary power or governmentality and that in fact the law continued to operate alongside these power formations is a salutary reminder of the persistence of law in Foucault’s account of modernity. However, here we want to develop the insight that law does not simply function in tandem with power formations such as disciplinary power, but that it in fact exists in a more complex dynamic of relation with such formations. In the second section, ‘Foucault’s law’, we articulate a fuller picture of Foucault’s law ‘itself’, in its opposed yet integrally related dimensions. Our focus in doing so will be the productive irresolution between a present determinacy and an illimitable responsiveness to what lies beyond it. So, our argument in this chapter proceeds in two stages. First, we examine the relationship between law and disciplinary power in the section entitled ‘Law in relation’ in order to rebut claims that the latter surpasses and expels the former. We argue that the complicated and supplementary relation that Foucault describes between the two modalities of power reveals that law cannot simply be subordinated to disciplinary power as is claimed by proponents of the ‘expulsion thesis’, and that, on the contrary, disciplinary power is constituently dependent upon law. Second, in the section entitled ‘Foucault’s law’, we focus in much greater detail upon Foucault’s notion of law itself as we begin not simply to reverse the ‘expulsion thesis’ but to extend it by starting to articulate a more nuanced conception of Foucault’s law. In our conception of Foucault’s law, law is not simply rendered in terms of determinacy and closure. Rather, law can be seen to engage responsively with exteriority, with an outside made up of resistances and transgressions that assume a constituent role in law’s very formation.