chapter  3
42 Pages

Futures of law

Any account of a thought rendered in terms of its being unfinished, uncontainable, illimitable, and so forth, ultimately finds itself at the end of a discussion such as the present one in the somewhat unenviable position of nevertheless having to account, of having to conclude in some putatively ‘final’ way, resolving that which resists resolution. The predictable expedient adopted for refusing this exigency here, given the thematic of generative irresolution that we introduced in the previous chapter, is to ‘conclude’ not by way of summation but in fact by seeking to push Foucault’s thoughts on law further. So far, our discussion of Foucault’s law in this book has followed a fairly well rehearsed academic script in which we have sought to disturb the settled scene of standard interpretations and to install a new interpretation in its place. Having surveyed the extant perspectives in Chapter 1 and having then outlined our refinement and (in places) reversal of these perspectives in Chapter 2, we want now in this final chapter to extend our own claims for Foucault’s law. This involves us not so much in ‘correcting’ or ‘completing’ Foucault, as an ascendant revisionism would have it,2 but rather in developing his thought along certain lines which he himself neither fully explored nor explicitly thematized in the way in which we do here (but which lines are, as we shall demonstrate, consonant with the interpretation we have developed in the previous chapters).3 In thus developing Foucault we take our cue from Foucault himself, for, as he famously said of one of his own more salient intellectual forebears, Friedrich Nietzsche, ‘[t]he only valid tribute to thought such as Nietzsche’s is precisely to use it, to make it groan and protest’.4 Our aim in this

chapter, then, will be to use Foucault’s late reflections on ethics and critical ontology in order to expand upon the thematic introduced briefly at the conclusion of the last chapter: namely, the idea of law’s futurity.5

This is the idea of law providing the means for a future of our beingtogether in and as society. What we want to show in this chapter is precisely how law, through its responsive orientation to the ultimate contingency and unpredictability of the future, is a constituent component of the social bond in modernity. As our argument develops, we shall try to show that – far from law being relegated or expelled in modernity – Foucault’s aleatory law in fact comes to generate our conjoint and continuate existence in and as society. This law of our being-together, this law of sociality, is the law of Foucault’s law. However, before we outline the particular contours of our reading in this chapter let us first take stock of how our argument has developed up to this point. Chapter 1 presented a synoptic version of the prevailing ‘expulsion

thesis’, in which Foucault is said to have made law instrumentally dependent upon, and subordinated to, the new power formations of modernity, thus denigrating and ‘expelling’ the law and denying it any constitutive role within that modernity. Against this interpretation the contending readings that we surveyed all tried to embed the law within, or to articulate it with, Foucault’s concepts of disciplinary power and governmentality – the aim being to demonstrate that law remained in place in Foucault’s modernity (either as an accomplice of disciplinary power or as a technology of government, for example). As we indicated, our reservations about these counter-readings of Foucault on law were simply that they failed fully to capture the specificity of law, or to render an account of law’s different constituent dimensions. Drawing upon and yet departing from these readings, we presented our interpretation of Foucault’s law in Chapter 2. We first demonstrated how Foucault’s law could not be subordinated to, or surpassed by, disciplinary power because in Foucault’s work law exists in a relational dynamic of mutual constitution with disciplinary power. In this light, disciplinary power was revealed to be, all along, constituently dependent upon law. We then moved from the failure of disciplinary power to be comprehensively coherent to the generative incoherence of Foucault’s law itself. In our reading, Foucault’s law is a vacuous law which in its very penetration by powers outside or beyond it nevertheless holds itself ultimately resistant to, and uncontainable by, those same powers. Whilst Foucault’s law was instrumentally subordinated to the dictates of disciplinary power, bio-power, and diverse agents and sites of governmentality, we nevertheless tried to show how it is that the very

quality of openness or responsiveness which allows law to be subordinated in this way also guarantees that it cannot ever be definitively encompassed by any external or putatively superordinate power. Contrary to received renditions of his views on law, then, the trend of

our argument thus far has been that Foucault does not in fact relegate or ‘expel’ the law but rather gives us a law which, in its ever becoming other than what it is, avoids encapsulation by power. What we now want to do is to press Foucault’s thought and to show how, through his later discussions of ethics and critical ontology, we can derive an understanding of this same law, one which places it at the very centre of the social bond in modernity. This social bond is not, however, the comfortable enclosure and sheltering of a socius but rather the dispersal and the suscitating opening of society to alterity (or, as Foucault pithily proclaims in The Archaeology of Knowledge, ‘we are difference … [and such difference is] this dispersion that we are and make’).6 In short, we argue in this chapter that Foucault’s law, in its responsive openness, provides a constituent condition of our being-together in and as society. The basic argument which will now be elaborated is to the effect that any society, or political formation, must, in order to continue in being, have some constituent regard to futurity. Such an attunement or orientation to futurity imports both an incorporative engagement with the future which attempts to make determinate provision in the existent for what the future brings, but also an unconditional openness to what in the future remains irreducibly to come, with the wholly other. Indeed, futurity in this latter sense impinges upon and radically disrupts the selfpresence of the present, which cannot ‘be’ on its own, without a past and a future that is always coming. We have seen already in Chapter 2 that the key to law’s futurity, to the endurance of law, is its very responsive openness. What we are seeking to do in this chapter now is to connect that very quality of law – which is, we argue, the abiding quality of law, that by which law abides – with questions of social organization and the social bond. Our argument is that law is a constituent source of our continuate being-together, and it is precisely through its responsiveness that it achieves this. In this final chapter, we set our account of the sociality of Foucault’s

law within the context of two opposed figurations of the political formation of modernity which we derive from Foucault’s work. These two different figurations of Occidental political modernity represent answers, or responses, as it were, to the question of social organization. Foucault broaches this question in the piece we discussed towards the end of the previous chapter, ‘A Preface to Transgression’,7 describing the emergence of modernity in familiarly Nietzschean terms as an event

precipitated by the death of God.8 This modernity, Foucault tells us, is a ‘world now emptied of objects, beings, and spaces to desecrate’ and one which consequently ‘no longer recognizes any positive meaning in the sacred’.9 In contrast to a stilled pre-modernity of myth, symbol and religion, this profane modernity eschews constituent reliance upon a world apart from itself and, following the inaugurating deicide, there can be no resort to transcendental references such as God in order to ground authority or guarantee meaning. Consequently, in the ‘ontological void’10 of modernity we are ever consigned ‘to a world exposed by the experience of its limits, made and unmade by that excess which transgresses it’.11 Meaning unmoored, this restless modernity is a ‘scintillating and constantly affirmed world’12 in which, bereft of sacral fixity, we must negotiate ‘in an uncertain context, in certainties … immediately upset’.13 Without deific or transcendent grounds for our modern being, Foucault tells us, we are consigned to a modernity that is a ‘world exposed’.14 How does one relate to others in such an exposed modernity? How might one grasp an attenuate stability or a sense of being-incommon in a world in constituent flux, of things falling apart, centres not holding and prior solidities melting importunately into air?15 What permanence or perdurance can be achieved? And what does such a situation import for law? Foucault then presents two antinomic, yet integrally related, responses

to the question of social organization in modernity: simply, modernity as closure and modernity as rupture. In his work, we see a split between a (familiar) modernity in which all is disciplined into place, and a modernity of rupture, transgression and distanciation. In this latter guise, being (or, perhaps more appositely, becoming) modern imports a willingness to transgress one’s limits in the direction of an as-yet-unimagined and unimaginable future, with new ways of being, of being otherwise. In the ensuing two sections of this chapter we discuss two different models of legality which correspond to these two aspects, or opposed imperatives, of the political formation of modernity. The first response, represented by the jurisprudential writings of Foucault’s former colleague François Ewald on the theme of ‘social law’, attempts to constrict society by proposing means by which society can coincide with itself. It is a legality of compromise and circumscription, a legality of normalization and settlement. What we will ultimately seek to show is how this response of legal closure and a securing of determinate limits actually provokes and necessitates (following the mobile ‘logic’ of Foucault’s law which we outlined in the previous chapter) a counterresponse. This second response is the one we develop at greater length here, and is based upon Foucault’s late reflections on ethics and critical

ontology. Such a response represents a more labile and adaptive legality which, in its enduring responsiveness to that which is to come, is commensurate with Foucault’s evocation of a futural modernity, of a being beyond oneself. In this final chapter, then, we want to push Foucault’s thoughts on law further and in so doing to connect them with a thinking of sociality and social organization. We start with Ewald’s legal closure of the social.