by Ben Golder and Peter Fitzpatrick. New York: Routledge, 2009. 160pp. Hardback. $130.00. ISBN: 9780415424530. Paperback. $35.95. ISBN: 9780415424547.
Reviewed by Douglas C. Dow, Department of Political Science, The University of Texas at Dallas. Email: dougdow [at] utdallas.edu.
Anyone seeking to give a fulsome account of Michel Foucault on law faces the challenge of how to interpret the tensions that run throughout his varied works on legal subjects. On the one hand, Foucault carefully reveals the penetration of legal institutions by techniques of discipline and surveillance, and by the use of social scientific knowledge like criminology and psychiatry, such that law in the modern age houses regimes of discipline and bio-power. On the other hand, throughout his work Foucault offers invitations of resistance to discipline and governmentality, and these resistances often take the form of legal challenges, such as the evocation of human rights, and the possibility of the juridical as a mode of power that can oppose the ubiquity of discipline. Has the rule of law in fact been swallowed up by bio-power? What does it mean for Foucault to forcefully challenge the idea of human emancipation from power, and still offer up defenses of rights? Accounting for Foucault on the law is made more complex by the sheer wealth of material to consider. Part of his intellectual legacy consists in bringing heretofore marginalized or unnoticed aspects of architecture, criminal trials, and prison schedules into the center of juridical thought and practice.
How best to understand these counter valences in Foucault’s approach to law forms the central challenge of Ben Golder and Peter Fitzpatrick’s new book FOUCAULT’S LAW. Golder teaches law at the University of New South Wales, Australia. Fitzgerald is the Anniversary Professor of Law at Birkbeck, University of London, who has devoted many books and articles to the thematic intersections between law and culture on the one hand, and the philosophical concerns of post structuralism on the other. Golder and Fitzgerald announce their slim but densely argued and deeply researched text as the first book length treatment of Foucault on law in fifteen years. A few words are in order about what FOUCAULT’S LAW is not. This is not a general introduction to Foucault’s analysis of legal institutions and discourse. The book requires a working knowledge of many of the texts that it discusses, and what textual exegesis it provides tend to be in defense of unique and singular interpretations. Golder and Fitzpatrick do not follow the development of Foucault’s thought over time, and writings from throughout his career are juxtaposed with little concern for fundamental evolutions in Foucault’s own thinking. Nor is this a book designed for students of law and society, who have taken seriously Foucault’s own description of himself as a “toolmaker” and gone on to engage in Foucauldian research of social and legal institutions. Instead, ultimately what [*2] Golder and Fitzpatrick offer is a creative and abstract account of the constitutive role law plays in human sociality that they tease out of Foucault’s works.
The book hides ambiguity and playfulness in its deceptively simple declarative title. It is not entitled FOUCAULT’S THEORY OF LAW or FOUCAULT’S GENEALOGY OF LAW. What exactly is meant by the law that is Foucault’s? In what way is this law Foucault’s? Are we to imagine Foucault laying down the law? And if so, the law of what? These are not straightforward questions, and they do not receive clear answers from the authors. The ‘law’ described in FOUCAULT’S LAW exists on a high plain of abstraction, and for the most part the authors keep any concrete details of specific legal systems or institutions at arm’s length. We further find that, despite the large front cover photograph of the theorist, with his iconic white turtleneck and shaved skull, the question of who or what the name “Foucault” represents remains open. The first chapter engages largely with what others have said about Foucault. The third chapter is explicitly devoted to “developing his thought along certain lines which he himself neither fully explored nor explicitly thematized in the way in which we do here” (p.99). The central chapter offers a reading of Foucault I believe to be idiosyncratic to the authors.
Golder and Fitzgerald begin by challenging a common interpretation of Foucault’s position on law, which they call the Expulsion Thesis. According to the Expulsion Thesis, the rule of law and the juridical forms of legitimation have been expelled from modern society by the techniques of discipline and by reason of state norms. The Expulsion Thesis begins by asserting that juridical models of power once predominated the West. These juridical models were marked by the sovereign authority of the king, who wielded the power of life or death based in specific rules. This form of power is shown by Foucault to be in decline throughout the eighteenth and early nineteenth century, as new forms of power arose, accompanied by new forms of knowledge and science concerned with the manipulation of bodies and populations. This displacement of top-down sovereign authority with minute techniques of discipline is most dramatically displayed in the justly famous opening to DISCIPLINE AND PUNISH (1975), in which Foucault juxtaposes the long grisly torture and execution of the attempted regicide Damiens in 1757, with the details of a prison time table in 1838, contrasting two radically different regimes of power. As juridical modes of power declined the institutions of law became colonized by disciplinary knowledges. Legality is sidelined, conclude proponents of the Expulsion Thesis, as the purpose and legitimacy of the state moves away from the assertion of juridical sovereignty and turns toward the management and the pastoral care of entire populations
While acknowledging that the Expulsion Thesis captures certain aspects of Foucault’s work on law, Golder and Fitzpatrick argue that it offers only a partial explanation. There are three main arguments they identify against this thesis. First, the Expulsion Thesis focuses too great an attention on works like DISCIPLINE AND PUNISH produced in the mid to late 1970s, and [*3] excludes a broader array of potentially relevant texts that relate to legal subjects that Foucault wrote in the 1960s and early 1980s. As well, rather than addressing the tension in Foucault’s work between his banishment of law and his tentative embrace of it, the Expulsion Thesis suppresses this tension, in the name of a straightforward historical narrative that cannot account for how the law might aid in a resistance to discipline. But most critically for Golder and Fitzpatrick, the Expulsion Thesis denies to the law its independence, imagining the law as something that is merely captured by external forces, be it the military force of the king or the techniques of bio-power. They offer an initial refutation of the one-sidedness of the Expulsion Thesis, through a detailed analysis of DISCIPLINE AND PUNISH, explaining how disciplinary techniques and the human sciences did not simply push the juridical out of its own houses. It was the authority vested in legal officers that validated the truth values of these human sciences and legitimated the experimental techniques of bio-power. The juridical and the disciplinary exist as independent, if symbiotic, modes of power. This is a careful and persuasive analysis, a highlight of the book.
It is at this point that the text takes a radically different turn. Expanding on the idea of the receptivity of law to forms of discipline, the authors posit a description of Foucault’s law as one of “polyvalent vacuity.” The law is vacuous in that it remains always open to invasion and use by sources of power beyond itself, be it the martial violence of the king or the subtle strategies of bio-power. However, for Golder and Fitzpatrick, the law is not simply an empty vessel passive in the face of colonization. It is also responsive, and open to a re-signification and renewal.
Much of the argument supporting the polyvalent vacuity of Foucault’s law rests upon interpretations of select passages of articles that Foucault wrote during the mid 1960s, concerning avant-garde literary figures such as Maurice Blanchot and George Bataille. Foucault appreciated how these writers decentered the speaking subject, focusing on the language, as opposed to the agent. While they are unique for their concentration on literary topics, these essays also reflect one dimension to Foucault’s challenge to the idea of the autonomous subject. The connection between Foucault’s early attraction to the literary avant-garde and his later studies of legal institutions is not clear, however. For example, Golder and Fitzpatrick quote some passages from Foucault’s discussion of two of Blanchot’s novels, which describes a search undertaken for an elusive law, the character of which remains mysterious. The tie between these passages and his later work on legal practices seems to be no more than the shared use of the word “law”. Nor do Golder and Fitzpatrick attempt to explain the degree to which changes in Foucault’s methods, from archeology to genealogy, might affect how we read these works on literature in conjunction with his lectures on governmentality. Golden and Fitzpatrick are right to expand the writings relevant for Foucault’s views on law beyond the most familiar works of his genealogical period in the 1970s. Nevertheless, in order to understand Foucault’s perspectives on law, it is incumbent on them to explain the [*4] relationships between works that appear very disparate.
Golder and Fitzpatrick’s readings of Foucault, especially on transgression and resistance are heavily influenced by the occasional pieces on legal subjects by Jacque Derrida. Derrida did not write extensively on law, but did produce some fascinating close readings of texts on subjects concerning law, as varied as the U.S. Declaration of Independence and Kafka’s short story “Before the Law.” One theme that appears in Derrida’s disparate writings on law concerns the deferrals and avoidances by those who speak in the name of the law to reveal the law itself. This is found in the figure of Thomas Jefferson who writes in the name of a nation whose existence is brought into being by the document itself, and Kafka’s “man from the country” seeking to stand before the law. Golder and Fitzpatrick’s reflections are creative and thought provoking, and their metaphors of openness and renewal are generous. However, in elaborating on this vision of law, their connection to Foucault or to any specific aspects of legal practice or discourse recedes into the distance. Reading Foucault through a prism inspired by Derrida is potentially fruitful, as well as risky. While both thinkers are all too commonly thrown into a singular “post-structuralism” category, each thinker’s questions, approach to texts, and writing styles are very different. The authors acknowledge in their endnotes that there are difficulties in linking Foucault and Derrida, but unfortunately, they do not thematize what is at stake in a Derridean reading of Foucault. Too often Golder and Fitzpatrick’s readings of Foucault seem strained and distortive, a series of sentences plucked out of context in order to make them resonate with Derrida. In one endnote, they assert that Foucault’s work on Blanchot “mirrors” Derrida’s work on Kafka, despite the fact the Foucault’s article predates Derrida’s by 25 years. Clearly, the relationship between these two important thinkers needs to be explicated more carefully, and that FOUCAULT’S LAW does not bother to do this is one of its principal weaknesses.
A fundamental difficulty with FOUCAULT’S LAW is that the phrase “the law” gets repeated throughout the text, eliding the need to talk more directly about to what exactly the term refers. Foucault writes of multiple legal institutions (courts, prisons), legal rituals and traditions, rules and norms, officers, education, concepts and discourses. All of these different social phenomena might informally be captured by the term law, but to have a discussion of “Foucault’s law” requires attention to the different levels at which legal phenomena arise. However, throughout their book, Golder and Fitzpatrick speak of the law as a singular object. Part of their ability to assert the constant openness and receptivity of the law is their unwillingness to identify what they mean by that word. This lack of specific referents may mirror Derrida, but not Foucault, who gave careful analysis to the particular ways in which legal phenomena are manifested. While the authors state that they have “disrupted any notion that law is complete, coherent and fully present to itself” (p.61), they nonetheless grant a mysterious personification to law, describing its ability to interact with elements that remain external to law itself. Like some shapeshifter, Golder and Fitzpatrick’s law retains a sense of itself even while [*5] undergoing fundamental transformations.
Another theme of Derrida’s legal writings concerns temporality, the timing of law’s revelation or its bringing forth justice. It is the question of temporality, especially the relationship between law and the future, which is one of the main themes of the third and final chapter of FOUCAULT’S LAW. But then it is hard to pick out just what the main theme is, as Golder and Fitzpatrick begin to pile on a jumble of different arguments and ideas without spending the time to fully work any of them out. They suggest that the law’s responsiveness, its polyvalent vacuity, is central to the capacity for human sociality. What this means is unclear, as there are not arguments, but rather assertions derived from evocative juxtapositions. While wildly creative, this is the most frustrating of ways to conclude. Ultimately, in order to make good on their assertions, Golder and Fitzpatrick need to have written a longer book.
© Copyright 2010 by the author, Douglas C. Dow.