By Dr Jacopo Martire, Lecturer in Law (University of Bristol Law School).
Although it can be rightly said that Michel Foucault is one of the most influential scholars of the 20th (and dare we say it? 21st) century, it is also easy to affirm that his ideas have always elicited a certain degree of scepticism. A degree of scepticism would be a suave euphemism to describe the reaction that Foucault’s ideas on power, subjectivity, and truth have caused in the legal field. Scholars as diverse as Jürgen Habermas, Duncan Kennedy, and Nicos Poulantzas (to name a few) have accused Foucault of excessively downplaying the role of law in modernity and of culpably disregarding the function of rights in protecting individuals against external interferences – either public or private. This line of reasoning found its most elaborate champions in Alan Hunt and Gary Wickham who, in “Foucault and law” (Pluto Press, 1994), advanced the so-called “expulsion thesis”: Foucault was guilty of having expelled law from the locus of power, depicting the legal discourse as a sort of veneer for real power with no substantive importance in modern societies.
It must be said that, notwithstanding such trenchant critiques, Foucault’s thought has continued to have a huge effect in many legal areas – from criminal law, to labour law, to international law and beyond. It must also be recognised, however, that the trope of the “expulsion thesis” has survived for almost two decades basically unchallenged (at least in the Anglo-Saxon academia), thus gnawing at the foundations of any Foucauldian-inspired reading of the legal field.
My own monograph “A Foucauldian Interpretation of Modern Law” (EUP, 2017), similarly to Ben Golder’s works on this topic – “Foucault’s law” (Routledge, 2009) together with Peter Fitzpatrick and “Foucault and the politics of rights” (SUP, 2015) – addresses exactly this problem, trying to solve the puzzle of the relationship between the legal discourse and contemporary forms of power as described by Foucault. My interest in this question was dictated not only by what I saw as gap in the literature, but also from a more general preoccupation.
Critical legal scholarship – very broadly understood – while moving from very different premises than those endorsed by classical legal thinking, ultimately reaches conclusions that are not as radical as one would expect and that, in some ways, reproduce most of the calls of the liberal canon: easier access to justice, a more diverse judiciary, a fairer and equal treatment of those who have been historically marginalised by the law, a more inclusive and open legal system, real protection of individual and collective rights, etc.. In other words: the ideal of law is fine, what needs to be reformed is its implementation, corrupted by deep-seated prejudices and structural disparities. This call is certainly both true and urgent but, theoretically speaking, it is a rather underwhelming conclusion which rivets us to the liberal discourse, and which becomes almost worrying when one realises that the very concept of law is generally taken at face value and in a-historical terms, without a foundational problematisation. The goal of my book, therefore, is not only to solve the “expulsion thesis” conundrum but to show that, by resolving such a conundrum, we can tackle a more general problem in legal theory, and open new avenues of research.
My strategy is to engage in a typical Foucauldian genealogical manoeuvre to deconstruct the historical sedimented layers of meaning that form the idea of modern law (which I distinguish from earlier legal regimes) and to show the latter’s fundamental discursive structure in order to properly analyse its limits and its potentialities. For this purpose, I conceptualised modern law as a peculiar mechanism that works towards the creation of subjectivity – a dispositif or an apparatus in Foucauldian parlance, that is any social artefact through which we internalise social norms and that is meant to organise and direct the ways in which we understand ourselves as subjects: the examples of the prison or the factory spring to mind. Namely, I argue that the apparatus represented by law, has the double purpose of formulating the intimate political truth of the subject (roughly, what rights and duties we want for ourselves and society) as well as channelling it according to predetermined legal schemes (establishing the conditions through which we can think these rights and duties, and enforce them). Modern law, therefore, makes possible to think oneself as a legal subject that both establish the rules of society and subject themselves to them.
To unearth the functioning of such apparatus, I adopt a two-pronged approach. I scrutinise how legal and political philosophers ranging from Aquinas to Hegel have imagined how the individual can express their truth through and by the law, and examine how the three revolutions that established our (western) modern legal horizon (the English, American, and French) made that relationship possible in practice, setting in place constitutional mechanisms to compose and impose a collective legal will out of a myriad of diverging individual truths. Throughout my analysis, I demonstrate the centrality that the paradigm of norm – as opposed to that of command – plays in the structuring of law as an apparatus. Modern law thus emerges as profoundly isomorphic and coterminous with the normalising disciplinary and governmental practices of power that Foucault described, forming with them what we could call a normalising complex. To the extent that modern law presumes the existence of a universal legal subject, its functioning, I propose, is made possible by the normalizing recodification of society through discipline and governmentality.
On the basis of the results of my genealogy, I examine the challenges that modern law is facing in what has been recognized as the contemporary biopolitical passage from normalization (that works on a subjectification based on common standards: again, think about prisons or factories or schools) to control (which is based on an individualizing paradigm that focuses on the specific characteristics of each single person: think about the tailor made algorithms used by Facebook or Google). Building on Bauman’s description of our times as a “liquid modernity”, my study indicates that we are moving towards a new conception of the self, an understanding of the individual as a “virtual” entity which challenges the social and legal universalistic assumptions of normalisation. The reference point of normality fundamentally questioned, the subject emerges as an always alien creature, a “Xenos” that does not fit into pre-ordained categories. Paradoxically, this is a dynamic that has been made possible by the success of modern law’s own promise. By protecting legal subjects and allowing them to express their individuality against the pressures of legal and social norms, modern law has been instrumental in recognising different and diverging ways of life, and therefore in the progressive dismantling of the normalising complex and of its universalistic claims (the example of the expansion of women’s, homosexuals’, and minorities’ rights with the consequent crisis of the white make narrative is a good example of this dynamic).
The consequences of such shift for modern law are momentous as law is caught in a double predicament: normative and functional. Normatively speaking: how politically, ethically, and morally appealing is, for a society of virtual individuals, a mode of law that aims at governing through general and abstract universalisations that cannot adequately reflect the specificity of each single life? Functionally speaking: how can general and abstract legal rules, which are inherently static and rigid, effectively govern a multiform, ever-changing, xenomorphic society?
My monograph ends with these two questions, and I candidly admit that I propose no solution to them. My goal, more modestly (!), was to offer a radical problematisation of current legal theory by opening up that black-box represented by the received concept of law itself. How to deal with the challenges this problematisation brings along is something for future research, and will require the careful mapping of our new emerging legal landscape that progressively abandons the legal model of “command and control” to embrace new paradigms (architectural design? algorithmic governmentality? nudging?), as well as its normative questioning.
This is the titanic task I wish to dedicate myself in future (always the humble and modest one!), hopefully along and together with other thinkers. My monograph was thus a propaedeutic step. This might sound as an oddly deflating way to describe one’s own efforts. But sometimes the work of an academic is not to provide ready solutions, rather to unveil previously unseen problems, or just to sharpen their formulation by suggesting the right perspective. Sometimes, it is just about urging other fellow scholars to embark on a journey that looks as uncertain and uncharted as it is fascinating and necessary.
 This is a gross oversimplification of course, but I hope it is an understandable and useful one.
 I use this term as developed by Gilles Deleuze (Difference and repetition. Translated by Paul Patton. London: Continuum, 2004), and, more recently, by Pierre Lévy (Becoming virtual: reality in the digital age. Translated by Robert Bononno. New York; London: Plenum, 1998) and Brian Massumi (Parables for the virtual: movement, affect, sensation. Durham, NC: Duke University Press, 2002), that is an entity whose potentiality is always in becoming and cannot be fixed in pre-conceived categories and schemes.