Foucault's Law.

• Author: Fine, Robert
• Position: Book review

Foucault's Law (Routledge, 2009)

Ben Golder

Law, University of New South Wales

Peter Fitzpatrick

Law, Birkbeck, University of London

Author's Introduction

Ben Golder

Faculty of Law

University of New South Wales

b.golder@unsw.edu.au

Professor Peter Fitzpatrick

School of Law

Birkbeck College

peter.fitzpatrick@clickvision.co.uk

Although still a stripling, the book has already been much engaged with, and one distinct, all too distinct, strand has emerged. With this strand of argument, the book Foucault's Law is relegated to being the polar opposite of 'the expulsion thesis' so-called. As is fairly well known, this is a thesis that says that with the advent of modernity Foucault expelled law from its erstwhile significance in society and relegated it to a position of utter subordination to, and dependence on, disciplinary modes of power, among other contenders. With a heart-sinking inevitability, then, our book is often set against the prime repository of the expulsion thesis, Hunt and Wickham's Foucault and Law (Hunt, A, and Wickham, G, 1994). This in a way is appropriate. If a label were to be given to our overall argument, it would be 'the inclusion thesis', this overall argument being that in modern society law is not expelled from a prime positioning but, rather, law is for Foucault included at the constituent core of modern society, this law being, not the contained creature of the expulsion thesis, but a surpassing law illimitably responsive to alterity. Clearly, if we are to advance our inclusion thesis we must resist being brought into the fold of canonical constriction, but, far from wanting to expel the expulsion thesis, we want to adopt it. It is a key and integral part of our overall argument. In sum, our argument is that Foucault's law is 'made up' of the constituent antinomy in which it is both utterly dependent yet still itself surpassingly responsive. More abruptly, we do not read Foucault in a way that would expel anything. Our views supposedly contrary to the expulsion thesis provide points of departure for us, points which we draw on and include in our own argument.

Taking a cue from this compliant reading, we will now try to say how we read Foucault, a method in large part that is Foucault's own. The constituent dimensions of that method are then found to inhabit that most vexed category: Foucault's theory. Finally, almost, those same constituent dimensions are found in and as law, and Foucault's theory of law. First then, reading Foucault. A concatenated reading of Foucault on Foucault. Probably the most noted pronouncement of a great many that are relevant comes from the imaginary exchange that introduces Foucault's The Archaeology of Knowledge: 'Do not ask who I am and do not ask me to remain the same: leave it to our bureaucrats and our police to see that our papers are in order. At least spare me their morality when we write' (Foucault, M, 1974a, p.17). Imprecations elsewhere and in a like vein could be multiplied, but staying with the Archaeology, Foucault writes of 'los[ing] myself' in writing, and he describes the tentative, searching quality of writing, and of the object it seeks to find (Foucault, M, 1974a, p.17). This entails a searching receptivity on the past of the writer, a self-denying responsiveness.

Qualification seems to creep in when Foucault, more than once, expresses regret that he is so thoroughly read with such settled interpretation, and he wishes he were young again, unknown and read in a more diffuse and protean way (e.g. Foucault, m, 1988a, p.52). Here we find something of the author in Foucault's 'What is an author?', what he calls 'the author function', a function he links with codified legal forms of proprietary appropriation, 'a certain functional principle by which, in our culture, one limits, excludes, and chooses; in short, by which one impedes the free circulation, the free composition, decomposition, and recomposition of fiction' (Foucault, M, 1988b, p.209). Yet Foucault's author is not the figure of an ultimately determinate delimitation. It is, rather, the author as a focussing, a focussing for the time being, on a precipitate of the practical infinity of its times, of its readers' responses, 'of all possible readings' (Foucault, M, 1988a, p.52); and so much so that Foucault ends 'What is an author?' on a note of 'indifference' with the query: 'What difference does it make who is speaking?' (Foucault, M, 1988b, p.209). Lurching away from this flirtation with 'the death of the author' we are not left with the stark alternative of a tight determinacy of the author, of the book, the work. There is only ever as much determinacy as there is.

The next item on our modest agenda is Foucault and theory, an oxymoronic combination in the view of many. The abrupt synopsis offered here is that writing will be found to be like theory to be like law--and cumulatively. For one who is supposed to be averse to theory, for one who said 'do not ask me to remain the same' and so on, Foucault was frequently and conspicuously concerned with the overall coherence of his work, and especially with justifying the seeming shifts between what are usually seen as distinct phases of that work. And it would be difficult to deny that each of these phases was concerned with a theoretical formation of enquiry.

This is perhaps coming by now with a wearying inevitability, but we could track instances where Foucault inveighs against theory and instances where he says he is seeking theory. When closely observed, both sets of instances reveal the crux. What Foucault objects to is what he would call totalitarian theories, all-subsuming theories. All of which is not to say that Foucault objects to the positing of unities, or to the constituting of objects short of the thing-in-itself. Now, although Foucault did envisage the possibility that 'one day' he would have to confront 'the transcendental' (Foucault, M. 1974b, p.79), as far as we know he never did and remained set against it. Unities, continuities, objects of theoretical elaboration are continually 'disturbed' and 'dispersed' by what inexorably challenges their existent determinacy (Foucault, M, 1974a, pp. 25-6, 71). Yet this disturbance and dispersal from beyond comes into form in and as existent and necessarily responsive entities. And the pendular dynamic shifts one more time for we find that, with Foucault, the very form of these existent entities, the very line or limit that marks out their determinacy, is created by what 'incessantly crosses and re-crosses that limit' (Foucault, M, 1977, p.34).

Likewise with law. There is a beautiful elaboration of law and literature in Foucault's 'Maurice Blanchot: The Thought from the Outside'; and it is from here that we take our lodestar:

How could one know the law and truly experience it, how could one force it to come into view, to exercise its powers clearly, to speak, without provoking it, without pursuing it into its recesses, without resolutely going ever farther into the outside into which it is always receding? (Foucault, M, 1987, p.34)

This is a law of 'the outside that envelops conduct...