Professor Douglas C. Dow of the University of Texas at Dallas Department of Political Science has written a very interesting review of one of the most discussed works of philosophy of law published in the past year, Ben Golder and Professor Peter Fitzpatrick’s Foucault’s Law (2009).
Here is the publisher’s abstract of the book:
“Foucault’s Law is the first book in almost fifteen years to address the question of Foucault’s position on law. Many readings of Foucault’s conception of law start from the proposition that he failed to consider the role of law in modernity, or indeed that he deliberately marginalized it. In canvassing a wealth of primary and secondary sources, Ben Golder and Peter Fitzpatrick rebut this argument. They argue that rather than marginalize law, Foucault develops a much more radical, nuanced and coherent theory of law than his critics have acknowledged. For Golder and Fitzpatrick, Foucault’s law is not the contained creature of conventional accounts, but is uncontainable and illimitable. In their radical re-reading of Foucault, they show how Foucault outlines a concept of law which is not tied to any given form or subordinated to a particular source of power, but is critically oriented towards alterity, new possibilities and different ways of being.
“Foucault’s Law is an important and original contribution to the ongoing debate on Foucault and law, engaging not only with Foucault’s diverse writings on law and legal theory, but also with the extensive interpretive literature on the topic. It will thus be of interest to students and scholars working in the fields of law and social theory, legal theory and law and philosophy, as well as to students of Foucault’s work generally.
In his review, Professor Dow credits the authors for their concept of an “Expulsion Thesis” in Foucault’s writings, according to which “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.” According to Professor Dow, the authors “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.”
Professor Dow also praises the authors for discussing Foucault’s treatment of law in “articles …[written] during the mid 1960s, concerning avant-garde literary figures such as Maurice Blanchot and George Bataille,” in addition to the well-known treatment of law in Foucault’s writings of the 1970s.
Nonetheless, Professor Dow identifies several shortcomings in Foucault’s Law. First, he criticizes the authors for failing to “explain the relationships between” Foucault’s writings on law of the 1960s and his writings on law of the following decade.
Second, Professor Dow, noting that the authors draw extensively on the discussion of law in the writings of philosopher Jacques Derrida, argues that the authors should have explained “the relationship between [Foucault and Derrida] .. more carefully.”
Third, according to Professor Dow, although the authors use the term “law” to refer to many different concepts in Foucault’s writings, the authors neglect to distinguish clearly between these concepts, and devote insufficient space to explaining the role of each of these concepts in Foucault’s social and political thought.
Finally, Professor Dow asserts that the authors fail adequately to explain the role that time plays in Foucault’s legal theory. Professor Dow concludes, “Ultimately, in order to make good on their assertions, Golder and Fitzpatrick need to have written a longer book.”
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