Foucault on Philosophy of Law

The Contribution and Impact of the Work of Michel Foucault on the Philosophy of Law and Politics 

The work of Michel Foucault provides an important theoretical bridge between traditional modernity and the post-structure of the late twentieth and early twenty first centuries (Green and LeBihan, 1996; Danaher, Schirato and Webb, 2000). In his early work especially (Foucault, 1991; Foucault, 1989; Foucault, 1997) Foucault attempted to redefine and reclassify the notions of human taxonomy that formed the basis of the social sciences, questioning and critiquing the foundations upon with modernity was based. What began as a process of construction in the Enlightenment period with thinkers like Rousseau, Locke and Hobbes, began in the 1960s to be deconstructed by writers such as Derrida, Foucault and Deleuze, so much so that at the end of his 1966 work The Order of Things (Foucault, 1979) Foucault describes, with typical alacrity, the fading away altogether of the concept of the modern consciousness:

“If those arrangements were to disappear as they appeared, if some event of which we can at the moment do no more than sense the possibility – without knowing either what its form will be or what it promises… then one can certainly wager that man would be erased, like a face drawn in the sand at the edge of the sea.” (Foucault, 1997: 387)

Chiefly through his insistence on the interconnectivity of discourses and the lack academic boundaries, Foucault’s work has influenced a vast number of disciplines. From the psychiatry of Madness and Civilization (Foucault: 2004) to the gender and sexuality studies of History of Sexuality (Foucault, 2004), from the medical history of The Birth of the Clinic, (Foucault, 2004b) to the jurisprudence of Discipline and Punish (Foucault, 1991), Foucault’s basic philosophical premises remain the same and thus are open to a wide variety of applications and uses.

In this essay I would like to assess the contribution made by Foucault to the area of jurisprudence and the philosophy of incarceration and the impact this has had on politics and the law. This is an area that he addresses directly in Discipline and Punish but that is discussed, in a contingent way, throughout most of his published work. Firstly I will discuss Foucauldian notions of methodology, looking at his archaeological method and the impact this has on the way that we view legal statutes and rulings as being texts to be read and incorporated into a study of the episteme. Secondly I will look at Foucault’s contributions to our understanding of the judiciary and the whole notion of accepted binaries such as criminal/judge, madness/sane and prison/society and lastly I will look at Foucault’s history of incarceration, tracing the importance of his work concerning the development of the prison and its relationship to the larger body politic.

As an historian and philosopher, Foucault’s contribution to the discipline of the social sciences extends beyond mere exegesis to include the methodology and process of exegesis itself, as John Neubauer suggests in his book Cultural History After Foucault (Neubauer, 1999):

“I should like here to pay tribute to it as an ingenious attempt to set down a methodology for the study of the history of thought which has forced a considerable degree of sophistication on subsequent writers in the same area.” (Neubauer, 1999: 164″

For Foucault, the traditional forms of discourse analysis (and this would include jurisprudence) fail to unearth anything but non-a priori structures and binominal assumptions that are a product of the larger workings of epistemic power. Knowledge is based, he asserts in The Archaeology of Knowledge, not upon intellectual and theoretical givens but on a myriad of enunciative bodies and statements that reflect the flexing of socio-political and socio-economic power. Truth, then becomes difficult to discern and even more difficult to unearth especially when such discourses are wedded to modernist and Enlightenment notions such as continuity, teleology and, even, an homogenous history:

“…there is a negative work to be carried out…we must rid ourselves of a whole mass of notions, each of which, in its own way, diversifies the theme of continuity. They may not have a very rigorous conceptual structure, but they have a precise function.” (Foucault, 1989: 23)

Notions such as tradition and history, says Foucault, palliate our sense of selfhood, consoling and giving meaning to temporality; adding justification to actions and weight to current power (Foucault, 1989: 25). Foucault’s archaeological method, then, can be seen as an attempt to obviate this state and discover the rules and taxonomies of a particular discourse by unearthing enunciative “objects” (Foucault, 1989:44). Such objects are not consciously created by the epistemic power but are products of it and, thus are metonymous with it; the smaller part being reflective of the larger whole.

Keith Green and Jill LeBihan describe this aspect of Foucault’s work in their Critical Theory and Practice: A Coursebook, (Green and LeBihan, 1996):

“Foucault refuses to see history in terms of linearity and development. Rather, he sees it in terms of synchronic power struggle. Power for Foucault is not necessarily a repressive, tyrannical thing; its is a generative, productive force. Power is that which binds together the disparate forces of a society…” (Green and LeBihan, 1996: 116)

This last point is crucial to an understanding of Foucault’s methodology. Unlike, say Marxist analysis, Foucault refuses to equate power with might or repression but, instead categorizes it as the “power to be” (Caputo and Yount, 1993: 256). Disciplines such as history, philosophy and even jurisprudence are products of such power discourses and can be examined through an archaeological exegesis that relates objects and statements to the larger episteme. This is the method Foucault uses as a basis for his socio-political histories such as Discipline and Punish, Madness and Civilization and The History of Sexuality.

A methodological basis such as this, allows us to examine the history of law and its philosophy as a process rather than a continuity; a situation that enables us to relate pieces of legislation and legal rulings as texts to be interpreted rather than a priori notions based on Hobbesian or Lockian concepts of natural rights. For instance, the rise in Tort law, as detailed in Baker (1986) can be related not only to the increased instances of tortious actions but the wider ideology of the social episteme; individuation becoming more prevalent and the patriarchal legal process becoming less relevant.

For Foucault, Acts of parliament, case law, legal instruments and criminal proceedings can all be considered enunciative objects that relate to the episteme which, not only allows us to view jurisprudence and the history of law as a heterogeneous set of discourses rather than one unified discipline but also that such objects are products rather than shapers of society; an important point when we come to consider the role of the law in the formation of countries such as America where, traditionally, the judicature has been seen as preceding the society or providing society with mediation.

This last point brings us to the second of the important areas that Foucault contributes to in terms of the philosophy of law and the legal profession. Much of his work Discipline and Punish concerns itself with an exposition of the relationship between the judiciary, the criminal and the wider society. As C.G. Prado asserts in Starting With Foucault: An Introduction to Genealogy (Prado, 2000):

“Discipline and Punish, where Foucault first explicitly addresses the matter of power and its role in the formation of subjects” (Prado, 200: 13)

Using the archaeological method that I outlined above, Foucault charts the rise of, not only the prison but the whole concept of the criminal and the prisoner in Western society, asserting the primacy of power and enunciative bodies in forming binaries and binominal groupings. Foucault questions traditional notions of the foundations of the legal system asserting instead that it seeks to classify and concretize social others, in the same way that the asylum creates the other of the insane:

“…ever since the new penal system – that defined by the great codes of the eighteenth and nineteenth centuries – has been in operation, a general process has led judges to judge something other than crimes; they have been led in their sentences to so something other than judge; and the power of judging has been transferred, in part to other authorities.” (Foucault, 1991: 22)

Whether it be due to poverty or sexuality, political ideology or other contingent factors, the notion of the criminal, suggests Foucault, shifts with the episteme and concerns itself more with issues of power and retention of power than any objective notion of truth or justice. Foucault highlights this by suggesting that the judge, thought by many in jurisprudence to be the focus of the legal system, (Read, 2000; Elliott and Quinn, 2000) is merely one of many conduits of the episteme that both reflects and upholds the current discourses of power.

This notion is, obviously, in contrast with the accepted ideals of exactly what a judge’s role in the legislative system is, for instance in The English Legal Process, Terence Ingman classifies the judge as “the ultimate enforcer of the law, whether civil or criminal.” (Ingman, 2004: 245). For Foucault, the judge and the court are both participants in a complex system of othering, creating consoling social symptoms that enable those with power to consolidate their own identity. Criminals, then, become constructed by the judiciary and other bodies rather than existing independently of them:

“The carceral with its far-reaching networks, allows, the recruitment of major ‘delinquents’. It organizes what might be called ‘disciplinary careers’ in which, through various exclusions and rejections, a whole process is set in motion.”(Foucault, 1991: 300) 

Foucault widens the field of legality to include the huge array of disciplines and professions that go to deeming an act or a person criminal. The architect, for instance, of the prison, the psychiatrist that deems someone either able or unable to stand trial, the police officer that makes the initial arrest, the politician that votes on the piece of legislature, the social worker, the teacher, the judge and the member of the jury all contribute to our notion of what is a legal action and what is not. For Foucault, it is this network of enunciation that produces legal statements and objects such as statutes and instruments:

“We are in the society of the teacher-judge, the doctor-judge, the educator-judge, the social-worker-judge; it is on them that the universal reign of the normative is based; and each individual, wherever he may find himself, subjects to it his body, his gestures, his behaviour, his aptitudes, his achievements.” (Foucault, 1991: 304)

This has two main impacts, I think, on the philosophy of law; firstly, combined with our earlier discussion of Foucault’s methodology we can see that any study of the changing principles of the legal system is, in fact, also a discussion of the shifting balance of power within society, the sometimes subtle alterations between epistemes produce resonance and reflections all through the social fabric, from the way in which we treat our bodies, for instance, to our notions of Law and culpability. This point is highlighted by Neve Gordon in his article “Foucault’s Subject: An Ontological Reading”, (Gordon, 1999):

“The power of normalization determines the “acceptable” limits of behavior by demarcating the normal and “respectable.” Normalization “imposes homogeneity” on the subject both in thought and comportment; but at the same time it individualizes the subject “by making it possible to measure gaps, to determine levels, to fix specialties, and to render the differences useful by fitting them one to another.” (Gordon, 1999: 1)

Secondly, and most importantly, Foucault’s concept of the role and make-up of the judiciary allows us to view how it fits in with the larger machinery of the social body, creating that which it seeks to incarcerate and inscribing its wishes upon those that it suppresses, as Binder and Weisberg assert in Literary Criticisms of the Law:

“For Foucault, the new penitentiaries of the early nineteenth century were just the visible face of a larger system of social control that enabled modern industrialized society to function smoothly, despite the erosion of traditional sources of authority and networks of community.” (Binder and Weisberg, 2000: 282)

Foucault’s theories of power and legality do not, however, end with sentencing. Much of Discipline and Punish is given over the history of prisons and the formation of the carceral system. Like the asylum and the clinic, the prison was developed in order to facilitate the removal of certain designated groups from society. In the middle ages and renaissance, criminals were dealt with publicly, through visible punishment such as stocks and public executions. There developed from this a whole network of signification concerning punishment and chastisement, from the meaning of the gallows to the stocks and even the handcuffs that were used on the criminal (Foucault, 1991: 106).

This was commensurate with the rise of notions of “blood criminals” (Foucault, 1991: 81), that saw illegality as a hereditary concern rather than an abhoration of the spirit. It was not until the 1700s that the concept of a power based punishment system began to take shape, this was linked to a wide spread “great incarceration” that, as we have already stated, included the sick, the poor and the insane:

“Throughout the eighteenth century, inside and outside the legal apparatus, in both everyday penal practice and the criticism of institutions, one sees the emergence of the new strategy for the exercise of the power to punish.” (Foucault, 1991: 82)

However, this “new strategy”, for Foucault, was not a stable one as carceral philosophy shifted from its original roots of removing the criminal, of the use of windowless cells and of rejecting the use of observation to the panopticon of Bentham that sought to monitor, observe and scrutinise the body of the prisoner on a continual basis.

Concepts and philosophies of punishment then, mirror the larger episteme, so with the rise of the panoptical prison comes the rise in the panoptical society and the power that demands one demands the other. This idea has had a major impact on the way that such notions as privacy laws and human rights are dealt with in the English legal system as, more and more, the concept of the individual’s right to live unobserved is questioned.

Foucault again shows that the prison is merely the focus of the carceral regime, a regime that includes and is based in the wider society, a point also shared by Baudrillard in his essay “The Precession of the Simulacra” (Baudrillard, 2005):

“Disneyland exists in order to hide that it is the “real” country, all of “real” American that is the Disneyland (a bit like prisons are there to hide that it is the social in its entirety, in its banal omnipresence, that is carceral)” (Baudrillard, 2005: 12)

The inference is clear here, modern society has become its own prison. With cameras and constant monitoring so much a part of the wider social fabric, the function of the prison has become, not so much one of segregation but one of obfuscation; consoling the non-criminal and hiding the fact that they are as much under suspicion as those in jail. This view, of course, differs from the traditional notions of the prisons being the seat of either liberal justice or social punishment (Whitfield and League, 1991; Elikann, 1996).

What, then, can we say of Foucault’s overall impact of our understanding of jurisprudence and legal philosophy? As we have, seen to a very large extent, Foucault’s notions can be looked at holistically, they form an homogenous system of methodology and structure, criticism and exegesis; the theoretical framework that underpins the conclusions of works such as Discipline and Punish and Madness and Civilization is as important as the conclusions themselves. Foucault’s archaeological method enables us to look at the history and philosophy of law in a way that acknowledges its symbiotic relationship to the wider society whilst his formulations and theories concerning the wider issues of power and suppression allow us to understand the relationship between the legal process and the larger rules of the episteme.

Moreover, Foucault’s work allows us to appreciate the process of discourse suppression, as voices such as the poor, the insane and the criminal become squeezed out of the history of society and the formation of notions of normality and consensus.

The prisoner, like the madman, asserts, Foucault is merely one of hundreds of repressed narratives that need to be addressed if history and philosophy is to represent the whole of society.

References

• Baker, C.D (1986), Tort – Fourth Edition, (London: Sweet and Maxwell)
• Baker, J.H (1998), An Introduction to English Legal History, (London: Butterworths)
• Baudrillard, Jean (2005), Simulacra and Simulation, (Ann Arbour: University of Michigan)
• Bell, Vikki (1993), Interrogating Incest: Feminism, Foucault and the Law, (London: Routledge)
• Bentham, Jeremy (1787), Panopticon Letters, available online at http://cartome.org/panopticon2.htm
• Danaher, Geoffrey, Schirato, Tony and Webb, Jen (2000), Understanding Foucault, (London: Allen and Unwin)
• Elliott, Catherine and Quinn, Frances (2000), English Legal System – Third Edition, (London: Longman)
• Foucault, Michel (1991), Discipline and Punish: The Birth of the Prison, (London: Penguin)
• Foucault, Michel (1989), The Archaeology of Knowledge, (London: Routledge)
• Foucault, Michel, (1997), The Order of Things, (London: Routledge)
• Foucault, Michel (2004). Madness and Civilization, (London: Routledge)
• Foucault, Michel (2004b), The Birth of the Clinic, (London: Routledge)
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• Neubauer, John (1999), Cultural History After Foucault, (New York: Aldine De Gruyter)
• Norris, Christopher (1992), Deconstruction and the Interests of Theory, (Leicester: Leicester University Press)
• Racevskis, Karlis (1993), Interpreting Foucault, published in Papers on Language and Literature, Vol. 29
• Read, P.A (2000). General Principles of English Law – Eighth Edition, (London: HLT Publications)
• Reid, Julian, (2003), Foucault On Clausewitz: Conceptualizing the Relationship Between War and Power, published in Alternatives: Global, Local, Political, Vol. 28.